Commonwealth v. George

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SJC-12173
COMMONWEALTH vs. RICHARD GEORGE.
Worcester. December 8, 2016. - June 21, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Sex Offender. Constitutional Law, Sex offender. Due Process of
Law, Sex offender, Substantive rights. Evidence, Sex
offender, Expert opinion, Relevancy and materiality.
Witness, Expert.
Civil action commenced in the Superior Court Department on
October 11, 2013.
The case was tried before Beverly J. Cannone, J.
The Supreme Judicial Court granted an application for
direct appellate review.
David B. Hirsch for the defendant.
Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.
HINES, J. After a jury trial in the Superior Court, the
defendant, Richard George, was determined to be a sexually
dangerous person (SDP) pursuant to G. L. c. 123A. In accordance
with the statute, the judge committed the defendant to the
2
Massachusetts Treatment Center (treatment center) for an
indeterminate period of from one day to life. The defendant
filed a timely appeal challenging the commitment on the grounds
that (1) a diagnosis of antisocial personality disorder (ASPD)
is a constitutionally inadequate basis for commitment as an SDP;
and (2) the judge erroneously admitted expert opinion testimony
on the likelihood of reoffense and the results of the Static-99R
risk assessment tool. We allowed the defendant's application
for direct appellate review to clarify the relevance of an ASPD
diagnosis in the sexual dangerousness calculus.
We conclude that an ASPD diagnosis is a sufficient
predicate for sexual dangerousness so long as other evidence
establishes a nexus between that condition and the factors
warranting confinement to a secure facility. Also, we discern
no error in the judge's evidentiary rulings requiring reversal.
Therefore, we affirm the judgment and order for the defendant's
civil commitment to the treatment center as an SDP.
Background. 1. Pretrial proceedings. In October, 2013,
the Commonwealth filed a petition pursuant to G. L. c. 123A,
§ 12, seeking an adjudication that the defendant is an SDP. In
April, 2014, a Superior Court judge found probable cause to
believe that the defendant is an SDP and committed him to the
treatment center for examination and diagnosis. Two qualified
3
examiners1 submitted reports, opining that the defendant is an
SDP within the meaning of G. L. c. 123A, § 1. The trial on the
Commonwealth's petition commenced in September, 2015.
2. The trial. Through records admitted at trial pursuant
to G. L. c. 123A, § 14 (c), and the testimony of the two
qualified examiners, the Commonwealth presented evidence from
which the jury could have found beyond a reasonable doubt the
statutory elements necessary for the defendant's commitment as
an SDP. This evidence detailed the defendant's prior
convictions of sexual offenses and included expert opinion
testimony on two issues: (1) whether the defendant suffered
from a mental abnormality or personality disorder that
predisposes him to commit sexual offenses; and (2) whether the
defendant likely would reoffend because of that mental condition
if not confined to a secure facility. The defendant offered no
evidence at trial.
The jury could have found the following facts. The
defendant was convicted of two different sexual offenses as
defined in G. L. c. 123A, § 1. In 1978, when the defendant was
1
"A qualified examiner is either (1) a physician who is
licensed by the Commonwealth and certified or eligible to be
certified in psychiatry by the American Board of Psychiatry and
Neurology; or (2) a psychologist who is licensed by the
Commonwealth. In all cases, a qualified examiner is designated
as such by the Department of Correction and has at least two
years of experience with diagnosis or treatment of sexually
aggressive offenders." Green, petitioner, 475 Mass. 624, 625
n.3 (2016), citing G. L. c. 123A, § 1.
4
seventeen years of age, he sexually assaulted a nine year old
girl. After first going down a bike path with the victim's
eleven year old sister, the defendant asked the victim if she
too wanted to go down the bike path. As they went down the
path, the defendant pushed the victim down to the ground, got on
top of her, and, over the victim's clothing, fondled her breasts
and genital area.
After the victim began to scream for her sister, the
defendant let her get up from the ground and warned if she told
anyone, she would be killed. Thereafter, the defendant was
charged and convicted of indecent assault and battery on a child
under the age of fourteen. Following conviction, the defendant
was sentenced to a term of probation for three years.
