Opinion
16-P-687
06-01-2017
LYNWODE PAQUETTE, 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
In a proceeding that the petitioner initiated pursuant to G. L. c. 123A, § 9, a Superior Court jury found that he remained a "sexually dangerous person" (SDP). We affirm.
In 1968, the petitioner was convicted of sexually assaulting an eight year old girl. Three years later, he was convicted of an indecent assault and battery on a child for molesting a thirteen year old girl at knifepoint. He was adjudicated an SDP in 1975, and he spent the next sixteen years civilly confined in that status. As the result of an earlier § 9 proceeding in which a judge found that the petitioner was no longer an SDP, the petitioner was released back into the community in 1991. Within four years, he reoffended by raping a woman at knifepoint. In 2007, before his sentence on the rape was completed, he was adjudicated an SDP for a second time, and he has remained civilly committed since then. He filed a new § 9 petition in 2011, which resulted in a judgment on a jury verdict, now under appeal, that he remained an SDP.
During the course of the trial, Commonwealth witnesses noted that the petitioner had committed the aggravated rape after he had been released back into the community following his earlier successful § 9 proceeding. The attorney representing the Commonwealth emphasized this point both in his opening statement and closing argument. On appeal, the petitioner argues that the jury should not have been informed that he was released based on his having been determined no longer to be an SDP. He suggests that the references to the earlier § 9 proceeding had the effect of sending the message to the jury that they should not repeat the same error made by the earlier fact finder. According to him, this introduced an extraneous consideration into the jury's deliberations, one that could have swayed their verdict. Because he lodged no contemporaneous objections to the references to his having been found no longer sexually dangerous, our review is limited to whether such references caused a substantial risk of a miscarriage of justice. See Commonwealth v. Fay, 467 Mass. 574, 583 n.9 (2014).
The petitioner draws analogies to cases that call into question the appropriateness of a jury being told the consequences of their actions. See Miller, petitioner, 71 Mass. App. Ct. 625, 626-635 (2008) (better practice not to let jury know that SDP has statutory right to file § 9 petition annually). See also Commonwealth v. Ferreira, 373 Mass. 116, 125-126 (1977) (noting general rule that jurors should not be informed of sentencing consequences of their verdict).
Because the petitioner had filed a pretrial, "omnibus" motion in limine that sought, inter alia, to exclude references to the earlier § 9 proceeding, the petitioner takes the position that he did preserve the issue notwithstanding his failure to lodge a contemporaneous objection at trial. See Commonwealth v. Grady, 474 Mass. 715, 719 (2016). However, the rule established in Grady applies only to trials that occurred after that opinion was issued. See Commonwealth v. Lacoy, 90 Mass. App. Ct. 427, 441 n.21 (2016). Therefore, that rule does not apply to the case before us. Moreover, in light of the particular nature of the relevant portion of the omnibus motion in limine and of the ruling on that motion, there would be at least some doubt whether the issue was adequately preserved even if Grady did apply.
We begin by noting the narrow and subtle nature of the petitioner's argument. While the petitioner argues that the jury should not have been told that he committed the aggravated rape after formally having been found no longer an SDP, he concedes that most other facts related to his having reoffended postrelease are highly relevant and admissible. For example, the petitioner acknowledges that the jury could consider that he reoffended after being released back into the community. Likewise, he concedes that it was fair game for the jury to consider that he reoffended even after he had made arguments as to why he was not in danger of reoffending (arguments that are similar to those he is making now). It also bears noting that although the Commonwealth highlighted that the petitioner reoffended after his earlier successful § 9 proceeding, it laudably stayed away from making any overt argument that the jury should not "make the same mistake" that the earlier fact finder made. Finally, as the Commonwealth highlights, the judge repeatedly emphasized in his instructions that the sole question before the jury was whether the petitioner remained an SDP today. We discern no substantial risk of a miscarriage of justice created by the references to the earlier § 9 proceeding here.
Contrary to suggestions in the petitioner's brief, the Commonwealth did not imply that he was released before through the actions of another jury (which would have been inaccurate because the earlier § 9 proceeding was a bench trial).
At oral argument before us, the Commonwealth contended that the petitioner's having prevailed on his earlier § 9 proceeding is evidence of his "court and probation records," and as such is rendered automatically admissible by statute. See G. L. c. 123A, § 9, as appearing in St. 1993, c. 489, § 7. In fact, the jumble of docket excerpts included in the appellate record do not actually appear to reveal that the petitioner succeeded in the earlier § 9 proceeding. We decline to address the force of this particular argument in the abstract.
The petitioner's remaining two claims of error require little discussion. The judge did not abuse his discretion in declining the petitioner's request -- made after the close of evidence -- to redact from various trial exhibits references to the petitioner's having thrown a chair at a probation officer. See McHoul, petitioner, 445 Mass. 143, 148-153 (2005) (contents of incident reports need not independently satisfy traditional hearsay rules to be admissible in § 9 proceedings). There was thus no error, much less a substantial risk of a miscarriage of justice.
The Commonwealth's experts relied in part on the petitioner's disciplinary record in confinement, which included reference to his having thrown a chair at a guard. One witness stated -- apparently erroneously -- that this particular charge had been dismissed, and based on that testimony, the petitioner sought to have references to the incident redacted from the relevant reports.
The petitioner's last claim has to do with unobjected-to testimony from the author of the community access board (CAB) report that three other members of the CAB agreed with her opinion that the petitioner remained an SDP. The petitioner argues that this improperly allowed the admission of opinions from nontestifying expert witnesses. However, the fact that the three nontestifying members agreed with the witness is revealed by the CAB report, which is automatically deemed admissible by the statute. See G. L. c. 123A, § 9, as appearing in St. 1993, c. 489, § 7 (rendering admissible in § 9 proceedings "all relevant materials prepared in connection with the section six A [i.e., CAB] process"). Cf. Santos, petitioner, 461 Mass. 565, 567, 568 (2012) (acknowledging admissibility of CAB report where CAB officer testified as to her own opinion and that of other CAB members). Again, the petitioner has not demonstrated error, much less a substantial risk of a miscarriage of justice.
To the extent that the petitioner is suggesting that there was a constitutional violation here, he has not provided adequate argument compliant with the dictates of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Judgment affirmed.
By the Court (Milkey, Hanlon & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: June 1, 2017.