Opinion
09-P-2305
09-15-2011
DANA DUTEAU, petitioner.
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
Since February of 2006, petitioner Dana Duteau has been committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person (SDP). G. L. c. 123A, §§ 12-16. Pursuant to G. L. c. 123A, § 9, he petitioned for discharge on the ground that he is no longer sexually dangerous. At the conclusion of a three-day trial, a Superior Court jury found him still sexually dangerous. He remains committed at the treatment center. He appeals upon the sole ground that the Commonwealth failed to furnish evidence sufficient to support the jury's verdict. For the following reasons, we affirm the judgment requiring his continuing commitment.
Background. The petitioner's criminal history is undisputed. He was born in 1958. In 1981, he pleaded guilty to the charge of indecent assault and battery on a child under the age of fourteen (the eleven or twelve year old daughter of a friend), and to possession of a controlled substance. The judge imposed a sentence of four years' probation with special conditions. In 1982, the petitioner violated his probationary terms (by reason of larceny by check) and received a resulting sentence of two and one-half years in the house of correction on the conviction of indecent assault and battery on a child.
In 1992, the petitioner pleaded guilty to multiple offenses. One set of offenses concerned his twelve year old stepdaughter. He pleaded guilty to the charges of rape of a child under the age of sixteen by force; indecent assault and battery on a child under the age of fourteen, second and subsequent offense; and assault by means of a dangerous weapon, a knife. On the first two offenses, he received concurrent sentences of nine to twelve years in State prison. On the charge of assault by means of a dangerous weapon, the judge imposed a concurrent sentence of four to five years in State prison.
The second set of charges concerned the petitioner's five year old biological daughter. He pleaded guilty to the charge of indecent assault and battery on a child under the age of fourteen, second and subsequent offense. The judge imposed an additional concurrent sentence of nine to twelve years for that offense.
Another set of charges concerned the petitioner's stepson. He pleaded guilty to two counts of indecent assault and battery on a child under the age of fourteen, second and subsequent offense. He received an additional concurrent sentence of nine to twelve years for these offenses.
A final set of charges concerned a former girlfriend. In 1991, the petitioner pleaded guilty to three counts of rape and one count of assault by means of a dangerous weapon, a knife. On the assault charge, the judge imposed one year in the house of correction. Upon the three counts of rape, the judge imposed concurrent sentences of nine to ten years in State prison, on and after the house of correction sentence, suspended for three years.
These aggregate sentences expired in 2003. The Commonwealth petitioned for commitment of the petitioner to the treatment center as an SDP. At the conclusion of a Superior Court bench trial, the judge found him to be an SDP, and committed him to the treatment center for one day to life. Still in 2006, the petitioner brought the present action under c. 123A, § 9. It resulted in the jury trial of May of 2008 and in the present appeal.
Analysis. At trial the Commonwealth carried the burden of proving beyond a reasonable doubt the status of the petitioner as an SDP. See Commonwealth v. Boucher, 438 Mass. 274, 275 (2002); Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 589 (2004). In cases brought pursuant to G. L. c. 123A, § 9, by a petitioner seeking discharge from the treatment center, the Commonwealth must prove beyond a reasonable doubt each of three essential elements: (1) previous adjudication of the petitioner as an SDP; (2) misconduct in sexual matters indicating 'a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years'; and (3) a resulting likelihood of attack or other infliction of injury upon such victims by reason of 'uncontrolled or uncontrollable desires.' G. L. c. 123A, § 1, as appearing in St. 1999, c. 74, § 6.
To challenge the sufficiency of the evidence upon any one or more of those prima facie elements, the petitioner must move for a directed verdict. McHoul, petitioner, 445 Mass. 143, 157 (2005). The petitioner here did so at the conclusion of the Commonwealth's evidence and again at the close of all the evidence. The trial judge denied both motions. The petitioner challenges those rulings. On appeal, the standard for assessment of them is '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. at 589.
The parties agree upon the presence of the first element: the adjudication of the petitioner in 2006 as an SDP under the procedures of G. L. c. 123A, §§ 1 and 12. The petitioner's multiple pleas of guilty to the offenses itemized, supra, establish beyond a reasonable doubt misconduct indicating 'a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years.' G. L. c. 123A, § 1.
The petitioner directs his appellate challenge against the sufficiency of the evidence of the third element: the likelihood of his recidivism if not confined to a secure facility. The challenge receives little support from the evidence.
The Commonwealth introduced written reports and extended testimony from two experts, both doctorates in psychology and both qualified examiners pursuant to G. L. c. 123A, § 1: Michael G. Henry, Psy.D., and Frederick William Kelso, Ph.D. As a third witness, the Commonwealth called Gregg Anthony Belle, Ph.D., a member and representative of the community access board (board), a clinical psychologist, and a qualified examiner under the statutory scheme. Doctor Belle also provided a report and testimony. The gravamen of his evidence was that the five board members unanimously regarded the petitioner as still sexually dangerous. The petitioner offered no responsive expert witness. Cross-examination of the Commonwealth's witnesses subtracted little from the force of their evidence.
In the aggregate, the Commonwealth's witnesses identified the following risk factors as strong and abundant evidence of his likelihood of reoffense unless confined to a secure facility. (1) The petitioner continued to suffer from the mental abnormality of pedophilia, a condition which does not abate without treatment, and which is associated with a high risk of recidivism. (2) He suffers from an antisocial personality disorder, defined as a chronic and pervasive pattern of violation of social norms and of disregard of the rights of others. (3) He scored in the high-risk zone of the actuarial predictive test known as Static-99. (4) His victim pool was multiple and varied; it consisted of four children and one adult, of four females and one male. (5) He had a history of substance abuse. (6) He had a history of collateral criminal activity, including assault and battery both by means of, and not by means of, a dangerous weapon; larceny; and motor vehicle and automobile insurance violations. (7) He had a poor record of treatment progress, with accomplishment of only three of ninety-eight treatment goals. (8) He continued to deny or to minimize the gravity of his offenses and the harm inflicted upon his victims. (9) He had not addressed his deviant sexual arousal to children. (10) He still exhibited virulent anger and aggression.
As countervailing indicators, the petitioner pointed to his advancing age; at time of trial he was forty-nine; the likelihood of reoffense declines after age fifty. He had had no access to drugs or alcohol during his eighteen years of incarceration. He expressed an intention, upon release, to participate in counseling and therapy with a particular agency and with guidance from a specific member of the clergy. He intended to sustain those treatment efforts. These factors left the net evidence of the likelihood of recidivism at a level well above proof beyond a reasonable doubt.
Judgment affirmed.
By the Court (Mills, Sikora & Rubin, JJ.),