Opinion
No. BRCR1991-27788-27793
August 28, 2001
FINDINGS OF FACT, RULINGS OF LAW AND ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL
On October 22, 1991, the defendant, Randy Barrett ("Barrett"), pled guilty to two counts of rape of a child and two counts of indecent assault and battery on a child under the age of fourteen. The defendant now moves for a new trial pursuant to Mass.R.Crim.P. 30(b).
FINDINGS OF FACT
Based on all the credible evidence, as well as inferences reasonably drawn from the evidence, the court makes the following findings of fact:
On October 22, 1991, the defendant pled guilty to two counts of rape of a child and two counts of indecent assault and battery on a child under the age of fourteen, after the Commonwealth nol prossed so much of the rape indictment as exceeds rape of a child. On each of the two counts of rape, Barrett was sentenced to the Massachusetts Correctional Institution, Concord for a term of ten years, said sentences to be served concurrently. He received concurrent three to five year Massachusetts Correctional Institution, Cedar Junction sentences to be served from and after the rape sentences, suspended for four years. Two additional charges of assault with a dangerous weapon were placed on file without a change of plea.
The defendant filed this motion for a new trial on February 13, 2001, contending for the first time that he was entitled to a new trial on the basis of lack of adequate representation, including the claim that his counsel has assured him that the agreed recommendation would result in only minimal incarceration.
The only previous motion for new trial was filed on November 3, 2000. That motion, which was based solely upon the argument that the defendant had not been advised of the potential of being civilly committed as a sexually dangerous person, was not acted upon.
The stenographer's notes of the guilty plea colloquy no longer exist, and a transcript of the colloquy is not available.
During the colloquy, the judge did not inform the defendant that, at the conclusion of his sentence, the Commonwealth might seek to have him civilly committed as a sexually dangerous person. When Barrett pled guilty, he did not realize that he might be subject to civil commitment at the conclusion of his sentence. At the time that the defendant entered his plea of guilty, no Massachusetts statute provided for the initiation of civil commitment proceedings against persons believed to be sexually dangerous.
The charges to which defendant pled guilty involved the sexual molestation of two three-year old girls for whom the defendant had babysat. The defendant met with his attorney at least three times, for an hour each time, before entering his plea of guilty. The defendant's intellectual functioning is borderline.
His attorney had police reports with him when he met with Barrett, which he had highlighted. Because the defendant's reading ability is limited, his attorney read portions of the police reports to him. He explained to the defendant that there were allegations from two three-year old girls and that the mother of the two girls had gone to the police. He questioned the defendant, based, in part, upon the contents of those reports. The attorney told Barrett that his wife, from whom he was separated, would testify against him and that the reports indicated that she was out with friends when the incidents occurred. The defendant told his attorney that he had, indeed, babysat for the girls and that the mother of the three-year olds was out with his wife. The attorney also informed the defendant that he had reports which indicated that the three-year olds had been seen by a doctor and that he had a report from the doctor to the effect that the girls had been sexually molested. I do not credit the defendant's testimony that he gave his attorney the first names of two persons who might have knowledge helpful to the defendant, but that the attorney failed to contact or attempt to contact such individuals.
The defendant testified that he has no knowledge of their last names and did not indicate what knowledge such individuals may have had which might have been helpful in his defense.
Barrett told his attorney that he would not have done the acts alleged. He gave no indication that he was attracted to little girls, or that he was sexually drawn to children in general or to the complainants in particular. The defendant's attorney did not discuss with Barrett the possibility of having the defendant evaluated by a psychiatrist or psychologist or the possibility of raising the defense of lack of criminal responsibility. The defendant did not then believe that he had a mental disease or defect.
The defendant understood that he had the option to proceed to trial and have the case decided by a jury. Barrett's attorney told him that he thought Barrett may receive a sentence of up to twenty years should the case be tried. He also advised that the Office of the District Attorney had agreed to recommend a ten year Concord sentence should the defendant change his plea to guilty. The defendant was never paroled and did not seek to withdraw his guilty plea on the grounds that he had been misled by his attorney until the end of his sentence. I do not credit the testimony of the defendant that he was told by his attorney that a ten year Concord sentence meant that he would serve only one year after which time he would be released on parole.
Based upon his assessment of his prospects before a jury, the defendant decided to change his plea to guilty. During a colloquy on September 26, 1991, after the Assistant District Attorney recited the facts that the Commonwealth would present to the jury should the matter go to trial, the defendant told the judge that he did not commit those acts, and the change of plea was not accepted. Trial was scheduled for October 22, 1991.
