IN THE MATTER CIVIL COMMITMENT OF K.X.K.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1582-03T21582-03T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF K.X.K., SVP #291-02

_________________________________________

 

Submitted December 5, 2005 - Decided January 10, 2006

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-291-02.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, of counsel and on the letter brief).

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Rachana R. Munshi and Mary Beth Wood, Deputy Attorneys General, on the brief).

PER CURIAM

On August 9, 1980, K.X.K. abducted C.G. from a telephone booth, forcibly dragged her into a wooded area, and told her "that he had a knife and that he would cut her throat if she looked at his face." After sexually assaulting and repeatedly beating her, K.X.K. dragged C.G. back to her car. When she attempted to escape, he dragged her back into the woods, again sexually assaulted her, and strangled C.G. until she lost consciousness.

When found, C.G. was

. . . lying on her back wearing only a bra and a white blouse. Her face and head were streamed with blood and dirt. Her body was also very dirty with blood drippings. . . . [C.G.'s] jaw [was] distorted in shape, cheeks swollen and eyes swollen closed and dark blue in color.

She was hospitalized and treated for cerebral contusions, contusions of the recti muscles, dyplopia, multiple scalp lacerations, and abrasions and contusions of the face, throat and abdominal walls.

K.X.K. was charged with aggravated sexual assault, robbery, theft by unlawful taking, aggravated assault, and criminal attempt. He entered a plea of guilty to all these charges on November 13, 1980. On March 10, 1981, K.X.K. was sentenced to a term of thirty-five years in the Adult Diagnostic Treatment Center at Avenel (ADTC). In considering the offenses that K.X.K. had acknowledged, the judge observed that "the crime committed was extremely violent and depraved," and that "[a]n innocent victim was permanently injured and disabled."

K.X.K.'s stay at ADTC lastly only nine months. He was transferred to Riverfront State Prison after assaulting two corrections officers. For those infractions he received a three-year term of imprisonment to run consecutively to the previously-imposed term he was then serving.

K.X.K. was paroled on June 21, 1994, but that status was revoked on July 31, 1995 when he "fail[ed] to report, fail[ed] to obtain approval for a change in residence, fail[ed] to make required payments, fail[ed] to participate in random urine monitoring, and fail[ed] to participate in outpatient drug counseling." While at Riverfront State Prison, K.X.K. repeatedly committed institutional infractions that included his possession of a weapon in 1989, making a threat of bodily harm in 1989, his encouraging a group demonstration in 1992, fighting in 1997, and exposing himself and masturbating in front of a female officer (E.S.) in 2000.

K.X.K. was scheduled to complete his term of imprisonment on or about January 9, 2003. On December 2, 2002, the State filed a petition for K.X.K.'s civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The State's petition incorporated the clinical certificates of two psychiatrists, both of whom concluded that K.X.K. suffered from a mental abnormality or personality disorder that made him likely to engage in future acts of sexual violence if not confined for further custody, care and treatment. On December 20, 2002, probable cause was found and K.X.K. was temporarily committed to the Special Treatment Unit (STU), a facility specifically designated for the custody, care and treatment of sexually violent predators.

A commitment hearing was conducted on August 12, 2003. The State presented the testimony of E.S., Dr. Michael McAllister, and Dr. Natalie Barone. K.X.K. did not present any witnesses or expert reports. Following this hearing, the trial judge rendered an oral decision wherein she deemed credible the expert opinions and diagnoses of Dr. McAllister and Dr. Barone; concluded that the statutory factors had all been met; and found K.X.K. to be a sexually violent predator (SVP) whose "mental conditions and personality disorders . . . adversely impact his volitional, cognitive and emotional capacities in such a way as to predispose him to commit sexually violent acts."

