Opinion
13-P-1658
02-18-2015
WILLIAM THOMAS MALONEY, petitioner.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The petitioner appeals from a judgment of the Superior Court denying his petition for release from confinement under G. L. c. 123A, § 9. The judgment entered following a finding by the jury that the petitioner remains a sexually dangerous person (SDP). He now contends that it was error to admit certain evidence at trial and alleges several errors in the jury instructions. We affirm.
The admission of evidence of prior dismissed sexual assault charges is controlled in material respects by our decision in Commonwealth v. Mazzarino, 81 Mass. App. Ct. 358 (2012). As observed in that case:
"The [SDP] statute provides that '[j]uvenile and adult court probation records . . . shall be admissible at trial.' G. L. c. 123A, § 14(c). Such records necessarily include records of prior offenses that may have been dismissed or nol prossed. Commonwealth v. Markvart, 437 Mass. 331, 336 (2002), on which the [petitioner] relies, provides only that 'police reports and witness statements' from nol prossed cases may not be admitted directly. Nothing in that case indicates that the fact that the
[petitioner] was charged with other offenses should be kept from the jury."Id. at 368. As in Mazzarino, the trial exhibits were redacted, leaving no details about the cases other than the dates, types of charges, and dispositions. See id. at 369. They were properly admitted.
In addition, although the judge did not specifically refer to the dismissed charges in his instructions to the jury as in Mazzarino, supra at 369, he did instruct the jury "not to engage in any guesswork about any unanswered questions that remain in your mind or to speculate about what the so called real facts might or might not have been. In short you are to confine your deliberations to the evidence and nothing but the evidence."
The petitioner did not object at trial to expert testimony discussing details of the 1977 assault allegations; accordingly, his claim that the testimony was improperly admitted is waived. See Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). In any event, we note that the testimony was cumulative of other evidence to the same effect, including the petitioner's own admission of the assault during his trial testimony. The petitioner likewise raised no objection at trial to testimony that he displayed antisocial personality traits, and he therefore has waived any claim of error on appeal based on admission of that testimony.
In any event, we note that antisocial behavior is routinely cited as a factor relevant to an expert's opinion that an offender is likely to reoffend. See, e.g., McHoul, petitioner, 445 Mass. 143, 145-146 (2005), cert. denied, 547 U.S. 1114 (2006); Commonwealth v. Cowen, 452 Mass. 757, 759 (2008); M iller, petitioner, 71 Mass. App. Ct. 625, 633 (2008). See also Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 288 n.12 (2004).
Passing the question whether the petitioner's claims regarding the jury instructions were preserved, we discern no error. The judge thoroughly instructed the jury concerning the mental abnormality requirement, the Commonwealth's burden of proof, and the requirement that the jury find present dangerousness.
The Supreme Judicial Court, in Dutil, petitioner, 437 Mass. 9 (2002), held that G. L. c. 123A, met the requirements established in Kansas v. Hendricks, 521 U.S. 346, 357-358 (1997), stating:
"[T]he fact that G. L. c. 123A does not explicitly require 'mental illness' or 'mental abnormality' does not end our inquiry. Although the Hendricks case clearly requires a finding that the individual suffer from a present mental condition that creates a likelihood that the individual will engage in sexually dangerous conduct in the future, it does not demand the use of a specific term to describe the mental condition. General Laws c. 123A meets the Hendricks requirements if it implicitly requires this finding, even if it does not use the specific terms 'mental illness' or 'mental abnormality.'"Dutil, supra at 14-15 (citations omitted). The petitioner's argument that the Dutil reasoning does not apply here because the version of the statute at issue in that case contained no provision for jury trial is unavailing. Furthermore, the judge specifically instructed that the statutory definition of an SDP requires the jury to find that the petitioner "has a mental condition at this time such that as a result of that mental condition he lacks a general power to control his sexual impulses."
As noted in Dutil, supra at 12, "[t]he present version of G. L. c. 123A includes definitions of sexually dangerous person that require that the individual suffer from a 'mental abnormality' or 'personality disorder.' It also includes a definition nearly identical to that contained in the pre-1990 version." The statutory definition of an SDP has not changed since the 1999 amendments, which were in effect at the time of Dutil.
Finally, the judge repeatedly instructed the jury that the burden of proof remains with the Commonwealth and that the Commonwealth must prove present dangerousness. "[A] charge is to be considered as a whole to determine whether it is legally correct, rather than tested by fragments which may be open to just criticism." McHoul, petitoner, 445 Mass. 143, 156 (2005), cert. denied, 547 U.S. 1114 (2006), quoting from Gilchrist v. Boston Elev. Ry., 272 Mass. 346, 353 (1930). Taken as a whole, no rational juror would have concluded that the petitioner was required to prove that he was not sexually dangerous or that past misconduct alone would be sufficient to establish that the petitioner remains sexually dangerous.
The judge also instructed the jury that they were to consider all of his instructions as a whole. "We presume that the jury followed the judge's instructions." Wyatt, petitioner, 428 Mass. 347, 359 (1998).
Judgment affirmed.
By the Court (Kantrowitz, Green & Meade, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 18, 2015.