Esteraz , 90 Mass. App. Ct. 330 ( 2016 )

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15-P-660 Appeals Court
JUSTO ESTERAZ, petitioner.
No. 15-P-660.
Suffolk. June 14, 2016. - September 22, 2016.
Present: Trainor, Vuono, & Blake, JJ.
Sex Offender. Evidence, Sex offender, Expert opinion,
Scientific test. Practice, Civil, Sex offender, Waiver,
Assistance of counsel. Waiver.
Petition filed in the Superior Court Department on December
2, 2010.
The case was tried before Merita A. Hopkins, J.
Ethan C. Stiles for the petitioner.
Melissa A. Juarez for the Commonwealth.
BLAKE, J. After a trial in the Superior Court, the jury
returned a verdict finding that the petitioner, Justo Esteraz,
remained a sexually dangerous person (SDP) as defined by G. L.
c. 123A, § 1. He appeals, arguing that the judge erred by
failing to hold a Daubert/Lanigan hearing to determine the
admissibility of the results of a risk assessment tool known as
2
the Multisample Age-Stratified Table of Sexual Recidivism Rates
(MATS-1), which purports to measure an individual's likelihood
to reoffend. See Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 592-595 (1993); Commonwealth v. Lanigan, 419 Mass.
15, 24-26 (1994). He also claims that his trial counsel was
ineffective in his advocacy for the admission of the same
evidence. We affirm, addressing, in our discretion, the
question whether the MATS-1 evidence was directly admissible as
part of the petitioner's expert's report.
1. Background. The petitioner was civilly committed as an
SDP on October 18, 2010. On December 2, 2010, he filed a
petition for release and discharge pursuant to G. L. c. 123A,
§ 9.
At the time of trial, the petitioner was a seventy-four
year old man with a significant history of charged and uncharged
crimes of sexual abuse spanning over four decades. The
petitioner's victims include three generations of young girls in
his extended family, including his daughter, nieces,
granddaughters, and step-granddaughters. His conduct has
included fondling, vaginal and digital penetration, and oral
sex. The petitioner's criminal record includes four convictions
in 1994 for sex crimes committed in Puerto Rico and four
convictions in 2008 in Massachusetts for indecent assault and
battery on a child under fourteen years of age.
3
Pursuant to G. L. c. 123A, § 9, the petitioner was examined
by two qualified examiners who prepared reports opining that the
petitioner remained an SDP. Those reports explained that,
despite the petitioner's advanced age, his extensive and
prolonged history of sexual abuse, which continued into his
sixties, suggested he was likely to reoffend. The examiners
also considered that the petitioner greatly minimized his
culpability for his conduct and, at times, suggested his victims
were somewhat culpable by offering complicit consent. The
examiners also noted the petitioner remained capable of sexual
activity, had accomplished only limited progress in sex offender
treatment, and his only support in the community is his
daughter, who is the mother of three of his victims, and it is
unclear what, if any, contact the petitioner would have with
them.
The petitioner was also examined by his own independent
expert, Dr. Leonard Bard, who concluded that the petitioner was
no longer an SDP. That opinion was based, in part, on the use
of two risk assessment tools that measure an individual's
likelihood to reoffend: the MATS-1 and the STATIC-99R. Dr.
Bard's application of those tools, respectively, predicted the
petitioner had a 2.5 percent, and 2.8 percent, chance of
sexually reoffending. Upon receipt of Dr. Bard's report, the
Commonwealth filed a motion in limine to exclude all references
4
to the MATS-1 evidence on the ground that it was unreliable and
inadmissible under the Daubert/Lanigan standard. The petitioner
filed an opposition to the Commonwealth's motion, arguing for
the admissibility of the MATS-1 evidence. The petitioner did
not, however, request a Daubert/Lanigan hearing.
On the second day of trial, the judge heard oral argument
on the Commonwealth's motion. The petitioner's counsel stated
that he "had discussed for the purposes of judicial economy
. . . not hav[ing] [his expert] testify with regard to the MATS-
1, because there is also a STATIC-99 score . . . that was
substantially the same," and "[his] theory of the case [did not]
rest on MATS-1 or STATIC-99." He nevertheless renewed his
argument that the MATS-1 evidence was directly admissible as
part of the expert's report under G. L. c. 123A, or, if the
judge disagreed, that the MATS-1 evidence met the standards for
admissibility under Daubert/Lanigan.1 The judge concluded that a
Daubert/Lanigan hearing was required to determine if the MATS-1
evidence was admissible, but declined to schedule one where the
petitioner had failed to timely request such a hearing before
1
It appears from the transcript that the parties had agreed
to stipulate to the exclusion of the MATS-1 evidence on the
first day of trial. One day later, apparently at the insistence
of a Committee for Public Counsel Services attorney present at
the trial, the petitioner changed course and argued the
substance of his opposition to the motion in limine.