With regard to the first statutory element necessary for commitment, the trial judge found "beyond dispute" that K.X.K. had committed a sexual offense and that the 1980 offense against C.G. was an "extraordinary . . . near death confrontation" whereby K.X.K. "by his own admission [tried] to kill the victim." The judge also relied upon the sentencing judge's observation, noted earlier, that the "crime committed was extremely violent and depraved," which caused C.G. permanent and disabling injuries. The trial judge also took note of the brief time span between the alleged 1979 offense, which was eventually dismissed, and the 1980 offense:

[The 1980 offense] was only five months after an earlier sex assault with intent to rape charge [that] was dismissed. So [K.X.K.] already knew of accusations of a sexual nature made against him by yet another person. Although they came to nothing, the brief span of time between the dismissal and this extraordinary crime is important as it bears on his ability to control his sex offending behavior.

As for the second and third statutory conditions necessary to support commitment, the trial judge found that the conclusions of both Dr. McAllister and Dr. Barone were "amply borne out in the record." These experts diagnosed the primary mental and personality conditions as including paraphilia NOS, sexual sadism (conditional), severe antisocial personality disorder, and impulse control disorder. The judge found that the State's case in this regard, which went uncontradicted, was "extremely convincing," and that K.X.K. "suffers from abnormal mental conditions and personality disorders [which] predispose him to commit sexually violent acts."

As a result of those findings, the trial judge ordered on August 12, 2003 that K.X.K. be committed to the STU and that his status be reviewed a year later.

K.X.K. appealed the August 12, 2003 order, raising the following issues for our consideration:

I. THE TRIAL COURT IMPROPERLY DENIED K.X.K's REQUEST FOR COMMITMENT PURSUANT TO R. 4:74-7(f) AND VIOLATED HIS PROCEDURAL DUE PROCESS AND EQUAL PROTECTION RIGHTS.

II. K.X.K's INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATES CONSTITU-TION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) (Not raised below).

III. THE COURT ERRED IN RELYING ON HEARSAY CONTAINED IN EXHIBITS AND THE TESTIMONY OF EXPERT WITNESSES TO MAKE FINDINGS OF FACT AND IN REACHING ITS DECISION TO INVOLUNTARILY COMMIT K.X.K. (Partially raised below).

A. The Trial Court Improperly Relied On The Hearsay Documents of Charles Gnassi To Support Involuntary Commitment.

B. The Trial Court Improperly Relied On Hearsay Provided Through The Expert Witnesses To Support Involuntary Commitment.

IV. THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT K.X.K. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.

A. Standard of Review.

B. The State failed to prove the lack of control requirement of W.Z.

C. The Trial Court Failed to Consider Conditional Discharge.

After carefully reviewing the record, we reject K.X.K.'s arguments and affirm.

In Point I, K.X.K. argues that the trial judge's refusal to consider or permit his application for voluntary commitment pursuant to R. 4:74-7 represented a denial of his constitutional rights to the equal protection of laws and procedural due process. We reject these contentions.

The mere fact that the civil commitment law treats SVPs differently from others who may be civilly committed does not necessarily generate an equal protection violation. As the Court held in Doe v. Poritz, 142 N.J. 1, 91 (1995), "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement, the courts have been very reluctant . . . to scrutinize legislative choices as to whether, how, and to what extent those interests should be pursued." It would perhaps suffice to say -- in considering the claim that the refusal to consider commitment pursuant to R. 4:74-7 constitutes a deprivation of the equal protection of law -- that K.X.K. has not explained in his brief how the law's alternate treatment of SVPs is based upon a distinction that the federal or state constitutions prohibit. Nevertheless, we consider the matter further and, in so doing, observe that the State possesses the authority "to civilly commit citizens [as] an exercise of its police power to protect the citizenry." In re Civil Commitment of P.C., 349 N.J. Super. 569, 579 (App. Div. 2002). In that context, it is the particular individual's abnormalities and personality disorders that make that individual "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, and the particular individual's "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 reoffend," In re Civil Commitment of W.Z., 173 N.J. 109, 132 (2002), that warrant distinguishing between individuals fitting the contours of an SVP and those who do not so qualify. Laws that draw distinctions between those possessing the characteristics addressed by the SVPA and others who do not possess those characteristics do not necessarily violate the federal and state constitutional guarantee of the equal protection of law. Accordingly, we find no merit in K.X.K.'s claim that the trial judge's refusal to consider whether he should be permitted to be voluntarily committed pursuant to R. 4:74-7 violated his right to the equal protection of law.

