Opinion
DOCKET NO. A-5490-09T2
03-19-2013
IN THE MATTER OF THE CIVIL COMMITMENT OF T.R., SVP-256-02.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Van Pelt, on the brief). David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DaCosta, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-256-02.
Joan D. Van Pelt, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Van Pelt, on the brief).
David L. DaCosta, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DaCosta, on the brief). PER CURIAM
T.R. appeals from an order entered on May 26, 2010, which continued his commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He argues, among other things, that the trial judge erred in concluding that the authority to draw an adverse inference regarding a party's failure to call a witness applies only to criminal cases. Although we agree with T.R. that such an inference may be drawn in appropriate civil cases, including civil commitment cases, and the trial judge was mistaken to hold otherwise, we find no harm here. Discerning no merit in T.R.'s other arguments, we affirm.
A criminal defendant, who has been convicted of a predicate offense to the SVPA, may be subject to an involuntary civil commitment when suffering 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. Annual review hearings are required to determine whether the person remains in need of commitment despite treatment. N.J.S.A. 30:4-27.35; see also N.J.S.A. 30:4-27.32(a).
To warrant commitment of an individual or continuation of the individual's prior commitment, the State must prove "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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002); see also In re Commitment of J.M.B., 197 N.J. 563, 571 (2009); In re Commitment of G.G.N., 372 N.J. Super. 42, 46-47 (App. Div. 2004). The court must address the individual's "present serious difficulty with control over dangerous sexual behavior," and the State must establish "by clear and convincing evidence . . . that it is highly likely that the person . . . will reoffend." W.Z., supra, 173 N.J. at 132-34; see also In re Commitment of J.H.M., 367 N.J. Super. 599, 611 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
T.R. has a considerable criminal history relevant to the question of whether he is a sexually violent predator. In 1990, he pleaded guilty to the aggravated sexual assault of a ten-year old boy. While awaiting sentencing, T.R. forcibly sexually assaulted his six-year old nephew. In 1992, T.R. pleaded guilty to one count of aggravated sexual assault in that second matter. In the first matter, T.R. was sentenced to a ten-year term of imprisonment in the Adult Diagnostic and Treatment Center (ADTC), and in the second, he was sentenced to a fifteen-year ADTC term, with a five-year period of parole ineligibility.
A forensic psychiatric evaluation dated April 23, 2010, reports that T.R. had revealed during prior assessments that his "compulsive behavior led to molesting approximately 50 victims between the ages of nine and 15" before T.R. reached the age of twenty-two.
In 2002, the State filed a petition for T.R.'s commitment pursuant to the SVPA. He was committed, after a hearing, on July 30, 2002. No appeal was filed, and, on July 14, 2003, T.R. stipulated to continued commitment. His commitment was continued at each of his annual review hearings thereafter. T.R. unsuccessfully appealed the commitment orders entered in 2003 and 2005.
In seeking reversal of the May 26, 2010 judgment, which continued his civil commitment pursuant to the SVPA, T.R. argues:
I. THE COURT ERRED IN DENYING COUNSEL PERMISSION TO ARGUE THE STATE'S FAILURE TO PRODUCE CERTAIN WITNESSES WAS ENTITLED TO A NEGATIVE INFERENCE UNDER STATE V. CLAWANS, 38 N.J. 162 (1962) (Partially raised below).Except to the extent we disagree with the trial judge's holding regarding the availability of an adverse inference in civil commitment matters, we find insufficient merit in these arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Indeed, because T.R. stipulated, at a later review hearing, as memorialized in a consent judgment entered on December 7, 2011, that the State's proofs at that time "establish[ed] by clear and convincing evidence that he continues to be a sexually violent predator in need of involuntary civil commitment in a secure facility for control, care and treatment," the issues raised in this appeal have been rendered moot. Notwithstanding, we offer these brief comments about the availability of an adverse inference in SVPA involuntary civil commitment proceedings.
II. COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO SPECIFY THE NON-TESTIFYING WITNESSES WHO[SE] ABSENCE SHOULD HAVE BEEN SUBJECT TO A NEGATIVE INFERENCE (Not Raised Below).
III. THE STATE FAILED TO PRODUCE CLEAR AND CONVINCING EVIDENCE THAT T.R. SHOULD REMAIN COMMITTED AS A SEXUALLY VIOLENT PREDATOR.
In other words, even if T.R. could succeed in this appeal, there would be no remedy available to him because his later concession that commitment pursuant to the SVPA was warranted requires his continued commitment.
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As the May 19, 2010 commitment hearing commenced, T.R.'s counsel asserted what he referred to as "a confrontation objection" regarding "the out-of-court declarants that haven't been produced by the State" for the hearing. When the judge responded that "the confrontation clause does not apply to civil commitment cases," counsel asserted that his argument went "to the heart of Clawans," to which the judge responded that "Clawans is also a case that applies to criminal prosecutions." When counsel argued that Clawans has been applied in civil proceedings, the judge expressed doubts and then held that the State was entitled to rely only on the opinions of its experts and was not obligated "to produce all the people" that may have provided information to the experts.
The trial judge was certainly correct that the State is, as a general matter, entitled to call experts on the subject of commitment and, to the extent the information the experts relied upon is of a type reasonably relied upon by experts in the field, the State can prove the grounds for commitment without calling as a witness each person who provided information upon which the expert relied. In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 641 (App. Div. 2009), aff'd on other grounds, 204 N.J. 179 (2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011); see also State v. Torres, 183 N.J. 554, 576 (2005). This does not necessarily mean that, as a general matter, a factfinder in a civil commitment case may not draw an inference regarding the State's failure to call a witness in appropriate circumstances.
The so-called Clawans inference, contrary to the judge's ruling, is applicable in both criminal and civil matters, as even the Court's decision in Clawans acknowledges. 38 N.J. at 171 (holding that the inference "applies to criminal as well as civil trials"); see also Wild v. Roman, 91 N.J. Super. 410 (App. Div. 1966). The Clawans Court explained the reason for drawing such an inference in the following way:
failure of a party to produce before a trial tribunal proof which, it appears, would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him.When the request for the inference is based on a party's failure to call a particular witness, "it must appear that the [missing witness] was within the power of the party to produce and that his [or her] testimony would have been superior to that already utilized in respect to the fact to be proved." Id. at 171. In addition, "the inference is not proper if the witness is for some reason unavailable or is either a person who by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him, or a person whose testimony would be cumulative, unimportant or inferior to what had already been utilized." Ibid.
[38 N.J. at 170]
Because the record's limitations prevent our further understanding of the basis for the adverse inference urged by T.R., we can add nothing other than these generalities. Indeed, because the matter has been rendered moot by T.R.'s subsequent stipulation at a later commitment hearing that the State possessed clear and convincing evidence that he is a sexually violent predator in need of involuntary civil commitment, there is no purpose in our further discussion of this issue.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION