Opinion
14-P-393
09-10-2015
JOHN YOUNG, petitioner.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
After his adjudication as a sexually dangerous person (SDP), and commitment to the Massachusetts Treatment Center at Bridgewater State Hospital (treatment center), the petitioner, John Young, appeals from the judgment denying his 2009 petition for release from civil commitment pursuant to G. L. c. 123A, § 9. Young claims that there was insufficient evidence to support the determination that he remains an SDP, and that the judge improperly instructed the jury on the role of the expert witnesses. We affirm.
Background. In 1981, at the age of nineteen, the petitioner was convicted of rape, indecent assault and battery, and assault and battery of a twenty year old woman; he also was convicted of larceny of her motor vehicle. While still incarcerated on these charges, the petitioner received disciplinary reports for, among other things, making a number of obscene telephone calls from the prison payphone, including calls to a department store and to the wife of a corrections officer. In 1997, the petitioner was convicted of indecent assault and battery on a person over fourteen. Prior to completing his sentence on that conviction, a petition pursuant to G. L. c. 123A was filed, and in 2003 the petitioner was adjudicated an SDP and was civilly committed to the treatment center; that commitment was affirmed on appeal.
Young has an extensive criminal record, having received hundreds of disciplinary reports during his almost continuous incarceration between 1981 and 2001. The number of disciplinary reports declined, however, starting in 2004, with no reports in 2010 or 2012, and only one report each in 2009 and in 2011.
Commonwealth v. Young, 66 Mass. App. Ct. 1103 (2006).
In December, 2009, the petitioner filed this § 9 petition for discharge. At the trial, held over several days in June, 2012, two qualified examiners (QE), Dr. Manju Vachher and Dr. Michael Henry, testified as experts for the Commonwealth. Dr. Katrin Rouse-Weira, a member of the community access board (CAB), testified regarding the findings of the CAB -- that Young "demonstrates a general lack of power to control his sexual impulses related to the symptoms of an antisocial personality disorder" and that he remains an SDP. Vachher and Henry both diagnosed the petitioner with a personality disorder and opined that, due to that personality disorder, he remains an SDP as he cannot control his sexual impulses and, therefore, runs a significant risk of reoffending if he were released to the community. The respective QE reports of each expert were admitted as trial exhibits.
Vachher testified that the petitioner also meets the statutory criteria, although not the DSM-IV criteria, of a mental abnormality. Both QEs opined that the petitioner scored a seven on the Static-99 test. They noted that the petitioner had participated sporadically in sexual offender treatment during his incarceration and confinement at the treatment center, but had never completed a program. According to the parameters of the Static-99 testing scale, a score of six and higher indicates a high risk of reoffense.
Dr. Eric Brown and Dr. Joseph Plaud testified as experts on the petitioner's behalf. Brown opined that, although the petitioner met the "clinical" criteria of an antisocial personality disorder, that does not mean that he cannot control his sexual impulses, and, according to Brown, he did not currently meet the criteria for being judged an SDP. Plaud also opined that the petitioner was not sexually dangerous. According to Plaud, the petitioner was a very low risk to commit additional sexual offenses because he did not suffer from any underlying sexual deviance. Both Brown and Plaud opined that the petitioner likely would not reoffend if discharged from the treatment center. The reports by Brown and Plaud were admitted as trial exhibits. On June 8, 2012, the jury determined that the petitioner remained an SDP as defined by G. L. c. 123A.
Brown testified that the petitioner generated a score of six on the Static-99 test.
Discussion. "The sole issue at the § 9 hearing is whether the petitioner, having been committed, remains sexually dangerous." McHoul, petitioner, 445 Mass. 143, 158 (2005). The petitioner argues that the Commonwealth failed to present evidence linking the opinions of the two QEs to his inability to control his sexual impulses, as opposed to criminal impulses. Specifically, in his view, although the QEs diagnosed him with a personality disorder, there is no record evidence establishing that the petitioner "is sexually impulsive, rather than generally criminally impulsive." The petitioner contends that because the statute serves to protect the public from those who will likely engage in sexually dangerous conduct in the future, and the Commonwealth has failed to establish that, should he be released, he would likely commit crimes that are specifically sexual in nature, he should be released from civil commitment. See Dutil, petitioner, 437 Mass. 9, 14-15 (2002). We are not persuaded.
Each of the Commonwealth's experts provided substantial opinion testimony at trial; the petitioner's experts also provided significant, although contradictory, opinion testimony. "The weight and credibility of the evidence is the province of the jury" and, thus, it was for the jury to decide what conclusions, if any, to draw from the experts' testimony. Commonwealth v. Dubois, 451 Mass. 20, 28 (2008). In addition, in this case, the judge thoroughly instructed the jury regarding their duty and the law to be applied in rendering a verdict. They are presumed to follow the judge's instructions. Commonwealth v. Andrade, 468 Mass. 543, 549 (2014).
Although there was no objection at trial, the petitioner also argues that the instructions regarding expert witness testimony were improper because they implied that the jury's rejection of the testimony of Young's experts could satisfy the Commonwealth's burden of proof. This argument fails. The jurors were informed that "expert witnesses do not decide cases; juries do," and that it was the role of the jury, "not the role of the expert witnesses, to decide the ultimate issue of whether or not Mr. Young [was] . . . a sexually dangerous person." The judge also told them that they were to determine whether the Commonwealth had proved beyond a reasonable doubt the three elements under G. L. c. 123A, that is, prior sexual offenses had been committed by the petitioner; the petitioner suffered from a mental condition that results in a general lack of power to control sexual impulses; and the petitioner was likely to commit sexual offenses in the future.
"'A trial judge has wide latitude in framing the language to be used in jury instructions' as long as the instructions adequately explain the applicable law." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 316 (2009), quoting from Jacobs v. Pine Manor College, 399 Mass. 411, 414 (1987). "The test of the charge is the impression created by it as a whole." Commonwealth v. Trappaga, 76 Mass. App. Ct. 538, 547-548 (2010), quoting from Commonwealth v. Kelley, 359 Mass. 77, 92 (1971). We see no error in the jury instructions and certainly nothing that would give rise to a substantial risk of a miscarriage of justice and warrant reversal.
Judgment affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 10, 2015.