Opinion
20-P-235
06-28-2021
Richard ZIEHL, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Pursuant to G. L. c. 123A, § 9, the petitioner claimed that he is no longer a sexually dangerous person (SDP), and he sought release from the Massachusetts Treatment Center. After a jury trial, the petitioner was deemed to remain an SDP. On appeal, he claims there was insufficient evidence to support the jury's verdict, and that the admission in evidence of the Static-99R risk category labels created a substantial risk of a miscarriage of justice. We affirm.
The initial adjudication of the petitioner as an SDP was affirmed by a panel of this court in Commonwealth v. Ziehl, 93 Mass. App. Ct. 1109 (2018).
1. Sufficiency of the evidence. In order to find that the petitioner remains an SDP, the Commonwealth was required to prove "beyond a reasonable doubt that the [petitioner] (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 [petitioner] was likely to engage in sexual offenses if not confined to a secure facility." Commonwealth v. Cowen, 452 Mass. 757, 761 (2008), citing G. L. c. 123A, § 1. The petitioner claims that the evidence was insufficient relative to the second and third elements. We disagree.
"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). We review the evidence, and the reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 268 (2014) ; Commonwealth v. Boyer, 61 Mass. App. Ct. 582, 582-583 (2004). "Of particular importance in cases of appeal from the adjudication of SDP status is the canon that we defer to findings resting upon expert testimony." Commonwealth v. Husband, 82 Mass. App. Ct. 1, 4 (2012).
The petitioner moved for a directed verdict both at the close of the Commonwealth's case, and at the close of all the evidence, but waived argument on each occasion.
Here, the Commonwealth's evidence, including the court records of the petitioner's multiple convictions, demonstrated that he engaged in repetitive acts of sexual misconduct that were either violent or aggressive against a victim under the age of sixteen years. See Commonwealth v. Denham, 8 Mass. App. Ct. 724, 731 (1979) (aggressive sexual misconduct includes nonviolent acts against victims under sixteen years of age). The Commonwealth also offered expert opinion evidence that the petitioner's sexual misconduct was compulsive.
In particular, the Commonwealth presented the testimony of two qualified examiners (QEs) and an expert community access board (CAB) psychologist, along with their reports, which set out the bases for their expert opinions. These expert witnesses unanimously opined that the petitioner met the criteria for having a statutorily and clinically defined personality disorder that results in him having a present lack of ability to control his sexual impulses. Both QEs and the CAB expert psychologist characterized the clinical personality disorder as antisocial personality disorder (ASPD), as set forth in the Diagnostic and Statistical Manual of Mental Disorders (5th ed.). See Commonwealth v. George, 477 Mass. 331, 336 (2017) (ASPD, in conjunction with other evidence, is sufficient to satisfy SDP finding).
The petitioner's claims that the ASPD diagnosis does not apply to him, or that his experts were more credible than the Commonwealth's experts, are without merit. See Commonwealth v. Reese, 438 Mass. 519, 523 n.5 (2003) ("[c]redibility generally plays no role in the ... directed verdict decision at trial where the evidence is to be viewed in the light most favorable to the nonmoving party"). The jury were entitled to credit the testimony of the Commonwealth's experts regarding the petitioner's diagnosis. See Commonwealth v. Sargent, 449 Mass. 576, 583 (2007).
Furthermore, the Commonwealth offered more than the diagnosis of ASPD to support the verdict that the petitioner remains sexually dangerous. The QEs’ and the CAB's reports, as well as their testimony, explained the basis for concluding that the petitioner's past sexual misconduct, his current mental condition, and his lack of progress in sex offender treatment, combine to form a prognosis that the petitioner is likely to reoffend sexually if released. See, e.g., Poulin, petitioner, 22 Mass. App. Ct. 988, 989 (1986).
The petitioner's claim that his misconduct in 1990 (attacking a female taxi driver) and 2003 (home invasion) were not sexual, is incorrect. A panel of this court already concluded that "the 1990 and 2003 incidents could properly be viewed ‘under the totality of circumstances,’ as part of a ‘pattern of conduct or series of acts of sexually motivated offenses’ within the meaning of G. L. c. 123A, § 1. The conduct at issue in these incidents largely mirrored the conduct in other sexual offenses perpetrated by the defendant because it encompassed violent, and seemingly random criminal behavior against females." Commonwealth v. Ziehl, 93 Mass. App. Ct 1109 (2018).
