Opinion
19-P-1778
05-12-2021
Conrad MURPHY, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2010 the petitioner was adjudged to be a sexually dangerous person and he was civilly committed to the Massachusetts Treatment Center (treatment center). In 2019 a jury found, on the petitioner's petition for examination and discharge, that the petitioner remains a sexually dangerous person and a judgment entered dismissing his petition. On appeal, the petitioner argues that the jury should not have heard evidence concerning his refusal to participate in sex offender treatment. The petitioner also argues that the prosecutor's opening and closing arguments were prejudicial; the trial judge improperly interfered with the petitioner's ability to present his case and restricted one witness's testimony; and the testifying experts improperly opined "to a reasonable degree of professional certainty." We affirm.
Background. The petitioner was convicted of indecent assault and battery in September 1987. In December 1989, following two additional convictions for sexually violent conduct, the petitioner pleaded guilty to charges of mayhem, indecent assault and battery, assault with intent to rape, armed assault with intent to murder, and assault and battery with a dangerous weapon. The December 1989 convictions arose from an incident in which the defendant induced a sixteen year old girl to enter his apartment; when she refused to engage in sex with him, the petitioner beat her with a hammer, threatened to kill her, and penetrated the victim's anus with his penis.
The petitioner's post-conviction behavior was characterized by frequent disciplinary breaches, many of which involved violent conduct. But, over time and particularly after his transfer to the treatment center in 2005, the petitioner's behavior improved and the "level of violence [was] reduced." In the five years before the petitioner's hearing on his petition for examination and discharge the petitioner was not often reported for disciplinary breaches and "none [of the reports were] of a serious nature"; the petitioner was not cited for disciplinary violations after 2015. The petitioner has not participated in sex offender treatment, either while in prison, where such treatment was made available to him, or since transfer to the treatment center.
The petitioner was adjudged a sexually dangerous person on August 6, 2010. See G. L. c. 123A, § 12. The petitioner filed the petition for examination and discharge at issue here in 2016, after which the five-member community access board (CAB) reviewed his case and two qualified examiners, Drs. Gans and Belle, examined him. See G. L. c. 123A, §§ 1 & 9. At trial a unanimous CAB and both examiners opined, among other things, that: the petitioner's underlying sexual crimes were repetitive and compulsive; the petitioner continues to suffer from mental disorders or abnormalities, namely, sexual sadism disorder and antisocial personality disorder; and that the petitioner remained a sexually dangerous person who likely will reoffend sexually if released from a secure facility. After a multi-day trial in which the petitioner presented competing expert testimony, the jury returned a verdict that "the Commonwealth proved beyond a reasonable doubt that the Petitioner ... is a sexually dangerous person today."
One of the qualified examiners, Dr. Gans, gave the petitioner only a provisional diagnosis of sexual sadism disorder.
Discussion. 1. Evidence of refusal of sex offender treatment. Prior to trial, the petitioner moved in limine to preclude the Commonwealth from introducing any evidence that he refused to participate in sex offender treatment. During hearing on the motion, the judge indicated her understanding of the caselaw regarding the admissibility of such evidence (noting the lack of any case on point governing the circumstances presented) and then turned to the parties for their argument. Before any ruling on the motion, defense counsel suggested a resolution, indicating that he had discussed it with the petitioner. Defense counsel suggested that the Commonwealth could argue that the petitioner chose not to participate in treatment as long as the petitioner could argue that the reason for his choice was to protect his legal position.
On appeal, however, the petitioner contends that the judge erred in admitting evidence that he refused to participate in sex offender treatment. Because the petitioner stipulated to admission of this evidence, we need not decide whether such evidence violated the petitioner's Fifth and Fourteenth Amendment protections against self-incrimination. Cf. Commonwealth v. Hunt, 462 Mass. 807, 814 (2012) ; Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 269-270 (2014). Our present review thus is limited to determining whether there was error, and if so, whether admission of that evidence created a substantial risk of a miscarriage of justice. R.B., petitioner, 479 Mass. 712, 717-718 (2018).
