Opinion
No. 12–P–1391.
2013-04-8
COMMONWEALTH v. Joseph LaSELLE.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a Superior Court judge's finding that he is a sexually dangerous person. We affirm.
Background. On July 14, 2009, the Commonwealth petitioned to have the defendant committed as a sexually dangerous person. The defendant was temporarily committed to the Nemansket Treatment Center until trial. On July 19, 2010, a jury-waived trial was held. At the trial, three qualified examiners testified, two on behalf of the Commonwealth and one on behalf of the defendant. On July 21, 2010, the trial judge issued findings of facts and rulings of law, concluding that the defendant was a sexually dangerous person. The judge ordered the defendant committed to the treatment center for an indeterminate term. On appeal, the defendant argues that the Commonwealth's two qualified examiners, as well as the judge, erred in failing to give sufficient weight to the fact that the defendant would be subject to lifetime community parole upon his release. Discussion. In reviewing a sexually dangerous person finding, we analyze the evidence in the light most favorable to the Commonwealth to determine whether sufficient evidence has been presented to the fact finder to find the existence of the essential elements of the sexually dangerous person finding. Commonwealth v.. Blake, 454 Mass. 267, 271 (2009). In order to have a person committed to the treatment center as a sexually dangerous person, the Commonwealth must prove three elements beyond a reasonable doubt: (1) the respondent has been convicted of a sexual offense; (2) the respondent suffers from a mental abnormality or personality disorder; and (3) the mental abnormality or personality disorder makes the respondent likely to engage in further sexual offenses if not confined to a secure facility. G.L. c. 123A, § 1.
For purposes of this appeal, the defendant does not contest the first two elements. Rather, he argues that because he would be subject to lifetime community parole upon his release, the Commonwealth's two qualified examiners, as well as the judge, erred in concluding that the defendant was likely to engage in further sexual offenses if not confined to a secure facility by failing to adequately recognize the deterrent effect of lifetime community parole. We disagree.
The defendant argues that two of the qualified examiners were unaware of all of the requirements of lifetime community parole and, therefore, their conclusion that the defendant is a sexually dangerous person is without merit. This argument is not supported by the record. Both of the qualified examiners testified that they were familiar with some of the requirements of lifetime community parole. The fact that the qualified examiners may have not been familiar with every requirement of lifetime community parole does not undermine their independent conclusions that the defendant is likely to commit further sexual offenses if not committed to a secure facility.
More importantly, the judge, in detailed findings addressed the issue of lifetime community parole as follows: “Neither of the Commonwealth's witnesses was familiar with the specific conditions that the respondent's counsel suggested likely would be imposed with his lifetime community parole given the respondent's sex offender level. They were, nevertheless, not persuaded of the efficacy of the conditions of lifetime community parole to protect the community from the risk of reoffense.”
The judge summed up his view of the evidence as follows: “In sum, I credit the opinions of [the Commonwealth's two qualified examiners] and conclude that in light of the respondent's personality disorder, his extensive disciplinary history in institutional settings, his extensive history of violation of conditions of probation, the impulsivity of his sexual offense, his lack of insight into his sexual offenses, his lack of significant exposure to and success in sex offender therapy make it likely that he will reoffend sexually if he is not confined to the treatment center. I also credit their opinions that conditions of lifetime community parole, even if those detailed by respondent's counsel, do not provide adequate protection to the community and deterrence to the respondent.
...
“[The defendant's qualified examiner's] testimony and report do not instill a reasonable doubt as to the respondent's sexual dangerousness. Without, at least, some history of compliance with and progress in sex offender therapy, there is no persuasive basis to conclude that parole conditions would adequately protect the community and deter the respondent from sexual reoffense.”
It is clear from the judge's findings that he considered the opinions of all three qualified examiners. The judge's findings also make it clear that he accepted the opinions of the two qualified examiners who testified for the Commonwealth, and that he rejected the opinion of the qualified examiner who testified for the defendant. We defer to the findings of the judge based upon the evidence presented at the trial. Commonwealth v. Sargent, 449 Mass. 576, 583 (2007). Commonwealth v. Bradway, 62 Mass.App.Ct. 280, 291 (2004). We conclude that there was ample evidence to support the judge's findings. Blake, 454 Mass. at 274 (upholding a trial judge who credited the Commonwealth's expert testimony that a defendant's “lack of cooperation with treatment or with supervision while on probation, placed him in the category of sexual offenders who are considered a high risk to reoffend”).
Judgment affirmed.