Supreme Judicial Court of Massachusetts, Worcester
Heard: December 8, 2016.
action commenced in the Superior Court Department on October
case was tried before Beverly J. Cannone, J.
Supreme Judicial Court granted an application for direct
B. Hirsch for the defendant.
Nathaniel R. Beaudoin, Assistant District Attorney, for the
C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
jury trial in the Superior Court, the defendant, Richard
George, was determined to be a sexually dangerous person
(SDP) pursuant to G. L. c. 123A. In accordance with the
statute, the judge committed the defendant to the
Massachusetts Treatment Center (treatment center) for an
indeterminate period of from one day to life. The defendant
filed a timely appeal challenging the commitment on the
grounds that (1) a diagnosis of antisocial personality
disorder (ASPD) is a constitutionally inadequate basis for
commitment as an SDP; and (2) the judge erroneously admitted
expert opinion testimony on the likelihood of reoffense and
the results of the Static-99R risk assessment tool. We
allowed the defendant's application for direct appellate
review to clarify the relevance of an ASPD diagnosis in the
sexual dangerousness calculus.
conclude that an ASPD diagnosis is a sufficient predicate for
sexual dangerousness so long as other evidence establishes a
nexus between that condition and the factors warranting
confinement to a secure facility. Also, we discern no error
in the judge's evidentiary rulings requiring reversal.
Therefore, we affirm the judgment and order for the
defendant's civil commitment to the treatment center as
October, 2013, the Commonwealth filed a petition pursuant to
G. L. c. 123A, § 12, seeking an adjudication that the
defendant is an SDP. In April, 2014, a Superior Court judge
found probable cause to believe that the defendant is an SDP
and committed him to the treatment center for examination and
diagnosis. Two qualified examiners submitted reports, opining
that the defendant is an SDP within the meaning of G. L. c.
123A, § 1. The trial on the Commonwealth's petition
commenced in September, 2015.
records admitted at trial pursuant to G. L. c. 123A, §
14 (c0, and the testimony of the two qualified examiners, the
Commonwealth presented evidence from which the jury could
have found beyond a reasonable doubt the statutory elements
necessary for the defendant's commitment as an SDP. This
evidence detailed the defendant's prior convictions of
sexual offenses and included expert opinion testimony on two
issues: (1) whether the defendant suffered from a mental
abnormality or personality disorder that predisposes him to
commit sexual offenses; and (2) whether the defendant likely
would reoffend because of that mental condition if not
confined to a secure facility. The defendant offered no
evidence at trial.
jury could have found the following facts. The defendant was
convicted of two different sexual offenses as defined in G.
L. c. 123A, § 1. In 1978, when the defendant was
seventeen years of age, he sexually assaulted a nine year old
girl. After first going down a bike path with the
victim's eleven year old sister, the defendant asked the
victim if she too wanted to go down the bike path. As they
went down the path, the defendant pushed the victim down to
the ground, got on top of her, and, over the victim's
clothing, fondled her breasts and genital area.
the victim began to scream for her sister, the defendant let
her get up from the ground and warned if she told anyone, she
would be killed. Thereafter, the defendant was charged and
convicted of indecent assault and battery on a child under
the age of fourteen. Following conviction, the defendant was
sentenced to a term of probation for three years.
twelve years later, the defendant was convicted of aggravated
rape and rape. The convictions stemmed from the rape of a
forty-nine year old woman, who was the mother of a woman the
defendant had dated previously. The defendant went to the
victim's home and asked to speak with her daughter, who
was not home. Following a conversation with the victim, the
defendant asked if he could use her restroom. He reported to
the victim that the toilet was not functioning. When the
victim went to investigate, the defendant attacked her.
Putting his hands around her throat, the defendant pulled the
victim down to the floor and sexually assaulted her vaginally