Approximately twelve years later, the defendant was
convicted of aggravated rape and rape. The convictions stemmed
from the rape of a forty-nine year old woman, who was the mother
of a woman the defendant had dated previously. The defendant
went to the victim's home and asked to speak with her daughter,
who was not home. Following a conversation with the victim, the
defendant asked if he could use her restroom. He reported to
the victim that the toilet was not functioning. When the victim
went to investigate, the defendant attacked her. Putting his
hands around her throat, the defendant pulled the victim down to
the floor and sexually assaulted her vaginally and anally.
5
After sexually assaulting the victim, the defendant physically
assaulted her with an iron and a knife. The victim sustained a
broken jaw, a fractured skull, and a cut on her neck.
Based on the sexual and physical assault, the defendant was
convicted of several rape charges, including one count of
aggravated rape and two counts of rape. As a result of the
aggravated rape conviction, the judge sentenced the defendant to
imprisonment for a term of from fifteen to twenty-five years.
At trial, the Commonwealth presented evidence from the two
qualified examiners, Gregg A. Belle, Ph.D., and Dr. Katrin
Rouse-Weir, Ed.D. Both qualified examiners interviewed and
diagnosed the defendant with ASPD, and agreed that this
particular mental condition constituted a personality disorder
as defined by G. L. c. 123A, § 1. In support of the diagnosis,
the examiners considered a range of factors, including the
defendant's disciplinary history while incarcerated, his history
of sex offender treatment, and statements the defendant made in
other evaluations regarding his sexual offenses. Dr. Belle
characterized the defendant's incarceration and disciplinary
history as "somewhat difficult." Specifically, the defendant
received approximately fifty-three disciplinary reports alleging
violations of prison rules, some of which resulted from
threatening and sexually explicit statements the defendant
allegedly made to female staff. Another disciplinary report
6
resulted from an incident where the defendant masturbated in
front of a female correctional officer. The defendant's
sexually threatening and explicit behavior was a factor in his
transfer to a higher security facility.
Although the defendant participated in sex offender
treatment, he was terminated from the treatment program on
several occasions. He was terminated on one occasion because of
sexually explicit letters he wrote to female staff. The
defendant also made sexually threatening statements regarding
his plans on release, warning that he was going to commit a rape
when he was released from prison and identifying the female
staff member that he planned to rape. In 2006, the defendant
was again terminated from the treatment program for engaging in
consensual oral sex with a wheel-chair bound inmate.
Considering the defendant's criminal sexual history
together with the nature of the numerous violations of
institutional rules, Belle explained that this conduct
exemplified "one of the hallmark traits of an antisocial
personality disorder." Belle also concluded that the defendant
has demonstrated, "over a period of time, a persistent pattern
. . . [of] an inability to control his sexual impulses."
According to Belle, the defendant's continued engagement in a
"pervasive pattern" of sexually threatening behavior while
incarcerated, "speak[s] to the statutorily defined personality
7
disorder" that he characterized as ASPD. Similarly, Dr. Rouse-
Weir noted that the statements made to female staff "involved
sexual aggression, which is relevant . . . with regard to his
risk." Rouse-Weir went on to note that the defendant's
aggression, irritability, lack of remorse, and lack of regard
for the rights of others had "a sexual element." She added that
the continued demonstration of aggression with sexualized
elements directed toward female staff exclusively was a "chronic
characteristic associated with [his ASPD]."
Belle and Rouse-Weir also opined on the significance of the
defendant's score on the Static-99R risk assessment tool.2 The
Static-99R risk analysis completed by Belle yielded a score of
four, which Belle opined translated to a "moderate-high" risk to
sexually reoffend. Belle also explained that a score of four
corresponded to an eleven per cent risk that the defendant would
reoffend sexually over a five-year period. Rouse-Weir, on the
other hand, opined that the defendant's Static-99R risk analysis
yielded a score of six, which falls within the "high-risk
category" as defined by the Static-99R.
2
The Static-99R is an actuarial tool, designed to predict
the recidivism risk of sexual offenses in adult male sex
offenders who have been convicted of at least one sexual
offense. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex
Offender Registry Bd., 459 Mass. 603, 636 n.33 (2011).
