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Commonwealth v. Baxter

Appeals Court of Massachusetts, Essex

December 13, 2018

COMMONWEALTH
v.
DAVID BAXTER.

          Heard: October 15, 2018

         Petition filed in the Superior Court Department on March 9, 2017. A motion to dismiss was heard by Timothy Q. Feeley, J.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

          John S. Day for the defendant.

          Present: Agnes, Shin, & Singh, JJ.

          SINGH, J.

         After a hearing, a judge of the Superior Court in Essex County (motion judge) allowed the defendant's motion to dismiss the Commonwealth's petition to commit him as a sexually dangerous person, as defined by G. L. c. 123A, § 1. The basis of the defendant's argument was that the Commonwealth did not have sufficient evidence to meet its burden at trial, as the motion judge had previously excluded the report of the only qualified examiner to opine that the defendant was sexually dangerous. See Johnstone, petitioner, 453 Mass. 544, 553 (2009) (in order for Commonwealth to proceed to trial, at least one qualified examiner must opine that the defendant is sexually dangerous). The report of the qualified examiner at issue had been excluded (and a third qualified examiner appointed), based on the "appearance of an inappropriate and avoidable conflict" of interest in the examiner's professional association with an expert previously retained by the Commonwealth in the same matter. The Commonwealth appeals from the dismissal of its petition. For the reasons below, we reverse.

         1. Background.

         On March 9, 2017, the Commonwealth filed a petition in the Superior Court in Essex County to commit the defendant as a sexually dangerous person, as defined by G. L. c. 123A, § 1. At the time, the defendant was an inmate serving a sentence at the Essex County House of Correction pursuant to a violation of his probation on offenses of rape of a child and indecent assault and battery on a child. In its petition, the Commonwealth stated that it had retained Mark Schaefer, Ph.D., to review materials related to the defendant, and that Dr. Schaefer had opined that the defendant was a sexually dangerous person pursuant to the statute.

         Prior to a determination of probable cause, the defendant requested an interview with Dr. Schaefer. Though Dr. Schaefer agreed and interviewed the defendant, the interview did not alter his ultimate opinion that if released the defendant "was likely to sexually reoffend," and met the statutory criteria for a sexually dangerous person.

         After a hearing at which Dr. Schaefer testified, a judge of the Superior Court (not the motion judge) found probable cause to believe that the defendant was a sexually dangerous person, and ordered him temporarily committed to the Massachusetts Treatment Center for examination by two qualified examiners, pursuant to G. L. c. 123A, § 13. Two qualified examiners were appointed: Robert H. Joss, Ph.D., and Katrin Rouse Weir, Ed.D. After interviewing the defendant and reviewing the relevant materials, Dr. Joss opined that the defendant was sexually dangerous, and Dr. Rouse Weir opined that the defendant was not.

         After the reports of the qualified examiners were submitted to the court, the defendant moved to exclude Dr. Joss from providing evidence at trial, or in the alternative, to appoint a new qualified examiner to evaluate the defendant. As grounds therefor, the defendant alleged that Dr. Joss and Dr. Schaefer were both among six "member/partners in Psychological Consulting Services ('PCS')/ a limited liability corporation [LLC] based in Salem, Massachusetts." He argued that the members of the LLC have a fiduciary duty of loyalty to the company and are necessarily "dedicated to [its] financial and professional success." Because Dr. Schaefer and Dr. Joss were "intertwined both professionally and financially," through their partnership in PCS, the defendant claimed that their relationship "create[d] a conflict of interest and raise[d] a genuine issue of Dr. Joss's impartiality in his role as a [qualified examiner]." The defendant offered no affidavit in support of his motion, and did not request an evidentiary hearing.

         The motion judge allowed the defendant's motion insofar as it requested the exclusion of Dr. Joss's report, and ordered the appointment of a new qualified examiner to replace him, prohibiting the new examiner from reading Dr. Joss's report. In his order, the judge made no specific findings of fact, but indicated that his decision was "based on the appearance of an inappropriate and avoidable conflict."

         Gregg A. Belle, Ph.D., was appointed as a substitute qualified examiner, and at the conclusion of his examination and review, opined that the defendant was not sexually dangerous. After Dr. Belle submitted his report to the court, the defendant moved both to dismiss the Commonwealth's petition for lack of evidence and for release from the ...


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