Opinion
11-P-694
04-27-2012
COMMONWEALTH v. VICTOR MEDINA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals his commitment to the Massachusetts Treatment Center for one day to life under the sexually dangerous person statute, G. L. c. 123A, §§ 12-15. He takes issue with the judge's acceptance of the opinions of certain experts as well as the admission of hearsay evidence. For the reasons enumerated below, we affirm.
Background. The facts are not in dispute. Between 2000 and 2007 the defendant was found guilty of open and gross lewdness against a minor, G. L. c. 272, § 16, as well as four counts of indecent assault and battery on a child under fourteen. G. L. c. 265, § 13B. These are designated sex offenses under G. L. c. 123A, § 1.
Subsequent to these convictions, the district attorney filed a petition for the commitment of the defendant. The Commonwealth presented three experts regarding whether the defendant met the statutory definition of a sexually dangerous person. Two of these experts concluded that the defendant had a personality disorder and that, unless he were confined to a secure facility, he would be likely to commit further sexual offenses, while the third disagreed. The defendant's two experts testified that he did not have a mental abnormality or personality disorder, and was not likely to reoffend if not confined.
Two of these experts were 'qualified examiners' pursuant to G. L. c. 123A. The third witness was hired by the Commonwealth prior to the filing of the petition to determine if there was probable cause to believe that the defendant was sexually dangerous. The qualified experts examined the defendant while the probable cause witness simply reviewed his records.
In his findings of fact and conclusions of law, the judge found beyond a reasonable doubt that the defendant suffered from a personality disorder as defined by G. L. c. 123A. In so finding, the judge credited the testimony of the Commonwealth's experts. In addition, the judge considered the testimony and reports of the differing experts as to the defendant's likelihood of reoffending if not confined. Again, he credited the testimony of two of the Commonwealth's experts who opined that the defendant was likely to reoffend.
Discussion. Sufficiency of the evidence. 'The question here boils down to whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness as defined by G. L. c. 123A, § 1.' Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 589 (2004). See Commonwealth v. Cowen, 452 Mass. 757, 763 (2008). The Commonwealth must prove 'beyond a reasonable doubt that the defendant (1) had been convicted of a sexual offense; (2) suffered from a mental abnormality [or] a personality disorder . . . as a result of which (3) the defendant was likely to engage in sexual offenses if not confined to a secure facility.' Id. at 761, citing Commonwealth v. Boucher, 438 Mass. 274, 277-281 (2002), and G. L. c. 123A, § 1.
The judge's well-reasoned findings acknowledged that there was disagreement among the experts as to the existence of a personality disorder. However, the judge credited two of the experts' testimony, which was in turn based on the defendant's habitual past sexual crimes, nonsexual crimes, and the fact that multiple women had sought restraining orders against him. The judge found that the facts established that the defendant met the statutory definition of a personality disorder because it demonstrated a 'general lack of control of sexual impulses.' Because '[t]he matter of how much weight is to be given a witness, particularly an expert witness, is a matter for the trier of fact, not an appellate court,' we find no error in the judge's findings. Cowen, supra at 762.
The judge then analyzed the methodology utilized by four of the five experts and concluded that the defendant was likely to reoffend if not confined. The defendant's experts cited several mitigating factors, such as the defendant's age, probation status, and participation in sex offender treatment. The judge properly acknowledged these considerations, but found that they did not outweigh the risk factors. The judge's analysis of the experts' testimony and the methodology utilized were sufficient to establish beyond a reasonable doubt that the defendant was likely to reoffend if not confined.
This methodology is known as the STATIC-99 sex offender risk assessment.
We find no merit in the defendant's claim, raised for the first time on appeal, that his adjudication as a sexually dangerous person violated his substantive due process rights. Even assuming this claim were raised properly, the judge's decision, and the statute he applied, appropriately 'coupled proof of dangerousness with the proof of some additional factor, such as a 'mental illness' or 'mental abnormality." Kansas v. Hendricks, 521 U.S. 346, 358 (1997).
Hearsay evidence. The defendant next argues, for the first time on appeal, that certain admitted statements were hearsay and constituted a substantial risk of a miscarriage of justice. As stated supra, the defendant was convicted of open and gross lewdness against a minor. In addition to allowing evidence of the open and gross lewdness charge, the judge also admitted expert witness reports and testimony that repeated uncharged allegations of sexual assault against the same minor by the defendant. The judge then briefly referred to this evidence in his findings of fact and conclusions of law.
The admission of the uncharged allegations was clearly hearsay evidence. See Commonwealth v. DelValle, 351 Mass. 489, 491 (1966) ('The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted'). Further, we assume without deciding that these statements do not fall into G. L. 123A, § 14(c)'s, exception allowing police reports relating to a person's prior convicted sexual offense. See Commonwealth v. Given, 441 Mass. 741, 745 (2004) (allowing 'any statements describing the defendant's conduct and the circumstances attendant to the offense'). Our decisional law permits experts to rely on unadmitted, but not inadmissible, allegations in formulating their opinions. See Commonwealth v. Markvart, 437 Mass. 331, 336-338 (2002) (qualified examiners may rely on 'facts or data not in evidence if the facts or data are independently admissible').
If the admission of the statements were error, it had no discernible effect. There was ample admissible evidence from which the judge could have found beyond a reasonable doubt that the defendant was a sexually dangerous person under G. L. c. 123A. The expert opinions were based on multiple factors and convictions, not primarily on the uncharged conduct. And, as stated, there was admissible evidence that the defendant had committed additional sexual offenses subsequent to his conviction of open and gross lewdness. The judge's mention of the uncharged conduct is fleeting and nothing in his findings indicates material reliance on them. From the foregoing, we are not 'left with uncertainty that the defendant's guilt has been fairly adjudicated.' Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting from Commonwealth v. Chase, 433 Mass. 293, 299 (2001).
With respect to the defendant's contention that the admission of hearsay evidence violated his right to due process, '[t]he defendant's constitutional claims were not raised below and we therefore decline to consider them for the first time on appeal.' Commonwealth v. Siciliano, 420 Mass. 303, 306 (1995), citing Commonwealth v. Thomas, 401 Mass. 109, 114 (1987). See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
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Judgment affirmed.
By the Court (Graham, Grainger & Hanlon, JJ.),