Initially developed in 1999, the Static-99 has since been
revised and renamed "Static-99R."
8
Discussion. The defendant challenges the commitment,
arguing that commitment as an SDP based on an ASPD diagnosis
violates substantive due process and that the erroneous
admission of expert opinion testimony on the likelihood of
reoffense and the scores on the Static-99R predicting a
"moderate high" or "high" risk of reoffense usurped the jury's
role as fact finder. We address both arguments in turn.
1. Antisocial personality disorder. Raising the issue for
the first time on appeal,3 the defendant claims that commitment
as an SDP based on an ASPD diagnosis as the predicate mental
condition violates substantive due process. Borrowing from the
United States Supreme Court's analysis of a civil commitment
statute in Kansas v. Crane, 534 U.S. 407 (2002), the defendant
contends that the use of the ASPD diagnosis sweeps too broadly,
permitting what amounts to unconstitutional preventive
detention. As the argument goes, the ASPD diagnosis fails to
distinguish "the dangerous sexual offender whose serious mental
illness, abnormality, or disorder subjects him to civil
commitment from the dangerous but typical recidivist convicted
3
Although the defendant raised this argument in a motion in
limine, defense counsel withdrew the motion prior to the start
of trial. Also, the defendant did not object to the antisocial
personality disorder (ASPD) diagnosis at trial or move for a
directed verdict. Thus, the issue is waived. However, we
address the issue to determine whether the admission of the
evidence created a substantial risk of a miscarriage of justice.
See Commonwealth v. Fay, 467 Mass. 574, 583 n.9, cert denied,
135 S. Ct. 150 (2014).
9
in an ordinary criminal case." Id. at 413. We reject the
defendant's argument as it misapprehends the evidentiary weight
to be accorded to an ASPD diagnosis in the sexual dangerousness
calculus.
The definition of an SDP in G. L. c. 123A, § 1, makes it
abundantly clear that an ASPD diagnosis, standing alone, does
not justify commitment as an SDP. An SDP is defined as any
person "who has been . . . convicted of . . . a sexual offense
and who suffers from a mental abnormality or personality
disorder which makes the person likely to engage in sexual
offenses if not confined to a secure facility."4 A "personality
disorder" is defined as "a congenital or acquired physical or
mental condition that results in a general lack of power to
control sexual impulses." Id. Although we have not been called
on to parse the definition of "personality disorder," the
Appeals Court has correctly recognized ASPD as a type of
personality disorder, which in conjunction with other relevant
evidence, may justify commitment as an SDP. See, e.g., Souza,
petitioner, 87 Mass. App. Ct. 162, 169 (2015) (noting that ASPD
diagnosis is "adequate to satisfy the definitional requirements
of an SDP in G. L. c. 123A, § 1"); Commonwealth v. Husband, 82
Mass. App. Ct. 1, 5 (2012) (same); Commonwealth v. Mazzarino, 81
4
The Commonwealth does not contend that the defendant
suffered from a "mental abnormality."
10
Mass. App. Ct. 358, 369 (2012) (commitment based on ASPD
diagnosis "combined with other evidence" suggesting ASPD made
respondent likely to reoffend sexually if not confined does not
violate due process protections under Fourteenth Amendment to
United States Constitution or art. 12 of Massachusetts
Declaration of Rights).
Accordingly, a "personality disorder" as defined in G. L.
c. 123A, § 1, is relevant to the sexual dangerousness calculus
only if the "condition . . . results in a general lack of power
to control sexual impulses." Contrary to the defendant's
assertion, our law does not permit the indefinite and
indiscriminate commitment of persons solely because of an ASPD
diagnosis. The diagnosis requires an individualized review, and
it is relevant only if it is predictive of a lack of control
over the proclivity for criminal conduct and the conduct is
likely to be sexual in nature. Not all offenders diagnosed as
having ASPD can be so categorized. Instead, our cases have held
true to the underlying statutory purpose to subject only those
persons who because of a prescribed mental condition cannot
control their impulses to commit a sexual crime to the
possibility of civil commitment as an SDP.5
5
The defendant urges this court to follow the reasoning in
Matter of State of N.Y. v. Donald DD, 24 N.Y.3d 174, 190 (2014)
(ASPD diagnosis alone absent diagnosis of any other "condition,
disease or disorder alleged to constitute a mental abnormality"
11
Here, two qualified examiners opined that the defendant
suffered from ASPD and determined that because of this condition
the defendant was likely to engage in sexual offenses if not
confined in a secure facility. The qualified examiners did not
base their opinion on this diagnosis alone. Rather, they also
relied on evidence, separate and apart from the defendant's
criminal history, suggesting that ASPD made the defendant
"likely to engage in sexual offenses" if not civilly committed.