In his next discussion with his attorney, Barrett received the same advice concerning his prospects should the case go before a jury. His attorney told him that he would probably receive more time should he go to trial than the Assistant District Attorney was prepared to recommend should he enter a plea of guilty. I do not credit the defendant's testimony that his attorney engaged in no discussion about preparing for trial, including the possibility of the defendant testifying. As a result of his assessment of what was in his best interests, the defendant once again decided to plead guilty.
There is no evidence that Barrett had ever been psychologically evaluated prior to tendering his guilty plea. In 1983, he attended counseling at the request of the Department of Social Services so that he could have contact with his children. The nature of that counseling is not known. Prior to his change of plea, he received no other counseling or psychiatric treatment. Barrett's prior criminal record was minimal, consisting of several minor motor vehicle violations and a complaint for non-support. It contains no entries involving sexual or assaultive behavior.
When the defendant pled guilty, he did not understand or believe that he definitely would be paroled after one year. His attorney did not so advise him. At that point the defendant had already served six months awaiting trial. When the defendant pled guilty, he did not understand or believe that he definitely would be paroled six months hence. His attorney did not so advise him. He understood what the judge said during the colloquy and understood what was said by the Assistant District Attorney and by his own attorney.
While incarcerated, Barrett refused, except for a short period of time, to participate in treatment. Between 1992 and 1994, he was denied parole due to the need to establish a positive track record in lower security and the need for counseling. He waived his parole hearings in 1995 and 1996. In 1997, he was denied parole because of a lack of insight into his offense. In 1998 and 1999, he again waived his parole hearings.
Prior to the completion of the defendant's sentence, the Commonwealth filed a petition, pursuant to G.L.c. 123A, § 1, seeking to have him committed as a sexually dangerous person. In connection with that petition, John Daignault, Psy. D., conducted a forensic psychological consultation focused on the question of whether probable cause exists to conclude that Barrett is a "sexually dangerous person" as that term is defined in chapter 123A, such that he should be subject to a period of observation and examination at the Treatment Center for Sexually Dangerous Persons under the provisions of Chapter 123A. Dr. Daignault is the Director of Psychological Services, Inc., on the attending staff at McLean Hospital, an instructor in the Department of Psychiatry at Harvard Medical School, on the consulting staff of Pembroke-Westwood Hospitals, a supervising forensic psychologist for the Department of Mental Health and a diplomate of the American College of Forensic Examiners. In connection with the only issue for which he was asked to consult by the Commonwealth, Dr. Daignault concluded, to a reasonable degree of psychological certainty, that Barrett likely "possesses a mental abnormality or personality disorder which creates a likelihood that he will engage in sexual offenses in the future . . . [that] the most likely diagnosis would be Pedophilia. . . . In accordance with the applicable legal standard, it is very probable that Randy Barrett is a Sexually Dangerous Person in light of his conviction for Rape (two counts) and Indecent Assault and Battery on a child under 14 (two counts) and in light of the fact that he appears to suffer from a personality disorder (i.e. Pedophilia) which makes him likely to engage in sexual offenses if not confined to a secure facility. In light of his default to appear at his arraignment at the time of the first known offense and in light of his pervasive denial and refusal to participate in sex offender treatment, he would not been seen as a candidate for assessment or treatment in a less secure facility."
Dr. Daignault was not asked to perform a qualified examination. In formulating his opinion, he did not speak with the defendant. He examined police reports, the indictments and disposition sheet, and certain grand jury transcripts, all of which were related to the incidents for which the defendant was sentenced. Those materials chronicled conduct over a period beginning no earlier than October of 1989 and ending no later than March of 1990. The claimed course of conduct involved twin three-year old girls, including claims that the defendant enticed and involved his six-year old son in activity involving the three-year old girls. There is no evidence that the defendant engaged in any prior or subsequent inappropriate sexual conduct.
While serving his sentence, the defendant participated for a period of time in treatment and then stopped. Subsequent to his plea, he made both admissions and recantations of the underlying offenses.
Any general lack of power to control his sexual impulses which the defendant may now have is not caused by pedophilia. Further, the fact that he today may lack control over his impulses does not mean that he lacked such power when the underlying offenses were committed.
