Opinion
14-P-1223
02-01-2016
COMMONWEALTH v. HECTOR RODRIGUEZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court, the defendant, Hector Rodriguez, was determined to be a sexually dangerous person (SDP) as defined by G. L. c. 123A, § 1, and was committed to the Massachusetts Treatment Center for a term of one day to life. On appeal, the defendant contends that the trial judge erred by failing, sua sponte, to provide two jury instructions relating to G. L. c. 123A that our appellate courts have not previously required. We affirm.
"A defendant may be committed as a sexually dangerous person if he has been convicted of a sexual offense, suffers from a mental abnormality or personality disorder that renders him a menace to the health and safety of others, and is likely to engage in sexual offenses if not confined. G. L. c. 123A, §§ 1, 14." Commonwealth v. Fay, 467 Mass. 574, 580 (2014).
Background. The defendant's criminal history is not in dispute. In 2008, a Superior Court jury found the defendant guilty of indecent assault and battery on a child under the age of fourteen years, and indecent exposure. Over a two-year period, the defendant sexually assaulted and abused the victim on approximately twenty occasions by touching her vaginal area, exposing his genitals to her, and laying on top of her (both clothed and unclothed himself). The defendant was sentenced to State prison. Also in 2008, the defendant pleaded guilty in District Court to a charge of indecent assault and battery on a child. There, the defendant rubbed his genitals back and forth "over an extended period of time" against the buttocks of an eight year old victim, who was a niece of the defendant's girl friend. The defendant was sentenced to eighteen months in the house of correction.
This victim was between six and eight years old when the abuse occurred, and was the granddaughter of the defendant's girl friend at that time.
At the subsequent SDP trial, which is the subject of this appeal, the Commonwealth relied on the testimony of two experts: a qualified examiner (QE) and a second expert (who also testified at the probable cause hearing) who both testified that the defendant met the statutory definition of an SDP. The defendant countered with testimony from three experts, including the other QE, all of whom opined that the defendant was not an SDP.
Discussion. The defendant first claims that the trial judge failed to properly instruct the jury with respect to the mental abnormality element of proof under G. L. c. 123A, § 1. Citing Commonwealth v. Suave, 460 Mass. 582 (2011), the defendant argues that the Commonwealth needed to demonstrate that "the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime." Absent a jury instruction delineating this requirement, he contends, there was insufficient evidence at trial to determine beyond a reasonable doubt that the defendant's mental abnormality caused him to be a menace to the health and safety of others as statutorily required. The defendant did not request such an instruction and did not object to the instructions as given. There was no error and, thus, no risk of a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
General Laws c. 123A, § 1, as appearing in St. 1999, c. 74, § 4, defines a mental abnormality as "a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." To establish menace, "the Commonwealth must show the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime." Commonwealth v. Suave, 460 Mass. 582, 588 (2011).
As the defendant accurately notes, this case presents a less compelling record than that in Suave. In Suave, the defendant was fifty-three years old at the time of trial, and had only been convicted of nonviolent and noncontact offenses, including multiple convictions for open and gross lewdness and lascivious behavior (G. L. c. 272, § 16) or indecent exposure (G. L. c. 272, § 53). Suave, 460 Mass. at 583. None of the victims of his sexual offenses were reported to be children, and the trial judge "found that there was no evidence that the defendant had ever stalked, lured, approached, confined, or touched a victim[,] . . . that the defendant's future sexual offenses would not escalate into contact offenses, and [that] there was no basis to believe he would target children." Id. at 586. By contrast, the record in the present case reflects that the defendant suffers from pedophilia, has a history of contact offenses involving indecent assault and battery of young children, and admits that he has a sexual attraction to children and has acted on that interest.
Suave involved a jury-waived trial, and thus did not specifically address the instruction crafted on appeal by the defendant in the present case. 460 Mass. at 582.
