Opinion
No. 12–P–237.
2013-10-18
COMMONWEALTH v. Roberto Alfaro ESTRADA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in the Superior Court, the trial judge found the defendant, Roberto Alfaro Estrada, to be a sexually dangerous person (SDP) and ordered him civilly committed pursuant to G.L.c. 123A, § 14. On appeal, Estrada contends that the Commonwealth's proof was insufficient because the evidence failed to show that, as a result of a personality disorder, he has an inability to control his sexual impulses.
In this case, the question whether the evidence was sufficient for the trial judge to conclude beyond a reasonable doubt that Estrada is a sexually dangerous person boils down to whether the judge was entitled to credit the testimony of the Commonwealth's expert witness (one of the two designated qualified examiners) rather than the testimony of the three defense expert witnesses (the other qualified examiner and two forensic psychologists). In assessing the credibility of a witness, particularly an expert witness, the Supreme Judicial Court has ruled unequivocally that the matter of how much weight to be given to a witness is a matter for the trier of fact.
Thus, the judge as trier of fact was free to accept, as he did, the testimony of the Commonwealth's expert witness. Viewed in the light most favorable to the Commonwealth, that testimony together with the other evidence presented at trial was sufficient to meet the Commonwealth's burden of proof. We therefore affirm the judgment and order of commitment. Background . We summarize the judge's findings, which are amply supported by the record. Estrada is a sex offender who committed two sexual offenses on separate dates against different victims in 1985. Estrada was twenty years old on February 22, 1985, when he went to the home of a fifteen-year-old-girl in the early morning hours and asked to see her mother. Upon learning that the victim's mother was at work, Estrada became angry. He then beat and choked the girl before knocking her to the ground, after which he raped her. Estrada also threatened to kill the victim. The victim suffered multiple injuries as a result of the assault. Estrada was convicted by a jury of rape of a child by force and sentenced to serve a fifteen—to eighteen-year term of incarceration in State prison, but the sentence was vacated when the conviction was reversed. Estrada subsequently entered a plea of guilty to rape and received a five-year sentence, two years committed, credit for time served, balance suspended with probation for two years. Ultimately, Estrada's probation was revoked and the full sentence was imposed.
See Commonwealth v. Boucher, 438 Mass. 274, 275–276, 780 N.E.2d 47 (2002) (“With respect to the weighing and crediting of testimony admitted at trial, we will not substitute our judgment for that of the trier of fact”); Commonwealth v. Cowen, 452 Mass. 757, 762, 897 N.E.2d 586 (2008) (“The matter of how much weight is to be given a witness, particularly an expert witness, is a matter for the trier of fact, not an appellate court”). See also Hill, petitioner, 422 Mass. 147, 156, 661 N.E.2d 1285, cert. denied, 519 U.S. 867, 117 S.Ct. 177, 136 L.Ed.2d 118 (1996); Commonwealth v. Sargent, 449 Mass. 576, 583, 870 N.E.2d 602 (2007); and Commonwealth v. Husband, 82 Mass.App.Ct. 1, 6, 969 N.E.2d 1134 (2012).
The second sexual offense was committed about five months later on June 23, 1985. On that date, Estrada forced his way into the apartment of a twenty-five year old woman who was home alone with her seven year old daughter. Estrada forced the girl into a bedroom and pushed the woman into the bathroom and onto the floor, where he raped her twice and threatened to kill her. According to the victim's statement (contained in the police report), Estrada told the victim, “I want you and you're going to be mine.” When the victim began to cry, Estrada told her to “stop crying and start moving.” Estrada was convicted of rape and received a sentence of fifteen to eighteen years.
After his release from prison, Estrada was twice convicted of failing to register as a sex offender and twice convicted of drug-related offenses. In addition, in 2006, Estrada was convicted of assault and battery against his girlfriend. A police report prepared during the investigation indicates that the victim was thrown across a room and suffered injuries which required medical treatment.