Dr. Daignault's opinion that the defendant is likely to reoffend is based upon all of the following factors: Barrett admittedly engaged in severe sexual offenses against children when he pled guilty to such crimes in 1991 and evidenced deviant sexual arousal to children by the fact that he achieved ejaculation during oral copulation; he indicated that his own past sexual experiences play a role in his sexual offenses; he engaged in extremely deviant sexual arousal patterns and contact despite being married with children; his victims were very young and vulnerable; he threatened to harm his young victims with a gun if they revealed his offenses; he introduced his own six-year old son to the offense pattern and thereby demonstrated an enormous lack of inhibition; he demonstrated a serious lack of empathy by committing his offenses despite the girls' protestations; he was in default at court after his arraignment on the first known offense when the second offense became evident; he seriously lacks social skills and has educational and employment deficits which suggest that he would have a significantly impaired capacity to learn from past mistakes; and he recanted his offenses and refused to participate in sexual offender treatment during incarceration demonstrating a pervasive denial and lack of insight about his sexual deviancy and potential for re-offense.
Dr. Daignault did not evaluate the defendant for criminal responsibility. In the opinion he rendered to the Commonwealth concerning the likelihood of the defendant reoffending, Dr. Daignault did not opine that the defendant, as a result of his pedophilia, lacked substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of law. Based on the assessment he has made to date, Dr. Daignault is unable to express an opinion, to a reasonable degree of psychological certainty, as to whether the defendant would meet the standard of criminal responsibility now or whether he would have met that standard in 1991.
A person who suffers from a "personality disorder," as that term is defined in G.L.c. 123A, § 1, does not necessarily have a "mental disease or defect" as that phrase is understood in the mental health community. For purposes of the statute governing civil commitment of sexually dangerous persons, the Legislature defined the term "personality disorder" differently from how that term is used in the psychiatric community. The definition of a "personality disorder" in the Diagnostic and Statistical Manual of Mental Disorders ("DSM") does not include pedophilia. Moreover, not every one with a personality disorder, as defined in the DSM, lacks criminal responsibility.
An individual suffering from pedophilia does not necessarily lack the power to control his sexual impulses. Lack of power to control sexual impulses is not a prerequisite to being diagnosed as a pedophile. The clinical definition of pedophilia does not include inability to control sexual impulses that may be aroused by sexual fantasies involving children. There are individuals with pedophilia who do not suffer from the lack of power to control sexual impulses. There are individuals with pedophilia, who have received no treatment, who do not lack the power to control their sexual impulses.
The fact that the defendant suffers from pedophilia does not, in and of itself, make it likely that he has a diminished capacity to conform his conduct. Further, Dr. Daignault is not of the opinion that, as a result of the defendant's pedophilia, he has a diminished capacity to conform his conduct.
The defendant would not have admitted to the acts with which he was charged had he spoken with a psychologist prior to his guilty plea nor would he have admitted to deviant sexual arousal or sexual fantasies involving children. There was no basis in 1991 for an expert to opine that, as a result of a mental disease or defect, the defendant lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
Defense counsel's performance did not reflect serious incompetency, inefficiency, or inattention falling measurably below that which might be expected from an ordinary fallible lawyer. Lack of criminal responsibility was not a substantial ground of defense available to the defendant when he pled guilty.
RULINGS OF LAW
The defendant now moves for a new trial pursuant to Mass.R.Crim.P. 30(b). In support of his motion, the defendant asserts that: (1) his guilty plea was not intelligently made; (2) he was denied effective assistance of counsel; and (3) newly discovered evidence entitles him to a new trial.
I. Plea Intelligently Made
A guilty plea which is not entered into freely, understandingly, or voluntarily may be withdrawn or nullified. Commonwealth v. Lopez, 426 Mass. 657, 660 (1998)."The constitutional adequacy of a plea, however, does not require that a defendant be advised of consequences that are contingent or collateral to the plea." Commonwealth v. Albert A., 49 Mass. App. Ct.269, 271 (2000).
The defendant concedes that, absent an applicable statute or rule, there is no obligation on the part of a judge to warn a defendant of possible collateral consequences of a guilty plea. Cf. Commonwealth v.Morrow, 363 Mass. 601, 605 (1973) (being subject to G.L.c. 123A, concerning the treatment of sexually dangerous persons, is a contingent consequence of confinement about which the defendant need not be advised during plea colloquy). Here, however, the defendant asserts that, in violation of Rule 12 of the Massachusetts Rules of Criminal Procedure, he was not informed that he might be subject to commitment as a sexually dangerous person at the conclusion of his sentence.