With respect to error, there were sound strategic reasons why counsel may have chosen to waive whatever rights his client had under Hunt, 462 Mass. at 814, and to allow the now contested evidence in this case. The defendant had a long history of violent sexual offenses, he had undergone no treatment in the nearly three decades since the crimes were committed, and he had not participated in treatment while held at the treatment center. He had been diagnosed with sexual sadism disorder and had a history of violence while in prison. Counsel may well have decided that, given these facts, some explanation was better than no explanation.
The motion judge questioned whether Hunt applied once a defendant was committed to the treatment center as a sexually dangerous person, and was seeking review under § 9. As previously noted, we need not address that question here.
However, to the extent that the doctrine of invited error applies, see Commonwealth v. Leary, 92 Mass. App. Ct. 332, 342-343 (2017), we review for a substantial risk of a miscarriage of justice. In this regard, we consider "the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that [counsel's stipulation] was the result of a reasonable tactical decision" (citation omitted). R.B., petitioner, 479 Mass. at 718. We conclude that, even assuming error, there was no such risk.
First, as noted above, defense counsel's decision to stipulate was both tactical and reasonable. Indeed, the petitioner's stipulation offered the petitioner several trial advantages, not least of which is that it allowed him to explain why he chose not to participate in sex offender treatment. Defense counsel told the jury in closing argument that the petitioner "den[ied] his offenses and refus[ed] to talk about them" because "he needed to maintain that denial to protect his right to appeal." He was able to get his story to the jury without testifying and exposing himself to cross-examination. While the petitioner's stipulation no doubt carried risk, his failure to offer an explanation also carried risk. In context, we cannot say that counsel's tactical choice created a substantial risk of a miscarriage of justice. "We do not view the defendant's as one of those rare cases that qualify for the seldom-afforded exception to the waiver rule represented by the substantial risk doctrine." Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 604 (2000).
We assess the other factors in light of the strategic decisions made and the procedural and factual context in which this § 9 proceeding arose. The petitioner had already been adjudicated a sexually dangerous person. See G. L. c. 123A, § 1. The five-member CAB and both qualified examiners opined that the petitioner's sexual misconduct was repetitive and compulsive. The CAB concluded that, at the time of trial, the petitioner suffered from two separate, untreated mental abnormalities or disorders -- sexual sadism disorder and antisocial personality disorder -- that "affect[ ] 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." G. L. c. 123A, § 1 ("mental abnormality"). Both qualified examiners, Dr. Belle and Dr. Gans, opined that the petitioner suffered from antisocial personality disorder. Dr. Belle opined that he suffered from sexual sadism disorder; Dr. Gans opined that he suffered "provisionally" from sexual sadism disorder. As discussed above, since his convictions the petitioner has a history of frequent, violent misconduct, both in prison and while civilly committed to the treatment center. From these observations, the CAB and the qualified examiners concluded that the petitioner had not addressed his underlying behavior or developed appropriate interventions that might prevent a recurrence of sexual misconduct if released into the community, and, therefore, that if released the petitioner "is likely to attack or otherwise inflict injury on ... victims because of his uncontrolled or uncontrollable desires." G. L. c. 123A, § 1 ("sexually dangerous person").
To be sure, the evidence before the jury was mixed, with both petitioner's retained experts, Drs. Brown and Kriegman, opining that the petitioner no longer remained a sexually dangerous person. But such factual conflicts were for the jury to resolve. Hill, petitioner, 422 Mass. 147, 156, cert. denied, Hill v. Massachusetts, 519 U.S. 867 (1996).
The petitioner now points out that the prosecutor characterized his decision as a "refusal" to participate in sex offender treatment, and that this materially prejudiced him. This characterization does not appear to have "figure[d] prominently in the testimony or report of either qualified examiner," however. R.B., petitioner, 479 Mass. at 719. As the petitioner now presents it, the Commonwealth emphasized his refusal to participate either to suggest that the petitioner did not wish to be treated, as was the concern in Hunt, 462 Mass. at 819, or that untreated persons are statistically more likely to reoffend than those who choose to participate in treatment. The record before us does not appear to support either assertion. Qualified examiner Belle, for example, specifically agreed, when questioned by defense counsel, that nonparticipation in treatment does not "in and of itself ... increase risk to reoffend sexually" and that "those who simply did not attend sex offender treatment did not appear to be ... at a higher risk than those who attended any treatment."
