Argued June 3, 2014.
[As Modified on March 27, 2015].
Petition filed in the Superior Court Department on February 2, 2009.
The case was tried before Diane M. Kottmyer, J.
Mary P. Murray for the Commonwealth.
Michael A. Nam-Krane for the petitioner.
Present: Kantrowitz, Milkey, & Hanlon, JJ.
[27 N.E.3d 396] Hanlon,
George Souza filed a petition in Superior Court
seeking release from his civil confinement as a " sexually dangerous person" (SDP).
See G. L. c. 123A, § 9. At trial, the jury was unable to reach a verdict, and
thereafter, the trial judge allowed Souza's motion for a directed verdict. The
Commonwealth appeals, arguing there was sufficient evidence to permit a retrial.
We agree and reverse.
We recite the evidence heard by the jury in the light most favorable to the Commonwealth. Commonwealth v. Cowen, 452 Mass. 757, 763, 897 N.E.2d 586 (2008). Souza has a significant adult criminal record, extending over a period from 1963 until his last
conviction in [27 N.E.3d 397] 2000. In 1971, he pleaded guilty in New York to " rape in the second degree" for having " engaged in sexual intercourse with ... [a] female less than ... fourteen years of age."  Souza has maintained that the victim was working as a " prostitute" at the time, that she looked eighteen to him, and that she agreed to engage in sex with him. Nevertheless, in one interview, he also stated, " [A] little girl came ... it was my fault ... this little child ... I should never [have] went with this child." When asked how old the girl had been, he said, " I have no idea ... I don't even want to guess." He was then twenty-seven years old. On another occasion, in 2011, Souza asserted that the police entered the room where he was with the victim " before any sexual activity took place." More recently, in a group therapy session in 2012, Souza, discussing the New York offense, told the group that he had " engag[ed] in sexual intercourse with a 15-year-old prostitute ... [and] that she did not look 15 because they make them bigger in New York."
Souza's conviction in 2000 of indecent assault and battery on a child under the age of fourteen arises out of an incident in 1990
with a nine year old boy in Fall River. After he was arrested, Souza defaulted and left the State. Arrested on another charge in New York, Souza was returned to Massachusetts and pleaded guilty in 2000. The Commonwealth alleged that Souza had offered the victim a ride on a motorcycle, and then accosted him, pulling down his pants and the victim's pants and then putting his penis in the victim's mouth and ejaculating. Souza told the victim not to tell his mother or he would " hurt him bad." At the plea hearing, Souza admitted only to rubbing the victim's penis and thereafter denied any involvement in the incident, accusing the victim's mother of fabricating the story and his lawyer of forcing him to plead guilty.
For that incident, Souza received a sentence of three years to three years and one [27 N.E.3d 398] day. Before his release, the Commonwealth filed a petition alleging that Souza was sexually dangerous under the provisions of G. L. c. 123A, § § 1, 12-16. After a jury-waived trial, the judge found Souza to be an SDP and committed him to the Massachusetts Treatment Center (treatment center) for an indefinite term. See G. L. c. 123A, § 14. Souza appealed, challenging both the sufficiency of the evidence that he was an SDP and the use of statements he made to the Commonwealth's expert. This court affirmed in a memorandum and order pursuant to our rule 1:28. See Commonwealth v. Souza, 70 Mass.App.Ct. 1105, 874 N.E.2d 1143 (2007).
Souza's record while incarcerated reveals a number of incidents. He was the victim of an assault by other inmates at least once. In addition, he was disciplined for some relatively minor infractions, along with physical altercations on a number of occasions. At the treatment center, he received twenty-three " Observation of Behavior Reports" (OBRs) during the decade he was confined there. Those records included some substantiated incidents of violence: in 2004, Souza got into a physical altercation with his roommate, and in February of 2012, he spat at and pushed another resident and then banged his own head on a cell door to make it look as though a guard had attacked him.
It is undisputed that Souza did not complete sex offender treatment while he was at the treatment center. In fact, although he had begun the initial phase of treatment during his incarceration for the incident with the nine year old boy, Souza did not enroll in any treatment during his first six years at the treatment center. Despite his regular attendance in treatment classes thereafter, Souza made only limited progress. At the time of trial, when Souza was sixty-nine, he remained in the early stages of the
treatment programs offered to him.
In March of 2012, a divided community access board (CAB) concluded, in a four-to-one vote, that Souza no longer met the criteria of an SDP. The two qualified examiners (QEs) who examined him also were divided on the question.
The Commonwealth's case at trial.
At trial, the Commonwealth relied primarily on the testimony of two experts. Frederick W. Kelso, Ph.D., one of the QEs, testified that Souza suffered from " pedophilia" and " antisocial personality disorder" (APD), as those terms are defined in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (rev. 4th ed. 2000) (DSM-IV). Kelso opined that those mental conditions interfered with Souza's ability to control his sexual urges, and that he was likely to reoffend if not confined. He identified Souza's " risk factors" as having committed [27 N.E.3d 399] a prior sex offense, including a sex offense against a stranger; sex offenses against children not related to him; and a sex offense against a male. Kelso also noted Souza's " past experience of deviant sexual preferences, and his failure to complete sex offender treatment at the Treatment Center." At the time of the Fall River incident, Souza was " then forty-six years old, and the victim of the sex offense was a boy who was then nine years and one month old."
Niklos Tomich, Psy.D., chair of CAB, filed a minority report from the CAB, concluding that Souza was still sexually dangerous. He essentially agreed with Kelso. Tomich described Souza as an " outlier. ... [I]t means somebody who differentiates from the norm."  According to Tomich, Souza " essentially showed an enduring and rather chronic course of antisocial behavior. That
has been unremitting. He has shown very little remorse. He essentially continues to obfuscate responsibility for the crimes for which he was convicted, especially the sex offenses, which is what [Tomich was] mostly concerned about."
Significantly, Tomich also opined that Souza " meets the criteria for pedophilia."  He pointed out that " both his victims were children [and that] ... [w]hat stood out ... for those offenses was the fact that they occurred over a very long period of time. And, in addition, he has both a male victim and a female victim. So, this tends to increase his victim pool." In addition, Tomich found significant the fact that the girl victim was a stranger, thus increasing the pool of potential victims, and that, when Souza committed the offense against the boy victim, he knew about the possible repercussions in the criminal justice system, having previously served a four-year sentence in New York.
Tomich contrasted those " static factors," factors that do not change over time, with " what are called dynamic factors or factors that ... may change over time, that may get stronger or weaker, depending on the situation [Souza's] in." In this case, those factors also supported Tomich's conclusion that Souza was an SDP, particularly his " unwillingness to abide by the mores and folkways and rules of society. He just doesn't want to do that and he hasn't." Tomich also considered Souza's unwillingness to take responsibility for either offense.
Tomich did consider protective factors, including Souza's age of sixty-nine, an age at which sex offenders often are considered less dangerous. Tomich noted that Souza's second sex offense took place when he was forty-six and that his last criminal arrest took place when he was fifty-five; in addition, Souza's behavior in the treatment center included offenses that could have been charged as criminal had he not been held. Finally, while Souza was engaged in treatment, he was only at a preliminary stage of that treatment, a ...