Rule 12 requires that a defendant be notified of the consequences of his plea, including, inter alia, that the defendant be informed "of any different or additional punishment based upon . . . sexually dangerous persons provisions of the General Laws, if applicable." Mass.R.Crim.P. 12(c)(3)(B), 378 Mass. 866, 868 (1979). When Barrett pled guilty in 1991, there were no provisions of the General Laws that authorized the civil commitment of sexually dangerous persons. Indeed, it was not until 1999 that the Legislature enacted the amendments to G.L.c. 123A that now provide for the commitment of persons found to be sexually dangerous.
On September 10, 1999, the Legislature amended G.L.c. 123A to provide for the initiation of civil commitment proceedings against persons believed to be sexually dangerous. See Commonwealth v. Bruno, 432 Mass. 489, 494 (2000). Prior to the enactment of the 1999 legislation, no new sexually dangerous person commitments had been permitted since the repeal of G.L.c. 123A, §§ 3-6 7 in 1990. Id.
The 1999 amendments to G.L.c. 123A provide a new definition of a sexually dangerous person, G.L.c. 123A, § 1, and set forth procedures for adjudicating persons as sexually dangerous, G.L.c. 123A, §§ 12-16.
Nothing in Rule 12 requires a judge to warn of the mere possibility that sometime in the future the Legislature might choose to enact legislation that could affect the defendant upon the conclusion of his sentence. Cf. Commonwealth v. Albert A., 49 Mass. App. Ct. at 270-271 (rejecting defendants' claims that guilty pleas were unintelligently made because subsequent enactment of legislation "fundamentally changed the rules of the game" and had defendants "known then what they know now," they would not have plead guilty); Commonwealth v. Medeiros, 48 Mass. App. Ct. 374, 376 (1999) (concluding that judge could not reasonably have foreseen applicability of new legislation to defendant's case and that defendant did not receive inaccurate advice regarding consequences of his plea). Accordingly, there is no merit to the defendant's contention that his plea was not intelligently made because the court did not inform him of the possibility that the Legislature might choose to re-enact a statute that would provide the Commonwealth with a mechanism to seek to have him civilly committed as a sexually dangerous person at the conclusion of his sentence.
II. Effective Assistance of Counsel
The defendant next argues that he was denied effective assistance of counsel and, therefore, should be granted a new trial. Specifically, the defendant contends that he was deprived of effective assistance due to (1) his attorney's inadequate preparation for trial; (2) his attorney's erroneous advice regarding the length of time he would be incarcerated should he plead guilty; and (3) his attorney's failure to investigate a defense based on lack of criminal responsibility.
A defendant bears a heavy burden in establishing ineffective assistance of counsel of such magnitude that he is entitled to a new trial.Commonwealth v. Brookins, 33 Mass. App. Ct. 626, 631 (1992). The defendant must show not only that defense counsel's performance reflected "serious incompetency, inefficiency, or inattention . . . falling measurably below that which might be expected from an ordinary fallible lawyer," but also that such inadequacies "likely deprived [the defendant] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Moreover, "[j]udicial scrutiny of counsel's performance must be highly deferential, indulg[ing] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Commonwealth v. Florentino, 396 Mass. 689, 690 (1986) (internal quotation and citation omitted).
A. Preparation for Trial
The defendant first contends that he was deprived of effective assistance because his attorney never considered preparing for trial and failed to conduct an adequate pre-trial investigation.
The defendant claims that his attorney failed adequately to investigate the bias of the defendant's wife, the timing and circumstances of the complaints, or the availability of exculpatory evidence.
The defendant's contention, raised long after trial, that his counsel's preparation for trial was inadequate is not supported by credible evidence. The defendant's attorney met with him at least three times before the defendant entered his plea. The attorney obtained police reports and questioned the defendant based, in part, upon the contents of the reports. The attorney also highlighted the reports, read portions to the defendant, and explained the allegations contained therein. He told the defendant that his wife would testify against him. He also informed the defendant that there were reports indicating that the three-year olds had been seen by a doctor and that there was a report from the doctor indicating that the girls had been sexually molested. In sum, the record shows that defense counsel expended time and effort inquiring into the allegations, evaluating the evidence, and advising the defendant. There is no credible evidence that the defendant's attorney failed to engage in reasonable trial preparation and investigatory efforts.
Furthermore, the defendant has not demonstrated that the claimed inadequacy likely deprived him of a substantial defense. SeeCommonwealth v. Haley, 413 Mass. 770, 777 (1992); Commonwealth v.Saferian, 366 Mass. at 98. No overlooked exculpatory evidence was proffered at the hearing on the defendant's motion for new trial. In the absence of Barrett demonstrating that "better work might have accomplished something material for defense," he is not entitled to withdraw his guilty plea based on ineffectiveness of counsel.Commonwealth v. Whitman, 430 Mass. 746, 757 (2000). He has made no such showing.
