Opinion
21-P-606
10-03-2022
EAGLE EYES CUEVAS, petitioner.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In this proceeding under G. L. c. 123A, § 9, the petitioner, Eagle Eyes Cuevas, seeks to overturn a jury verdict that he remains a sexually dangerous person (SDP). In particular, Cuevas argues that the jury were instructed that they could find that he was an SDP because he had a "personality disorder," and that this was improper because no "qualified examiner" (QE) testified that Cuevas had such a personality disorder. Cuevas argues that the instructions thus were at odds with Green, petitioner, 475 Mass. 624 (2016), and that the jury's verdict must be vacated.
We disagree, and affirm the judgment. The jury were properly instructed that in order to find that Cuevas remained an SDP, one element they must find is that that Cuevas suffers from a "mental condition." The jury were also instructed that a "mental condition" includes a "mental abnormality." Finally, the jury were properly instructed that in order to find that Cuevas suffered from a mental condition, they must credit the opinion of at least one QE. Both QEs testified that Cuevas has a mental condition because he has a "mental abnormality" -pedophilia -- and that as a result, Cuevas had a general lack of power to control his sexual impulses as of the time of trial. Although the instruction stated that the required "mental condition" could be either a "mental abnormality" or a "personality disorder," that was a correct statement of the law and the instructions, as a whole, were not erroneous.
Background.
Prior to his commitment under G. L. c. 123A, Cuevas was convicted of two sexual offenses. In 1994, while living in New York, Cuevas assaulted the thirteen year old niece of his then live-in girlfriend, as well as the niece's cousin, by touching their breasts and pressing his penis against the cousin's vagina. Cuevas was convicted of first-degree sexual abuse and sentenced to eighteen months to three years in prison. After being released in 1998, Cuevas repeatedly assaulted and raped his girlfriend's son over a period of years, beginning in 1999. The assaults began when the boy was just five years old and included both oral and anal penetration. In 2004, Cuevas was convicted, among other things, of rape of child, and was sentenced to five to seven years in prison. Although Cuevas was scheduled for an August 2010 release on these convictions, the Commonwealth filed a petition in July of 2010 seeking to commit Cuevas as an SDP pursuant to G. L. c. 123A, and Cuevas was committed.
In 2016, Cuevas filed a petition under G. L. c. 123A, § 9, seeking to be examined and discharged from civil commitment. A trial was held in November of 2019. Two QEs testified, and both opined that Cuevas had the mental abnormality of pedophilia, and that he remained a sexually dangerous person. Both also testified, however, that Cuevas did not have a "statutory personality disorder." Dr. Andrea Barnes from the Community Access Board (CAB) also testified, affirming that all five CAB members found that Cuevas remained an SDP. Unlike the QEs, however, the CAB concluded that Cuevas had both a mental abnormality and a statutory personality disorder.
A "statutory personality disorder" is a personality disorder fitting the definition provided in G. L. c. 123A, § 1, i.e., "a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses."
At the end of trial, the judge instructed the jury, without objection from Cuevas, that the Commonwealth had to prove three elements: (1) that Cuevas was previously found to be an SDP; (2) that Cuevas presently possessed a mental condition resulting in a general lack of power to control his sexual impulses; and (3) that, if Cuevas was released, he would likely commit a sexual offense in the future.
It is the second of these elements that concerns us here. As to that element, the judge further instructed the jury:
"[The Commonwealth] must prove that Mr. Cuevas's past sexual misconduct indicates that he now, today, has a general lack of power to control his sexual impulses, as evidenced by past repetitive or compulsive sexual misconduct by violence against any victim or by aggression against any victim under the age of 16 years. This element is easier to explain if I break it down into three parts. . . .
"The first part requires proof of a general lack of power to control sexual impulses. . . .
". . . For the second part . . . the Commonwealth must also prove that the general lack of power to control sexual impulses results from a mental condition. The phrase 'mental condition' means either a mental abnormality or a personality disorder. A mental abnormality is a condition that affects the person's emotional or volitional capacity in a manner that predisposes him to commit criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons. A personality disorder is a physical or mental condition that results in the general lack of power to control sexual impulses.
. . .
"You have heard testimony about mental abnormalities and personality disorders found in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, or the DSM-5. While a mental condition may often correlate with one or more mental conditions defined in the DSM-V, proof of a clinically defined mental illness is not required. You may, however, consider whether the Respondent meets the criteria for a DSM-5 diagnosis in determining whether he suffers from a mental abnormality or personality disorder" (emphasis added).