Rather, what the qualified examiners emphasized, as Dr. Belle testified, was not so much that the petitioner "refused" to participate in sex offender treatment as that the petitioner "has done nothing ... to explore the origins of his sexual offending behaviors and more importantly has not developed any type of interventions that he could use to safely manage if he were to encounter those same impulses in the community.... [The petitioner] has done nothing to address a chronic condition, that being sexual sadism." Otherwise put, evidence concerning the petitioner's nonparticipation in sex offender treatment was both highly relevant and tightly focused to raise the permissible inference that the petitioner, since his convictions, has not addressed the causes or conditions driving his offending behaviors and, therefore, likely is at present unable "to control a mental abnormality ... that otherwise creates a substantial risk of additional sexual offenses." Commonwealth v. Chapman, 444 Mass. 15, 24 (2005). Moreover, evidence that the petitioner had not undergone treatment was admissible under Hunt. Viewed in this light it is unlikely that the jury placed undue emphasis on the petitioner's "refusal" to engage in sex offender treatment or otherwise drew impermissible inferences.
2. Prosecutor's opening statement and closing argument. We are unpersuaded that the prosecutor's now challenged statements, made during opening and closing argument, shifted the burden of proof to the petitioner to prove progress in sex offender treatment. Insofar as the petitioner raises this issue for the first time on appeal, we review for a substantial risk of a miscarriage of justice. R.B., petitioner, 479 Mass. at 717-718.
The prosecutor's characterizations that the petitioner "refused" to participate in sex offender treatment or "even talk about [his] offenses" were unfortunate, and some were better left unsaid. However, as discussed above, evidence that he did not participate in treatment was admitted at trial, Commonwealth v. Mendes, 441 Mass. 459, 472-473 (2004), and the prosecutor otherwise stayed within the scope of allowable argument. Compare Hill, petitioner, 422 Mass. 147, 157 (1996) (notwithstanding lack of "any examples of contemporaneous or recent conduct indicating sexual dangerousness," where petitioner "refus[ed] to participate in [sex offender] treatment," Commonwealth properly could urge inference that petitioner's "dangerous disposition has a tendency to persist" and that petitioner thus remained sexually dangerous). The petitioner's lack of objection also provides at least "some indication that the tone, manner, and substance of the now challenged aspects of the prosecutor's argument were not unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360 (1985).
Particularly those that potentially could have been viewed as negative commentary on the petitioner's exercise of his legal rights.
Moreover, the trial judge carefully and thoroughly instructed the jury that counsel's comments "are not evidence"; "the Commonwealth bears the burden of proving beyond a reasonable doubt that the Petitioner is a sexually dangerous person"; and, in pretrial introductions, that the petitioner "has no burden to prove anything in the case. The burden of proof never shifts to the Petitioner. The burden of proof is on the Commonwealth and it stays on the Commonwealth throughout the trial." Again, the trial judge closed the trial by emphasizing that the petitioner "has no burden to prove anything in the case. The burden is on the Commonwealth and stays on the Commonwealth throughout the trial." In such circumstances there "was no substantial likelihood that the jury understood the [petitioner] had to prove anything." Commonwealth v. Walker, 443 Mass. 213, 223 (2005). We conclude that the prosecutor's now challenged statements did not create a substantial risk of a miscarriage of justice.
3. Judicial interference. The petitioner now asserts, for the first time on appeal, that the judge "frequently interrupted during witness testimony," "questioned witnesses on her own," "precluded counsel from asking question," "sua sponte struck witness' testimony," and "called for numerous sidebar discussions without prompting from counsel," all to his prejudice and to such an extent that the judge's impartiality reasonably could be questioned. We disagree.
It was the judge's responsibility, whether on counsels' or her own motion, Commonwealth v. Haley, 363 Mass. 513, 518 (1973), to make certain that the witnesses and the jury were not exposed to inadmissible evidence. See Mass. G. Evid. § 103(d) (2020). In doing so judges must strike a delicate balance between "meddlesomeness on the one hand and ineffectiveness and impotence on the other" (citation omitted). Commonwealth v. Carter, 475 Mass. 512, 525 (2016). But a judge is not a "mere functionary to preserve order and lend ceremonial dignity to the proceedings" (citation omitted). Haley, supra at 518. It is instead the judge's task to make certain that the parties are treated fairly and to "see that justice is done, or at least to see that the jury have a fair chance to do justice" (citation omitted). Carter, supra at 525.
