Opinion
15-P-1597
01-25-2017
Eli PARISEAU, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioner appeals from a judgment determining that he remains a sexually dangerous person (SDP). He argues that the burden of proof at trial improperly was shifted to him, and also challenges the sufficiency of the evidence, certain of the judge's evidentiary rulings, and the judge's failure to give an instruction. In light of recent case law, see Green, petitioner , 475 Mass. 624 (2016), we conclude that the failure to give the requested instruction was error. The judgment must be reversed and the case remanded for a new trial.
Background . On July 30, 2010, the petitioner was adjudicated an SDP and committed to the Massachusetts Treatment Center at Bridgewater. See G. L. c. 123A, § 14(d ). In 2013, he filed a petition pursuant to G. L. c. 123A, § 9, for review of his status. Before and during a jury trial on the petition, the petitioner requested an instruction pursuant to Johnstone, petitioner , 453 Mass. 544 (2009), wherein the Supreme Judicial Court (SJC) held that, "[i]f neither qualified examiner forms the opinion that the petitioner remains a sexually dangerous person, the Commonwealth may not obtain the expert evidence it needs from the [community access board (CAB) ] or other sources and the petitioner is entitled to be discharged without trial." Id . at 545. The judge declined to give the instruction. The jury found that the petitioner remains sexually dangerous, and the petitioner appeals from the judgment entered on that verdict.
"A ‘[q]ualified examiner’ is defined in G. L. c. 123A, § 1, as a licensed physician ‘who is either certified in psychiatry by the American Board of Psychiatry and Neurology or eligible to be so certified,’ or a licensed psychologist, ‘provided, however, that the examiner has had two years of experience with diagnosis or treatment of sexually aggressive offenders and is designated by the commissioner of correction.’ " McIntire, petitioner , 458 Mass. 257, 259 n.4 (2010). The CAB "reviews all records of a person adjudicated as a sexually dangerous person ... and confined at the Massachusetts Treatment Center ... and reports those findings to the chief administrative officer of the treatment center." Green , 475 Mass. at 625 n.2. "The CAB also conducts annual reviews of the current sexual dangerousness of each person held at the treatment center[, and t]hese reports are admissible in hearings involving persons adjudicated as sexually dangerous." Ibid . (citation omitted).
Discussion . "We review jury instructions for legal error resulting in prejudice to the moving party." Green , 475 Mass. at 629. Because the judge in this case declined to give an instruction derived from the SJC's "ruling in Johnstone , we review it within that context to determine if it was error." Ibid .
In 2015, this court held in Souza, petitioner , 87 Mass. App. Ct. 162, 173 (2015), that an instruction similar to the one requested by the petitioner in this case "is not compelled by Johnstone ." It was our opinion that, where the "precondition" outlined in Johnstone is satisfied because at least one qualified examiner concludes that a petitioner remains sexually dangerous, "a trial judge should refrain from suggesting the relative weight the jury can or should assign to the various Commonwealth experts." Ibid . Further appellate review in Souza was denied. Souza, petitioner , 472 Mass. 1107 (2015).
Thereafter, the SJC granted direct review in Green "to clarify the reach of Johnstone ." Green , 475 Mass. at 625. It noted that Johnstone "elevates the qualified examiner's role beyond mere gatekeeping," and that "[t]he statutory imperative undergirding Johnstone would be nullified if the jury were permitted to find a person sexually dangerous by relying on evidence that we have concluded is insufficient to meet the Commonwealth's burden." Id . at 630. "To avoid this result," the court held, "the jury must, in some fashion, be guided in distinguishing the role of the qualified examiner from that of the CAB members who testify at trial." Ibid . "A jury instruction that the qualified examiner's opinion must be found credible to warrant a finding of sexual dangerousness satisfies this purpose." Id . at 630-631.
Testimony by qualified examiners and a CAB member were presented in this case, "but the jury [were] not informed of the qualified examiner's centrality to the proceeding." Green , supra at 630. In such circumstances, the SJC has held, there "is a distinct possibility" that the jury verdict was "based on evidence other than the qualified examiner's opinion." Ibid . The failure to instruct the jury "that the qualified examiner's opinion must be found credible to warrant a finding of sexual dangerousness" was error, id . at 630, the defendant preserved his rights at trial, and "there is a reasonable possibility that the error might have contributed to the jury's verdict." Commonwealth v. Alphas , 430 Mass. 8, 23 (1999) (Greaney, J., concurring). A new trial is required.
We briefly address the defendant's claim of error in the denial of his motion for a directed verdict. "An individual may be committed to the Massachusetts Treatment Center as an SDP if he has been convicted of a sexual offense and he ‘suffers from a mental abnormality or personality disorder which makes [him] likely to engage in sexual offenses if not confined to a secure facility.’ G. L. c. 123A, § 1, as amended by St. 1999, c. 74, § 6." Commonwealth v. Pariseau , 81 Mass. App. Ct. 705, 707 (2012), S .C ., 466 Mass. 805 (2014). There was ample evidence at trial that the petitioner has been convicted of sexual offenses, and two qualified examiners opined that he suffers from pedophilia rising to the level of a mental abnormality that "makes him a menace to the health and safety of other persons." Taking this evidence "in the light most favorable to the Commonwealth," Commonwealth v. Cowen , 452 Mass. 757, 763 (2008), a jury reasonably could conclude that the petitioner is an SDP. The judge properly denied the motion for a directed verdict.
In light of our disposition, we decline to address the petitioner's remaining claims.
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Judgment reversed .