The jury were also instructed that they must rely upon, and credit, the testimony of at least one QE, in accordance with the teaching of Green, petitioner:
"The Commonwealth cannot meet its burden of proving that Mr. Cuevas is sexually dangerous through testimony by just any expert. Instead, it must do so through an opinion by at least one person who has been designated as a qualified examiner. You may not find that the Commonwealth has proved that Mr. Cuevas is sexually dangerous unless you base that finding, at least in part, on an opinion by a qualified examiner that you find to be credible."
Discussion.
Cuevas's argument employs the following logic: (1) under Green, petitioner, the Commonwealth must prove that a person is an SDP through the testimony of a QE, rather than testimony from a member of the CAB; (2) in Cuevas's case, the QEs testified only that he had a mental abnormality, not a statutory personality disorder; (3) the jury nevertheless were charged that they could find a mental condition based upon a personality disorder; and accordingly (4) the jury's verdict could have been based upon an unsupported ground.
We are not persuaded. To begin, there was no objection to any of the instructions now under challenge. Accordingly, our review is only for a substantial risk of a miscarriage of justice. "A substantial risk of a miscarriage of justice exists where we have a 'serious doubt whether the result of the trial might have been different had the error not been made.'" Commonwealth v. Valentin, 470 Mass. 186, 189 (2014), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005).
Indeed, it appears that the instructions track those that Cuevas proposed, although at argument the Commonwealth disclaimed an invited error argument. See, e.g., Commonwealth v. Knight, 37 Mass.App.Ct. 92, 99-100 (1994) (discussing principles of invited error).
We have no such serious doubt here. To the contrary, we do not agree that the instruction was erroneous. Jury instructions must be read "as a whole," in evaluating their correctness. See Commonwealth v. Randolph, 438 Mass. 290, 302-303 (2002). Here the instruction was correct that the jury must find a "mental condition." It was also correct that a mental condition could be either a mental abnormality "or" a personality disorder. And finally, the instruction correctly advised the jury that to find Cuevas was an SDP, they must credit the testimony of a least one QE. Green, petitioner, 475 Mass. at 630-631 ("[T]he jury must, in some fashion, be guided in distinguishing the role of the qualified examiner from that of the CAB members who testify at trial. A jury instruction that the qualified examiner's opinion must be found credible to warrant a finding of sexual dangerousness satisfies this purpose").
In the face of instructions that correctly stated the law, the defendant nevertheless argues that the jury should not have been instructed that a personality disorder was a mental condition, because no QE testified that he had a personality disorder. Put differently, the argument is that the judge should have excised any mention of personality disorders from the instructions, because the reference might have caused the jury to travel down the wrong path.
There are several reasons this argument is without merit. First, it is difficult to conceive how giving an instruction that correctly states the law could constitute material error, particularly where the issue with the instruction now being raised was not brought to the judge's attention at trial. Second, we are not convinced, in any event, that it was error to give the instruction here. Green, petitioner, and Johnstone, petitioner, 453 Mass. 544 (2009), both affirm that evidence from the CAB is relevant to SDP proceedings, as does G. L. c. 123A, § 6A, itself, even though the opinion of a QE must be "the essential basis for a finding of sexual dangerousness." Green, petitioner, 475 Mass. at 630; Johnstone, petitioner, 453 Mass. at 552. The CAB evidence as to personality disorders was accordingly relevant, although insufficient standing alone. The instruction thus would have helped to put relevant evidence in context.
Third, and most importantly, the premise of Cuevas's contention of error is that after hearing the instructions, the jury might have found that Cuevas had a personality disorder, and did not find that Cuevas had a mental abnormality. The jury were instructed, however, that "[y]ou may not find . . . that Mr. Cuevas is sexually dangerous unless you base that finding, at least in part, on an opinion by a qualified examiner." The qualified examiners testified only that Cuevas had a mental abnormality. The jury, of course, are presumed to follow the judge's instructions on the law. Commonwealth v. Williams, 450 Mass. 645, 651 (2008); Commonwealth v. Silva, 93 Mass.App.Ct. 609, 615 (2018) (jury system built on structure "that the judge provides the law, and that the jurors then follow that law"). Viewing the instructions as a whole, they would not have led a jury to error. There is no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court
Lemire, Singh & Englander, JJ.
The panelists are listed in order of seniority.