IN THE MATTER OF THE CIVIL COMMITMENT OF T.J.T.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2623-09T22623-09T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF T.J.T.,

SVP-226-02.

____________________________

 

Argued July 13, 2010 - Decided

Before Judges Gilroy and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-226-02.

Brian Patrick Hughes, Assistant Deputy Public Defender, argued the cause for appellant T.J.T. (Yvonne Smith Segars, Public Defender, attorney).

Cindi Collins, Deputy Attorney General, argued the cause for respondent State of New Jersey (Paula T. Dow, Attorney General, attorney).

PER CURIAM

Appellant T.J.T. appeals from the January 20, 2010 order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

On May 21, 2002, the trial court entered an order committing appellant to the STU. Following the Supreme Court's decision In re Commitment of W.Z., 173 N.J. 109 (2002), we granted appellant's motion for a remand to reconsider the matter in light of W.Z. On October 30, 2002, the trial court found appellant to be a sexually violent predator in need of continued treatment under the W.Z. standard. Defendant appealed, and we affirmed. In the Matter of the Civil Commitment of T.J.T., Docket No. A-1335-02 (App. Div. July 12, 2004). On March 1, 2005, the Supreme Court denied certification. 183 N.J. 213 (2005). On July 14, 2005, and May 18, 2007, the trial court conducted review hearings on appellant's status at the STU and determined on each occasion that he continued to be a sexually violent predator in need of treatment. Defendant appealed each order. We affirmed, and the Supreme Court denied certification in each case. In re Civil Commitment of T.J.T., Docket No. A-6138-04 (App. Div. June 5, 2006), certif. denied, 188 N.J. 354 (2006); In re Civil Commitment of T.J.T., Docket No. A-5003-06 (App. Div. February 6, 2008), certif. denied, 195 N.J. 523 (2008).

The trial court next conducted a review hearing on January 7, 2010. On January 20, 2010, the court entered an order supported by an oral decision determining that appellant is a sexually violent predator in need of continued treatment to the STU. It is from this order that appellant now appeals. By agreement of the parties, the appeal is to be determined on the record and supplemented by oral argument, but without briefs.

On appeal, appellant argues that the trial court's decision, finding him a sexually violent predator, is not adequately supported by clear and convincing evidence in the record. Appellant also contends that the trial court erred by failing to require the State to produce non-testifying experts whose opinions were relied upon by Dr. Roger Harris, a psychiatrist, and Dr. Doreen B. Stanzione, a psychologist, at the review hearing, citing State v. Clawans, 38 N.J. 162 (1962).

The SVPA "provides for the involuntary commitment of any person who requires 'continued involuntary commitment as a sexually violent predator.'" In re Civil Commitment of J.M.B., 197 N.J. 563, 570 (quoting N.J.S.A. 30:4-27.32(a)), cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). The primary purpose of the SVPA is "to protect other members of society from the danger posed by sexually violent predators." Id. at 571. An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26(b).

"To be committed under the SVPA an individual must be proven to be a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts." W.Z., supra, 173 N.J. at 132. "[T]he State must prove that threat by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will re[-]offend." Ibid. The court must be satisfied by clear and convincing evidence that such is the case at the time of the hearing. J.M.B., supra, 197 N.J. at 571. Simply stated, "'[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" Ibid. (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).

Because the statement of facts and procedural history leading to appellant's initial commitment were fully set forth in our prior unpublished opinions, supra, it is unnecessary to discuss them here. During the review hearing that is the subject of this appeal, the State presented testimony and reports from Dr. Harris and Dr. Doreen B. Stanzione, the latter of whom is assigned to the Treatment Progress Review Committee (TPRC) at the STU.

Dr. Harris interviewed appellant on December 10, 2009. The doctor diagnosed appellant as suffering from paraphilia NOS (coercion), not exclusive with sadistic traits; alcohol dependence in remission in an institutional setting; marijuana abuse in remission in an institutional setting; and on Axis II, with an antisocial personality disorder. The doctor opined that appellant "is essentially an untreated man who has engaged in sexual offenses. There is little difference in this man from the man who committed the sexual offenses back in 1992. Time has passed, but little else has changed." The doctor stated that appellant "remains a high risk to sexually reoffend and continues to meet the criteria for civil commitment under the NJ SVP statute." Dr. Stanzione diagnosed appellant as suffering from paraphilia NOS, non-consent; provisional sexual sadism; provisional pedophilia sexually attracted to girls, non-exclusive type; alcohol dependence in institutional remission, marijuana abuse in institutional remission; and on Axis II, with personality disorder NOS with antisocial features. She testified that it was the TPRC's recommendation that appellant remain in Phase I of treatment.

