Opinion
DOCKET NO. A-6241-09T2
05-10-2013
IN THE MATTER OF THE CIVIL COMMITMENT OF L.O., SVP-522-09.
Joseph E. Krakora, Public Defender, attorney for appellant L.O. (Alison Perrone, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief). Appellant filed a pro se supplemental brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-522-09.
Joseph E. Krakora, Public Defender, attorney for appellant L.O. (Alison Perrone, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
L.O. appeals from the July 22, 2010 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends the State failed to sustain its burden of proof because it relied on excessive hearsay and unproven allegations, and the court erred in crediting the State's expert witnesses because their testimony was based, in part, on the opinions of non-testifying experts. We disagree and affirm.
I.
L.O. is a fifty-eight-year-old convicted sexual molester of women. He has a longstanding history of sexual offenses. In 1971, at age sixteen, L.O. was arrested for the rape of a thirteen-year-old girl. The charge was amended to immorality, and he was adjudicated delinquent and sentenced to a suspended sentence at Yardville and one year probation. L.O. claims the intercourse was consensual.
At age eighteen, L.O. was convicted of assault with intent to commit carnal abuse for attempting to engage in sexual activity with a nine-year-old female he was instructing in karate. He was sentenced to a maximum term of seven years at Yardville. He was arrested two times for sexual offenses in 1973 and 1978 that were dismissed, and in l980 he was charged with aggravated sexual assault for which he was found not guilty. However, Dr. Mark Frank, a clinical psychologist, reported in a 1989 Adult Diagnostic and Treatment Center (ADTC) evaluation that L.O. told him this incident involved a female acquaintance who at first resisted his advances but later submitted to sex. According to the report, L.O. told the evaluator, "I admit we struggled. I guess she thought it was rape, but it wasn't my definition." At the SVPA trial L.O. denied making that statement.
In 1981, L.O. forced two girls, ages fourteen and sixteen, into his car. He drove them around for several hours and eventually stopped and demanded sex, which they refused. After he pulled the younger girl from the car, the older girl escaped. When police arrived, they observed L.O. "with his pants down to his knees getting up off a black female, unclothed from the waist down." Though the victim initially denied penetration, she later admitted to her sister that L.O. did penetrate her after he pushed her up against a wall, ripped off her pants, and pulled her shirt up to her neck. L.O. was convicted of criminal sexual contact and criminal restraint, and sentenced to a two-year term of probation, fined, and ordered to attend an alcohol treatment program.
In 1983, L.O. was charged with violating probation (VOP) by failing to report, failing to notify probation of a change of residence, leaving the State without the permission of his probation officer, and being arrested and charged with kidnapping and aggravated sexual contact. He was resentenced to a four-year term of incarceration, but on a motion for reconsideration the sentence was vacated, and the matter was held in abeyance pending the disposition of open charges. In 1984, L.O.'s probation was vacated without improvement.
In 1985, L.O. was charged with kidnapping and sexual assault. He pled guilty to aggravated sexual assault, but later withdrew his plea and was acquitted after a jury trial. However, while awaiting sentencing prior to withdrawing his plea, on April 21, 1986, L.O. was evaluated at the ADTC by Kay E. Jackson, M.A., who concluded that L.O. fell "under the purview of the New Jersey Sex Offender Act" because he has little control over his antisocial behavior, his crimes are compulsive in nature, and there are indications he has psychosexual pathology. Jackson noted in her report that L.O. "acknowledged that he has sexual difficulties, stemming from aggression, for which he needs help."
On June 3, 1988, at age thirty-four, L.O. was charged with the predicate offense, which included two counts of sexual assault, one count of aggravated assault, one count of attempted sexual assault, and two counts of criminal restraint for sexual attacks on two female acquaintances, A.S. and A.D., resulting from L.O. luring the victims into his home and then resorting to brute force to cut off the victims' air supply until they acquiesced. The cases were consolidated for trial, defendant was convicted of the offenses, and sentenced to state prison and a subsequent commitment at the ADTC. We reversed the conviction based on evidentiary rulings and deficient jury charges, and the Supreme Court affirmed the reversal.
