Heard: February 5, 2018.
filed in the Superior Court Department on October 11, 2012.
The case was tried before Bonnie H. MacLeod, J.
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,
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.
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."
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.
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.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.
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. 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 ...