Commonwealth v. Ronald Franklin.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-212
COMMONWEALTH
vs.
RONALD FRANKLIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant,
Ronald Franklin, was found to be a sexually dangerous person
(SDP), and was committed to the Massachusetts Treatment Center
under G. L. c. 123A, § 14 (d). On appeal, he argues that (1) a
psychologist improperly opined as to the defendant's risk of
reoffense; (2) the prosecutor improperly shifted the burden of
proof by her questions on cross-examination of the defendant and
in her closing argument; and (3) the judge improperly instructed
on the meaning of the word "likely" as used in the statutory
definition of SDP, G. L. c. 123A, § 1, by paraphrasing
Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). We affirm.
Background. In July 2020, based on a review of the
defendant's records, forensic psychologist Dr. Gregg A. Belle
issued a report opining that there was probable cause to believe
that the defendant was an SDP. As a result, the Commonwealth
filed a petition in the Superior Court to commit the defendant
as an SDP.
Before the commitment trial, the defendant moved in limine
to preclude the introduction of Dr. Belle's report absent an
evidentiary hearing pursuant to Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 597 (1993), and Commonwealth v. Lanigan, 419
Mass. 15, 26 (1994). The judge denied the motion. The
Commonwealth moved in limine to admit Dr. Belle's testimony,
which the judge allowed.
At the time of trial in 2021, the defendant was sixty-one
years old. He had previously been convicted of two counts of
rape of a child, indecent assault and battery on a child under
fourteen, and dissemination of pornographic material to a minor.
He committed those sex offenses between 1997 and 2000 against
his girlfriend's two daughters when they were between five and
seven years old and ten and eleven years old (first victims).
For those convictions, the defendant was sentenced to ten to
twelve years in State prison. During that incarceration, he did
not participate in sex offender treatment because his case was
on appeal. After completing his committed sentence, he was on
probation on conditions including that he stay away from
children under sixteen years old. He was required to register
as a level three sex offender.
2
On October 22, 2018, the defendant was living in a motel.
He befriended an eleven year old girl who also lived there, and
showed her his phone containing photographs of adult naked
women. A police report documented that the defendant had
tickled the girl, accidentally touched her buttocks, and filmed
her doing cartwheels, handstands, and backbends. As a result,
the defendant was convicted of disseminating obscene matter to a
minor. He was also convicted of failure to register as a sex
offender.
At trial, the Commonwealth relied on the testimony of one
qualified examiner (QE), Dr. Kaitlyn Peretti, who opined that
the defendant met the criteria for a diagnosis of pedophilic
disorder. Dr. Peretti further opined that the defendant also
met the definition for being a menace to society based on his
past and recent offenses, and that he was likely to reoffend
sexually if not confined to a secure facility.
The Commonwealth also presented the testimony of Dr. Belle
and introduced in evidence his report of the probable cause
evaluation, see Commonwealth v. Bruno, 432 Mass. 489, 511
(2000).1 Dr. Belle opined that the defendant was a sexually
dangerous person, and that his clinical diagnosis was pedophilic
1 Asked during trial if he objected to admission of Dr. Belle's
report, the defendant's counsel said, "No objection, Judge,
subject to what we discussed about certain redactions."
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disorder. Based on his score of three on the Static-99R
assessment, Dr. Belle opined that the defendant had a 7.9
percent chance of reoffending in a five-year period. Dr. Belle
testified that the defendant's age at the time of trial, sixty-
one, would ordinarily reduce his risk to reoffend, but age did
not have a protective effect for the defendant, because he was
fifty-seven years old when he was arrested for his most recent
sex offense, an age when his risk for recidivism statistically
would be approaching zero. In addition, Dr. Belle did not
consider probation as reducing the defendant's risk to reoffend,
because he had offended against the victim in the motel while on
probation.
The defendant's QE, Dr. Angela Johnson, and expert witness,
Dr. Leonard A. Bard, opined that the defendant was not sexually
dangerous. Dr. Johnson testified that the defendant did not
meet the criteria of having a lack of control over his sexual
impulses, nor the criteria for pedophilic disorder.
The jury found the defendant to be sexually dangerous and
the judge committed him to the Massachusetts Treatment Center
for an indeterminate period, pursuant to G. L. c. 123A,
§ 14 (d). The defendant timely appealed.
Discussion. Admission of Dr. Belle's testimony. The
defendant argues that Dr. Belle improperly opined that the
defendant's likelihood of recidivism was increased by his lack
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of participation in sex offender treatment, his antisocial
orientation, and his minimization and denial of his crimes. The
defendant argues that he preserved this issue for appellate
review by filing his pretrial Daubert-Lanigan motion. That
motion was focused on excluding Dr. Belle's report, to which the
defendant did not object at trial.2 In those circumstances, we
doubt that the defendant preserved the admissibility of
Dr. Belle's testimony for appellate review, but do not pause to
consider that issue, because even if the error had been
preserved, we discern no error here.