L.O.'s retrial occurred on February 7, 1995, and he was convicted of two counts of sexual assault (vaginal and oral sex with two victims), one count of attempted sexual assault (incomplete vaginal sex leading to oral sex), two counts of criminal restraint, and one count of the lesser-included offense of simple assault. He was sentenced on May 15, 1995 to a thirty-year custodial term with a twelve-year parole disqualifier.
II.
In January 2009, the State filed a petition for civil commitment pursuant to the SVPA. On February 4, 2009, a temporary order of commitment was entered. On July 20, 2010, a final commitment hearing was held before Judge James F. Mulvihill. At the hearing, Dr. Alberto M. Goldwaser, M.D., a psychiatrist, and Dr. Rosemarie V. Stewart, Ph.D., a psychologist, testified on behalf of the State. L.O. testified on his own behalf.
Dr. Goldwaser's direct examination is missing from the transcript. However, on March 28, 2012, the parties agreed to have the record reconstructed by incorporating Dr. Goldwaser's July 16, 2010 written report, and an order was entered that same day memorializing this agreement.
On July 15, 2010, Dr. Goldwaser attempted to perform a clinical evaluation of L.O; however, he refused to be interviewed. Dr. Goldwaser, however, was able to formulate an independent conclusion, write a report, and testify based on his thorough review of L.O.'s complete discovery file and treatment records. His report identified the sources of information he relied on in evaluating L.O., which included: the psychiatric certificates of Drs. Marina Moshkovich and Anasuya Salem; a prison psychological evaluation; mental health parole evaluations; criminal justice records; a forensic psychological evaluation performed by Dr. Stewart; a forensic psychiatric evaluation performed by Dr. Pogos H. Voskanian; and various STU records.
Dr. Goldwaser detailed L.O.'s sexual and non-sexual offenses, institutional infractions, personal history, substance abuse history, actuarial risk assessments, and psychological testing. He diagnosed L.O. with paraphilia NOS (non-consent), cocaine dependency (in institutional remission), alcohol abuse, and antisocial personality disorder. He concluded that L.O.'s "sexual predator deviance is deeply ingrained" and opined that "there is substantial clinical evidence that [L.O.]'s conditions qualify him as having a mental abnormality and a personality disorder that place[s] him at high risk to engage in acts of sexual violence if he is not confined in a secure facility for control, care, and treatment."
Dr. Stewart based her assessment on a two-hour interview of L.O., review of reports and evaluations prepared by other experts for background information, statements made by L.O. in interviews, his criminal history, and other documentation customarily relied on by experts in her field, but she ultimately made an independent assessment. She testified consistently with her report of August 19, 2009.
Dr. Stewart addressed L.O.'s extensive history of substance and alcohol abuse. She testified that he described himself "as using heavily while he was offending" and "high as heck" when he was with the victims. She opined that the minimal amount of substance abuse treatment L.O. received was insufficient to mitigate the risk that substance abuse contributed to his potential for reoffending.
L.O. scored a twenty-four on the Hare Psychopathy Checklist which reflects significant psychopathic traits, such as manipulativeness, antisocial type behavior, lack of empathy and compassion for other people, and not being restrained by conscience in certain situations. Dr. Stewart asserted that L.O.'s score reinforced her diagnosis of antisocial personality disorder. She also scored him twice for the Static-99, and he scored a seven on the first test and a six on the second, both falling in the high-risk category of sexual recidivism.
Dr. Stewart testified that during her interview with L.O. they talked about his offending history in detail, and he told her that "he saw a pattern" and "how it led him toward aggression with females and particularly sexual aggression with them." However, L.O. believed he was at a very low risk of reoffending because "he had a different moral base and a different value system." Dr. Stewart disagreed based on L.O.'s history of sexual offending and propensity toward violence. She noted that these factors are not mitigated by any treatment and are actually exacerbated by L.O.'s substance abuse and lack of supervision. She found another exacerbating factor to be L.O.'s violation of supervisory requirements.
