Opinion
20-P-1147
02-15-2022
Jodi CORDEIRO, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner sought discharge from his civil commitment as a sexually dangerous person (SDP) pursuant to G. L. c. 123A, § 9. A Superior Court jury returned a verdict that the petitioner remained sexually dangerous. On appeal, the petitioner claims that the judge improperly admitted (1) evidence of the petitioner's refusal to participate in sex offender treatment, (2) hearsay evidence regarding an uncharged sex offense, and (3) evidence that the petitioner's Static 99R score placed him in the "well above average risk category." The petitioner also challenges the sufficiency of the evidence against him. We affirm.
Background. The jury could have found the following facts. Between the ages of fourteen and forty, the petitioner committed multiple sex offenses against young girls, young boys, and an adult female. In 1983, the petitioner took a three year old girl from a yard where she was playing and masturbated while touching the child's genitals. The petitioner was committed to the Department of Youth Services after admitting to the conduct. While there, he engaged in sexually inappropriate behavior including exposing his genitals to staff members. In 2000, the petitioner sexually assaulted a twenty-nine year old female acquaintance by forcing her hand on his penis. He pleaded guilty to a lesser offense of assault and battery and was sentenced to thirty days in the house of correction. In 2001, the petitioner exposed his penis to a ten year old girl while living with her family. He pleaded guilty to open and gross lewdness and resisting arrest. In 2005, the petitioner pleaded guilty to two counts of indecent assault and battery on a child under fourteen. The guilty pleas were based on evidence that the petitioner forced a seven year old girl to lick his penis and fondled her nine year old brother's penis. The petitioner was sentenced to a term of imprisonment followed by probation, which he later violated by committing the crime of breaking and entering.
Two qualified examiners (QEs) opined that the petitioner suffered from the mental abnormality of pedophilic disorder. This diagnosis was supported by evidence that the petitioner had been convicted of multiple sexual assaults on prepubescent children and continued that conduct even after conviction and sentence. Based, in part, on the petitioner's criminal history (ninety-six Massachusetts arraignments) and his continued display of aggression and hostility in the treatment center (twenty reports for rule violations), the QEs were also of the opinion that the petitioner suffered from antisocial personality disorder. The QEs agreed that the petitioner's conduct was repetitive and compulsive and that he was likely to reoffend sexually if released from a secure facility.
The QE opinions were supported by the testimony of a psychologist from the Community Access Board (CAB), who also opined that the petitioner suffered from pedophilic disorder, antisocial personality disorder, and remained sexually dangerous. The CAB is affiliated with the Department of Correction and "conduct[s] annual reviews of and prepare[s] reports on the current sexual dangerousness of all persons at the treatment center." G. L. c. 123A, § 6A. See Santos, petitioner, 461 Mass. 565, 566 n.2 (2012).
Discussion. 1. Sex offender treatment. Relying on Commonwealth v. Hunt, 462 Mass. 807 (2012), the petitioner claims error in the admission of evidence that he refused to participate in sex offender treatment while at the treatment center. Because the petitioner objected at trial, we review for prejudicial error. See Commonwealth v. Palermo, 482 Mass. 620, 625 (2019). In Hunt, the Supreme Judicial Court ruled that evidence that a defendant in an initial commitment proceeding under G. L. c. 123A, § 12, did not receive treatment is relevant and admissible when (1) introduced in conjunction with expert opinion, and (2) supported by empirical evidence that those who undergo sex offender treatment are less likely to reoffend sexually than those who do not. Id. at 818. That is what happened here. Thus, to the extent that the jury learned that the petitioner did not receive treatment and therefore had an increased risk of sexual recidivism, there was no error.
However, the Supreme Judicial Court also held that evidence of a § 12 defendant's refusal to participate in sex offender treatment while in prison, when such treatment is conditioned on a waiver of confidentiality, is more prejudicial than probative where the defendant's statements during treatment could be used against him in a criminal trial, parole hearing, or civil commitment proceeding. Hunt, 462 Mass. at 818-819. The court concluded that, in those circumstances, while the fact that the defendant did not receive treatment was relevant and admissible, his refusal to participate was not admissible because the jury might unfairly infer the defendant did not want to be treated. Id. at 820.
