Opinion
19-P-934
06-18-2020
COMMONWEALTH v. ERNESTO 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, Ernesto Rodriguez, was found to be a sexually dangerous person (SDP) pursuant to G. L. c. 123A, § 12, and was committed to the Massachusetts Treatment Center (MTC) pursuant to G. L. c. 123A, §§ 1, 14 (d). On appeal, the defendant argues that (1) the judge gave an erroneous jury instruction, (2) the evidence at trial was insufficient to support the verdict, (3) certain evidence should have been excluded as unreliable, (4) the Commonwealth introduced improper expert evidence concerning the defendant's likelihood of reoffense, and (5) the Commonwealth failed to develop a viable release plan for the defendant in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (ADA). We affirm.
Background. We briefly recite the facts, taken from the evidence at trial, and reserve for later discussion additional facts relevant to the issues raised on appeal.
In 1984, the defendant, who was then forty years old, was arrested after his spouse's seven year old nephew reported to police that the defendant penetrated the nephew's anus with his finger and his penis. The nephew reported that these incidents occurred at the defendant's house every day for one year. In 1985, the defendant pleaded guilty to four counts of rape of a child, see G. L. c. 265, § 23. He was sentenced on two of those convictions and the other two indictments were placed on file.
The defendant was later interviewed about these convictions in 2015 as part of a comprehensive evaluation and in 2017 by the qualified examiners and other experts who testified at the SDP trial. During some of those interviews the defendant acknowledged that he had penetrated the nephew's anus with his finger on multiple occasions over a one-to-two-year period, and that on the day he was arrested, he had penetrated the nephew's anus with his penis.
In 2000, a ten year old boy reported to police that one week prior the defendant inserted his finger into the boy's anus while the defendant exposed and touched himself. The boy reported that this occurred near a rear dock area of a building at a flea market. The boy informed the woman whom he assisted at the flea market about the incident on the day it occurred, and they returned the next week to see if they could find the defendant. On that day the defendant again led the boy behind a building, shook him, and demanded to know what the boy had told the woman. The woman found the defendant and the boy, and the police were contacted. While the defendant was indicted, the charges were later dismissed.
The defendant was arrested and charged in connection with these allegations, but he was not convicted of any offense. The jury were not informed about the criminal charge related to this incident.
During the 2015 and 2017 interviews the defendant denied the allegations from the year 2000. However, during two other interviews in 2017, the defendant ultimately acknowledged that he touched the boy's buttocks. In one interview, he stated that it was possible that he put his finger in the boy's anus and, in the other, with his own expert, he acknowledged that he did penetrate the boy's anus.
In 2012, the defendant was indicted on two counts of dissemination of visual material depicting a child in a sexual act, see G. L. c. 272, § 29B (b), and six counts of possession of child pornography, see G. L. c. 272, § 29C. In 2014, he pleaded guilty to those governing offenses.
In 2016, while the defendant was serving a State prison sentence on two of the possession of child pornography convictions, the Commonwealth filed a petition in the Superior Court to commit the defendant as an SDP pursuant to G. L. c. 123A, § 12. The defendant was seventy-four years old when the matter proceeded to trial in 2017. At the SDP trial, the Commonwealth relied on the testimony of two expert witnesses: Dr. Margery Gans, who served as a qualified examiner; and Dr. Barbara Quiñones, who also testified at the probable cause hearing. Both testified that the defendant met the statutory definition of an SDP. The defendant countered with the testimony of three expert witnesses: Dr. Gregg Belle, who served as a qualified examiner; Dr. Joseph Plaud; and Dr. Daniel Kriegman. All three opined that the defendant was not an SDP.
Discussion. 1. Jury instructions. The defendant argues that in response to a question posed by the jury during deliberations, the judge should have explicitly instructed that a finding that the defendant is likely to possess child pornography in the future, standing alone, is insufficient to satisfy the statutory criteria for an SDP. Because the defendant preserved this issue at trial, we review the defendant's claim for prejudicial error. See Commonwealth v. Vargas, 475 Mass. 338, 348 (2016).
To be found an SDP, the defendant must "suffer[] from a mental abnormality that renders him 'a menace to the health and safety of other persons.'" Commonwealth v. Spring, 94 Mass. App. Ct. 310, 311 (2018), quoting G. L. c. 123A, § 1. To meet this requirement, the Commonwealth must prove that the defendant, if not committed, is likely to commit future sexual crimes that are either (1) contact offenses, or (2) noncontact offenses that would "instill in his victims a reasonable apprehension of being subjected to a contact sex crime." Commonwealth v. Suave, 460 Mass. 582, 588 (2011). See Commonwealth v. Walker, 467 Mass. 1017, 1018-1019 (2014); Commonwealth v. Fay, 467 Mass. 574, 580-581, cert. denied, 574 U.S. 858 (2014).
