Gammell

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13-P-396 Appeals Court
JACK GAMMELL, petitioner.
No. 13-P-396.
Bristol. April 3, 2014. - July 15, 2014.
Present: Kafker, Brown, & Sikora, JJ.
Sex Offender. Evidence, Sex offender, Expert opinion,
Scientific test, Age. Witness, Expert.
Petition filed in the Superior Court Department on November
6, 2009.
The case was tried before Bonnie H. MacLeod, J.
David Hirsch for the petitioner.
Brendan J. Frigault for Massachusetts Treatment Center.
KAFKER, J. The petitioner, Jack Gammell, appeals the
judgment of the Superior Court finding him still sexually
dangerous pursuant to G. L. c. 123A, § 9. He raises three
issues on appeal: (1) whether a qualified examiner may testify
regarding his evaluation of the credibility of various
statements made by the petitioner during the clinical interview;
2
(2) whether the trial judge properly excluded from the trial the
results of a penile plethysmograph assessment (PPG test) by the
treatment center, including references to the assessment in a
qualified examiner's report, when there had been no attempt to
establish the reliability of the assessment; (3) whether the
judge also properly excluded evidence on the possible effects of
reduced testosterone resulting from aging on the likelihood of
reoffending, when the petitioner had never been tested and
therefore could submit no evidence of his own testosterone
levels. We affirm, as we discern no error in any of the trial
judge's rulings.
Background. The petitioner is currently civilly committed
to the Massachusetts Treatment Center (treatment center)
pursuant to G. L. c. 123A, § 9. At trial, the Commonwealth
presented the reports and testimony of two qualified examiners,
Michael Henry, Psy.D., and Gregg Belle, Ph.D., as well as the
testimony and report of a member of the community access board
(CAB), Katrin Rouse-Weir, Ed.D. All diagnosed the petitioner
with pedophilia and determined that he remained a sexually
dangerous person (SDP). The petitioner presented the testimony
of Eric Brown, Psy.D., and Joseph J. Plaud, Ph.D, each of whom
opined that Gammell was no longer an SDP.
The jury were warranted in finding the following facts
regarding the petitioner's history of offenses. The petitioner,
3
age fifty-four at the time of trial, first offended at the age
of twelve or thirteen, when he engaged in sexual activity with
his eleven year old neighbor. He was adjudicated delinquent of
indecent assault and battery and placed on probation. While on
probation, he again engaged in sexual activity with the same
girl. His probation was revoked. In 1991, when he was thirty-
four, he sexually molested a two year old girl at least twenty
times over a seven or eight month period, including fondling the
child's chest, buttocks, and vagina. He was arrested,
convicted, and sentenced to eight to ten years in State prison,
three to serve, for indecent assault and battery on a child
under fourteen. While on probation, he was convicted of an
assault and battery on his girlfriend and was sentenced to serve
the remainder of his sentence. Testimony was also presented
regarding the petitioner's admission that he sexually assaulted
his girlfriend's eight year old daughter in 1986.
Discussion. 1. Testimony regarding the petitioner's
credibility. At trial, one of the qualified examiners, Michael
Henry, testified regarding various statements made by the
petitioner to him during a 2006 clinical examination provided
for by statute. See G. L. c. 123A, § 13(a). In response to the
petitioner's denial of having sexual fantasises about children,
Henry said, "[M]y impression then and my impression remains that
it's inaccurate. It's a falsehood, that he is not telling the
4
truth." Elsewhere, Henry referred to his report: "Mr. Gammell
stated that he only sexually assaulted [the two year old girl]
on one occasion and denied previous reports that he molested the
child on multiple occasions . . . . I didn't credit it as a
truthful statement." He also explained that the petitioner
"talks about sort of a very improbable process of, in his mind,
turning a two year old child into an 18 year old, that goes from
a toddler-age person to someone with large breasts and buttocks
and, essentially, that's what he was truly interested in. . . .
