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Esteraz

Appeals Court of Massachusetts, Suffolk

September 22, 2016

JUSTO ESTERAZ, petitioner.

          Heard: June 14, 2016.

         Petition filed in the Superior Court Department on December 2, 2010.

         The case was tried before Merita A. Hopkins, J.

          Ethan C. Stiles for the petitioner.

          Melissa A. Juarez for the Commonwealth.

          Present: Trainor, Vuono, & Blake, JJ.

          BLAKE, J.

         After a trial in the Superior Court, the jury returned a verdict finding that the petitioner, Justo Esteraz, remained a sexually dangerous person (SDP) as defined by G. L. c. 123A, § 1. He appeals, arguing that the judge erred by failing to hold a Daubert/Lanigan hearing to determine the admissibility of the results of a risk assessment tool known as the Multisample Age-Stratified Table of Sexual Recidivism Rates (MATS-1), which purports to measure an individual's likelihood to reoffend. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994). He also claims that his trial counsel was ineffective in his advocacy for the admission of the same evidence. We affirm, addressing, in our discretion, the question whether the MATS-1 evidence was directly admissible as part of the petitioner's expert's report.

         1. Background.

         The petitioner was civilly committed as an SDP on October 18, 2010. On December 2, 2010, he filed a petition for release and discharge pursuant to G. L. c. 123A, § 9.

         At the time of trial, the petitioner was a seventy-four year old man with a significant history of charged and uncharged crimes of sexual abuse spanning over four decades. The petitioner's victims include three generations of young girls in his extended family, including his daughter, nieces, granddaughters, and step-granddaughters. His conduct has included fondling, vaginal and digital penetration, and oral sex. The petitioner's criminal record includes four convictions in 1994 for sex crimes committed in Puerto Rico and four convictions in 2008 in Massachusetts for indecent assault and battery on a child under fourteen years of age.

         Pursuant to G. L. c. 123A, § 9, the petitioner was examined by two qualified examiners who prepared reports opining that the petitioner remained an SDP. Those reports explained that, despite the petitioner's advanced age, his extensive and prolonged history of sexual abuse, which continued into his sixties, suggested he was likely to reoffend. The examiners also considered that the petitioner greatly minimized his culpability for his conduct and, at times, suggested his victims were somewhat culpable by offering complicit consent. The examiners also noted the petitioner remained capable of sexual activity, had accomplished only limited progress in sex offender treatment, and his only support in the community is his daughter, who is the mother of three of his victims, and it is unclear what, if any, contact the petitioner would have with them.

         The petitioner was also examined by his own independent expert, Dr. Leonard Bard, who concluded that the petitioner was no longer an SDP. That opinion was based, in part, on the use of two risk assessment tools that measure an individual's likelihood to reoffend: the MATS-1 and the STATIC-99R. Dr. Bard's application of those tools, respectively, predicted the petitioner had a 2.5 percent, and 2.8 percent, chance of sexually reoffending. Upon receipt of Dr. Bard's report, the Commonwealth filed a motion in limine to exclude all references to the MATS-1 evidence on the ground that it was unreliable and inadmissible under the Daubert/Lanigan standard. The petitioner filed an opposition to the Commonwealth's motion, arguing for the admissibility of the MATS-1 evidence. The petitioner did not, however, request a Daubert/Lanigan hearing.

         On the second day of trial, the judge heard oral argument on the Commonwealth's motion. The petitioner's counsel stated that he "had discussed for the purposes of judicial economy . . . not hav[ing] [his expert] testify with regard to the MATS-1, because there is also a STATIC-99 score . . . that was substantially the same, " and "[his] theory of the case [did not] rest on MATS-1 or STATIC-99." He nevertheless renewed his argument that the MATS-1 evidence was directly admissible as part of the expert's report under G. L. c. 123A, or, if the judge disagreed, that the MATS-1 evidence met the standards for admissibility under Daubert/Lanigan.[1] The judge concluded that a Daubert/Lanigan hearing was required to determine if the MATS-1 evidence was admissible, but declined to ...


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