Estrada committed the governing offense of assault on July 13, 2008. The victim in that case, an adult woman, reported that Estrada walked her home after an evening of socializing and drinking. Estrada complimented the victim, but she expressed no interest in his advances. Estrada then grabbed her by the throat and forced her onto the couch. A struggle ensued. According to the victim, Estrada told her: “You owe me for walking you home,” and attempted to open the victim's legs, but she was able to push him away. Estrada was charged with assault with intent to rape and convicted by a jury of the lesser included offense of assault. He was sentenced to serve two years in a house of correction.
Estrada does not challenge any of the judge's factual findings. Thus, for the purpose of our analysis, we accept the judge's findings, including his description of the facts underlying Estrada's conviction of assault in 2009. However, we note that the judge's written memorandum of decision contains one error. The judge states that in 2009 Estrada was convicted of assault with intent to rape, when, in fact, he was convicted of the lesser included offense of assault. The same error appears in the report of the Commonwealth's expert, Dr. Henry, and in the reports of two defense experts, Dr. Plaud and Dr. Winsmann. The error, however is not material, for three reasons. First, there is no requirement that the governing offense relied upon by the Commonwealth to institute commitment proceedings be an enumerated sexual offense. See Commonwealth v. Gillis, 448 Mass. 354, 361–362, 861 N.E.2d 422 (2007). Second, the factual findings themselves are what support the finding that the defendant is a sexually dangerous person, not the offense. Third, our review of the record demonstrates that the prosecutor informed the judge that Estrada had been convicted of assault, and not assault with intent to rape. At the beginning of the trial, while informing the judge that the exhibits had been agreed upon and pre-marked, the prosecutor explained that Estrada's probation record reflects that he was convicted of assault with intent to rape. She then clarified “for the record” that Estrada was “actually convicted of assault.” Moreover, trial counsel emphasized throughout the trial during cross-examination of Dr. Henry and during his closing argument that Estrada had not been convicted of assault with intent to rape.
Shortly before Estrada was released from prison, the Commonwealth filed a petition for his commitment as a sexually dangerous person, pursuant to G.L. c. 123A, § 12. A judge of the Superior Court concluded that there was probable cause to believe that Estrada was a sexually dangerous person and ordered him temporarily held at the treatment center pending trial. See G.L. c. 123A, § 13. The trial took place in December, 2010, before a different judge. Estrada was forty-six years old at that time.
The Commonwealth's case was based primarily on the testimony of Dr. Michael Henry, one of the two qualified examiners who evaluated Estrada to determine whether he had a mental abnormality or personality disorder as defined by the statute.
Dr. Henry interviewed Estrada and reviewed his records, which included the police reports for the sexual offenses of which he was convicted. He testified to his opinion that Estrada suffers from a personality disorder, not otherwise specified (NOS), with antisocial traits, that results in a general lack of power to control his sexual impulses. In formulating his opinion, Dr. Henry utilized the Diagnostic and Statistical Manual of Mental Disorders (4th ed.2000) published by the American Psychiatric Association (the DSM–IV). Dr. Henry explained that Estrada's personality disorder was similar to an antisocial personality disorder as defined in the DSM–IV, but that diagnosis could not be given to Estrada because the diagnostic criteria set forth in the DSM–IV require that the offender exhibit symptoms of a conduct disorder prior to the age of fifteen. Estrada was born and raised in Cuba. He immigrated to the United States in his mid-teens and no records of his childhood were available. According to Dr. Henry, although Estrada did not meet the diagnostic standard for a formal diagnosis under the DSM–IV, Estrada's personality disorder was “consistent with the statute's definition of a personality disorder.”