It's very improbable, so I didn't really credit it as a truthful
statement. I saw it as his attempt to be deceptive and avoid
the obvious topic [that he] molested a child." Henry stated
that he did not "credit" Gammell's statement that he had his
last fantasy about a child after his arrest for his offense with
[the two year old child] in 1991. Discussing the petitioner's
attraction to children, Henry said that Gammell was not "being
open and frank and truthful about his problem or that he has any
kind of appreciation about what this means about him and what
he's going to need to do to keep himself and other people safe
in the future." There were no objections to any of these
statements. 1
1
For cases applying a substantial risk of miscarriage of
justice standard to SDP cases, see Commonwealth v. Starkus, 69
Mass. App. Ct. 326, 340 (2007); Commonwealth v. Lynch, 70 Mass.
5We have not previously addressed the question whether a
qualified examiner can testify as to his opinion regarding the
credibility of statements made by a petitioner during the
clinical examination as part of his evaluation of the sexual
dangerousness of the petitioner. Relying on criminal cases, and
the general rule set out therein, the petitioner states, "No
witness, expert or not, may offer an opinion as to the
credibility of another witness." Commonwealth v. Polk, 462
Mass. 23, 36 (2012). See Commonwealth v. Ianello, 401 Mass.
197, 201-202 (1987); Commonwealth v. Montanino, 409 Mass. 500,
504 (1991). We conclude, however, that the distinct statutory
responsibilities of the qualified examiners create an exception
to the general rule.
"There can be no question that qualified examiners are
central to the statutory scheme designed to evaluate the
likelihood of a sex offender to reoffend. . . . Within that
scheme, the qualified examiners are established as independent,
court-appointed experts. They are integral to nearly every step
of the civil commitment process set out in G. L. c. 123A."
Johnstone, petitioner, 453 Mass. 544, 551 (2009) (quotation and
citations omitted). Unless at least one of the qualified
examiners concludes that a petitioner is sexually dangerous, the
App. Ct. 22, 29 (2007); Commonwealth v. Dresser, 71 Mass. App.
Ct. 454, 458 n.10 (2008).
6
petitioner cannot be civilly committed. "[I]f the petitioner in
a discharge proceeding refuses to be personally interviewed by
examiners and lacks good cause for doing so, 'such person shall
be deemed to have waived his right to a hearing on the petition
and the petition shall be dismissed upon motion filed by the
[C]ommonwealth.'" Id. at 551-552, quoting from G. L. c. 123A,
§ 9.
The statute also provides a "'very radical departure' from
ordinary evidentiary rules," particularly in regard to the
qualified examiners. McHoul, petitioner, 445 Mass. 143, 147
(2005), quoting from Andrews, petitioner, 368 Mass. 468, 473
(1975). According to G. L. c. 123A, § 14(c), "Juvenile and
adult court probation records, psychiatric and psychological
records and reports of the person named in the petition,
including the report of any qualified examiner, . . . police
reports relating to such person's prior sexual offenses,
incident reports arising out of such person's incarceration or
custody, oral or written statements prepared for and to be
offered at the trial by the victims of the person who is the
subject of the petition and any other evidence tending to show
that such person is or is not a sexually dangerous person shall
be admissible at the trial if such written information has been
provided to opposing counsel reasonably in advance of trial."
(Emphasis supplied.)
7
The statute further provides that "the court shall supply
to the qualified examiners copies" of many of the reports and
much of the information referenced above. G. L. c. 123A,
§ 13(b). If such reports have been admitted in evidence, it is
permissible for the qualified examiners "to reference that
evidence in their own expert testimony." McHoul, petitioner,
supra at 146. The court has rejected arguments that the
qualified examiners "should not have been permitted to testify
to the jury about out-of-court statements the petitioner made to
others and observation of the petitioner's conduct made by
others on which the [qualified examiners] based their opinions,"
so long as those statements and observations appeared in reports
made admissible by the SDP statute itself. Ibid. 2
In this context, we conclude that the Legislature also
intended that the qualified examiners be permitted to testify
concerning the credibility of statements made by the petitioner
to the qualified examiner in the clinical evaluation required by
statute, if such credibility determinations figure into their
2
The court in McHoul emphasized that hearsay appearing in
otherwise admissible reports was expressly made admissible by
statute, and could be relied on by the qualified examiners. The
court concluded that the reports made admissible by statute "by
their nature, often include the gathering of information from a
variety of hearsay sources," thus signifying "the Legislature's
determination that such hearsay should be admitted in sexually
dangerous person proceedings." Id. at 153. Otherwise, it would
make "mincemeat of the documents that the Legislature deemed
admissible." Ibid.