Dr. Stewart opined that L.O. suffers "from a mental abnormality or personality disorder that impacts him volitionally, emotionally or cognitively in such a way that it predisposes him to engage in acts of sexual violence." She made a provisional diagnosis of paraphilia NOS non consent and diagnosed him with cocaine dependence, alcohol abuse, and antisocial personality disorder. She further opined that L.O. was highly likely to sexually reoffend in the foreseeable future unless confined in a facility.
Dr. Stewart made a provisional diagnosis, giving L.O. the benefit of the doubt, because she believed "the anti-social aspect of his character is so strong" and is "part of a wider pattern of anti-sociality" since he "hedonistically engage[s] in the opportunity when it presents itself and he won't take no for an answer."
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L.O. claimed that some of the statements attributed to him by Dr. Frank were inaccurate. L.O. testified that Dr. Stewart's report was also inaccurate because he did not violate probation. He explained that when he left the State his probation was over and his probation officer told him he did not have to show up. He denied that many of the criminal incidents occurred, minimized the charges, made excuses, or alleged it was his brother who was arrested. L.O. also claimed he had not been given proper sex offender treatment.
Judge Mulvihill rendered a comprehensive oral decision on July 22, 2010, which canvassed the procedural and documentary record and case law. He also outlined in detail his findings regarding the testimony and opinions of Drs. Goldwaser and Stewart, which he credited. However, he did not find L.O.'s testimony to be "credible in any way, shape or form[,]" explaining that L.O. "minimize[ed] the entire record" and "den[ied] that he spoke to people[,]" even though "[t]here's documentation who he spoke to." The judge found the State clearly and convincingly proved that L.O. has been convicted of sexual violent offenses, that he continues to suffer from mental abnormalities and personality disorders, and that he "has serious difficulty controlling sexually harmful behavior" and it is "highly likely he will re-offend if returned to the community." Judge Mulvihill entered an order the same date committing L.O. to the STU, with a review scheduled for July 14, 2011. This appeal ensued.
On appeal, L.O. asserts the following arguments through counsel:
POINT I THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT L.O. WAS SUBJECT TO SVP COMMITMENT [] BECAUSE THE STATE RELIED UPON EXCESSIVE AMOUNTS OF HEARSAY AND UNPROVEN ALLEGATIONS.L.O. asserts the following arguments pro se:
POINT II THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. GOLDWASER AND STEWART BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS.
POINT I
NEW JERSEY['S] SEXUAL[LY] VIOLENT PREDATOR'S ACT DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT UNDER THE EX POST FACTO CLAUSE, BECAUSE [THE] SEXUAL[LY] VIOLENT PREDATOR[']S ACT IN PRACTICE IS PUNITIVE.
POINT II
CIVILLY COMMITTING [ ] APPELLANT WAS PUNITIVE, AFTER HE WAS SENTENCED TO [THE] ADULT DIAGNOSTIC & TREATMENT CENTER FOR TREATMENT, THEN TRANSFERRED TO GENERAL PRISON POPULATION WHERE HE RECEIVED MINIMAL SEX OFFENDER TREATMENT AND MAXED OUT ON 30 YEAR SENTENCE, IN VIOLATION OF THE EX POST FACTO CLAUSE.
POINT III
TRIAL COURT ABUSED ITS DISCRETION BY RELYING ON EXPERT STATEMENT THAT APPELLANT VIOLATED PAROLE AND PROBATION ON SEVERAL OCCASIONS, MAKING HIM A HIGH RISK TO RE-OFFEND WHEN PRE-SENTENCE REPORT STATED THAT HE DID NOT VIOLATE PAROLE OR PROBATION, DEPRIVING HIM OF DUE PROVESS, IN VIOLATION OF THE 14TH AMENDMENT [OF THE] US CONSTITUTION.
POINT IV
FAILURE OF TRIAL COURT TO PROVIDE AND REVIEW DISCOVERY WITH APPELLANT TO SECURE AN EXPERT WITNESS IN HIS DEFENSE AND FAILURE TO OBTAIN WITNESSES REQUESTED BY APPELLANT, DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE 6TH AND 14TH AMENDMENT[S] [OF THE] US CONSTITUTION.
