Opinion
No. 11–P–956.
2013-06-20
John YOUNG, petitioner.
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case comes to us in the same procedural posture as McIntire, petitioner, 458 Mass. 257 (2010), cert. denied, 131 S.Ct. 2909 (2011) ( McIntire ). During the pendency of this appeal, the petitioner has pursued relief in another petition under G.L. c. 123A, § 9. Following trial on that petition, he was found sexually dangerous, and that judgment is now separately on appeal. We decline, however, the Commonwealth's request to dismiss this appeal. McIntire did not dismiss the appeal there before the court, but rather held only that in these circumstances a petitioner successful in his appeal would not be “entitled to an order of discharge from the treatment center at this time.” 458 Mass. at 266. The court in McIntire nonetheless addressed the merits of the appeal before it—indeed, after finding the petitioner's appeal had merit, it reversed the order below—and we follow the same procedure here.
We turn then to the merits. The petitioner in this case involving a petition for discharge from the Massachusetts Treatment Center pursuant to G.L. c. 123A, § 9, argues first that the Commonwealth was relieved of its burden to prove its case beyond a reasonable doubt by two of the judge's instructions. This claim was waived as there was no objection; “accordingly, we review for a substantial risk of a miscarriage of justice.” Commonwealth v. Walker, 83 Mass.App.Ct. 901, 903 (2013). We first address the petitioner's argument that the judge's general instruction on proof beyond a reasonable doubt acted to lessen the burden of proof. In that instruction, the judge said, “proof beyond a reasonable doubt, that's a term that we all use, probably pretty well understood but it's not easily defined. It doesn't mean proof beyond all doubt. It doesn't mean proof beyond some fanciful or imaginary doubt. It doesn't mean beyond some possible doubt. Doesn't mean proof to a mathematical certainty. It doesn't mean proof beyond a shadow of a doubt. That's Alfred Hitchcock stuff.” The judge went on to say, “[W]hat it means is this: that something is proved beyond a reasonable doubt, if after you've considered and compared all the evidence, you have in your minds a conviction to a moral certainty that the matter is true. A moral certainty, that means a subjective state of near certitude. Certitude is the state or the feeling of certainty.”
While instructions emphasizing all the types of doubt that are not “reasonable doubt” might in some circumstances create a risk that the jury will understand the burden upon the Commonwealth to be less than it actually is, our courts have rejected challenges to burden-of-proof instructions containing each of the phrases used by the judge. See, e.g., Commonwealth v. Webster, 5 Cush. 295, 320 (1850) (“imaginary doubt”); Commonwealth v. Watkins, 433 Mass. 539, 547 n. 6 (2001) (“beyond all doubt”); Commonwealth v. Schand, 420 Mass. 783, 794 & n. 10 (1995) (same, and “fanciful doubt”); Commonwealth v. Painten, 429 Mass. 536, 545 (1999) (“all possible doubt”); Commonwealth v. Mack, 423 Mass. 288, 290–291 & n. 5 (1996) (“mathematical certainty”); Commonwealth v.. Denis, 442 Mass. 617, 622 (2004) (“shadow of a doubt”); Commonwealth v. Richardson, 425 Mass. 765, 768 (1997) (same). The Supreme Judicial Court has held that contrasting “beyond a shadow of a doubt” with “beyond a reasonable doubt” is “unlikely to be helpful to a jury,” Commonwealth v. Richardson, supra, and we think that the reference to the former phrase being a Hollywood invention, too, might at least in some circumstances also tend to confuse the jury or weaken the burden of proof instruction. In this case, however, reading the jury charge as a whole, and particularly in light of the language that immediately follows the litany, which is quoted above, we do not think that a reasonable juror could have used the instruction incorrectly to require proof less than proof beyond a reasonable doubt. In the absence of error, there can be no substantial risk of a miscarriage of justice.
The judge also gave an instruction, challenged by the petitioner, that “[n]ow you have heard the two qualified examiners and you will evaluate their testimony just the way you evaluate everybody else's testimony. If you decide that you don't give any weight whatsoever to the testimony of both of them, then you may not find Mr. Young sexually dangerous. In other words, you needn't find beyond a reasonable doubt on the testimony of one, but if you have no credibility—if neither of the witnesses—of the qualified examiners has any credibility in your collected minds, you may not find Mr. Young sexually dangerous on the basis of other evidence in the case. You don't have to believe either one of them beyond a reasonable doubt. You can use the other evidence in the case to corroborate their testimony, but if you don't believe them at all, either one of them, the two of them, then you may not find him sexually dangerous.”
The petitioner argues that Johnstone, petitioner, 453 Mass. 544 (2009) ( Johnstone ), means that the qualified examiner (QE) testimony must, by itself, suffice to prove to the jury's satisfaction beyond a reasonable doubt that the petitioner is sexually dangerous. Johnstone does not by its terms address the degree to which a jury must credit the testimony at trial of a QE before they may find someone a sexually dangerous person, and we are not persuaded by the petitioner's argument. Indeed, the petitioner's position is in at least some tension with those aspects of Johnstone and the statute that appear to envision a place for additional evidence of sexual dangerousness at trial. See Johnstone, 453 Mass. at 553. While the phrasing of this portion of the instruction is a bit complex, we are not persuaded that any error it might contain created a substantial risk of a miscarriage of justice.
The petitioner also argues that the last sentence quoted above—“if you don't believe them at all, either one of them, the two of them, then you may not find him sexually dangerous”—would have been understood to mean that only in the absence of any belief in either QE were the jury permitted to render a verdict that the Commonwealth had not proven the petitioner sexually dangerous. We disagree. Read in context, it would not have been understood to suggest that this was the only circumstance in which a finding in favor of the petitioner was permissible. The petitioner again has not demonstrated a substantial risk of a miscarriage of justice.
Finally, the petitioner also argues that the Commonwealth's evidence failed to establish that his mental condition resulted in a general lack of power to control his sexual impulses. This same question was litigated before this court in a prior appeal from an earlier decision involving the same petitioner, see Commonwealth v.. Young, 66 Mass.App.Ct. 1103 (2006). While we are not bound in this case by that decision, we are not persuaded that its reasoning is in error. Where there was evidence that the petitioner suffered from antisocial personality disorder, and that, as a result of that disorder, he committed not only the sexual offenses at issue here, but also engaged in other wrongful, uncharged sex-related conduct (for example, making obscene phone calls, including one in which he forced a woman to engage in sexual activity alone in her home on threat of doing violence to her husband), we think that there was sufficient evidence to support a finding beyond a reasonable doubt that the petitioner has a personality disorder that causes a general lack of power to control sexual impulses. See G.L. c. 123A, § 1.
Judgment affirmed.