In large measure, the petitioner's argument is directed to the weight of the evidence, not its legal sufficiency. Viewing the evidence and all permissible inferences in the Commonwealth's favor, a "rational trier of fact could have found, beyond a reasonable doubt," the presence of a statutorily defined personality disorder, and the elements of an SDP. Commonwealth v. Boyer, 61 Mass. App. Ct. at 589.
The petitioner's claim that ASPD does not result in a loss of volitional control is also without merit. SDP commitment is not limited to mental conditions causing volitional impairment. See Dutil, petitioner, 437 Mass. 9, 17-18 (2002), citing Kansas v. Crane, 534 U.S. 407 (2002). In any event, the QEs and the CAB expert psychologist all opined that the petitioner has a statutorily defined personality disorder which is defined as "a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses." G. L. c. 123A, § 1. In addition, there is no merit to the petitioner's claim of burden shifting. The judge repeatedly instructed that the burden of proof was on the Commonwealth, and the Commonwealth never suggested that the petitioner had to prove that he had successfully treated his mental condition.
2. The "new" Static-99R risk category labels. For the first time on appeal, the petitioner also claims that the "new" Static-99R risk category labels should have been excluded from evidence at trial. In this posture, we review for error, and if any, whether that error created a substantial risk of a miscarriage of justice. R.B., petitioner, 479 Mass. 712, 717-718 (2018). We discern no such risk.
In George, 477 Mass. at 339, the Supreme Judicial Court held that it was error to admit in SDP cases evidence of the risk category labels corresponding to an offender's Static-99R score. However, the court limited its holding to the old risk category labels and clarified that "[b]oth the Static-99R score and the corresponding percentage reflecting the risk of sexual offense in qualified examiners’ testimony continue to be admissible. Our holding makes inadmissible the risk category labels only, as the risk category labels, unlike the Static-99R score and the corresponding percentage reflecting the risk of sexual reoffense, provide little aid to the jury in rendering its decision." Id. at 341-341. The court expressly took "no position on the admissibility" of the new risk category labels. Id. at 340 n.8.
Although the Supreme Judicial Court held that the admission of the old risk category labels was error, the error did not require reversal in George because the limitations of the Static-99R were explained to the jury. See id. at 341. The same occurred at the petitioner's trial where the new risk category labels were utilized. That is, the Static-99R and its limitations were explained to the jury. A QE explained what an actuarial instrument is, the ten items to be scored, how the petitioner scored on each item, and the evolving risk category labels and associated risk estimates. That expert also explained that "the limitation of the Static-99R is that it doesn't tell [the doctor] exactly [the petitioner's] specific risk. It compares him to a group of men with the same score." Another QE explained that the petitioner "was not a member of the norm group or sample that was used to develop this instrument, so it doesn't refer to him specifically or the specific elements of his ... pattern of sexual assault."
In addition, it was explained to the jury (as contained in an expert's report) how scores translate to percentages based on "routine" samples of offenders, and how recidivism rates are "group estimates based upon reconvictions and were derived from groups of individuals" with certain characteristics, and thus, "do not directly correspond to the recidivism risk of an individual offender." Finally, it was explained that an offender's "risk may be higher or lower than the probabilities estimated in the Static-99R because this instrument does not include all factors that might be included in a ‘wide-ranging risk assessment,’ such as dynamic risk factors."
We further note that none of the experts relied exclusively on the Static-99R in assessing the petitioner as an SDP. The jury heard evidence about dynamic risk factors which, as the expert witnesses explained, with treatment, can change over the course of time. The experts considered the petitioner's sexual crimes, his background in terms of family life, education, employment, sexual history, institutional conduct, treatment participation, health, age, current sex drive, and release plan. In light of all the evidence, and the thorough explanation of the Static-99R labels and their limitations, even if it was error to admit that evidence, we are confident that it did not risk a miscarriage of justice.
Judgment affirmed.