(A) DEFENSE COUNSEL'S FAILURE TO INVESTIGATE AND SECURE WITNESSES FOR TRIAL VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
(B) FAILURE OF DEFENSE COUNSEL TO PROCURE EXPERT WITNESS ON BEHALF OF APPELLANT[] DEPRIVED HIM OF HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
(C) FAILURE OF DEFENSE COUNSEL TO GIVE APPELLANT A COPY OF DR. KEY JACKSON AND DR. FRANK'S A.D.T.C. PSYCH EVALUATIONS BEFORE APPELLANT TOOK THE STAND TO TESTIFY AND DEFENSE COUNSEL'S INTRODUCTION OF THE REPORTS INTO EVIDENCE WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
III.
Our Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See In re Civil Commitment of W.X.C., 204 N.J. 179, 188 (2010), cert. denied, ____ U.S. ____, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); In re Civil Commitment of J.M.B., 197 N.J. 563, 599, cert. denied, ____ U.S. ____, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because "the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality." See W.X.C., supra, 204 N.J. at 188. Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See In re Commitment of W.Z., 173 N.J. 109, 125 (2002).
Under the SVPA, an involuntary civil commitment can be ordered following an offender's service of a sentence, or other criminal disposition, when he or she "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.
At the commitment hearing, the State must prove by clear and convincing evidence that the individual poses "a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts[,] . . . 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 reoffend." W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32(a).
The range of our appellate review of judgments of civil commitment is particularly narrow. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). In light of the trial court's expertise in handling these cases, its "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
Assessing an ineffective assistance of counsel claim is ultimately a question of law, and "the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Appellant does not dispute that he met the first prong of the test for civil commitment, namely that he committed a sexually violent offense. He primarily contends the State failed to produce competent evidence that he currently suffers from a mental abnormality or personality disorder that makes him highly likely to engage in future acts of sexual violence if released from the STU. N.J.S.A. 30:4-27.26(b). Specifically, he contends through counsel that the opinions of the State's experts were deficient because they were non-treating doctors and they relied heavily on hearsay reports of other non-treating examiners, particularly the ADTC evaluator.
We reject L.O.'s arguments as without merit. Judge Mulvihill's findings are well-documented and supported by the record as to all the statutory prongs. L.O. consented only to be interviewed by Dr. Stewart, and both experts diagnosed L.O. based on their review of numerous and appropriate sources of information routinely relied on by experts in the field. N.J.R.E. 703.
Nothing in our opinion in In re Commitment of E.S.T., 371 N.J. Super. 562 (App. Div. 2004), prohibits an expert from relying on a statement made by a defendant to an ADTC evaluator. Instead, our decision prohibits the State from relying on forensic expert opinions from psychiatrists who never treated the inmate, but who merely signed the clinical certificates that led to the initial commitment order. Id. at 573. We held that "fundamental fairness" prohibits the State from eliciting testimony from a treating psychiatrist about the hearsay opinion of a forensic expert who does not testify. Id. at 575.
When we held in E.S.T. that the opinion of a non-testifying expert cannot be "bootstrapped into evidence" in that fashion, ibid., we specifically held otherwise concerning hearsay evidence contained in "pre-sentence reports and other investigative materials." Id. at 576. We concluded that hearsay opinion from those sources was indeed admissible "but only as a basis for the expert's opinion," and not as "substantive evidence." Ibid. We consider an ADTC report to be the equivalent of a pre-sentence report for purposes of hearsay analysis. See In re Civil Commitment of A.X.D, 370 N.J. Super. 198, 201-02 (App. Div. 2004) (holding that experts are allowed to rely on STU reports at a SVPA commitment hearing if they ordinarily relied on such information to assist them in reaching a diagnosis). Thus the State's experts were legally entitled to rely on any statements that L.O. made to Dr. Frank as a basis for forming their opinion.
L.O. chose not to be interviewed by Dr. Goldwaser and thus cannot now complain about his lack of clinical evaluation. Dr. Stewart interviewed L.O. and performed objective tests. The similar diagnoses and conclusions of both experts, who the trial judge expressly credited, were independently arrived at by each expert based on appropriate past and present data. Contrary to L.O.'s assertion, In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 58-59 (App. Div. 2004) is factually inapposite, as the experts here did not rely solely on outdated ADTC hearsay or give excessive weight to the original crimes in finding a high likelihood to currently re-offend.