The defendant argues that Dr. Belle's opinion testimony was
inadmissible because he did not serve as a QE in this case and
therefore his testimony should not have been admitted absent a
Daubert-Lanigan hearing. There was no error. "[A]ny . . .
evidence tending to show that [the defendant] 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." G. L. c. 123A, § 14 (c). See
Commonwealth v. Cowen, 452 Mass. 757, 761 (2008) ("a qualified
probable cause expert . . . may testify at the commitment
hearing"). Contrast Commonwealth v. Ridley, 491 Mass. 321, 327-
2 In a single phrase, the defendant's pretrial motion asked that
the judge "[p]rohibit this witness from testifying," but the
previous sentence referred to an expert who did not testify in
this case.
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328 (2023) (expert testimony on juvenile brain development not
relevant, because not specific to defendant).
The defendant also argues that Dr. Belle's testimony was
not admissible because Dr. Belle did not provide any studies
showing its reliability. In particular, the defendant finds
fault with Dr. Belle's testimony that the defendant had "an
antisocial orientation," because Dr. Belle acknowledged that the
defendant did not have a personality disorder or a disciplinary
history. Dr. Belle opined that the defendant's character traits
that increased his risk for reoffending included his having been
convicted of sex offenses on more than one occasion, and his
having minimized or denied aspects of the sex offenses against
the first victims, which Dr. Belle considered "noteworthy" in
terms of the defendant's risk to reoffend. To the extent that
the defendant found fault with Dr. Belle's opinion, he was free
to -- and did -- attack it on cross-examination, including by
asking about studies on which it was based. "Vigorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence."
Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 n.40 (2010),
quoting Daubert, 509 U.S. at 596. See Mass. G. Evid. § 703
(2022).
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The defendant further argues that Dr. Belle's testimony
that persons who receive sex offender treatment are less likely
to reoffend sexually than those who do not violated Commonwealth
v. Hunt, 462 Mass. 807 (2012). Hunt held that "[a]t an SDP
civil commitment proceeding, a [QE] or the Commonwealth's expert
witness may offer the opinion –- assuming it is sufficiently
supported by empirical evidence -– that those who receive or
complete sex offender treatment are less likely sexually to
reoffend than those who do not." Id. at 818. The defendant
argues that Dr. Belle's opinion was not sufficiently supported
by empirical evidence. We disagree. Dr. Belle explained:
"Empirically means research, so I'm looking at information in
the research, peer review journal articles, for example, that
would determine risk factors which may increase or decrease
one's risk to reoffend sexually." To the extent that the
defendant wanted to probe Dr. Belle's knowledge of those
empirical studies, that was a subject for cross-examination or
the presentation of the defense experts. See id at 818 & n.8.
It did not render Dr. Belle's opinion inadmissible.
Cross-examination of defendant. The defendant argues that
the prosecutor improperly shifted the burden of proof during her
cross-examination of him.
On direct examination, the defendant testified that while
in prison on the sentences for the child sex offenses, he passed
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the time by working, reading, and gardening. On cross-
examination, he testified that he did not participate in sex
offender treatment because his case was on appeal. The
prosecutor asked about other programs, such as those involving
violence reduction and "health awareness," and he testified that
no such programs were available. Asked if he could have
requested to be reclassified and transferred to a different
facility where more programming was available, the defendant
replied, "Yeah, I didn't want to leave Gardner . . . the other
prisons weren't good environments for me." When the prosecutor
asked, "Even though those other prisons might have had some
programming that you could have done?" the defendant replied,
"It just wasn't worth going there." The defendant did not
object to those questions, and so we review for a substantial
risk of a miscarriage of justice.
That questioning did not shift the burden of proof. "[T]he
prosecutor did not focus the jury's attention on a specific
element missing from the defense, nor did the prosecutor
otherwise suggest to the jury -- either implicitly or explicitly
-- that the defendant had an affirmative duty to counter the
Commonwealth's evidence against him." Commonwealth v. Johnson,
463 Mass. 95, 113 (2012). No substantial risk of a miscarriage
of justice arose.
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Prosecutor's closing argument. The defendant contends that
in her closing argument the prosecutor improperly urged the jury
not to be "distracted" by scientific evidence, shifted the
burden of proof, and misquoted Dr. Johnson's report. The
defendant objected on the first of those grounds, but not on the
latter two. In those circumstances, we review the prosecutor's
argument to which the defendant did object for prejudicial
error, see Commonwealth v. Cole, 473 Mass. 317, 333 (2015), and
his remaining claims to determine if a substantial risk of a
miscarriage of justice arose, see Commonwealth v. Sanders, 101
Mass. App. Ct. 503, 511 (2022).