While the transcript reflects that the judge intervened from time to time, on this record we cannot say there is a substantial risk, as the petitioner argues, that the trial judge's "interferences frustrated [the petitioner's] due process right to present a full and complete case to the jury" or otherwise "gave the appearance of partiality." In our view the judge's questions were proper and intended to clarify the witness's testimony. Her interruptions, most often intended to refocus rambling witness commentary, were not unduly harsh or disparaging and her frustrations never rose beyond "a show of evanescent irritation -- a modicum of quick temper that must be allowed even judges" (citation omitted). Commonwealth v. Meadows, 33 Mass. App. Ct. 534, 536 (1992). Most importantly, and contrary to the petitioner's implication, the trial judge's interruptions or frustrations were not partisan; at no point did the judge become an advocate for the prosecution or suggest that the defendant ought to be found sexually dangerous. See Commonwealth v. Troung, 34 Mass. App. Ct. 668, 670-671 (1993).
While the petitioner emphasizes the judge's frustrations with one of his witnesses, we note that the judge appears to have been equally frustrated with the Commonwealth's.
In addition, we note that the judge's "firm instructions" were "likely to have gone a long way in neutralizing any impression that might have been conveyed that the judge thought ill of the defendant." Meadows, 33 Mass. App. Ct. at 538-539. Having carefully reviewed the trial transcript, we are satisfied that the judge's comments and questions did not impact the petitioner's right to a fair trial.
Among other things, the judge emphasized that:
"You should not consider anything I have done or said during the trial as any indication at all of my opinion as to how you should decide this case. You should not consider any rulings, questions, comments, expressions, or my instructions on the law as any indication of my opinion on how you should decide this case, because I do not have an opinion as to how you should decide this case. I have no opinion about the facts or what your verdict should be."
To the extent the petitioner argues that some of the trial judge's evidentiary rulings were erroneous, we note that the petitioner, for the most part, did not object to such rulings or otherwise preserve such issues for review. Nor, to the extent the petitioner now has identified any potentially erroneous evidentiary rulings adverse to him, are we able to conclude that those rulings gave rise to a substantial risk of a miscarriage of justice.
4. Social worker's testimony and report. The petitioner moved pretrial for admission of licensed social worker Christina Patts's testimony and written report, arguing that as "a licensed social worker [Ms. Patts] has expertise that allows her to assess [the petitioner's] release plan ... to determine whether his release plan allows for sufficient ‘referral to community resources.’ " The judge allowed the petitioner's motion in part, ruling that Ms. Patts could testify to "identified programs that she has recommended to" the petitioner in the event of his release from civil commitment but not as to "conversations she's had with [the petitioner] unless [the petitioner] is going to take the stand." Ms. Patts so testified at trial and her redacted report was admitted as an exhibit.
The petitioner now argues that the trial judge abused her discretion by improperly limiting the scope of Ms. Patts's testimony (and by redacting her written report), suggesting that Ms. Patts's "opinion would have assisted the jury in understanding [the petitioner's] anticipated release plan so that they could evaluate whether that intervention would prevent risk." Our review in this regard is particularly limited because the petitioner, as is his duty, see Mass. R. A. P. 18 (a) (1) (A) (v) (b), as appearing in 481 Mass. 1637 (2019), did not include in the record appendix either Ms. Patts's written report -- the redacted report was admitted and the unredacted report was marked for identification -- or her curriculum vitae (also an admitted exhibit). Nor, to the extent the petitioner offered Ms. Patts as an expert, did the petitioner describe with any specificity the expert opinion Ms. Patts would have been expected to give. We thus are unable meaningfully to evaluate whether the limitations on Ms. Patts's testimony were prejudicial. We particularly note, for example, that it is not obvious on the present record how Ms. Patts could have assisted the jury, as the petitioner now argues, in understanding the petitioner's "complete and unaltered release plan," there being nothing in the record before us suggesting that Ms. Patts prepared any such plan, assisted the petitioner in developing his own plan, or that Ms. Patts otherwise was sufficiently familiar with the petitioner's plan to describe it.