Our review of a trial court's decision in a commitment hearing is a narrow one. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). A judge is free to accept or reject, in total or in part, an expert's testimony. Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002). "A judge may assign to expert testimony only the weight to which it is entitled given its foundation." In re Civil Commitment of M.M., 384 N.J. Super. 313, 335 (App. Div. 2006). We accord the "utmost deference" to the trial court's determinations, and can only modify the same "where the record reveals a clear abuse of discretion." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 89-90 (App. Div. 2007), aff'd, 197 N.J. at 563 (2009). We have considered appellant's arguments in light of the record and applicable law. We conclude that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Freedman in his oral opinion of January 20, 2010. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Appellant's reliance upon Clawans is misplaced. Clawans does not require a trial court to order witnesses to be produced by a party. Rather, it permits the trier of fact to infer that the witnesses would be adverse to the non-producing party's interest. But cf. State v. Hill, 199 N.J. 545, 566-67 (2009) (holding that a Clawans charge should generally not be given against a criminal defendant where the defendant chooses not to testify in his own defense). However, the principle is not applicable where the witnesses are equally available to both parties. Such was the case here.

Although we find appellant's reliance on Clawans misplaced, we consider his argument as contending that Dr. Harris improperly relied upon opinions of non-testifying experts in determining that appellant is presently a sexually violent predator under the SPVA. Simply stated, appellant asserts that the trial court permitted Dr. Harris to improperly base his opinion upon hearsay. We disagree.

Non-testifying physicians' reports constitute hearsay. N.J.R.E. 801. N.J.R.E. 703 does not provide an independent basis for the admission of otherwise inadmissible hearsay. Agha v. Feiner, 198 N.J. 50, 63-64 (2009); Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996). Nonetheless, hearsay statements relied upon by an expert are ordinarily admissible for the limited purpose of apprising the jury of the basis of the expert's opinion, provided they are of a type reasonably relied upon by experts in the field. Agha, supra, 198 N.J. at 62; J.M.B., supra, 395 N.J. Super. at 93. Reports prepared by other physicians are generally of a type reasonably relied on by medical experts. Agha, supra, 198 N.J. at 63; Day, supra, 296 N.J. Super. at 267.

"[A]n expert may testify as to the opinion of a non-testifying expert on which the testifying expert relied in reaching his or her conclusion." Macaluso v. Pleskin, 329 N.J. Super. 346, 355 (App. Div.), certif. denied, 165 N.J. 138 (2000). And, "[a]n expert can legitimately use hearsay evidence to confirm an opinion reached by independent means." J.M.B., supra, 395 N.J. Super. at 93.

However, N.J.R.E. 703 "should not be used as a subterfuge to allow an expert to bolster [his or her] expert testimony by reference to other opinions of experts not testifying." Biunno, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 703 (2010). Nor should expert testimony be used as "'a vehicle for the wholesale [introduction] of otherwise inadmissible evidence.'" Agha, supra, 198 N.J. at 63 (quoting State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002), aff'd, 177 N.J. 229 (2003) (quotation omitted)). And, "[a]n expert witness should not be allowed to relate the opinions of a non[-]testifying expert merely because those opinions are congruent with the ones he has reached." Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999). Evidence that may be considered by psychiatrists and psychologists testifying at commitment hearings include such reports as criminal pre-sentence reports, In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); STU treatment reports, In re Commitment of A.X.D., 370 N.J. Super. 198, 201 (App. Div. 2004); and Adult Diagnostic Treatment Center evaluation reports, In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 491-92 (App Div.), certif. denied, 185 N.J. 373 (2005).

Here, although we do not know the exact reports appellant was referring to at the hearing, we assume the reports were those of other psychiatrists or psychologists that had previously treated or examined appellant. Accordingly, we also assume that those reports contained historical data concerning appellant's mental abnormalities or personality disorders that would be considered complex diagnoses. We agree that it would have been error for the trial court to consider statements in those reports for the truth of those diagnoses. A.X.D., supra, 370 N.J. Super. at 202. However, the trial court did not do so.

In rendering its decision, the court relied upon the diagnoses of the State's testifying witnesses who it found credible, not the diagnoses in the reports. Nor did Dr. Harris merely adopt the opinions of the non-testifying experts "because those opinions [were] congruent with the ones he . . . reached." Krohn, supra, 316 N.J. Super. at 486. Rather, he referenced the non-testifying experts' reports for the purpose of apprising the trial court of the basis of his opinion. According to Dr. Harris, he only reviewed the reports of non-testifying experts "to see how they marshal support for their diagnosis and . . . make their ultimate opinion. I review that and give that some weight, but ultimately, I form my own opinion of diagnosis and whether or not [T.J.T.] meets criteria for continued civil commitment."

Lastly, after noting that appellant had not notified the State that he wanted the State to produce certain witnesses prior to the commencement of the continued hearing, the trial court advised appellant's counsel that "if during the course of this testimony it becomes clear that there's some person you want, we can continue the case after we're done with the testimony here today, to bring in anyone else that you want." Appellant's counsel agreed but never requested the State to produce any other witnesses during the continued hearing.

 
Affirmed.

Not otherwise specified.

(continued)

(continued)

10

A-2623-09T2

RECORD IMPOUNDED

August 2, 2010