The Commonwealth also introduced various documents in evidence, including Dr. Henry's report. In addition, two reports, one by Dr. Carol Feldman and another by Dr. John Daignault, were submitted in evidence by agreement. Dr. Feldman's report was prepared in connection with Estrada's probable cause hearing. She opined that Estrada suffers from a mental abnormality, such that he is predisposed to commit sexual acts, and, if released, would be likely to reoffend sexually. Thus, Dr. Feldman concluded that Estrada meets the statutory criteria for a sexually dangerous person. Dr. Daignault's report was prepared at the request of the Essex county district attorney's office in 2007. He determined that Estrada suffered from an antisocial personality disorder, but concluded that there was insufficient data to conclude that Estrada met the statutory requirements of a sexually dangerous person.
Dr. Henry testified that the pattern and nature of Estrada's adult criminal behavior shows a(1) “disregard for the rights and safeties of others;” (2)”reckless[ness] with the psychological and emotional well-being of other people”; (3) an “[inability] to learn from his past experiences of being arrested, and tried, and incarcerated”; and (4) “willing[ness] to be sexually exploitive of women or young girls who are in somewhat of a vulnerable position given either their age, their level of drug use or intoxication, or just size and strength.” Dr. Henry also expressed his belief that Estrada had a “somewhat distorted” view of his prior criminal behavior. For example, as Dr. Henry relayed at trial, when Estrada was asked about his conviction of rape of a child by force, he claimed that the victim was seventeen years old, not fifteen, and that she was living with him at that time. According to Estrada, he was accused of rape because the victim's mother did not approve of the relationship. With regard to his rape conviction, Estrada admitted guilt, but stated that he was intoxicated. As to the governing offense (the assault conviction) Estrada denied all culpability. Dr. Henry pointed out that this type of minimization and rationalization of sexually aggressive behavior is common among men who are at the beginning stages of sex offender treatment.
See Commonwealth v. Husband, 82 Mass.App.Ct. at 5, 969 N.E.2d 1134: “[T]he legal definition of personality disorder applicable to SDP proceedings is not required to match the clinical definition of personality disorder found in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th. ed. 2000) (DSM–IV) See [also] Commonwealth v. Starkus, 69 Mass.App.Ct. 326, 335–336, 867 N.E.2d 811 (2007) (SDP statute makes no reference to DSM–IV and does not limit mental conditions to those outlined in DSM–IV).”
Dr. Henry also found significant the fact that Estrada had engaged in minimal sex offender treatment and had not followed his probationary conditions, as shown by his failure to register as a sex offender. Dr. Henry also considered Estrada's age and the almost twenty-year period during which Estrada had lived in the community without committing any known sexual offenses. On cross-examination, Dr. Henry acknowledged that ordinarily the absence of known sexual offenses for a long period of time would be significant; but, as he went on to explain, in Estrada's case the long period between offenses was “misleading” because Estrada had reoffended. In making this observation, Dr. Henry stated that he considered Estrada's conviction of assault in 2009 to be a sexual offense even though Estrada was acquitted of the greater offense of assault with intent to rape. Dr. Henry had, as he explained during cross-examination, relied upon the victim's statements as they were reported to the police.
Lastly, Dr. Henry opined that Estrada is highly likely to reoffend unless confined to a secure facility, and listed as factors supporting his opinion the following: (1) the “repetitive and compulsive nature” of Estrada's behavior, (2) “the absence of any post-release supervision,” (3) Estrada's “history of failing on community supervision,” (4) his failure to register as a sex offender, and (5) the absence of “anything that would assist [SDP professionals] in monitoring and helping [Estrada] manage his sexuality in the community.” Dr. Henry also relied on the fact that Estrada scored a 6 on the Static–99 test
which put him in the “high risk category” with characteristics “similar to those men who recidivated at a high rate.”
The Static–99 test in an “actuarial instrument” which employs ten static risk factors to predict recidivism. Commonwealth v. Chapman, 444 Mass. 15, 19 n. 7, 825 N.E.2d 508 (2005).