Here, the judge issued the so-called Suave instruction, which tracked the language above concerning future offenses. During deliberations the jury sent a note to the judge that referenced the page of the written instructions furnished to them that contained the Suave instruction, and sought "clarification [whether] watching child porn [would] count as a [reoffense]." In response, the judge repeated the Suave instruction and the jury resumed deliberations.
Specifically, the judge instructed the jury:
"[T]he Commonwealth must prove beyond a reasonable doubt that it is reasonably to be expected, given the particular facts and the circumstances at hand, that if Mr. Rodriguez is not confined in the [t]reatment [c]enter, that he will commit additional sexual crimes that either 1) involve physical contact with nonconsenting adults or with children who are too young to consent or 2) would instill in his victims a reasonable apprehension of being subjected to a sexual crime involving such physical contact either in Massachusetts or elsewhere."
Relying on our decision in Spring, the defendant maintains that the judge was required to respond "no" to the jury's question. See 94 Mass. App. Ct. at 323 (future possession of child pornography alone does not "necessarily place[] th[e] victim in reasonable apprehension of a future contact sex offense," and, therefore, does not satisfy definition of "menace" as used in G. L. c. 123A). The Spring case does not direct the result that the defendant now seeks.
In Spring, we held that the defendant was entitled to a new trial where his counsel failed to request, and the judge did not give, a Suave instruction; instead, including in response to the jury's questions during deliberations, the judge "repeatedly instructed that they could find the defendant to be a sexually dangerous person based solely on the possession of child pornography." Spring, 94 Mass. App. Ct. at 321.
Here, the judge did give the Suave instruction on two occasions and did not provide an erroneous instruction like that in Spring. While the judge could have instructed the jury as the defendant requested, the judge's decision to repeat a proper articulation of the law through the Suave instruction was not error.
2. Sufficiency of the evidence. The defendant next argues that the evidence was insufficient to satisfy the same statutory requirement described above, namely, that the defendant is a menace to the health and safety of other persons because he is likely to commit a contact sex offense or a noncontact sex offense that will instill in his victims a reasonable apprehension of being subjected to a contact sex offense if the defendant is not committed. In assessing this claim, we view the evidence and all permissible inferences in the light most favorable to the Commonwealth, and determine whether any rational jury could have found, "beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G. L. c. 123A, § 1." Commonwealth v. Husband, 82 Mass. App. Ct. 1, 4 (2012), quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J., concurring).
At trial, both Dr. Gans and Dr. Quiñones testified that the defendant met the statutory requirements of an SDP, including that he is likely to reoffend if not committed. Dr. Gans also explained the term "menace" within the meaning of G. L. c. 123A and opined that the defendant met that statutory definition.
In reaching this conclusion, Dr. Gans relied on the defendant's history of committing contact offenses and the governing noncontact offenses, all involving young boys, as well as the fact that the defendant's pedophilic arousal remained intact and untreated. Indeed, as recently as 2015, the defendant acknowledged that he continued to experience sexual fantasies involving children, and he endorsed that he would like to "be able to touch them." Moreover, Dr. Gans testified that the defendant demonstrated deviant sexual arousal until his 2012 arrest and that "it was still something that he was tempted by." She noted his relatively recent history of "being preoccupied with sex, looking at pornography every day, [and] masturbating to it every day for . . . a year to a year-and-a-half, maybe two years." Dr. Gans also cited the defendant's failure to engage in sex offender treatment "to the degree that the relative certainty of future harm is diminished." She concluded, "Given his lack of motivation and engagement and negligible progress in sex offender treatment, successful intervention seems improbable."
Specifically, Dr. Gans explained:
"Mr. Rodriguez'[s] governing offense is a 'hands-off' offense, but he also has a history of sexually assaulting pre-pubescent boys. While pornography may result in less serious harm to victims than physical assaults, Mr. Rodriguez has engaged in both activities and targeted young boys. The common factor in all his sexual assaults is his pedophilic arousal, which is still intact and has not been addressed in treatment. Therefore, even though Mr. Rodriguez['s] governing offense is 'hands off,' because of his untreated deviant arousal and history of sexual assaults, he continues to represent a 'menace' to his victims."
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found that the defendant was a "menace" within the meaning of G. L. c. 123A, and that he would commit a contact offense in the future. See Spring, 94 Mass. App. Ct. at 325 (jury could find defendant likely to commit future contact sex offense where defendant committed multiple contact offenses against children twenty-two years earlier and admitted to viewing child pornography as "therapy" to keep him from approaching children).