L.O.'s issue with the State's experts relying on dismissed charges is without merit. Dr. Stewart testified that she looks at both charges and convictions, but the "charges are not weighed in the same degree as convictions." She also stated that her opinion regarding L.O. would have remained the same even if she only considered his convictions. Moreover, the Court has balanced an individual's due process rights and right to fundamental fairness with the community's right to protect itself against the risk the individual may commit another sexual offense, and permitted non-conviction offenses to be considered. In re C.A., 146 N.J. 71, 109-10 (1996).
We turn now to L.O.'s pro se arguments. We find no ex post violation of the SVPA statute as applied. The Court has "recognized that by utilizing confinement as part of treatment, the SVPA has some punitive impact, and . . . this aspect of the statute is 'onerous.'" W.X.C., supra, 204 N.J. at 189. However, the SVPA does not violate the ex post facto clause since it is "simply an 'inevitable consequence of the regulatory provisions.'" Ibid. Moreover, "[i]n light of the clear regulatory goals that our Legislature sought to achieve through the SVPA, the choice to include confinement as part of the means through which those goals are achieved does not transform the statute automatically into one that is punitive." Ibid.; see J.M.B., supra, 197 N.J. at 601 (reiterating that the SVPA is remedial and not punitive).
L.O.'s related argument that the Department of Corrections and the Parole Board deliberately delayed adequate treatment that would have prevented him from being civilly committed, which deprived him of his right not to be punished in violation of the ex post facto clause, is similarly without merit.
L.O. disobeyed the terms of his probation, even if technically the VOP was ultimately dismissed. Regardless, Dr. Stewart only found his VOP to be an exacerbating factor, and not a significant basis for her opinion, so L.O.'s claim of error on this point is without merit.
L.O. next contends he was denied the effective assistance of counsel. The test for ineffective assistance of counsel was formulated in Strickland v. Washington, 466 U.S. 668, 690-95, 104 S. Ct. 2052, 2066-68, 80 L. Ed. 2d 674, 695-98 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The first prong requires a showing that counsel's performance was deficient in that counsel committed errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution, and under the second prong, it must be shown that the deficient performance prejudiced the party claiming ineffective assistance. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Courts grant a high degree of deference in evaluating the performance of counsel and employ a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52. The person asserting ineffective assistance must overcome the "presumption that counsel engaged in 'the exercise of reasonable professional judgment.'" State v. Oglesby, 122 N.J. 522, 538 (1991) (Handler, J., concurring) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
L.O. claims his attorney failed to obtain witnesses at trial who would testify that he successfully participated in the following treatment programs: behavior modification; thinking for a change; anger management; alcohol and drug abuse counseling; one on one sex offender treatment; and the star program for release. However, L.O. fails to explain the nature of these programs and has provided no certifications or affidavits from these potential witnesses describing what they would have said. We cannot assume that if they were called as witnesses, they would have provided favorable testimony. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding an appellant who alleges ineffective assistance of counsel must proffer facts sufficient to demonstrate counsel's alleged substandard performance). Accordingly, even if counsel were deficient in this regard, L.O. fails to satisfy the second Strickland prong of prejudice.
L.O. further contends that lack of an expert witness deprived him of a defense in violation of his constitutional rights to effective assistance of counsel. He states that an expert could have explained the effects of aging on sex offenders and whether he could be released under certain conditions after being committed. L.O.'s attorney cross-examined Dr. Stewart about three different studies and whether there was a relationship between age and recidivism. We may not second-guess counsel's tactical decision to address this issue by cross-examination rather than presenting his own expert. Moreover, L.O. again has produced no report, certification, or affidavit from a potential expert who would have testified that L.O. was at a low risk to reoffend, that his age minimizes his likelihood of recidivism, and under what conditions it would be safe for him to be released. It is sheer conjecture that such an expert witness exists.
L.O.'s remaining claims as to deficient performance are without sufficient merit to discuss. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION