Opinion
14-P-528
12-07-2015
ROBERT LESAGE, petitioner.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Robert LeSage filed a petition for release from his civil confinement at the Massachusetts Treatment Center (treatment center) as a sexually dangerous person (SDP). See G. L. c. 123A, § 9. A jury returned a verdict that LeSage remained an SDP, and LeSage filed a timely appeal. LeSage argues that the Commonwealth failed to offer sufficient evidence to meet its burden of proving beyond a reasonable doubt that he remained sexually dangerous, that the trial judge erred in her evidentiary rulings on the Commonwealth's motions in limine, and that the jury instructions violated his constitutional rights. We affirm.
Motion for directed verdict. "The means to test the sufficiency of the evidence at a civil jury trial is by motion for a directed verdict . . . ." McHoul, petitioner, 445 Mass. 143, 157 (2005), cert. denied, 547 U.S. 1114 (2006). "A motion for a directed verdict . . . may be granted only when the evidence construed most favorably to the [opposing party] is insufficient to support the verdict in its favor." Cherick Distribs., Inc. v. Polar Corp., 41 Mass. App. Ct. 125, 126 (1996). LeSage argues that his motion for a directed verdict should have been allowed because the evidence did not support a finding beyond a reasonable doubt that he remained an SDP.
Section nine hearings require the Commonwealth to prove three elements beyond a reasonable doubt: (1) that the petitioner had been adjudicated an SDP in the past; (2) that the petitioner suffers from a mental abnormality or personality disorder; and (3) that the petitioner's mental abnormality or personality disorder makes him likely to engage in sexual offenses if not confined to a secure facility. See G. L. c. 123A, § 1; Commonwealth v. Fay, 467 Mass. 574, 580, cert. denied, 135 S. Ct. 150 (2014); Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 268 (2014). "The Commonwealth bears the burden of establishing beyond a reasonable doubt that the petitioner continues to be an SDP at the time of the section nine hearing." Hill, petitioner, 422 Mass. 147, 156, cert. denied, 519 U.S. 867 (1996).
For the first time on appeal, LeSage invites this court to include a fourth element. He argues that the plain language of the statute additionally requires the Commonwealth to prove, and the trial judge to instruct, that the petitioner suffered from a mental abnormality or personality disorder when he was originally committed and still suffers from the same abnormality or disorder. Because LeSage did not make this argument at trial, the claim is waived. McHoul, petitioner, 445 Mass. at 157. Moreover, "[a] discharge petition under G. L. c. 123A, § 9, is not the appropriate means to challenge the validity of the original commitment." Id. at 157-158.
There is no dispute that LeSage was committed to the treatment center after being convicted of a sex offense. Moreover, all five experts testified that LeSage is afflicted with the mental disorder of pedophilia. Three of the five experts testified that he also meets the criteria for antisocial personality disorder.
At the time of trial in 2011, LeSage had been committed to the treatment center since November 26, 2001, after pleading guilty and serving a sentence for manslaughter of and sex offenses against one victim. It is also undisputed that he admitted to various individuals that he had sexual contact, over decades, with more than thirty youths, mostly boys, not all of which led to criminal charges.
LeSage contends that the "crux of this case" concerns the third element of the SDP analysis, and how his age (he was seventy-one at the time of trial) and debility (he is unable to walk without a walker and is usually confined to a wheelchair) affected his likelihood to reoffend. As to this element, the Commonwealth offered the testimony of two qualified examiners appointed pursuant to G. L. c. 123A, § 9, Drs. Frederick Kelso and Manju Vachher, and one member of the community access board, Dr. Gregg Anthony Belle. Each opined that LeSage remained an SDP notwithstanding his age and debility. Kelso found LeSage to be at high risk of reoffense for a number of reasons. He testified that under the Static-99 risk assessment standard LeSage placed in the high-risk category for committing future sex offenses, based on his previous convictions for sex offenses, other previous criminal conduct, and his choice of victims: unrelated, male strangers. Kelso acknowledged that some published research suggests that sex offenders' advanced age can significantly reduce their risk for committing future offenses, but he was careful to note the limitations of this research, especially as it applies to LeSage. Vachher also dismissed age as a mitigating factor in this case because, in her opinion, "there is no consensus at this time on the effect of aging on sex offender recidivism rate." Moreover, in the opinion of the experts, LeSage's lack of an adequate release plan and inability to control his sexual impulses if released into the community further increased his risk of reoffense.
Kelso cautioned that the published research is generalized and thus fails to take into account factors specific to LeSage, such as his long history of offending and his preferred manner of offending -- fellatio -- which is less affected by age and debilities.
LeSage offered the opinions of two qualified examiners, Drs. Joseph J. Plaud and Leonard Bard, who testified that at the time of trial LeSage did not remain sexually dangerous. Both experts focused on his age and debility. Plaud opined that the MATS-1 actuarial instrument rated LeSage at a low likelihood of reoffending because of his particular medical condition and because he lacked "volitional capacity" to physically act on his sexual impulses.
In the facts section of his brief, LeSage notes that Bard was not permitted to testify that "men over the age of forty lose approximately one percent of free testosterone a year," depriving him "of the opportunity to get that information to the jury." This bare assertion, which LeSage does not pursue in the argument section of his brief, does not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, the judge properly excluded this testimony. See Gammell, petitioner, 86 Mass. App. Ct. 8, 15 (2014).
The witnesses for LeSage and the Commonwealth presented thorough, though contradictory, evidence. The jury were free to credit the testimony of the Commonwealth's witnesses over that of LeSage's witnesses. "Weighing and crediting the testimony are for the trier of fact, and we will not substitute our judgment for that of the trier of fact." Hill, petitioner, 422 Mass. at 156. The judge did not err in denying LeSage's motion for a directed verdict.
Commonwealth's motions in limine. LeSage argues that the trial judge erred in allowing certain of the Commonwealth's motions in limine. "Whether evidence is relevant is a question addressed to the sound discretion of the trial judge." Wyatt, petitioner, 428 Mass. 347, 355 (1998) (quotation omitted). "The issue of relevancy is a matter on which the opinion of the trial judge will be accepted on review except for palpable error." Ibid. (quotations omitted).
First, LeSage contends that his substantive and procedural due process rights were violated when the trial judge allowed the Commonwealth's unopposed motion in limine to exclude evidence regarding "[w]hether certain types of sex offender treatment are or are not available at the Massachusetts Treatment Center." The judge's ruling on the motion did not prevent testimony on whether or not LeSage participated in treatment, nor did it prevent LeSage, if he had chosen to do so, from testifying about why he did not participate in treatment. See Wyatt, petitioner, supra at 355-356. Indeed, both LeSage's and the Commonwealth's witnesses opined on the impact of nonparticipation, with one of LeSage's witness testifying that he did "not believe that [nonparticipation] is a factor of any significance in this particular case with Mr. LeSage." We detect no violation of LeSage's substantive or procedural due process rights.
Second, LeSage argues that the trial judge erred in excluding from LeSage's experts' reports references to the definition of SDP under G. L. c. 123A, § 1(i), and any references to the reliability of other expert opinions. In addition, LeSage argues that the judge did not "level the playing field" and exclude similar terms from the Commonwealth's experts' reports. However, Lesage did not oppose the motions in limine and did not raise these objections at trial. He did not attempt to exclude terms from the Commonwealth's reports, nor did he object to the state of the exhibits before they were submitted to the jury. Because the respondent failed to raise this issue at trial, the respondent is entitled to relief only if he demonstrates error that created a substantial risk of a miscarriage of justice. Commonwealth v. Fay, 467 Mass. at 583 n.9. We conclude no such risk is present. The excluded definition of SDP was irrelevant -- the Commonwealth elected to proceed under the definition of SDP under G. L. c. 123A, § 1(iii), not § 1(i). Furthermore, "the reliability of expert testimony cannot be made the subject of other expert testimony." Commonwealth v. Kendall, 9 Mass. App. Ct. 152, 158-159 (1980). The judge did not abuse her discretion or prejudicially dilute Bard's opinion by directing him to express it as "I cannot conclude" instead of "it becomes virtually impossible to conclude."
Jury instructions. LeSage contends his due process and equal protection rights were violated as a result of the trial judge's failure to instruct the jury specifically regarding his physical debility and ask them to determine whether or not he likely would have the physical capacity "to inflict physical injury upon potential victims." LeSage did not request such an instruction at trial, nor did he object to the issued instructions, and thus the issue is waived. McHoul, petitioner, 445 Mass. at 157 (where petitioner fails to request jury instruction and does not object to its omission, issue is waived on appeal). In any event, such an instruction was not warranted, especially where, as here, see note 3, supra, a risk of contact offenses against children is present. See Commonwealth v. Fay, supra at 585-586 ("An individual who is likely to engage in noncontact sexual offenses directed at children in a manner that would place them in reasonable apprehension of being the victim of a contact sexual offense plainly engages in conduct dangerous to their health, safety, and well-being"). Furthermore, LeSage's age and physical debility were the main focus of his trial, and ample evidence was presented to the jury on the impact of each on his likelihood of reoffense. Thus, the matter was fully vetted, and the jury were able to weigh it appropriately during deliberations.
Judgment affirmed.
By the Court (Milkey, Carhart & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 7, 2015.