5
the trial had commenced. She accordingly allowed the
Commonwealth's motion to exclude the MATS-1 evidence.
2. Waiver. In his appellate brief, the petitioner argues
that the judge should have held a Daubert/Lanigan hearing, and
that, if such a hearing had been held, the MATS-1 evidence would
have been admitted. In passing, the petitioner also claims that
"[t]he trial judge erred in excluding the MATS-1." In response
to a question at oral argument, appellate counsel clarified that
he is, indeed, arguing in the alternative that the risk
assessment evidence is directly admissible, without the need for
a Daubert/Lanigan hearing. Because that argument was not
sufficiently raised in the appellant's brief, it is waived.2 See
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Warner-
Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n.7 (1998);
Larson v. Larson, 30 Mass. App. Ct. 418, 428 (1991).
Nevertheless, in the exercise of our discretion, we comment on
the direct admissibility of MATS-1 evidence, as the issue is
likely to recur.
3. Direct admissibility of MATS-1 evidence. General Laws
c. 123A, § 9, provides that, following the filing of a petition
2
Even if the argument was not waived, we would find no
substantial risk of a miscarriage of justice. See Commonwealth
v. Fay, 467 Mass. 574, 583 n.9, cert. denied, 135 S. Ct. 150(2014). But see McHoul, petitioner, 445 Mass. 143, 156-157
(2005).
6
for release from confinement, "[t]he court shall order the
petitioner to be examined by two qualified examiners, who shall
conduct examinations, including personal interviews, of the
person on whose behalf such petition is filed and file with the
court written reports of their examinations and diagnoses, and
their recommendations for the disposition of such person."
G. L. c. 123A, § 9, inserted by St. 1993, c. 489, § 7.
Thereafter, at a G. L. c. 123A, § 9, trial, "[s]aid reports
shall be admissible." Ibid.
In Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 284-289
(2004), this court interpreted comparable language in G. L.
c. 123A, § 14(c), to mean that the Legislature had expressly
overruled evidentiary requirements that would have otherwise
made the clinical evaluations, reports, and testimony of
qualified examiners subject to the requirements Daubert/Lanigan.3
In Santos, petitioner, 461 Mass. 565, 572-573 (2012), the
Supreme Judicial Court interpreted G. L. c. 123A, § 9, to
likewise allow petitioners to admit the reports of their own
experts at trial.
A few years later, in Gammell, petitioner, 86 Mass. App.
Ct. 8 (2014), this court was presented with the question of
3
The Supreme Judicial Court has explained that the
evidentiary provisions of G. L. c. 123A, §§ 9 and 14, are to be
construed in the same manner. See McHoul, petitioner, 445 Mass.
143, 149 (2005); Santos, petitioner, 461 Mass. 565, 571 (2012).
7
whether penile plethysmograph (PPG) assessment evidence
appearing in an expert's report was directly admissible under
Bradway and Santos absent a Daubert/Lanigan hearing. The court
held that, because PPG evidence was neither "expressly made
admissible by statute, nor . . . an essential part of the
qualified examiners' evaluation as set out in the statute," it
was not admissible without further evaluation. Id. at 15. In
reaching that opinion, the court relied on language from
Commonwealth v. Markvart, 437 Mass. 331 (2002). That case
provides that "[q]ualified examiners, as expert witnesses, may
base their opinions on (1) facts personally observed; (2)
evidence already in the records or which the parties represent
will be admitted during the course of the proceedings . . .; and
(3) facts or data not in evidence if the facts or data are
independently admissible and are a permissible basis for an
expert to consider in formulating an opinion." Id. at 337
(quotation omitted) (holding that police reports and witness
statements from nol prossed criminal complaints, while not
directly admissible under the statute, may be used to the form
the basis of a qualified examiner's opinion). See Ready,
petitioner, 63 Mass. App. Ct. 171, 173-179 (2005) (affirming
trial judge's exclusion of the Abel Assessment for Sexual
Interest test on Daubert/Lanigan grounds based on judge's
finding that the test was neither generally accepted in the
8
relevant scientific community nor a reliable measure of sexual
interest).
