Opinion
15-P-1721
04-21-2017
COMMONWEALTH v. Manuel ENCARNACION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant contends, among other things, that the judgment, after a jury trial, civilly committing him as a sexually dangerous person (SDP), pursuant to G. L. c. 12A, § 12, must be vacated, and the case remanded for new trial, because the judge did not give a so-called Johnstone instruction. See Johnstone, petitioner, 453 Mass. 544, 549-551 (2009). The issue is preserved. Because we consider the issue to be controlled by Green, petitioner, 475 Mass. 624 (2016), we vacate the judgment and remand for a new trial.
The issue, although preserved below, was not raised on appeal in the defendant's initial brief. However, we allowed the defendant's motion to raise the issue in supplemental briefing due before oral argument so that the Commonwealth would have an opportunity to be heard on the subject during the hearing. We also allowed the Commonwealth an equal opportunity to respond with post-argument supplemental briefing.
The defendant timely submitted the proposed instruction to the judge, and also lodged an objection after the instructions were given.
Four witnesses offered expert opinions at trial: two on behalf of the Commonwealth, of which one was a qualified examiner, and two on behalf of the defendant, of which one was the other qualified examiner. The Commonwealth's second expert witness was not a qualified examiner. Because "[t]he statutory scheme ... expressly sets the qualified examiners apart from other sources of expert evidence[, and] the role of the qualified examiners within that scheme persuades us that the Legislature intended them to serve in a capacity similar to that of a gatekeeper, ... at least one of the two qualified examiners must opine that the petitioner remains sexually dangerous." Johnstone, supra at 552-553. "The thrust of Johnstone is that because a person may be involuntarily and indefinitely committed as an SDP, due process and G. L. c. 123A require proof of sexual dangerousness beyond a reasonable doubt based on expert testimony from a designated qualified examiner." Green, supra at 629-630. A corollary proposition is that where (as here) the Commonwealth's case at trial does not proceed solely on the basis of the qualified examiner's opinion, the jury must be instructed that "the qualified examiner's opinion must be found credible to warrant a finding of sexual dangerousness." Id. at 630.
The Commonwealth's second expert had provided the earlier probable cause opinion and has qualifications sufficient to satisfy the requirements to be designated a qualified examiner.
Here, a qualified examiner testified that the defendant is sexually dangerous; that was sufficient to satisfy the Johnstone gatekeeping requirement. However, because the Commonwealth also introduced the opinion of a retained expert who was not a qualified examiner, and invited the jury to rely upon it, a Johnstone instruction was required. See id., at 630-631. In such circumstances, unless the instruction is given, there is a distinct possibility that the verdict may rest on evidence other than the qualified examiner's opinion. See ibid. The Commonwealth argues that no Johnstone instruction is required in this case because the Commonwealth's retained expert possessed the qualifications necessary to be designated a qualified examiner. That argument was implicitly rejected in Green, where the Commonwealth's expert, a member of the Community Access Board (CAB), possessed similar qualifications and the Supreme Judicial Court nonetheless held that the Johnstone instruction was required. Green, 475 Mass. at 630-631. It matters not that the second expert possessed the qualifications necessary to be designated a qualified examiner.
Although we note that prejudice need not be shown apart from the inherent risk identified by the Supreme Judicial Court in Green, here there is more. In its closing argument, the Commonwealth urged the jury to rely on the retained expert's testimony in addition to that of the qualified examiner. In addition, the Commonwealth argued that the jury need not only rely on either expert, but could use their own common sense to determine sexual dangerousness, in part through their own lay assessment of the details (and photographs) of the rape and homicide many years earlier.
Indeed, the testifying CAB member in Green has been a qualified examiner since 2008 (long before the Green decision), and was one of the qualified examiners in this case.
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Deciding as we do, we need not address the defendant's other arguments except briefly because they may arise if there is a retrial. First, the police reports concerning the crime underlying the defendant's manslaughter conviction fall within the hearsay exception of G. L. c. 123A, § 14(c ). See Commonwealth v. Given, 441 Mass. 741, 743-745 (2004). Even without the defendant's admission that he raped the victim, there were sufficient other indications that the offense, "under the totality of the circumstances, manifest[ed] a sexual motivation," such as to be considered a "[s]exual offense" for purposes of the statute. G. L. c. 123A, § 1, inserted by St. 2004, c. 66, § 6.
Finally, we note that, should the Commonwealth again seek to admit photographs of the homicide victim's body, the probative value of the photographs must be assessed keeping in mind that, as we noted above, a finding of sexual dangerousness must rest on a credited opinion from a qualified examiner and is not a matter for lay determination.
Judgment vacated.
Verdict set aside.