Opinion
No. 12–P–629.
2013-06-5
COMMONWEALTH v. Richard CLIFFORD.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in Superior Court on a petition filed pursuant to G.L. c. 123A, § 12( b ), the defendant was determined to be a sexually dangerous person (SDP) and ordered committed to the Massachusetts Treatment Center. On appeal, the defendant contends that (1) introduction of evidence of his refusal to engage in sex offender treatment was improper, (2) a qualified examiner (QE) improperly suggested to the jury that the defendant probably committed more sex offenses than those of which he had been convicted, and (3) his counsel rendered ineffective assistance by incorrectly explaining reasonable doubt. Concluding that the evidence of the defendant's refusal to engage in sex offender treatment and the testimony that he probably would have admitted to earlier sex offenses had he participated in treatment together created a substantial risk of a miscarriage of justice, we reverse.1. Evidence of refusal to engage in treatment. The QEs testified at length that the defendant refused to participate in sex offender treatment. Evidence at trial established that statements made in sex offender treatment were not confidential. Dr. Feldman, a QE, explained that therapy is terminated when individuals do not acknowledge that they committed a sex offense. Commonwealth v. Hunt, 462 Mass. 807, 819 (2012) ( Hunt ), laid down a rule that “it is error to admit evidence that a defendant refused sex offender treatment where he could receive such treatment only by waiving confidentiality.”
Although the fact that a defendant did not receive treatment may be admissible, id. at 818, the evidence in this case went far beyond merely stating that the defendant had not been treated, so its admission was erroneous.
Although the trial in this case predated Hunt, the Commonwealth does not argue that the rule in Hunt should apply only prospectively.
2. Testimony concerning earlier sexual offenses. The defendant was not charged with any sexual offense until he was nearly forty years old. Dr. Feldman used this fact to insinuate that the defendant likely committed more sex offenses than those for which he had been charged. She twice stated that, in her experience, individuals who were relatively old at the time of their first conviction confess in sex offender therapy to having committed additional prior offenses for which they were never apprehended.
This testimony was admitted in error. Although it was made as a comment on the defendant pointing out (in an evaluation interview admitted in evidence) the rarity of individuals whose first sex offense occurred at a relatively advanced age, speculation about prior offenses that were never reported contravenes the principle of the presumption of innocence. Cf. Commonwealth v. Markvart, 437 Mass. 331, 336 (2002) (holding that statements of complainants regarding allegations that were nol prossed are not admissible as statements prepared for victims under G.L. c. 123A, § 14( c ), because the presumption of innocence means that, absent a conviction or adjudication, the complainant is not a “victim” and allegations are not “offenses”).
3. Analysis. The defendant offered no objection at trial to either the evidence of his refusal to engage in sex offender treatment or Dr. Feldman's testimony described above. “[A]ccordingly, we review for a substantial risk of a miscarriage of justice.” Commonwealth v. Walker, 83 Mass.App.Ct. 901, 903 (2013).
We need not decide whether either posed a substantial risk of a miscarriage of justice standing on its own, as they clearly did when considered in combination. The risk of prejudice was pronounced in this case, where testimony concerning the defendant's refusals to engage in sex offender treatment spans many pages of trial transcript, several exhibits were introduced documenting his refusals, the refusals were discussed in the Commonwealth's closing argument, and, effectively, the QEs' testimony invited the jury to infer that the defendant would have admitted to committing sex crimes predating his initial arrest but for his refusal to participate in that treatment.
The Commonwealth contends, with respect to the refusal testimony, that there was no substantial risk of a miscarriage of justice here because the QEs testified that the defendant had told them that the reason he was not participating in treatment was he was not a sex offender. In this circumstance, the Commonwealth urges, there is no risk that the testimony would unfairly give rise to an “inference that the prisoner does not want to be treated,” Hunt, 462 Mass. at 819, since the defendant actually stated he did not want treatment. This argument rests on a misreading of Hunt. The Supreme Judicial Court explained that a refusal to participate in treatment is not probative of whether a defendant wants to be treated when the only treatment offered is compromised by the fact that a defendant's statements would be available for those who would subject him to additional prosecution, deny him parole, or commit him indefinitely as an SDP. Id. at 818–819. The defendant's stated rationale for refusing treatment in this case, that he is innocent of the crimes of which he was convicted and that he wishes to appeal his convictions, shows his refusal is exactly the kind that Hunt ruled not probative of the desire to be treated.
In light of our conclusion, we need not address the defendant's claim that the defendant's counsel's repeated, erroneous description in closing of the beyond-a-reasonable-doubt burden of proof amounted to ineffective assistance of counsel. The judgment is reversed, and the verdict is set aside.
So ordered.