Moreover, in Suave, the Supreme Judicial Court (SJC) limited its holding to the specific facts of that case. See id. at 589 ("Each case is fact specific. . . . We hold only that the findings made as to the manner in which this defendant has behaved historically, and the findings as to his predicted criminal sexual behavior, do not support a finding that he is a 'menace' within the meaning of G. L. c. 123A" [emphasis supplied]). The present case, on the other hand, involved repeated contact offenses and evidence that clearly supported a finding that the defendant is a menace within the meaning of G. L. c. 123A, particularly in view of the overwhelming expert testimony. Indeed, all five experts agreed that the defendant suffered from pedophilia, and four of the five experts, including both QEs, agreed that the defendant suffered from a mental abnormality.
In Suave, 460 Mass. at 588-589, the SJC did not establish a per se rule that sex offenders who committed only noncontact sexual offenses (and are likely to commit only noncontact sexual offenses in the future) are not menaces to the health and safety of other persons. Indeed, the SJC has since held otherwise. See Commonwealth v. Fay, 467 Mass. 574, 581 (2014).
In view of the overwhelming testimony from both parties' experts confirming that the defendant suffered from a mental abnormality, it was not surprising that the defense centered on the third element of the SDP definition, i.e., whether the defendant is "likely to engage in sexual offenses if not confined to a secure facility." G. L. c. 123A, § 1, as appearing in St. 1999, c. 74, § 6. Consequently, the mental abnormality instruction now proposed for the first time on appeal did not involve the principal issue at trial, which further weakens the defendant's argument. See Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986). Contrast Commonwealth v. Conley, 34 Mass. App. Ct. 50, 56 (1993). Where the proposed instruction did not go to the heart of the defense, the defendant did not seek the instruction at trial, and the instructions taken as a whole clearly presented the required elements under G. L. c. 123A, appellate relief is not warranted.
As argued by trial counsel for the defendant (who is not counsel on appeal), "[r]eally where the fight is in this case is on the third element [of the SDP definition]."
The defendant's second argument likewise fails. Citing Johnstone, petitioner, 453 Mass. 544 (2009), he claims, for the first time on appeal, that the trial judge failed to instruct the jury "that in order to the find [the defendant] to be [an SDP], it was required to unanimously accept such an opinion from at least one [QE]." We have previously rejected the use of a similar jury instruction. See Souza, petitioner, 87 Mass. App. Ct. 162, 172 (2015) (rejecting instruction stating that "[i]n order for you to find that [the petitioner] is today a sexually dangerous person, you must find support for that determination in the opinion that [was given by] Dr. Kelso, who testified as a qualified examiner"). For the reasons explained in Souza, we reject the defendant's argument. Furthermore, applying the requested instruction would contravene Commonwealth v. Cowen, 452 Mass. 757, 761-762 (2008), in which the SJC held that a qualified probable cause expert may testify at an SDP trial and that the weight to give to such a witness's testimony is a matter for the trier of fact, not an appellate court. The absence of the instruction suggested here by the defendant, on this record, was not error and therefore did not create a substantial risk of a miscarriage of justice.
See Souza, 87 Mass. App. Ct. at 173 ("We agree with the Commonwealth that such an instruction is not compelled by Johnstone, and that it is otherwise inadvisable. Johnstone held only that the Commonwealth cannot continue to pursue SDP confinement of someone unless at least one of the two assigned QEs concludes that the person is an SDP. . . . That precondition was satisfied here. As the judge herself recognized, in determining whether someone is an SDP, jurors are not precluded from relying on evidence from non-QE sources. The judge's efforts to acknowledge this to the jury, while still trying to create a special evidentiary role for the QE, led to an instruction that was confusing at best and not a fair statement of the law. Where, as here, the gatekeeping role served by QEs has been satisfied, and the Commonwealth offers additional expert testimony, a trial judge should refrain from suggesting the relative weight the jury can or should assign to the various Commonwealth experts").
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: February 1, 2016.