IN THE MATTER OF THE CIVIL COMMITMENT OF T.W. (SVP-131-00, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3608-18T5
IN THE MATTER OF THE
CIVIL COMMITMENT OF
T.W., SVP-131-00.
________________________
Submitted February 25, 2020 – Decided April 17, 2020
Before Judges Gilson and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. SVP-131-00.
Joseph E. Krakora, Public Defender, attorney for
appellant T.W. (Susan Remis Silver, Assistant Deputy
Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent State of New Jersey (Melissa H. Raksa,
Assistant Attorney General, of counsel; Stephen J.
Slocum, Deputy Attorney General, on the brief).
PER CURIAM
T.W. is a sixty-four-year-old man who has been civilly committed since
2000 under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -
27.38. He appeals from a judgment entered on April 4, 2019, following a
remand for a new commitment review hearing. T.W. argues that his
commitment should be reversed because it was based on hearsay concerning
charges from 1983 that never resulted in sexual convictions. The trial court
found that the sources of information relied on by the State's experts, including
police reports from 1983, were the type of information generally relied upon by
such experts and, therefore, the court could rely on the opinions offered by the
State's experts. We discern no reversible error in that decision and affirm.
I.
We have previously summarized T.W.'s criminal background as follows:
In July 1974, T.W. was arrested and charged in
connection with a series of attacks against six different
women committed between March and May 1974. All
six of those events involved forced entries into homes.
In two of the situations, T.W. forcibly raped two
women, and in three different situations he physically
assaulted three other victims. T.W. plead guilty to two
counts of rape, attempted rape, three counts of breaking
and entering, and assault. He was sentenced to thirty
years in prison. In January 1983, T.W. was paroled.
In September 1983, he was arrested and charged with
three attacks on three separate women committed in
August 1983. The State dismissed the sexual assault
charges related to two of the attacks. Thereafter, in
1984, T.W. was convicted of robbery stemming from
the charge that he attacked a woman in a parking lot
and unsuccessfully tried to pull her into a stairwell. The
victim escaped, and T.W. stole her purse. He was
sentenced to twenty years in prison.
A-3608-18T5
2
[In the Matter of the Civil Commitment of T.W., No.
A-2574-15 (App. Div. Nov. 2, 2018) (slip op. at 2-3).]
In 2000, T.W. was civilly committed under the SVPA. Since 2000, he has
received a series of review hearings and his commitment has been continued.
We have reviewed and affirmed several of the judgments continuing T.W.'s civil
commitment.
Following a review hearing and continued commitment in 2016, T.W.
appealed arguing that his commitment was based on unreliable testimony from
his wife, K.W. In 2004, K.W. testified that T.W. had admitted to her that he had
committed additional rapes in 1983. In September 2016, however, K.W.
recanted that testimony in a certification. In light of that recantation, we
remanded the matter to the trial court to take testimony from K.W.
Unfortunately, K.W. passed away before she could testify, and the trial court
did not conduct a new hearing. Instead, based on the record that had been
developed at the 2016 hearing, and for reasons stated on the record during the
October 17, 2017 decision on remand, the trial court continued T.W.'s
commitment.
In November 2018, we again remanded the matter and directed that a
hearing be conducted, that the State submit new expert reports, and that if the
new experts were not relying on the recanted testimony of the deceased wife,
A-3608-18T5
3
they needed to identify the specific information they were relying on concerning
the events in 1983.
The re-hearing was conducted on April 1 and 4, 2019, before a new judge
who had not been involved in prior commitment hearings concerning T.W. At
the 2019 hearing, the State presented testimony from three witnesses: C.M., the
victim of the robbery committed in August 1983, and expert testimony from
Howard Gilman, M.D., a psychiatrist, and Zachary Yeoman, Psy.D, a
psychologist. T.W. presented testimony from Dr. Barry Zakireh, Ph.D., a
psychologist, and Hawaiian Thompson-Epps, an investigator.
Dr. Gilman evaluated T.W. and reviewed his records, including his
criminal record. Dr. Yeoman was a member of the treating committee that
evaluated T.W.'s progress in 2018 while T.W. was in the Sexual Treatment Unit
(STU). Dr. Gilman did not consider the testimony or recantation of T.W.'s
deceased wife and Dr. Yeoman placed no weight on that testimony. Dr. Gilman
administered the Static-99R tool and scored T.W. as a six, which reflected an
above average risk of sexual recidivism. Dr. Yeoman reviewed a report of
another doctor who had also scored T.W. as a six on the Static-99R.