As we have noted, three expert witnesses testified for the defense: Dr. Barbara Quinones, who was the second qualified examiner; Dr. Joseph Plaud; and Dr. Frederick Winsmann. All three witnesses had interviewed Estrada, and each opined that Estrada was not a sexually dangerous person. Dr. Quinones, like Dr. Henry, diagnosed Estrada with personality disorder, NOS, with antisocial traits and explained that Estrada could not be diagnosed with an antisocial personality disorder under the DSM–IV because there was no evidence of a “juvenile history of conduct problems.” She also agreed with Dr. Henry that Estrada had committed enumerated offenses and, based on Estrada's score of 6 on the Static–99 test, that he was at high risk to reoffend sexually. Dr. Quinones also testified that during her interview of Estrada he reported that he abused cocaine, “traded drugs for sex,” and had been with fifty to sixty sexual partners. Unlike Dr. Henry, however, Dr. Quinones opined that Estrada's personality disorder did not meet the statute's definition of a sexually dangerous person because Estrada had lived in the community “for at least fifteen to seventeen years” with no charges or allegations of sexual offending. In Dr. Quinones's opinion, “to have a history of that long in the community does not support the presence of having serious difficulty in controlling sexual impulses.”
Dr. Plaud opined (like Dr. Henry and Dr. Quinones) that while Estrada had engaged behaviors, he did not meet the criteria for antisocial personality disorder due to the absence of a conduct disorder prior to age fifteen. According to Dr. Plaud, such a diagnosis was also precluded by Estrada's history of drug abuse. He further testified that Estrada was not likely to reoffend, due to (1) his current age, (2) the absence of “any sexual deviance,” (3) a history of drug abuse, and (4) the presence of an immigration detainer “which would speak to the issue of successful intervention to mitigate” a danger of reoffending.
Dr. Winsmann's diagnosis differed from all of the experts in that he rejected out of hand the possibility that Estrada suffers from a personality disorder, on the ground that there was no evidence of a conduct disorder before the age of fifteen.
As the Commonwealth notes in its brief, on cross-examination, Dr. Plaud acknowledged that the defendant, who is from Cuba, was not going to be deported, but upon his release was required only to report to immigration officials every ninety days. Dr. Plaud nevertheless considered this “a form” of “supervision” despite the absence of any probation.
In his written findings of fact, rulings of law, and order, the judge reviewed the testimony of all four experts and found that Estrada was a sexually dangerous person beyond a reasonable doubt. In doing so, he credited the testimony of the Commonwealth's witness, Dr. Henry. His findings also credit Dr. Quinones's testimony to the extent that she agreed with Dr. Henry. The judge rejected Dr. Plaud's testimony as not credible and discounted it entirely. He described Dr. Winsmann's testimony as “baseless” and rejected his opinion as well. The judge specifically found that Estrada “exhibits a clear personality disorder that drives him to assault, beat and sexually attack women of both adult and minor status,” and that Estrada “is unable to control these impulses.” The judge also found that Estrada had failed to follow through with sex offender treatment while he was incarcerated. The judge described Estrada's prior offenses as “repetitive and compulsive” and “laced with physical violence and threats to kill his victims.” The judge noted that Estrada has twice been convicted of failing to register as a sex offender and has served committed time for those offenses. The judge also observed that Estrada has admitted to “compulsive sexual conduct and engaging in sexual relations with between fifty (50) and sixty (60) females.” Finally, the judge placed “great weight” on the fact that Estrada's “sexual violence has been visited upon both adult and minor females” (emphasis original). The judge then concluded that Estrada is at high risk to sexually reoffend against women if not retained in a secure facility and afforded sexual offender treatment.
Discussion. Under the relevant portion of the statute, the Commonwealth had to prove that Estrada is someone “who has been ... convicted of ... a sexual offense [as defined within the statute] and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility....” G.L.c. 123A, § 1, definition of “sexually dangerous person,” as appearing in St.1999, c. 74, § 6. As pertinent here, the statute defines “personality disorder” as “a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses.” G.L.c. 123A, § 1, definition of “personality disorder,” inserted by St.1999, c. 74, § 4. As Estrada acknowledges, the first and third elements of the statute were easily met by proof that he was previously convicted of rape and rape of a child by force and from the testimony of Dr. Henry and Dr. Quinones, both of whom opined that he posed a high risk of reoffending. Thus, our focus is on the second element, that is, whether the Commonwealth presented sufficient evidence upon which the judge as trier of fact could conclude beyond a reasonable doubt that Estrada has a personality disorder that results in “a general lack of power to control [his] sexual impulses.” G.L.c. 123A, § 1.
