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In re R.B.

Supreme Judicial Court of Massachusetts, Bristol

June 11, 2018

R.B., petitioner.

          Heard: February 5, 2018.

         Petition filed in the Superior Court Department on October 11, 2012. The case was tried before Bonnie H. MacLeod, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Brandon L. Campbell for the petitioner.

          Brendan J. Frigault for the Commonwealth.

          Patrick Levin, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

          CYPHER, J.

         In February, 2011, the petitioner was committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person, pursuant to G. L. c. 123A, § 12. The following year, he filed a petition for examination and discharge. G. L. c. 123A, § 9. A jury found that the petitioner continued to be sexually dangerous, and an order entered continuing his commitment. On appeal, the petitioner argues for the first time that the order of commitment should be reversed because a written report of a psychological examination conducted approximately twenty-four years before should not have been admitted at trial. The Commonwealth contends (among other things) that because the petitioner did not object to the report's admission at trial, the issue is waived and we should not review it on appeal. We are thus asked to decide squarely whether an appellate court will consider unpreserved arguments on appeals from sexual dangerousness proceedings under G. L. c. 123A. We conclude that, as in criminal cases, such arguments are to be reviewed for a substantial risk of a miscarriage of justice. We also conclude that there was no error in the admission of the report. In addition, we reject the petitioner's argument that his trial counsel was ineffective for conceding during his closing argument that two of the Commonwealth's expert witnesses were "very credible." The order of commitment is affirmed.[1]

         Background.

         The jury could have found the following facts. The petitioner has a lengthy history of sexual violence. Before becoming an aggressor, the petitioner was himself a victim. He had a "horrible childhood" marked by "substantial trauma" stemming from neglect, drug use, and physical and sexual abuse. He suffered that abuse at the hands of his mother, his sisters, his half-sisters, and their friends, until he grew old enough to protect himself. Asked how these experiences were connected with his subsequent sexual offending, the petitioner responded, "In order to get rid of it, I had to give it away."

         The petitioner was committed as a sexually dangerous person based on three separate cases. First, in 1990, when he was fourteen years old, the petitioner was adjudicated delinquent on two counts of indecent assault and battery on a seven year old girl, who claimed that the petitioner had grabbed her crotch and kissed her. Next, in 1994, when the petitioner was eighteen years old, he was convicted of two counts of indecent assault and battery on a fourteen year old girl. She alleged that, on one occasion, he tried to kiss her and put his hands down her pants; the next day, he lifted her shirt and attempted to touch her breasts. For this offense the petitioner received a one-year suspended sentence.

         Third, in 2001, the petitioner pleaded guilty to aggravated rape, assault by means of a dangerous weapon, and armed robbery. On this occasion, the petitioner approached a woman outside a bar, held a knife to her throat, and led her to the nearby woods, where he violently raped and robbed her. The petitioner was sentenced to ten years in State prison on the aggravated rape conviction, and to lesser sentences on the remaining convictions, including five years of probation. At the completion of the committed portion of his sentences, the petitioner was civilly committed as a sexual dangerous person.[2]During his periods of incarceration and civil commitment, the petitioner received over one hundred disciplinary reports; some included violent behavior, but none involved sexual misconduct.

         In October, 2012, the petitioner filed a petition for discharge pursuant to G. L. c. 123A, § 9, claiming that he is no longer a sexually dangerous person. The case was tried before a jury in the Superior Court in March, 2016. The Commonwealth presented testimony from three expert witnesses, including two qualified examiners, Dr. Mark Schaefer and Dr. Robert Joss, and a psychologist who is a member of the community access board (CAB), Dr. Niklos Tomich.[3] Both qualified examiners diagnosed the petitioner with antisocial personality disorder, and concluded that the petitioner was sexually dangerous. Tomich testified that he and the CAB unanimously concluded that the petitioner remained sexually dangerous; in addition to antisocial personality disorder, Tomich diagnosed the petitioner with sexual sadism disorder (Schaefer and Joss concluded that there was insufficient evidence to diagnose the ...


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