Both of the State's experts relied on T.W.'s sexual convictions in 1974 and
his assaults of three women in 1983. In that regard, both experts testified that
A-3608-18T5
4
they reviewed police and presentence reports, including witness statements,
from 1983 and believed that all three assaults were sexual in nature. Dr. Gilman
and Dr. Yeoman both acknowledged that T.W. was not convicted of a sexual
assault in 1983, but they testified that they relied on the police records, as well
as other treatment materials, in considering the assaults as sexual in nature.
Dr. Gilman diagnosed T.W. with sexual sadism, voyeuristic disorder, and
anti-social personality disorder. He opined that T.W. was at high risk of
sexually reoffending. Dr. Yeoman also opined that T.W. had a high risk of
sexually reoffending if released.
C.M. was the victim of the robbery T.W. committed in August 1983. She
testified that T.W. had grabbed her as she left her office building, put his h and
over her mouth, and dragged her down some stairs. C.M. bit T.W.'s hand, she
screamed, he released her, he grabbed her pocketbook, and he ran away. C.M.
reviewed and confirmed the accuracy of the police report of her robbery.
Dr. Zakireh, T.W.'s expert, diagnosed T.W. with voyeuristic disorder and
anti-social personality disorder. He opined that the voyeuristic disorder did not
predispose T.W. to engage in violent sexual offenses. Dr. Zakireh disagreed
with the diagnosis of T.W. as someone who suffered from sexual sadism.
Accordingly, Dr. Zakireh opined that T.W. was not highly likely to sexually
A-3608-18T5
5
reoffend and was likely to comply with parole supervision and treatment if
released.
After hearing the testimony of the various witnesses, and reviewing the
documents presented at the hearing, the trial court continued T.W.'s commitment
and explained the reasons for its ruling on the record on April 4, 2019. Initially,
the court noted that the State's two experts were not relying on the testimony
from T.W.'s deceased wife. The court then found that all of the State's witnesses
were credible. In that regard, the court found that Dr. Gilman and Dr. Yeoman
were more credible than Dr. Zakireh.
The court also assessed Dr. Gilman's and Dr. Yeoman's reliance on the
assaults in 1983. The court recognized that T.W. was not convicted of a sexual
crime but noted that the records demonstrated that T.W. was positively
identified as the attacker in all three of the 1983 incidents. Relying on C.M.'s
testimony, the police reports, and witness statements from 1983, the court found
that it was reasonable for Dr. Gilman and Dr. Yeoman to base their opinions, at
least in part, on the sexual nature of the 1983 incidents. In that regard, the court
noted that psychiatrists and psychologists can rely on hearsay in formulating
their opinions.
A-3608-18T5
6
The court also noted that neither Dr. Gilman nor Dr. Yeoman relied only
on the 1983 incidents. Instead, both had reviewed T.W.'s extensive criminal
record and his treatment history. In addition to the criminal record, both doctors
relied on multiple evaluations conducted while T.W. was civilly committed
since 2000.
The trial court then found that the State had presented clear and
convincing evidence that T.W. had been convicted of sexually violent offenses
in 1974, he suffered from mental abnormalities or personality disorders, and that
he was highly likely to sexually reoffend if released. In making those findings,
the trial court accepted Dr. Gilman's diagnosis of T.W. as having voyeuristic
disorder, anti-social personality disorder, and sexual sadism.
II.
T.W. now appeals from the April 4, 2019 judgment continuing his civil
commitment. He argues that his commitment order should be reversed because
it was improperly based on hearsay concerning dismissed charges from 1983.
Initially, we note that the hearing conducted in April 2019 complied with
our remand instructions. It is undisputed that the State's experts did not consider
or rely on testimony from T.W.'s deceased wife. Instead, T.W. now focuses his
challenge to the State's experts considering the 1983 events as sexual in nature.
A-3608-18T5
7
Our review of a trial court's decision in a commitment proceeding under
the SVPA is "exceedingly narrow." In re Civil Commitment of W.X.C., 407
N.J. Super. 619, 630 (App. Div. 2009) (first citing In re Civil Commitment of
J.M.B., 395 N.J. Super. 69, 89 (App. Div. 2007), aff’d, 197 N.J. 563 (2009);
then citing In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.