G. L. c. 123A, § 1. Belle predicated his conclusion that the
defendant lacked the ability to control his sexual impulses not
only on the defendant's criminal history, but also on his
incarceration history. Belle noted that he considered behaviors
in which the defendant has engaged as constituting a "persistent
pattern in which he has shown an inability to control his sexual
impulses." While incarcerated, the defendant had a history of
making "physically threatening," "sexually assaulting," and
sexually explicit statements directed toward female staff
is insufficient to meet test set out by Supreme Court in Kansas
v. Crane, 534 U.S. 407, 413 [2002]). However, we are not
persuaded by the court's analysis, which, as the dissent in that
case points out, concludes that because ASPD does not, in every
case, predispose the individual to commit sex crimes, the
diagnosis can never satisfy the definitional requirements of the
statute. Id. at 194 (Graffeo, J., dissenting). As we conclude
here, G. L. c. 123A requires a determination on a case-by-case
basis whether in a given case the ASPD diagnosis meets the
definition of an SDP.
12
members, including threatening to break a woman's leg and
threatening to rape another.
Similarly, Rouse-Weir based her conclusion on the
defendant's criminal history as well as his incarceration
history, including his participation in sex offender treatment
programs, and his disciplinary history. Rouse-Weir noted that
the defendant participated in, but failed to successfully
complete, sex offender treatment, and received fifty-three
disciplinary reports and associated sanctions. With respect to
disciplinary reports, Rouse-Weir, like Belle, pointed out that
during the initial period of the defendant's incarceration, his
disciplinary reports related to the use of threatening language
and sexually aggressive statements toward female staff, which
sometimes resulted in the defendant being transferred to higher
security facilities.
Both Belle and Rouse-Weir conceded that ASPD affects a
large percentage of the ordinary prison population,6 and that the
disorder tends to "burn out or mitigate" once an individual
reaches his forties. However, Rouse-Weir explained that unlike
6
On cross-examination, Belle affirmed ASPD is prevalent in
fifty to seventy per cent of the general prison population.
Similarly, the United States Supreme Court has noted that an
estimated forty to sixty per cent of the male prison population
is diagnosable with ASPD. See Crane, 534 U.S. at 412, citing
Moran, The Epidemiology of Antisocial Personality Disorder, 34
Soc. Psychiatry & Psychiatric Epidemiology 231, 234 (1999).
13
other individuals diagnosed with ASPD, the defendant's lack of
remorse and his lack of regard for others' rights "ha[d] a
sexual element." Moreover, although Belle determined that the
defendant did not meet the criteria for a paraphilic disorder,7 a
factor highly relevant to the SDP calculus, Rouse-Weir opined
that the defendant showed "a deviant sexual interest." This
"deviant sexual interest," combined with the defendant's ASPD,
where it resulted in an inability to control sexual impulses,
was a sufficient predicate for sexual dangerousness.
2. Qualified examiner testimony. Prior to trial, the
defendant filed motions in limine to exclude expert opinion
testimony regarding his likelihood of reoffense and to preclude
the admission of "subjective, value judgment labels," for the
scores derived from the Static-99R. Both motions were denied.
He argues on appeal that the judge erred in denying the motions
because the qualified examiner testimony on both issues
improperly invaded the province of the jury.
a. Expert testimony regarding likelihood of reoffense. To
commit a person as an SDP, the jury must determine that the
7
A paraphilic disorder is characterized as recurrent,
intense sexually arousing fantasies, sexual urges, or behaviors
generally involving (1) nonhuman objects, (2) the suffering or
humiliation of oneself or one's partner, or (3) children or
other nonconsenting persons that occur over a period of at least
six months. Paraphilic disorders as defined in the Diagnostic
and Statistical Manual of Mental Disorders, include, but are not
limited to, exhibitionistic disorder, fetishistic disorder, and
pedophilic disorder.