The assessment device at issue here, the MATS-1, is an
adjusted actuarial tool that estimates the probability that an
individual will sexually reoffend. Dr. Bard's report provides
that such risk assessment devices "involve[] the use of one or
more empirically validated actuarial tools and the use of
dynamic factors (empirically validated by numerous independent
researchers) to account for variables that an actuarial tool
cannot assess or that are considered changeable over time."4 In
other words, the MATS-1 tool is a product of scientific
research, testing, and validation that is available for use by
4
One law review article on the subject explains that risk
assessment "actuarial scales are developed using statistical
analyses of groups of individuals (in the present case, released
sex offenders) with known outcomes during a 'follow-up' period
(either arrested for or convicted of a new sexual offense, or
not identified as having committed a new sexual offense). These
analyses tell us which items ('predictor variables') do the best
job of differentiating between those who reoffended and those
who did not reoffend within a specified time period. Since some
of these variables inevitably do a better job than others, these
analyses also help us to determine how much weight should be
assigned to each item. The variables are then combined to form
a scale, which is tested on many other groups of offenders
(cross-validation). When the scale has been used on many
samples with a sufficiently large number of offenders, the
scores derived from the scale may be expressed as estimates of
the probability that individuals with that score will reoffend
within a specified time frame." Janus & Prentky, Forensic Use
of Actuarial Risk Assessment with Sex Offenders: Accuracy,
Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443,
1454 (2003).
9
individuals treating or examining sexual offenders. While
aiding an expert or qualified examiner in reaching a
recommendation, the tool, itself, is derived from facts and data
that are outside of the examiner's personal observations of the
petitioner or the record. Thus, like the assessment test at
issue in Gammell, MATS-1 evidence is "not expressly made
admissible by statute, nor [is it] an essential part of the
qualified examiners' evaluation as set out in the statute."
Gammell, petitioner, supra at 15. Rather, to be admissible at a
petitioner's trial, the MATS-1 evidence must undergo an
assessment under the standards of Daubert/Lanigan to determine
whether it is independently admissible. See ibid.5
4. Failure to hold a Daubert/Lanigan hearing. The judge
did not commit error by failing to hold, sua sponte, a
Daubert/Lanigan hearing on the day that Dr. Bard was scheduled
to testify. The petitioner neither requested a Daubert/Lanigan
hearing, nor indicated that he was either interested in or
prepared to participate in such a hearing. To the contrary, the
5
The reliability and admissibility of evidence based on
scientific, technical, or specialized knowledge is ultimately
for the court to decide. As the Supreme Judicial Court has
observed, although the "Legislature doubtless has the power to
prescribe the rules of evidence and the methods of proof to be
employed in trials in court[,] [] the power to do so does not
mean that the reliability of every type of evidence the
Legislature may deem admissible, particularly in a criminal
case, is automatically insulated from challenge and review on
reliability grounds." Commonwealth v. Camblin, 471 Mass. 639,
648 (2015) (quotation and citation omitted).
10
petitioner's counsel advised the judge that the theory of the
case that he had planned did not rest on the MATS-1 or STATIC-99
evidence. The failure to request a Daubert/Lanigan hearing to
establish the reliability of expert testimony constitutes waiver
of the issue. See Commonwealth v. Fritz, 472 Mass. 341, 349
(2015); Commonwealth v. Cole, 473 Mass. 317, 328 (2015).
Moreover, judges are afforded substantial latitude in pretrial
and trial management. See Mazzoleni v. Cotton, 33 Mass. App.
Ct. 147, 150-151 (1992), and cases cited. See also Mass. G.
Evid. § 702 note (2016).
5. Ineffective assistance of counsel. Equally unavailing
is the petitioner's claim that his trial counsel was ineffective
in his advocacy for the admission of the MATS-1 evidence. Even
if trial counsel were ineffective, the petitioner cannot show
that he was prejudiced by counsel's actions. See Commonwealth
v. Saferian, 366 Mass. 89, 96 (1974) (any ineffectiveness must
have "likely deprived the [petitioner] of an otherwise
available, substantial ground of defence"). While the
petitioner was not able to present the MATS-1 evidence, he was
able to present the STATIC-99R evidence, which had a similar
probative value, to the jury. The STATIC-99R measured the
petitioner's risk of sexually reoffending within a fraction of a
percent of the MATS-1 measurement. The failure to present
certain evidence does not deprive a petitioner of a substantial
11
ground of defense where trial counsel is able to develop the
issue with other comparable evidence. See Commonwealth v.
Mello, 420 Mass. 375, 394 (1995).
Judgment affirmed.