3. Reliability of translations and Dr. Quiñones's testimony. The defendant argues that the Commonwealth was erroneously permitted to admit evidence that was unreliable. Specifically, the defendant contends that quotes attributed to him from certain interviews should have been excluded, and that Dr. Quiñones should not have been permitted to testify.
During the defendant's interviews for the 2015 comprehensive evaluation and the 2017 qualified examiner report, Dr. Emily Salema and Dr. Gans used a telephonic language interpreting service, and not a certified interpreter, to facilitate their interviews with the defendant, who is a Spanish speaker. The defendant now argues that the judge erred in denying his motion in limine to exclude all quoted statements that were attributed to him from those interviews in the resulting evaluations because the interpreters' "credentials and abilities are controversial and not reliable."
On this record, we are unable to conclude that the translations were not reliable or accurate where the defendant has not pointed to any specific inaccuracies in the material quoted from those interviews. See Commonwealth v. AdonSoto, 475 Mass. 497, 509 (2016) (where defendant "does not quarrel with the actual translation provided by the interpreter" and only claimed that "the translation may not be reliable or accurate" in absence of recording, court "discern[ed] no basis on this record to conclude that the translation was not reliable or accurate").
The defendant's remaining arguments concerning the translations were not raised before the Superior Court judge and, therefore, they are waived. Specifically, the defendant argues that: (1) G. L. c. 221C, § 2, mandates use of a court-certified interpreter during the qualified examiners' interviews, (2) all evidence based on the work of the telephonic language interpreting service should have been excluded as inadmissible hearsay, and (3) all evidence obtained through the telephonic language interpreting service should be excluded in SDP trials unless the interview is recorded for later review. We review these waived claims for a substantial risk of a miscarriage of justice. See R.B., petitioner, 479 Mass. 712, 717-718 (2018). Applying this standard, these claims fail for the same reason -- the defendant's failure to point to any allegedly inaccurate statement attributed to him.
We reject the defendant's argument that we must presume prejudice with respect to these claims because the use of the telephonic language interpreting service during unrecorded interviews violated his constitutional right to due process and was a structural error. Because the defendant raised both arguments for the first time on appeal (and the latter only in his reply brief), these arguments are waived and any error is reviewed only for a substantial risk of a miscarriage of justice. See Commonwealth v. Heywood, 484 Mass. 43, 45 (2020) (unpreserved claim of structural error reviewed for substantial risk of miscarriage of justice); Fay, 467 Mass. at 583 n.9 (unpreserved claim of constitutional violation reviewed for substantial risk of miscarriage of justice).
The defendant also argues that Dr. Quiñones's testimony should have been excluded as unreliable because her opinion was based solely on an allegedly inadequate review of the records. Assuming this claim was preserved below, it nonetheless fails.
Prior to trial, the defendant moved to exclude Dr. Quiñones's testimony as impermissible under G. L. c. 123A because she was not a qualified examiner in this case. While the defendant did not explicitly object to the testimony on the basis of its reliability, the defendant questioned the validity of Dr. Quiñones's testimony based on the records review.
As a qualified expert who testified at the probable cause hearing, Dr. Quiñones's testimony also was admissible at trial. See Commonwealth v. Cowen, 452 Mass. 757, 762 (2008), quoting G. L. c. 123A, § 14 (c) (qualified probable cause expert's testimony admissible at SDP trial as "any other evidence tending to show" whether individual is SDP). The defendant's contention that the underlying basis for Dr. Quiñones's opinion was inadequate potentially goes to the weight, not the admissibility, of her testimony. See Commonwealth v. Crouse, 447 Mass. 558, 569 (2006) ("where an expert has been determined to be qualified, questions or criticisms as to whether the basis of the expert's opinion is reliable go to the weight, and not the admissibility, of the testimony"). Cf. Cowen, supra (trier of fact determines weight to give to qualified probable cause expert's trial testimony).
4. Expert evidence on likelihood of reoffense. The defendant maintains that Dr. Gans and Dr. Quiñones were erroneously permitted to offer expert opinions without sufficient support, and that the Commonwealth was permitted to ask improper questions to Dr. Kriegman, Dr. Plaud, and Dr. Gans concerning the defendant's likelihood of reoffense.
The defendant first argues that the Commonwealth's experts, Dr. Gans and Dr. Quiñones, were required to, but did not, cite empirical support for their assertions that the defendant's risk of recidivism was increased due to his lack of participation in treatment, his use of child pornography, his minimization of prior crimes, and his inconsistent statements.
