Heard: June 14, 2016.
filed in the Superior Court Department on December 2, 2010.
case was tried before Merita A. Hopkins, J.
C. Stiles for the petitioner.
Melissa A. Juarez for the Commonwealth.
Present: Trainor, Vuono, & Blake, JJ.
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
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.
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.
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.
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
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
Daubert/Lanigan. The judge concluded that a
Daubert/Lanigan hearing was required to
determine if the MATS-1 evidence was admissible, but declined