The prosecutor's statement during closing argument urging
the jury not to be "distracted . . . by discussions about
actuarial tools or studies or statistics [or] the differences
between personality disorder[s]" did not create prejudicial
error. The defendant argues that this statement was prejudicial
because, he contends, it amounted to advising the jury "to
ignore approximately half the evidence at trial." The jury
would not have understood the prosecutor's statement not to be
"distracted" by certain evidence as amounting to a request that
they "ignore" it. Indeed, the experts presented by both the
Commonwealth and the defendant relied on actuarial tools and
statistics; the experts agreed on the results of those tools,
but disagreed as to whether the dynamic risk factors should be
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interpreted to label the defendant a sexually dangerous person.
In context, the prosecutor was merely highlighting the elements
in dispute between the parties. Contrast Hunt, 462 Mass. at 825(prosecutor improperly argued that defendant was "sexually
frustrated" after years in prison without "access to the
children that he desires"). There was no prejudicial error.
The defendant next argues that the prosecutor's use of a
rhetorical question in closing argument, to which he did not
object, was burden-shifting. The defendant argues that the
prosecutor shifted the burden when she argued, "Has [the
defendant] convinced you that he understands his offending
behavior?" Viewing this question in the context of the closing
argument as a whole, it did not create a substantial risk of a
miscarriage of justice. This question was in the context of the
prosecutor's discussing the requirements for finding the
defendant sexually dangerous and arguing from the defendant's
own testimony and demeanor that he was. "So long as the
prosecutor's closing argument is grounded in the evidence, the
prosecutor may 'argue the evidence and the fair inferences which
can be drawn from the evidence.'" Commonwealth v. Childs, 94
Mass. App. Ct. 67, 76 (2018), quoting Commonwealth v. Rivera, 91
Mass. App. Ct. 796, 801 (2017). Further, defense counsel did
not object or seek curative instructions on the parts of the
prosecutor's argument said to be burden-shifting. "[T]he
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absence of any such request from experienced counsel is some
indication that the tone, manner, and substance of the now
challenged aspects of the prosecutor's argument were not
unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360
(1985).
The defendant further argues that during the prosecutor's
closing argument, she misquoted Dr. Johnson's report, and the
effect of the misquotation was "possibly crucial." During
closing argument, the prosecutor told the jury to note that
Dr. Johnson's report had said that "it's very likely" that the
defendant's conduct toward the victim in the motel could have
escalated to a sexual offense, when in fact that report stated,
"It is also possible that [the defendant] was engaging in overt
grooming of [the victim] and that given enough time, he might
have escalated to a hands-on sexual assault." While the
prosecutor did misquote Dr. Johnson's report as saying "very
likely" instead of "possible," no substantial risk of a
miscarriage of justice arose. The judge instructed the jurors
that "[i]f . . . either of the lawyers called your attention to
[a] matter of evidence that you do not remember collectively as
a juror, then you're free to ignore them because it's your
memory of the testimony that must control your deliberations in
this case." Here, where the prosecutor's misstatement was based
on Dr. Johnson's report, which was admitted in evidence and
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available to the jury during deliberations, it is particularly
unlikely that the jury would have been influenced by the
misstatement.
Jury instruction defining "likely." The defendant argues
that the judge improperly instructed the jury by defining the
meaning of the word "likely" as used in the definition of an SDP
in G. L. c. 123A, § 1, by paraphrasing the Supreme Judicial
Court's holding in Boucher, 438 Mass. at 276. He did not object
to the instruction, and so we review the issue for a substantial
risk of a miscarriage of justice. See R.B., petitioner, 479
Mass. 712, 717-718 (2018).
The judge instructed:
"It is not enough for the Commonwealth to establish that
[the defendant] has a propensity or a tendency to commit
sexual offenses or that there is a possibility that he may
do so. Instead, the Commonwealth must prove that it is
reasonably to be expected, given the particular facts and
circumstances at hand, that if [the defendant] is not
confined in the treatment center, that he will commit
additional sexual crimes involving physical contact either
in Massachusetts or elsewhere."
The defendant concedes that the judge's instruction comported
with Boucher, 438 Mass. at 276-277, but contends that the
definition is unconstitutionally vague. The Supreme Judicial
Court in Boucher specifically stated that its definition, later
paraphrased by the judge in the instruction quoted above, was "a
contextual construction of 'likely' [that] is not so vague as to
be unfair." Id. at 277 n.2. See Commonwealth v. Husband, 82
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Mass. App. Ct. 1, 7 (2012) (it is for fact finder to determine
what is "likely"). The jury instruction defining "likely" did
not create a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Ditkoff,
Singh & Grant, JJ.3),
Clerk
Entered: March 10, 2023.
3 The panelists are listed in order of seniority.
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