Heard: March 10, 2016.
filed in the Superior Court Department on August 11, 2011 The
case was heard by Laurence D. Pierce, J., and a motion for a
new trial was heard by him.
Supreme Judicial Court granted an application for direct
P. Murray for the Commonwealth.
Michael A. Nam-Krane for the petitioner.
M. Kenneally, for Committee for Public Counsel Services,
amicus curiae, submitted a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
an appeal from the denial of the Commonwealth's motion
for a new trial after a jury found the petitioner, James
Green, no longer sexually dangerous in a proceeding brought
pursuant to G. L. c. 123A, § 9. In the motion for a new
trial, the Commonwealth challenged as erroneous and
prejudicial the judge's instruction that in order to find
the petitioner sexually dangerous, the jury must credit the
expert opinion testimony of the qualified examiner. The
Commonwealth claims that the judge's instruction was
erroneous because it improperly commented on the weight a
jury must give to a witness's testimony and prejudicial
because it precluded the jury's full consideration of
testimony by the community access board (CAB).
granted direct appellate review to clarify the reach of
Johnstone, petitioner, 453 Mass. 544 (2009), where
we interpreted G. L. c. 123A as creating a unique and central
role for the qualified examiner in proceedings under the statute. Our
conclusion in Johnstone, that a petitioner is
entitled to be discharged without trial if neither qualified
examiner opines that the petitioner remains a sexually
dangerous person (SDP) and that the Commonwealth may not rely
on the CAB or other sources to obtain the necessary expert
testimony, established a "gatekeeper" role for the
qualified examiner. While our holding in Johnstone
makes clear that a trial is foreclosed unless at least one
qualified examiner opines that the petitioner remains
sexually dangerous, we did not explicitly address whether,
after crossing that threshold, the Commonwealth may meet its
burden to prove sexual dangerousness regardless of the
probative value of the qualified examiner's testimony. We
conclude, based on the centrality of the qualified
examiner's role in SDP proceedings, that a finding of
sexual dangerousness must be based, at least in part, on
credible qualified examiner opinion testimony and that a jury
instruction to that effect is essential to the informed
exercise of the jury's fact-finding function.Therefore, we affirm the
judge's denial of the Commonwealth's motion for a new
being convicted of three separate sex offenses between 1991
and 2002, Green volunteered for treatment while incarcerated.
After being convicted of another sex offense in 2006, he was
transferred to the Massachusetts Treatment Center in 2007.
Prior to his scheduled release, the Commonwealth filed a
commit Green as an SDP. In July, 2011, after a jury trial, Green was
found sexually dangerous. Two months later, in August, 2011,
Green filed a petition for discharge pursuant to G. L. c.
123A, § 9.
As permitted by the statute, the Commonwealth requested a
jury trial to determine whether the petitioner remained an
pretrial hearings in March, 2015, the judge informed the
parties of his intention to instruct the jury that they may
not find the petitioner to be sexually dangerous unless they
credited the testimony of a qualified examiner who so opines.
See Johnstone, 453 Mass. at 553. The judge provided
a written copy of the instructions, and the Commonwealth
renewed its objection.
trial, the qualified experts disagreed as to whether the
defendant had a qualifying mental condition, whether his age
reduced his likelihood of reoffending, and whether his
treatment protocol during confinement was effective. The
Commonwealth presented two experts who opined that Green
remained sexually dangerous. The qualified expert called by
the Commonwealth, Dr. Nancy Connolly, testified that the
defendant had "personality disorder with antisocial
features, " and that if released, "he would not be
able to control his sexual impulses." Dr. Angela
Johnson, representing a unanimous vote among CAB members,
 agreed with
Dr. Connolly's diagnosis and testified that the CAB was
concerned about the defendant's plan to return to the
town where he perpetrated his second offense without the
benefit of monitoring by the probation department. Green
presented three experts who opined that he was no longer
sexually dangerous. Dr. Joseph Plaud and Dr. Leonard Bard
testified that Green did not meet the criteria for either a
personality disorder or mental abnormality. The other
qualified examiner, Dr. Margery Gans, joined ...