Opinion
No. 11–P–1591.
2013-03-6
John McINTIRE, petitioner.
By the Court (KAFKER, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioner, John McIntire, appeals from a judgment on a jury verdict finding that he remains a sexually dangerous person under G.L. c. 123A, § 9. He argues that the trial judge should have admitted the reports of two defense experts and should not have given a Tuey–Rodriquez charge. We affirm.
The petitioner did not offer the disputed expert reports as evidence. He was aware of the trial judge's belief at the time that such reports were inadmissible hearsay. That reasoning is no longer sound after Santos, petitioner, 461 Mass. 565, 573 (2012), which was decided after the trial in this case. However, despite at least one prior case suggesting that independent expert reports could be admissible, cf. Commonwealth v. Starkus, 69 Mass.App.Ct. 326, 338 (2007), the petitioner chose for tactical reasons not to introduce them. He did not provide the reports to the Commonwealth pursuant to the discovery order, instead providing summaries of the experts' opinions that the trial judge found to be conclusory and inadequate. This discovery noncompliance would have been sufficient grounds for the judge to exclude the reports. See id. at 335. And, as stated above, the petitioner never offered the reports. The judge was not required to enter them sua sponte; it was up to the petitioner to decide what evidence he wanted to introduce. See McHoul, petitioner, 445 Mass. 143, 146–147 (2005), cert. denied, 547 U.S. 1114 (2006) (“Under § 9, either side may introduce in evidence ... the petitioner's ‘psychiatric and psychological records' ”). Even if the petitioner had demonstrated error relating to the reports, we discern no prejudice from their absence. He was able to elicit the substance of both reports through the live testimony of both Dr. Bard and Dr. Prentky. Importantly, he also introduced the report of a qualified examiner, Dr. Amadeo, concluding that the petitioner was not sexually dangerous. The jury were able to refer to this report during deliberations. Contrast Santos, supra. In addition, the judge gave a curative instruction, after discussion with both parties, that the jury should not draw any adverse inferences from the fact that they did not receive the reports by Dr. Bard or Dr. Prentky, and should consider their testimony just like that of any other witnesses. Under all the circumstances of this case, any error “did not influence the jury, or had but very slight effect.” LeSage, petitioner, 76 Mass.App.Ct. 566, 573 (2010), quoting from Commonwealth v. Alphas, 430 Mass. 8, 14 n. 7 (1999).
The petitioner also argues that a substantial risk of a miscarriage of justice arose when the judge gave a Tuey–Rodriquez instruction after the jury reported a deadlock. Both sides agreed that the instruction was appropriate in response to the judge's inquiry. The petitioner's argument that the Tuey–Rodriquez instruction is inconsistent with G.L. c. 234, § 34, is unfounded. See Commonwealth v. Jenkins, 416 Mass. 736, 737–741 (1994). The case law includes references to the use of such an instruction in civil cases, with no indication that it is impermissible. See Goffredo v. Mercedes–Benz Truck Co., 402 Mass. 97, 100 (1988); Veiga v. Schochet, 62 Mass.App.Ct. 440, 443–444 (2004). We see no reason why the “ ‘orthodox approach’ to dealing with a deadlocked jury” should be different in proceedings under G.L. c. 123A than in other cases. Ray v. Commonwealth, 463 Mass. 1, 6 (2012), quoting from Commonwealth v. Connor, 392 Mass. 838, 846 n. 5 (1984). It was permissible, as it would be in a criminal case, “to encourage a purportedly deadlocked jury to consider seriously and with an open mind the views and arguments of each member.” Id. at 3 n. 3. There was no error.
Judgment affirmed.