2003)). Further, we "must give the 'utmost deference' to the reviewing judge's
determination of the appropriate balancing of societal interest and individual
liberty." Ibid. (quoting In re Commitment of J.P., 339 N.J. Super. 443, 459
(App. Div. 2001)). Modification is only proper on appeal when the "record
reveals a clear abuse of discretion." Ibid. (citing J.M.B., 395 N.J. Super. at 90).
Accordingly, a reviewing court has a responsibility to "canvass the record,
inclusive of the expert testimony, to determine whether the findings made by the
trial judge were clearly erroneous." Ibid. (citing In re D.C., 146 N.J. 31, 58-59
(1996)).
At the commitment hearing, the State must establish
three elements: (1) that the individual has been
convicted of a sexually violent offense; (2) that he [or
she] suffers from a mental abnormality or personality
disorder; and (3) that as a result of his [or her]
psychiatric abnormality or disorder, "it is highly likely
that the individual will not control his or her sexually
violent behavior and will reoffend . . . ."
A-3608-18T5
8
[In re Civil Commitment of R.F., 217 N.J. 152, 173
(2014) (citations omitted) (quoting In re Commitment
of W.Z., 173 N.J. 109, 130 (2002)).]
In certain circumstances, hearsay may be relied on by experts if the
information is of a type "reasonably relied upon by experts in the particular field
in forming opinions or inferences upon the subject." State v. Torres, 183 N.J.
554, 576 (2005) (quoting N.J.R.E. 703); In re Commitment of A.X.D., 370 N.J.
Super. 198, 201-02 (App. Div. 2004) (citations omitted). Accordingly, an expert
is permitted to rely upon hearsay information in forming an opinion with respect
to an individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J.
Super. 599, 612 (App. Div. 2003) (first citing N.J.R.E. 703; then citing State v.
Eatman, 340 N.J. Super. 295, 302 (App. Div. 2001)).
Our Supreme Court also has determined that police and presentencing
reports can be relied on by testifying experts in SVPA commitment hearings
because such documents are "the type of evidence reasonably relied on by
psychiatrists in formulating an opinion as to an individual's mental condition."
In re Commitment of J.M.B., 197 N.J. 563, 597 n.9 (2009) (citations omitted);
see also J.H.M., 367 N.J. Super. at 612 (holding that a "psychiatrist is permitted
to testify about a defendant's prior criminal history in order to offer an opinion
about a defendant's mental condition" (citing Eatman, 340 N.J. Super. at 302)).
A-3608-18T5
9
Similarly, an expert in a commitment hearing can consider hearsay in STU
treatment reports, provided the expert testifies that such reports are "of a type
reasonably relied upon by experts in the particular field." N.J.R.E. 703; A.X.D.,
370 N.J. Super. at 201-02 (citing State v. Vandeweaghe, 351 N.J. Super. 467,
480 (App. Div. 2002)).
Here, Dr. Gilman relied on a variety of information in forming his views
as to T.W.'s mental disorders. In that regard, he relied on T.W.'s convictions
from 1974, his criminal record, evaluations conducted during T.W.'s civ il
commitment, and his own evaluations of T.W. In forming his diagnosis, Dr.
Gilman relied, in part, on the three incidents in 1983 and formed the view that
they were sexual in nature. He testified that he read the police and presentence
reports, including witness statements, and grand jury testimony. Neither Dr.
Gilman nor the trial court relied on the 1983 incidents as establishing that T.W.
committed sexual crimes; rather, they relied on that information in forming and
crediting Dr. Gilman's mental assessment of T.W. Given that the 1983 incidents
were part of a number of different materials considered by Dr. Gilman and the
trial court, we discern no reversible error.
In that regard, we note that T.W.'s counsel stipulated that the factual
background in Dr. Gilman's report constituted appropriate sources for the doctor
A-3608-18T5
10
to rely upon under N.J.R.E. 703. That background information included the
details of T.W.'s 1983 charges. Similarly, T.W.'s counsel stipulated that the
sexual offense history in the 2018 treatment report was an appropriate source
for experts to rely upon. That history also included details of T.W.'s 1983
charges.
Affirmed.
A-3608-18T5
11