We are not persuaded that the rationale of Hunt applies in this case. First, Hunt is distinguishable on its facts. Here, the jury heard that the petitioner declined to participate in sex offender treatment because he believed "this isn't treatment here," and other inmates are "bringing stuff (from treatment) onto the unit," not because he believed that information revealed during treatment might be used against him in future legal proceedings. The petitioner's stated reasons for refusing treatment lacked any connection to the adverse consequences of disclosure in future legal proceedings. In these circumstances, evidence of the petitioner's refusal to participate in sex offender treatment was admissible. See Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 271 (2014).
We see no merit in the petitioner's argument that evidence regarding the adequacy of his treatment was improperly excluded. It is well established that the single issue in a § 9 trial is whether the petitioner is a sexually dangerous person, and the judge need not admit evidence regarding the adequacy of the petitioner's sex offender treatment. Gagnon, petitioner, 416 Mass. 775, 778 (1994).
Second, the petitioner cites no authority for the proposition that the rationale of Hunt applies to § 9 proceedings. Unlike in Hunt, the jury here were told that the petitioner was previously found to be an SDP and was "committed to the Massachusetts Treatment Center, for treatment, rehabilitation and the protection of the public." In these circumstances, where the petitioner resided at the treatment center and was claiming that he was no longer sexually dangerous, the jury would reasonably anticipate evidence of the petitioner's treatment and rehabilitation. Where there was no treatment, and the petitioner's stated reasons for refusing treatment were unrelated to future legal proceedings, we see no reason why the Commonwealth should be prohibited from explaining the reason there was no treatment. If the jury inferred from that evidence that the petitioner did not want to be treated, the inference was not unfair.
2. The 2000 offense. The petitioner filed a motion in limine seeking a voir dire examination of the Commonwealth's QEs to determine whether the facts upon which they relied in reaching their opinions were independently admissible. The judge allowed the motion, and a voir dire examination was conducted of QE Dr. Greg Belle, specifically to determine whether he relied on documentary evidence of the 2000 charge of indecent assault and battery on a person over fourteen which resulted in a conviction on the lesser included offense of simple assault and battery. The petitioner claimed that documentary evidence of that offense was not previously disclosed to the petitioner and argued that, if the QEs relied on the information, they should not be permitted to testify.
Dr. Belle testified that he was not aware of the 2000 offense until after he drafted his report and did not rely on it in concluding that the petitioner remained sexually dangerous. However, Dr. Belle also testified that he later learned the details of the 2000 offense and that the underlying conduct supported his opinion that the petitioner remained sexually dangerous. At the conclusion of the voir dire examination, the judge found that there had been no discovery violation and permitted Dr. Belle to testify about the 2000 offense. On appeal, the petitioner argues that it was error to admit evidence of the 2000 offense because it was inadmissible hearsay. We review for a substantial risk of a miscarriage of justice because the hearsay argument is raised for the first time on appeal. See R.B., petitioner, 479 Mass. 712, 717-718 (2018).
The Legislature has enacted a set of statutory exceptions to the hearsay rule that apply in SDP proceedings. QEs are entitled to access the petitioner's juvenile and adult court and probation records, including police reports, and those records are admissible in an SDP proceeding if they relate to the petitioner's prior sexual offenses. See G. L. c. 123A, §§ 9, 14 (c ). A "sexual offense" is any offense which "under the totality of circumstances manifest[s] a sexual motivation." G. L. c. 123A, § 1. Even where the petitioner's guilty plea was to a lesser included offense that was not sexual in nature, evidence of the offense is admissible if the reduction in charge was pursuant to a plea agreement and the totality of circumstances show a sexual motivation. See Commonwealth v. Torres, 87 Mass. App. Ct. 908, 909-910 (2015).
