Opinion
10-P-1892
04-03-2012
GEORGE EDWARD SCHREMPF, petitioner.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1988, the petitioner, George Schrempf, was found to be a sexually dangerous person (SDP) within the meaning of G. L. c. 123A, § 1, and was committed to the Massachusetts Treatment Center. Prior to his commitment, the petitioner engaged repeatedly in sexual misconduct over the course of a decade, victimizing a number of unrelated boys, all under the age of sixteen.
In 2005, the petitioner sought release pursuant to G. L. c. 123A, § 9, arguing that he was no longer sexually dangerous. At the jury trial on his petition, held in November, 2007, the Commonwealth presented three experts, all of whom opined that the petitioner remained an SDP. After deliberating for less than two hours, the jury found the petitioner to be sexually dangerous. For the reasons stated below, reversal of the jury's verdict is not warranted in this case.
Discussion. On appeal, the petitioner asserts that (1) the judge improperly instructed the jury on the definition of SDP, (2) expert testimony was erroneously admitted, and (3) the definition of 'likely,' as that term is used in G. L. c. 123A, should include a standard of imminence. We acknowledge both the Commonwealth's contention that the petitioner's failure to raise the claims below constitutes a waiver, McHoul, petitioner, 445 Mass. 143, 157 (2005), and the petitioner's suggestion that we nonetheless review his claims for any error that creates a substantial risk of a miscarriage of justice. See Commonwealth v. Lynch, 70 Mass. App. Ct. 22, 28 (2007). We need not, however, resolve the parties' disagreement over the availability of review because the petitioner's claimed errors create no substantial risk of a miscarriage of justice even if we consider them under that standard.
1. Jury instructions. The petitioner argues that the judge inappropriately instructed the jury on the definition of SDP by drawing on the third of three alternative definitions of that term contained in G. L. c. 123A, § 1. The petitioner suggests the definition that was given improperly lowered the Commonwealth's burden of proof by not requiring a showing that the person suffers from a mental illness and by establishing a lower burden than the one required for initial commitment. Against the backdrop of the abundant evidence presented at trial, and considering the Commonwealth's burden of proof, we conclude that the issue whether the petitioner was an SDP was correctly framed in the jury instructions. Accordingly, the jury could have appropriately determined beyond a reasonable doubt that the petitioner was an SDP under G. L. c. 123A. The judge properly instructed the jury on the elements necessary to prove the petitioner remained a sexually dangerous person. Despite the petitioner's assertion to the contrary, each subpart of the definition of SDP requires proof of a present mental condition making it likely that the person will engage in sexually dangerous conduct. See Dutil, petitioner, 437 Mass. 9, 11, 14-15 (2002). As instructed, the jury could not have understood the statute in any other way. Moreover, the petitioner's reliance on dictum in Johnstone, petitioner, 72 Mass. App. Ct. 123, 131 (2008), S. C., 453 Mass. 544 (2009), regarding which definition of sexual dangerousness should be used at a § 9 trial is misplaced. In any case, the petitioner was not prejudiced by the use of subpart (iii), as the trial evidence on the petitioner's characteristics as an SDP satisfied the elements of subpart (i) as well. We discern no substantial risk of a miscarriage of justice.
2. Expert testimony. The petitioner also asserts that portions of the experts' testimony, not objected to at trial, created a substantial risk of a miscarriage of justice. He also challenges the overall strength of the Commonwealth's case. Three qualified experts testified for the Commonwealth and fully explained their opinions, while also being subject to thorough cross-examination. Additionally, the judge's instructions defined the relevant terms and emphasized the Commonwealth's burden of proof. The petitioner's arguments concerning the propriety of the testimony is unavailing. 3. 'Imminence' requirement. Finally, the petitioner argues that the jury instruction with respect to the term 'likely' should include a standard of imminence. While we can, in our discretion, consider important questions raised for the first time on appeal, we reject, as we have before, the petitioner's suggestion that the definition of 'likely' must 'require the State to demonstrate that a person subject to the law poses an 'imminent' danger.' Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 290 n.16 (2004). Rather, as used in the statute, the term 'likely' means 'reasonably to be expected in the context of the particular facts and circumstances at hand.' Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). Consequently, there was no error in the jury instructions, let alone one that posed a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Rapoza, C.J., McHugh & Cohen, JJ.),