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Commonwealth v. Dinardo

Appeals Court of Massachusetts, Middlesex

February 7, 2018


          Heard: November 3, 2017.

         Civil action commenced in the Superior Court Department on July 5, 2012.

         The case was tried before Kenneth W. Salinger, J.

          David H. Erickson for the defendant.

          Jessica Langsam, Assistant District Attorney, for the Commonwealth.

          Present: Hanlon, Massing, & Wendlandt, JJ.

          WENDLANDT, J.

         This appeal presents the question whether, in connection with a trial to civilly commit an individual as a sexually dangerous person, [1] the written report of a qualified forensic psychologist (who is neither a designated qualified examiner nor the defendant's treating psychologist) is admissible as a "psychiatric and psychological record[] and report[] of the person named in the petition." G. L. c. 123A, § 14(c), inserted by St. 1999, c. 74, § 8. Concluding that it is and that the defendant's other arguments lack merit, we affirm.

         1. Background.

         We briefly summarize the relevant facts as found by the trial judge. In 1989, the defendant, Charles Dinardo, was convicted in Connecticut of aggravated sexual assault, sexual assault of a child, and risk of injury to a minor. The victim was the defendant's daughter, whom he sexually abused continuously from when she was six years old until she was eighteen, with the exception of a one year hiatus when the victim's mother took her abroad. The abuse began when she was six or seven years old. He would place a wire in his own and then the victim's anus while he masturbated. When she was eight or nine years old and continuing until she was twelve, he engaged in weekly oral and anal sex with her. Over the next six years, he engaged in weekly sexual contact with the victim. On one occasion, the defendant told an adult male friend that he could have sex with the victim; the friend proceeded to have oral sex with her. The defendant expressed disappointment that he was not afforded the opportunity to watch. The victim was afraid to tell anyone about the abuse, but when she was eighteen, she began to resist the defendant and ultimately reported the sexual abuse to her therapist. The defendant was arrested, convicted, and sentenced to twelve years of incarceration.

         Following his release, the defendant again was arrested in Connecticut after reports were made that he was in a parked van talking to young boys. He was found guilty of breach of the peace, and sentenced to probation; however, he violated the conditions of probation and served a prison sentence.

         In 2007, the defendant approached a fourteen year old boy at a train show in Holliston, Massachusetts, and asked to speak to him alone, ostensibly to give him information about trains. When he had the boy alone, the defendant instead remarked, "[s]perm is an energy drink, you know." When the boy did not reply, the defendant stated, "I'd really love to blow you. I'll give you twenty dollars." The boy walked away, told his father, and identified the defendant. The father later reported the incident; the defendant was arrested in Connecticut. During the drive back to Massachusetts, the defendant told the police officer he should have stayed away from the boy, but "his big mouth had gotten him in trouble again." In a search of the defendant's apartment, the police found a photograph that the defendant had taken of a different boy sitting on a model train. The photograph was captioned "boy who likes to give blow jobs and getting finger fucked by older neighbor-200%." The defendant was convicted in Massachusetts of enticing a child under the age of sixteen and was sentenced to four and one-half to five years in prison.

         As the defendant's discharge time neared, the district attorney retained forensic psychologist Dr. Katrin Rouse Weir to conduct a preliminary evaluation to determine whether the district attorney should seek to commit the defendant as a sexually dangerous person. Rouse Weir did not interview the defendant; instead, she reviewed his police reports, probation records, and treatment records. In her report, dated June, 2012, she opined that the defendant suffered from a mental abnormality, pedophilia, and that he was likely to reoffend if released. In July, 2012, the district attorney filed a petition for commitment of the defendant as a sexually dangerous person, pursuant to G. L. c. 123A, § 12(b). The defendant was held at the Massachusetts Treatment Center (treatment center) pending a determination of probable cause that the defendant was a sexually dangerous person, pursuant to G. L. c. 123A, § 12 (c).

         In January, 2013, following a stipulation to probable cause by the parties, the hearing judge found probable cause. The hearing judge ordered the defendant held for sixty days pending examination and diagnosis by two qualified examiners, pursuant to G. L. c. 123A, § 13 (a.) . The two qualified examiners, Dr. Mark Schaefer and Dr. Greg Belle, each interviewed the defendant. Reflecting on his abuse of his daughter that continued for over a decade, the defendant acknowledged that he abused his daughter and that the police reports were accurate. He stated that (i) he thought the victim would enjoy the abuse, (ii) the abuse would further the bond between them, and (iii) he could not stop himself even though he knew it was wrong. The defendant denied having any sexual contact with the boys with whom he spoke from his van, but admitted soliciting the boy at the train show. While he regretted his inability to keep his mouth shut, he wanted to be part of the teenage boy's sexual experimentation.

         In February, 2013, the district attorney moved for trial, pursuant to G. L. c. 123A, § 14 (a.) . The motion was allowed, and the defendant was ordered confined to the treatment center for the duration of the trial. In 2013 and ...

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