DocketNumber: 17-P-1381
Citation Numbers: 122 N.E.3d 1099, 94 Mass. App. Ct. 1116
Filed Date: 1/10/2019
Status: Precedential
Modified Date: 7/24/2022
The petitioner appeals from a judgment, after a 2016 jury trial, determining that he remains a sexually dangerous person (SDP) and should remain civilly committed to the Massachusetts Treatment Center (MTC). See G. L. c. 123A, § 9. On appeal he contends that the judge abused his discretion by admitting in evidence the transcript of the petitioner's testimony at a prior § 9 hearing and by allowing experts to use the label "high risk" in describing the petitioner's score on the Static-99R test. He also argues that the Commonwealth's closing argument was unfairly prejudicial. We affirm.
Background. The petitioner committed a variety of sex offenses between 1977 and 1997. Prior to his scheduled release from incarceration in 2008, the relevant district attorney petitioned to have him found an SDP and committed to the MTC. He was adjudicated an SDP and committed to the MTC in August, 2008. In 2013, he petitioned for release under § 9, but at trial was found to remain an SDP. He filed another § 9 petition for release, leading to the 2016 trial and this appeal.
Discussion. 1. Admission of 2013 transcript. The petitioner argues that the judge abused his discretion by admitting in evidence, on the Commonwealth's motion, a redacted transcript of the petitioner's testimony at the § 9 trial held in 2013. While conceding that admissions of a party opponent contained in a transcript are admissible, the petitioner contends that the transcript here was irrelevant and unduly prejudicial. We disagree.
As for relevance, the petitioner argues that his state of mind and understanding of his offenses as shown in the 2013 transcript had no bearing on whether he remained an SDP in 2016. But one of the petitioner's expert witnesses testified that the petitioner had come to grips with his history of offenses and that, as of 2012, the petitioner was offering "no more excuses" for those offenses, and was no longer an SDP as of 2013 or 2016. It was thus relevant that, as shown in the 2013 transcript, the petitioner testified that as he was pursuing one of his child victims, that victim "could have run" in order to escape him.
In a similar vein, the petitioner told a qualified examiner (QE) in 2016 that, during another of his offenses against a separate child victim, the petitioner had bought the child a soda.
The petitioner's undue prejudice argument asks us to assume that the 2016 jury (1) realized that the 2013 transcript was taken from a § 9 proceeding; (2) concluded that the 2013 jury must have found the petitioner to remain an SDP; and thus (3) took less seriously its own responsibility of determining as of 2016 that the petitioner was an SDP, knowing that the earlier jury had put its "stamp of approval" on his SDP status. Even if the jury recognized the source of the transcript,
2. "High-risk" label. The petitioner argues that the judge abused his discretion by allowing various expert witnesses to testify, over objection, that the petitioner's score on the Static-99R risk assessment tool placed him in a "high-risk" category. The Commonwealth concedes, in light of Commonwealth v. George,
The Commonwealth contends that, for the same reason, the error was nonprejudicial here, and we agree.
3. Closing argument. Finally, the petitioner asserts that the Commonwealth's closing argument unfairly appealed to the jury's sympathy and unfairly disparaged the defense bar as well as one of the petitioner's expert witnesses. In response to the first two objections, the judge gave curative instructions to the jury. The petitioner did not renew his objection after those instructions, nor does he identify on appeal in what respect they were insufficient to cure any prejudice.
The most the petitioner argues is that the curative instruction regarding the claimed appeal to sympathy did not "directly address the improper appeal." But the judge clearly told the jury that closing arguments "are arguments" and "cannot be appeals to sympathy because sympathy has no part in your decision in this case." He continued, "You are judges of the facts. You have to be impartial and decide this case for or against one side based upon the facts." His charge also instructed the jury "not to be swayed by prejudice or by sympathy." Although the judge could have explicitly told the jury to ignore the challenged remarks, we are not persuaded that he abused his discretion in declining to do so.
The claimed disparagement of the petitioner's expert witness, Dr. Plaud, consisted of a reference to him as "the defense bar's regular retained expert," their "million dollar man." The petitioner's objections to these remarks, insofar as they referred to Dr. Plaud rather than the defense bar, were overruled.
The disparagement of Dr. Plaud as a "million dollar man" raises a closer question. While "[e]vidence of an expert's billing rate is admissible as evidence of bias and it is appropriate to remind the jury that an expert was retained by the defendant," Commonwealth v. Bishop,
Judgment affirmed.
The statement appeared in the QE's report, which was admitted as an exhibit at trial.
Portions of the transcript were relevant, and the petitioner did not (and on appeal does not) identify any other specific portions as irrelevant. Thus, although the judge characterized it as "kind of unusual" to admit an entire transcript as admissions of a party opponent, the petitioner has not shown that the judge abused his discretion in doing so.
What the Commonwealth offered was a redacted version of the 2013 testimony, omitting portions that "neither [party's counsel] want[ed] the jury to see." The cover page of the transcript did not identify the nature of the proceeding from which it came. The judge offered to instruct the jury that they were not to speculate as to the purpose of the prior proceeding, but the petitioner did not request such an instruction. Nor did the petitioner seek to redact particular passages of the transcript that might have made it more evident to the jury that the transcript was from a § 9 proceeding. Indeed, one of the petitioner's own expert witnesses, Dr. Brown, told the jury that he had "testified in 2013 on [the petitioner's] case."
The petitioner also argues that the information in the transcript was cumulative. The petitioner did not raise this objection at trial, and on appeal he does not identify any particular passages that should have been excluded as cumulative, let alone any prejudice flowing from the admission of such passages. See Commonwealth v. McGee,
As in George,
The remarks, which referred to the petitioner's past crimes as having "violated the right of children to feel safe in a variety of settings, in their own communities, in the most innocent of activities" and then mentioned the particular settings in which the crimes occurred, permissibly addressed the harm to be anticipated were the petitioner to reoffend. See McHoul, petitioner,
As alluded to above, the judge did instruct the jury that "it's not proper to comment on the defense bar.... You can comment on the witnesses, but not the defense bar in general."