14
person has been "convicted of a sexual offense, suffers from a
mental abnormality or personality disorder that renders him a
menace to the health and safety of others, and is likely to
engage in sexual offenses if not confined." Commonwealth v.
Fay, 467 Mass. 574, 580, cert. denied, 135 S. Ct. 150 (2014),
citing G. L. c. 123A, §§ 1, 14. The defendant correctly
concedes that our law allows for expert opinion testimony to
"touch on an ultimate issue of the case [where] that testimony
aids the jury in reaching a decision." Commonwealth v.
MacDonald, 459 Mass. 148, 163 (2011). See Mass. G. Evid. § 704
(2017). Nevertheless, he contends that the qualified examiners'
testimony was improper because it would not aid the jury in
determining whether the mental abnormality or personality
disorder is likely to cause the individual to reoffend unless
confined. We disagree.
A qualified examiner's opinion testimony is "the essential
basis for a finding of sexual dangerousness." Green,
petitioner, 475 Mass. 624, 630 (2016). In an SDP trial, the
jury's task involves assessing the risk of reoffending, which in
turn involves a complex balance of factors, including "the
seriousness of the threatened harm, the relative certainty of
the anticipated harm, and the possibility of successful
intervention to prevent that harm." Commonwealth v. Boucher,
438 Mass. 274, 276 (2002). "Because the trier of fact in G. L.
15
c. 123A proceedings must decide '[w]hether a person suffers from
a mental abnormality or personality defect, as well as the
predictive behavioral question of the likelihood that a person
suffering from such a condition will commit a sexual offense,'
and because these are 'matters beyond the range of ordinary
experience,' expert evidence is required in order to commit a
person to the treatment center or to keep a person confined
there." Johnstone, petitioner, 453 Mass. 544, 549-550 (2009),
quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 483 n.12
(2003). See Commonwealth v. Bruno, 432 Mass. 489, 511 (2000).
Thus, the expert's role in opining on the ultimate issue to
be decided by the jury is settled in our jurisprudence. The
judge did not err in admitting qualified examiner testimony on
the ultimate issue. Indeed, given the centrality of expert
opinion testimony to the SDP adjudication, it would have been an
error of law for the trial judge to exclude that testimony.
b. Static-99R risk category labels. The defendant argues
that the admission of the qualified examiners' testimony
categorizing his Static-99R score as "moderate-high" and "high"
also invaded the jury's province, and thus constituted error.
He contends that the Static-99R categories represent a "wholly
subjective" assessment and create a risk that the jury will
shift responsibility for determining the likelihood of reoffense
to the qualified examiners. We conclude that the risk
16
categories lack probative value in the sexual dangerousness
calculus and should not be admitted at trial.
The Static-99R measures ten static risk factors that have
been shown to increase one's risk for sexual recidivism, and
adjusts the numerical score upwards or downwards depending on
risk factors that the qualified examiner determines are
significant in the particular individual's case. See Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 636 n.33 (2011). Each numeric score corresponds
to a percentage reflecting the risk of sexual reoffense and a
risk category label ("low," "low-moderate," "moderate-high," and
"high"). See Hanson, Babchishin, Helmus, Thornton, & Phenix,
Communicating the Results of Criterion Referenced Prediction
Measures: Risk Categories for the Static-99R and Static-2002R
Sexual Offender Risk Assessment Tools, 29 Psychological
Assessment 582, 584 (2017).
As a threshold matter, the Static-99R is itself a limited
tool; it estimates only the "the relative risk of sexual
recidivism based on commonly available demographic and criminal
history information." Id. It does not identify the likelihood
of sexual recidivism for a specific individual. As Belle
explained in his testimony, the Static-99R results were not
specific to the defendant, and "[o]ne of the cautions about the
17
Static-99R is that it is looking at groups of individuals that
may or may not be similar to [the defendant]."