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opinion regarding the sexual dangerousness of the petitioner.
The qualified examiner's opinion regarding the sexual
dangerousness of the petitioner is critical to the entire
evaluation process. Essential to that evaluation is the
qualified examiner's opinion regarding the information being
provided by the petitioner during the clinical evaluation. This
includes whether the petitioner is being truthful regarding his
prior sexual offenses, his present attraction to children, and
his future ability to control his sexual impulses. Not allowing
such testimony by the qualified examiner would require qualified
examiners to present to the jury an incomplete and distorted
basis for their opinions. The statute clearly intends just the
opposite: the qualified examiners are to be presented all
relevant information and provide a thorough report of their
analysis, which is to be presented to the jury, notwithstanding
the ordinary rules of evidence.
To ensure that the qualified examiners do not usurp the
role of the jury, the petitioner must be able to present his own
experts, who will have similar freedom to opine on the
credibility of the petitioner's testimony during their own
clinical evaluations. See Santos, petitioner, 461 Mass. 565,
570 (2012). That is exactly what occurred in the instant case.
2. Exclusion of penile plethysmograph evidence. Prior to
trial, the Commonwealth moved to exclude from trial all evidence
9
of the results of a PPG test administered to the petitioner
during his commitment to the treatment center, including
references to the PPG test in the petitioner's experts' reports,
or the reports of the qualified examiner or the CAB. The
Commonwealth moved to exclude the evidence on the ground that
PPG testing did not meet the Daubert-Lanigan 3 standards for
admissibility. The petitioner opposed the motion, claiming the
PPG test was reliable. When the issue was raised on the day of
trial, the judge concluded the evidence was inadmissible without
a Daubert-Lanigan hearing, which the petitioner had not
requested. During the trial, the petitioner asked the judge to
reconsider her exclusion of the PPG evidence, but the request
was denied.
On appeal, the petitioner argues that the Daubert-Lanigan
requirements are inapplicable to G. L. c. 123A cases. He relies
on the language in the statute making reports of the qualified
examiners and the CAB admissible, as well as the decisions in
Commonwealth v. Bradway, 62 Mass. App. Ct. 280 (2004), and
Santos, petitioner, supra. In Bradway, this court concluded,
based on well-established precedent, that the Legislature could
expressly overrule evidentiary requirements. See Bradway, supra
at 284-285. See also McHoul, petitioner, 445 Mass. at 147-148
3
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
10
("[W]e have repeatedly applied the evidentiary rules prescribed
by the Legislature for such proceedings"). We explained that
the qualified examiners' clinical evaluations, reports, and
testimony were all required, and were made admissible by
statute, as the "Legislature has made a considered decision to
draw on qualified and experienced professionals in the field to
bring to bear their knowledge and informed judgment on the
necessary, but difficult, task of evaluating whether sex
offenders are likely to reoffend." Bradway, supra at 287. We
therefore rejected the petitioner's contention in that case that
"Daubert-Lanigan assessment is required, and will not be
satisfied, because the qualified examiners' opinion testimony is
inherently unreliable, particularly when it is based on clinical
evaluation rather than actuarial factors." Ibid.
In Santos, the court "agree[d] with the petitioner that
excluding his experts' reports could create an unfair imbalance
of evidence, especially because it would otherwise be difficult
for petitioners to respond to the information in the CAB and
qualified examiner reports, much of which is hearsay." Santos,
supra at 569. The court further explained that "[t]he
petitioner's experts' reports ought to be have been admitted,
but only on the same basis as those of the qualified examiners
and the CAB." Id. at 573 n.11. That basis, the court
explained, included redactions.