We agree with the defendant that an expert opinion must be sufficiently supported by empirical evidence. See Commonwealth v. Hunt, 462 Mass. 807, 818-819 (2012) (if supported by empirical evidence, expert may opine that individuals who receive sex offender treatment are less likely to reoffend); Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 269-270 (2014) (same). We are not persuaded, however, that every time a properly qualified expert mentions a factor that points toward a conclusion, that the expert must explicitly refer to empirical studies supporting that factor. See Commonwealth v. Camblin, 471 Mass. 639, 649 n.22 (2015) ("Opinion testimony by a trained psychiatrist or psychologist concerning his or her evaluation and diagnosis of an individual's mental state and possible sexual dangerousness is a type of evidence that is grounded in recognized theories and principles and has long been deemed admissible"). Rather, the absence of such a statement would be a proper basis for cross-examination or, in some circumstances, possibly a challenge under Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994). See Commonwealth v. Baxter, 94 Mass. App. Ct. 587, 590 (2018) (qualified examiners' testimony and reports are "not wholly immune to judicial scrutiny" even where, in most cases, their presumptive admissibility pursuant to G. L. c. 123A, § 14 [c], "makes it unnecessary for a judge to determine whether such testimony satisfies the foundation requirements for the admission of expert witness testimony pursuant to . . . Lanigan"); Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 289 (2004) (cross-examination used to probe qualified examiners' "familiarity -- or lack thereof -- with the research in the field"). Cf. Hunt, supra at 818 n.8 ("The defense's expert witness, of course, may challenge [the Commonwealth's expert's] opinion based on other empirical evidence"). Accordingly, we discern no error.
The defendant next argues that Dr. Gans and Dr. Quiñones failed to properly support their opinion that the defendant was likely to reoffend despite his age. At trial, both doctors cited research indicating that risk of reoffense typically diminishes among individuals in their seventies. We see no error in the experts' conclusions that this protective factor did not apply to the defendant because, as they explained, the defendant continued to have a sexual interest in children and the defendant committed sex offenses from the time he was in his early forties until he was nearly seventy years old.
The defendant next argues that the judge erred in permitting the prosecutor to ask Dr. Kriegman whether the Static-99R coding rules indicate that an individual with an average risk of reoffense "needs meaningful instruction in a structured program environment," and to ask Dr. Plaud a similar question. Because the defendant preserved his objection, we review under the prejudicial error standard. See Commonwealth v. Dargon, 457 Mass. 387, 399 (2010).
Both experts explained that they did not agree with that aspect of coding rules. Further, Dr. Kriegman explained, "It's not up to the people who assess statistical risk to make a decision about what society should do with that risk." Given their answers, we conclude that any error was nonprejudicial. See Commonwealth v. George, 477 Mass. 331, 341 (2017), quoting Commonwealth v. Christian, 430 Mass. 552, 563 (2000) (error nonprejudicial if it "did not influence the jury, or had but very slight effect").
Finally, the defendant argues the judge erred in permitting Dr. Gans to testify, over objection, that an unspecified risk assessment conducted for the comprehensive evaluation at MTC placed the defendant in the "high-risk-to-reoffend category." Assuming admission of this one statement was error, we conclude that it was nonprejudicial given all the other evidence weighing for and against the defendant's risk of reoffense. See Commonwealth v. Rodriguez, 92 Mass. App. Ct. 774, 780 (2018) (among other factors, court may consider importance of erroneously admitted evidence to Commonwealth's case and frequency of reference in determining whether error is prejudicial).
Dr. Gans's testimony appears to refer to the results of the Stable-2007. Information about the Stable-2007 was redacted from the comprehensive evaluation that was submitted in evidence and, with respect to the testimony at issue, the judge instructed the jury:
"I just want to tell you that yesterday you heard some testimony with respect to certain risk factors and tests conducted by another clinician that wasn't a clinician that is testifying today. And with respect to any testimony relative to conclusions made from that clinician, specifically having to do with a tool called Stable-2007, you are to disregard that. Okay?"Given that Dr. Gans did not specify the Stable-2007 was the risk assessment tool at issue during her testimony, we proceed to review the admission of the testimony for prejudicial error.
5. Release plan. The defendant maintains that due to his disability, the Commonwealth violated the ADA by placing the burden on him to create a viable release plan. Assuming this claim was preserved, the record does not contain sufficient factual information about the defendant's disability and any connection that such disability would have on his ability to prepare a release plan to enable us to address this claim. See Matter of M.C., 481 Mass. 336, 342 n.5 (2019) (insufficient factual record to address petitioner's ADA claim).
The defendant's intelligence quotient (IQ) was measured to be 77, "which falls in the [b]elow [a]verage category."
Judgment affirmed.
By the Court (Meade, Rubin & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 18, 2020.