To the extent we understand it, the petitioner's offer of proof below was that Ms. Patts's "testimony will basically be that these are the services that she's found in the community ... that she believes are relevant to" the petitioner. Defense counsel also represented that Ms. Patts "talked with [the petitioner] about what sort of appropriate services are for him when he gets out."
But for present purposes these concerns are less important than that Ms. Patts's evidence, both as given and as proposed, appears to have been largely or entirely cumulative of other properly admitted evidence. As such, and to the extent the judge abused discretion by limiting Ms. Patts's testimony, that error would not have been prejudicial. See Commonwealth v. Smith, 460 Mass. 385, 398 (2011) (improper exclusion of evidence does not constitute prejudicial error where such evidence is cumulative of other properly admitted evidence). Materials presumably comprising or evidencing the petitioner's release plan, for example, were admitted through Dr. Johnson. One of those admitted exhibits is an application to the "Moving Ahead Program" at the St. Francis House, apparently the same program addressed by Ms. Patts in her trial testimony. The petitioner also called as witnesses two individuals who also addressed the community resource question, one of whom is the director of the Boston Release Network. Both witnesses testified that they are familiar with the resources that would be available to the petitioner and that they themselves would assist the petitioner in transitioning from civil commitment to the larger community; like Ms. Patts, both witnesses described the resources that would be available to the petitioner in that eventuality. In other words, both witnesses appear to have covered the same material as defense counsel suggested Ms. Patts would cover in his offer of proof. See note 8, supra.
Nonetheless, we agree with the petitioner that, as a general proposition, a licensed clinical social worker such as Ms. Patts could be qualified as an expert witness and, if so qualified, could give a competent opinion within her area of expertise. But an expert in one field is not necessarily competent in another. See Commonwealth v. Frangipane, 433 Mass. 527, 534-535 (2001) (licensed independent certified social worker with eighteen years' experience as psychotherapist qualified to give expert opinion that sexually abused children may "experience dissociative memory loss" but could not opine as to "how a trauma victim stores and retrieves, or dissociates, a traumatic memory"). On the record before us we can agree that Ms. Patts was competent to identify, as she did at trial, community resources available and relevant to the petitioner upon his release from civil commitment. But it is less clear, and the petitioner has not explained, how Ms. Patts could have been competent to give an opinion as to the adequacy or potentially curative efficacy of the petitioner's release plan. On this record, then, we are unable to say that the judge abused discretion by limiting Ms. Patts's testimony or redacting her report. See Commonwealth v. Seit, 373 Mass. 83, 91-92 (1977).
Indeed, defense counsel agreed below that Ms. Patts would not "offer an opinion as to dangerousness or anything like that. She's just going to basically say ... ‘I looked at his history and I recommend ... and found and confirmed these resources on the outside.’ "
5. Expert opinions made "to a reasonable degree of professional certainty." The parties below stipulated that the experts in this case would give their opinions to a "reasonable degree of professional certainty." As anticipated, the experts couched their opinions, without objection, using that language. Nonetheless, the petitioner now argues that this phraseology potentially confused the jury and violated his due process rights, that the experts should only have opined "to a reasonable degree of certainty." We disagree.
"To a reasonable degree of certainty" probably would in many cases be appropriate phraseology in which to couch an expert opinion. See Commonwealth v. Heang, 458 Mass. 827, 848-849 (2011). But where "empirically based but subjective opinions [are] to be presented," other formulations may be equally appropriate, as, for example, in the case of "psychological opinions" where a "reasonable degree of psychological certainty" may properly be used. Id. at 848-849, quoting Commonwealth v. Wentworth, 53 Mass. App. Ct. 82, 86 (2001). In the context of this case, where all of the qualified experts were mental health professionals, we are unable to perceive any meaningful distinction between, for example, "to a reasonable degree of psychological certainty" and "to a reasonable degree of professional certainty"; nor do we have concern that the language used here likely confused the jury or otherwise created a substantial risk of a miscarriage of justice.
Judgment affirmed.