Estrada claims, as he did below, that the evidence was insufficient to prove that he had an inability to control his sexual urges, because it was undisputed that he had no known sexual offenses in nearly two decades.
As the Commonwealth correctly points out, this claim is an attack on the weight, not the sufficiency, of the evidence. Dr. Henry specifically addressed this assertion in his testimony and maintained that the approximately eighteen-year period with no known offenses was “misleading.” Consequently, this fact did not alter his conclusion that Estrada's antisocial traits were such that he had serious difficulty controlling his compulsive, aggressive sexual behavior.
Estrada's primary trial strategy was to challenge the sufficiency of the Commonwealth's evidence on this issue of inability to control sexual urges. In his closing argument trial counsel stated that there was no evidence of an “allegation” or an “act of rape” or “attempted rape” in “about 19–plus years.”
That the other three experts disagreed with Dr. Henry is inconsequential. “The choice between the credibility of two sets of experts belonged to the judge as the trier of fact and as a firsthand observer of the testimony and demeanor of the witnesses under direct and cross-examination.” Commonwealth v. Husband, 82 Mass.App.Ct. 1, 6, 969 N.E.2d 1134 (2012). Simply put, the judge was entitled to credit Dr. Henry's opinion over the opinion of the defense experts. To hold otherwise, as Estrada urges, would amount to “substitut[ing] our judgment for that of the trier of fact.” Commonwealth v. Boucher, 438 Mass. 274, 275–276, 780 N.E.2d 47 (2002). This is precisely what our cases forbid.
We reject Estrada's assertion, raised for the first time on appeal, that Dr. Henry's opinion was equivocal as to whether Estrada is able to control his sexual urges because Dr. Henry described Estrada's conduct as “decisions to commit sexual offenses” and a “willingness to behave in a sexually aggressive manner.”
In addition, contrary to Estrada's assertion that the evidence of his ability to control his sexual urges was “overwhelming,” the evidence viewed in the light most favorable to the Commonwealth supported the judge's findings. Moreover, the judge expressly stated that he found the testimony of two of the defendant's three expert witnesses not credible, significantly undermining Estrada's contention. This assessment was not unreasonable or even surprising .
As the judge observed, neither Dr. Plaud nor Dr. Winsmann adequately accounted for Estrada's record of violent sexual behavior in rendering their opinions.
In her closing argument, the prosecutor urged the judge to place little weight on Dr. Plaud's opinion because throughout his career he had only testified for the defense. She also pointed out that Dr. Winsmann (who testified that he had only conducted about seventy evaluations) had failed to include or refer to any literature to support his conclusions that the tests he used were reliable.
The defendant also contends, for the first time on appeal, that the prosecutor crossed over the boundary of proper argument when, with respect to Estrada's criminal record, she suggested to the judge that the absence of convictions of sexual offenses could be explained by the fact “that rape is one of the most underreported crimes.”
The comment was made in response to trial counsel's claim that had Estrada committed sexual offenses during the time he was not incarcerated, then there would be “evidence” of it.
Because there was no objection we review “only to determine whether the alleged errors, if any, created a substantial risk of a miscarriage of justice.” Commonwealth v. Zavala, 52 Mass.App.Ct. 770, 776, 756 N.E.2d 29 (2001).
To the extent that the prosecutor's remark suggested that Estrada had, in fact, committed sexual offenses that had not been reported, it was improper. We conclude, however, that the error did not create a substantial risk of a miscarriage of justice, in light of the evidence presented, as described above. Thus, even though the comment was better left unsaid, reversal of the judgment on this basis is not warranted.