While the combination of the Static-99R raw score and the
corresponding percentage reflecting the risk of sexual reoffense
provide "precise, numeric estimates of recidivism risk," the
category labels do not. Id. at 583. The test's developers have
acknowledged that the meaning of risk category labels is often
unclear. "There is only a loose association in natural language
between verbal labels for likelihood [e.g., 'low,' 'low-
moderate,' 'moderate-high,' and 'high'] . . . and numeric
probabilities." Id. Further, test developers have conceded
that the lack of clarity is exacerbated by the absence of
accepted standards or metrics connecting the risk category
labels to "specific meanings, such as recidivism rates,
psychological features, or expected treatment needs."8 Id.
Consequently, "substantial variation" exists among sex offenders
ascribed identical risk category labels. Id.
8
To resolve the shortcomings of the Static-99R risk
category labels, test developers have created new risk category
labels. We take no position on the admissibility of those
labels. See Hanson, Babchishin, Helmus, Thornton, & Phenix,
Communicating the Results of Criterion Referenced Prediction
Measures: Risk Categories for the Static-99R and Static-2002R
Sexual Offender Risk Assessment Tools, 29 Psychological
Assessment 582, 592 (2017) (new risk categories "have
sufficiently improved conceptual coherence and have sufficient
empirical support to replace the original categories").
18
Given this view of the risk category labels by the experts
who develop and use them, we are not persuaded that such
testimony aids the jury in determining sexual dangerousness.
Cf. Simon v. Solomon, 385 Mass. 91, 105 (1982) ("expert
testimony on matters within the witness's field of expertise is
admissible whenever it will aid the jury in reaching a
decision"). Accordingly, we conclude that the admission of
qualified examiners' testimony characterizing the defendant's
Static-99R score as "moderate-high" or "high" was error.
The defendant filed a pretrial motion to exclude the
Static-99R risk category labels, which the judge denied. Thus,
we must determine whether the improper admission of Static-99R
risk category labels was nonprejudicial, that is "whether 'the
error did not influence the jury, or had but very slight
effect." Commonwealth v. Christian, 430 Mass. 552, 563 (2000),
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
See Commonwealth v. Grady, 474 Mass. 715, 718, 721 (2016). We
conclude that that the erroneous admission of testimony
regarding the Static-99R risk category labels does not warrant
reversal.
The expert testimony regarding the defendant's Static-99R
risk category was appropriately limited; it was presented as
only one of many factors in the SDP calculus. For example,
Rouse-Weir explained that the Static-99R is an actuarial tool
19
only, and that examiners have agreed to use the actuarial
instrument "in a limited fashion." Also as explained to the
jury, the qualified examiners considered several "dynamic
factors,"9 which the Static-99R test does not take into account.
For example, Belle and Rouse-Weir considered matters such as
substance abuse history, "deviant sexual interests," "cognitive
distortions," and "intimacy deficits," all of which are relevant
to sexual dangerousness. In addition, the qualified examiners
included in the sexual dangerousness calculus the defendant's
family history, educational and work background, incarceration
records, treatment history, and release plans. Given the
limited nature of the use of the Static-99R in the qualified
examiners' over-all risk assessment analysis of the defendant,
we conclude that the admission of testimony regarding the risk
category labels was nonprejudicial.
Recognizing that our holding as to risk category labels
modifies the manner in which the Static-99R may be used in SDP
proceedings, we take this opportunity to clarify that our
holding is limited. Both the Static-99R score and the
corresponding percentage reflecting the risk of sexual offense
in qualified examiners' testimony continue to be admissible.
Our holding makes inadmissible the risk category labels only, as
9
Dynamic risk factors are "more fluid" and can change over
time.
20
the risk category labels, unlike the Static-99R score and the
corresponding percentage reflecting the risk of sexual
reoffense, provide little aid to the jury in rendering its
decision.
Conclusion. Under G. L. c. 123A, an ASPD diagnosis is
adequate to satisfy the definitional requirements of an SDP
where the Commonwealth also proves that, as a result of the
ASPD, the individual is likely to engage in sexual offenses if
not confined, and in this case there was no error requiring
reversal. Therefore, we affirm the judgment and order for the
defendant's civil commitment as an SDP.
So ordered.