11
The petitioner extrapolates from these cases to argue that
PPG testing evidence is not subject to Daubert-Lanigan review,
and there could be no redaction of any references to PPG testing
in the reports prepared by the qualified examiners, the CAB, or
the petitioner's own experts. The ultimate question is again
whether the Legislature intended to override the ordinary rules
of evidence. Unlike the clinical evaluation addressed in
Bradway, supra, PPG testing is not expressly provided for by
statute as an essential aspect of a qualified examiner's own
review. Rather, it is an assessment device that was employed by
the treatment center in this case, and only referenced in
passing in the CAB report and in one of the qualified examiner's
reports. The petitioner nevertheless relies on these
references, and the reasoning in Bradway and Santos, to argue
that the PPG testing evidence is per se admissible. But the
Legislature's requirement that the qualified examiners' reports
be admissible does not mean that everything in the reports is
automatically exempt from further review for admissibility and
redaction. Moreover, whether particular redactions are
permissible or required in the otherwise admissible reports and
testimony of these experts is not resolved in Bradway and
Santos, but rather must be analyzed according to the standards
set out in Department of Youth Servs. v. A Juvenile, 398 Mass.
12516, 531 (1986); Commonwealth v. Markvart, 437 Mass. 331, 335-
337 (2002); and McHoul, petitioner, supra at 149-151.
In Markvart, the court was presented with the admissibility
in c. 123A proceedings of police reports and witness statements
from a nol prossed complaint that had been considered by
qualified examiners. See Markvart, supra at 332. The court
concluded that the reports were not independently admissible
according to the statute, as they were not reports or statements
related to convictions or adjudications, and were therefore
subject to redaction from the qualified examiners' reports
presented to the jury according to the principles set out in
Department of Youth Servs. v. A Juvenile, supra. See id. at
336-337. The court further explained that the statute expressly
contemplated that "qualified examiners may use 'such other
information as may be pertinent or helpful to the examiners in
making the diagnosis and recommendation.'" Ibid., quoting from
G. L. c. 123A, § 13(b). In determining what information meets
that requirement the court stated: "Qualified 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
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an opinion." Id. at 337, quoting from Department of Youth
Servs., supra. The court also noted that a voir dire may be
required to determine whether the facts or data are
independently admissible, and defense counsel may request such a
voir dire. Id. at 337 n.5.
We interpret this line of cases to draw a distinction
between evidence that is independently made admissible by
statute and evidence that remains subject to further
consideration and redaction. We conclude that the PPG tests
here fall into the latter category. They are not expressly made
admissible by statute, nor are they an essential part of the
qualified examiners' evaluation as set out in the statute.
Rather, they are an assessment device employed by the treatment
center that must be independently admissible and constitute a
permissible basis for a qualified examiner to rely on in
formulating an opinion.
Here, we have no basis from the record or case law to
determine whether PPG tests constitute a permissible basis for
an expert to consider in formulating an opinion. This is not an
ordinary medical procedure, test, or report. The petitioner
made no attempt to "lay an adequate foundation either by
establishing general acceptance in the scientific community or
by showing that the evidence is reliable or valid through
alternate means." Canavan's Case, 432 Mass. 304, 310 (2000).
14
Nor did he request a voir dire. See Markvardt, supra at 337
n.5. The one case provided by the petitioner to the trial judge
to support the admission of the testing, Commitment of Sandry,
67 Ill. App. 3d 949 (2006), is from out-of-State and is
inconclusive. In these circumstances, we discern no error in
the redaction of the report to exclude the PPG test.
3. Reduced testosterone levels. Finally, the defendant
claims the judge erred in sustaining the Commonwealth's
objection to questioning on the effects of declining
testosterone resulting from aging on the risk of reoffending.
We conclude that the judge properly rejected this line of
questioning as entirely speculative as there had never been
testing of the defendant's testosterone levels, and thus there
was no evidence to present on the issue. 4
Judgment affirmed.
4
Experts for the Commonwealth and for the defendant did,
however, both testify regarding a decline in risk of reoffense
after age fifty. Even without testimony about testosterone
levels, the defendant had that evidence available for argument.