Here, the record shows that the petitioner agreed to plead guilty to reduced charges -- the charge of larceny over $200 was reduced to larceny under $200, and the charge of indecent assault and battery on a person over fourteen was reduced to simple assault and battery -- followed by a thirty day jail term to be served concurrently with a sentence he was already serving. The evidence underlying the assault and battery charge was that the petitioner twice forced the hand of the twenty-nine year old victim onto his penis in an effort to have her masturbate him. The totality of these circumstances establishes that the charges were reduced pursuant to a plea agreement and that the underlying conduct was sexually motivated. There was no error in the admission of evidence related to the 2000 offense, much less one creating a substantial risk of a miscarriage of justice.
We note that the transcript of the guilty plea colloquy is not part of the record before us.
This case is distinguishable from Commonwealth v. Mackie, 100 Mass. App. Ct. 78 (2021), relied on by the petitioner at oral argument. Here, the record does not support an inference that the charge was reduced to simple assault and battery because of the petitioner's "consistent denial of committing any sexual offense." Id. at 87.
3. Static-99R results. Relying on Commonwealth v. George, 477 Mass. 331 (2017), the petitioner claims error in the admission of evidence that his Static-99R test results placed him in a category of "well above average risk to reoffend." Because the petitioner objected, we review to determine if the admission of the evidence was error, and, if so, whether the error was prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). We discern no error.
"The Static-99R is an actuarial tool, designed to predict the recidivism risk of sexual offenses in adult male sex offenders who have been convicted of at least one sexual offense." Commonwealth v. George, 477 Mass. 331, 335 n.2 (2017).
In George, 477 Mass. at 339, the Supreme Judicial Court held that the Static-99 risk of reoffense categories in place at the time "lack[ed] probative value in the sexual dangerousness calculus and should not be admitted at trial." The court noted, however, that test developers were working on new Static-99R risk category labels to address the shortcomings of the risk category labels then in place. The court took "no position on the admissibility of those [new] labels." Id. at 339 n.8. The petitioner contends, without supporting authority, that the new labels, including the "well above average risk" category used in this case, improperly "invaded the province of the jury." Where the new risk categories "have sufficiently improved conceptual coherence and have sufficient empirical support to replace the original categories," we see no error in their admission. Id.
Even were we to assume error, there was no prejudice. The experts did not rely exclusively on the Static-99R and its risk categories in forming their opinions. The QEs also considered the petitioner's family history, criminal history, incarceration records, treatment history, and diagnoses of pedophilic disorder and antisocial personality disorder. From this other evidence, the jury could have rationally concluded that the petitioner presented a "well above average risk of reoffense."
4. Sufficiency of the evidence. To establish that the petitioner remained an SDP, the Commonwealth was required to prove beyond a reasonable doubt that he was previously adjudicated as such by a court of the Commonwealth and that his "misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years." G. L. c. 123A, § 1. We review the evidence in the light most favorable to the Commonwealth. See Souza, petitioner, 87 Mass. App. Ct. 162, 169 (2015).
The petitioner does not contest that he was previously adjudicated an SDP. Nor can he dispute that he suffers from a mental abnormality or personality disorder. Even the petitioner's expert agreed that the petitioner met the diagnostic criteria for pedophilic disorder and antisocial personality disorder. The petitioner argues that there was insufficient evidence that those conditions resulted in a "general lack of power to control his sexual impulses" such that he is likely to commit a sexual offense if released. We disagree.
The record of the petitioner's multiple prior convictions for sex offenses demonstrated that he engaged in repetitive acts of sexual misconduct that were either violent or aggressive and against a victim under the age of sixteen. See Commonwealth v. Denham, 8 Mass. App. Ct. 724, 731 (1979). The testimony of two QEs and the expert psychologist from the CAB established that the petitioner's pedophilic and antisocial personality disorders led to a general lack of power to control his sexual impulses. These conditions, together with the presence of numerous risk factors and the absence of protective factors, made it likely that the petitioner would reoffend sexually if released. Viewed in the light most favorable to the Commonwealth, this evidence was more than sufficient to establish beyond a reasonable doubt that the petitioner remained a sexually dangerous person.
Judgment affirmed.