We also find no merit in the contention that K.X.K. was deprived of procedural due process because his application pursuant to R. 4:74-7 was rejected and his commitment was determined by resort to the processes of the SVPA. While this contention is more fittingly considered -- albeit without merit -- as an equal protection claim, which we have already rejected, there can be no question that the SVPA provides processes that adequately address K.X.K.'s constitutional right to notice and an opportunity to be heard.

In Point II, K.X.K. argues that the SVPA violates the ex post facto provisions of both the federal and state constitutions. We reject this contention as well. The ex post facto provisions of the federal and state constitutions are not offended unless a statute either "(1) punish[es] as a crime an act previously committed, which was innocent when done; (2) make[s] more burdensome the punishment for a crime, after its commission; or (3) deprive[s] a defendant of any defense available according to the law at the time when the crime was committed." State v. Muhammad, 145 N.J. 23, 56 (1996) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925)). It is certainly true that civil commitment, particularly when based upon the SVPA, constitutes a significant deprivation of liberty. However, as we have also said,

[C]onfinement under the SVPA does not render the statute penal or punitive. As the Court said in Poritz, the punitive impact only becomes dispositive if punitive intent is the sole explanation for the statute. Poritz, supra, 142 N.J. at 46. Here, the legislative intent is manifested by a desire to both protect the public and treat the individual -- impacts that are regulatory rather than penal. The punitive impact does not derive from "aspects of the law unnecessary to accomplish its regulatory purposes." Ibid.

[State v. Mumin, 361 N.J. Super. 370, 385 (App. Div. 2003), overruled on other grounds, State v. Bellamy, 179 N.J. 127 (2003).]

Because the legislative intent underlying the SVPA remains regulatory, commitment pursuant to the SVPA is not punitive and, for that reason, its utilization does not trigger the ex post facto provisions of the federal and state constitutions.

We find no merit in the arguments asserted by K.X.K. in his Points III and IV. Our review of the record demonstrates that the judge's findings are amply supported by substantial competent credible evidence and that the admission of hearsay was not improper. As to the latter, it is clear that the use of hearsay as a basis for expert testimony and the judge's evaluation of expert credibility is permissible. In re Commitment of A.E.F., 377 N.J. Super. 473, 489 (App. Div. 2005); In re Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004); In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). Indeed, we have held that "[t]he reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth." A.X.D., supra, 370 N.J. Super. at 202. Even a "complex diagnos[is]" contained in such a report may be "considered . . . as background in evaluating the opinions of the testifying experts, who testified that they considered these reports in reaching their own diagnos[es]." Ibid.

An expert who relies in part or even substantially "on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information 'was of a type reasonably relied on by experts in the particular field in forming opinions . . . on the subject.'" In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003) (quoting N.J.R.E. 703), certif. denied, 179 N.J. 312 (2004); State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003). By the same token, "experts at the hearing cannot simply parrot the findings of the doctors who author the clinical certificates." A.E.F., supra, 377 N.J. Super. at 491. In considering such proofs, trial judges should be careful to insure that any opinion relied upon in disposing of the issues is that of the expert witness based "on his or her own evaluation of the committee, [the committee's] prior offenses, and objective test data." Id. at 492. We are satisfied that the expert evidence that the judge relied upon fell within these parameters and we, thus, find no error in the trial judge's evidentiary rulings, which are "entitled to deference absent a showing of an abuse of discretion." State v. Marrero, 148 N.J. 469, 484 (1997).

 
Lastly, we conclude that the judge's findings were adequately supported by evidence she found to be clear and convincing and are, thus, entitled to our utmost deference. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003); In re Civil Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001).

Affirmed.

(continued)

(continued)

12

A-1582-03T2

RECORD IMPOUNDED

January 10, 2006