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Commonwealth v. George

Supreme Judicial Court of Massachusetts, Worcester

June 21, 2017


          Heard: December 8, 2016.

         Civil action commenced in the Superior Court Department on October 11, 2013.

         The case was tried before Beverly J. Cannone, J.

         The Supreme Judicial Court granted an application for direct appellate review.

          David B. Hirsch for the defendant.

          Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.

          Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          HINES, J.

         After a 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.

         We 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 an SDP.


         1. Pretrial proceedings.

         In 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[1] 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.

         2. The trial.

         Through 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.

         The 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.

         After 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.

         Approximately 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 and ...

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