B. Advice on Sentence
The defendant next argues that his guilty plea was invalid because it resulted from erroneous advice given to him by his attorney. Barrett asserts that, in deciding to plead guilty, he relied upon his attorney's advice to the effect that he that would have to serve only one year and would be out of prison in six months because he had already served six months awaiting trial.
It is true that a guilty plea may be deemed involuntary if the defendant was incompetently advised. Commonwealth v. Clerico, 35 Mass. App. Ct. 407, 411 (1993). Here, however, there is no credible evidence that the defendant's attorney gave him erroneous advice. This court simply does not believe the defendant's very belated contention that he was told he would be incarcerated for no more than six additional months. Not until the prospect of civil commitment loomed towards the end of his ten year sentence, did the defendant claim that his attorney has misled him into believing that a ten year Concord sentence meant only one year of incarceration. As for whatever predictions his attorney may have made as to the most likely time he would be released on parole, a defendant may not collaterally attack his guilty plea by asserting that his attorney misjudged the possibilities he faced.Commonwealth v. Perry, 389 Mass. 464, 472 (1983).
C. Defense Based on Lack of Criminal Responsibility
Finally, the defendant claims that he was deprived of effective assistance because his attorney failed to investigate and assert a defense based on lack of criminal responsibility. Here, the defendant relies upon the report issued in 2001 by Dr. Daignault that was submitted in connection with the Commonwealth's sexually dangerous person petition filed pursuant to G.L.c. 123A. Barrett contends that because Dr. Daignault has opined that the defendant suffers from pedophilia and is likely to re-offend, his trial attorney was ineffective for not investigating the defense of lack of criminal responsibility.
A defendant lacks criminal responsibility when he suffers from a mental disease or defect that causes him to lack the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Commonwealth v. Seabrooks, 425 Mass. 507, 515 (1997); Commonwealth v. McHoul, 352 Mass. 544 (1967). Failure to investigate a defense based on lack of criminal responsibility falls below the level of competence required of attorneys if facts known or accessible to trial counsel raised a reasonable doubt as to the defendant's mental condition. Commonwealth v. Roberio, 428 Mass. 278, 279-80 (1998); Commonwealth v. Milton, 49 Mass. App. Ct.552, 560 (2000). The issue is whether counsel should have investigated such a defense before advising the defendant to plead guilty. Milton, 49 Mass. App. Ct. at 560.
Barrett's counsel had no reason to question the defendant's criminal responsibility. The defendant had no history of psychiatric treatment or mental health counseling, with the single exception of attending some counseling in 1983 at the request of the Department of Social Services. Nothing in the defendant's background or in the way he was acting suggested that he had a mental disease or defect that caused him to lack the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. There was no evidence that Barrrett's understanding of reality was in any way impaired or that he had a history of psychosis or suspected psychotic episodes. See Commonwealth v. Harris, 387 Mass. 758, 762 (1982) (no ineffective assistance of counsel where defendant had no history of mental disturbance or treatment and the findings of the psychiatrist indicated "no more than a mere possibility that under stress the defendant might be capable of serious acts . . ."). ContrastCommonwealth v. Milton, 49 Mass. App. Ct. at 553-554 (trial counsel on notice that an investigation was required by bizarre nature of crime, defendant's long history of numerous psychiatric hospitalizations and treatment, detailed findings and opinions in transfer orders referencing disassociation, the defendant being "barely in control of his behavior" and "unable to conform his behavior," a medical evaluation raising the possibility of a neurological dysfunction, and a referral question by a PhD as to whether the defendant was criminally responsible). Barrett gave his attorney no indication that he was attracted to little girls or that he had sexual fantasies or arousal involving children. Indeed, he told his attorney that he would not have done the acts alleged and, until he changed his plea to guilty, he maintained that he had not committed those acts. There was no evidence suggesting that the defendant had been involved in any criminal acts involving children prior to the commission of the acts with which he was charged or even that he had ever possessed child pornography.
Even if his attorney had checked the Diagnostic and Statistical Manual of the American Psychiatric Association in its Third Revision (1987) ("DSM-III-R"), he would have encountered nothing that would have alerted the ordinary fallible lawyer to investigate a defense based on lack of criminal responsibility. Unlike paranoia and schizophrenia, pedophilia was not classified as a personality disorder by DSM-III-R. DSM-III-R at 335. Pedophilia was classified as a paraphilia. DSM-III-R at 279-80. "The essential feature of [pedophilia] is recurrent, intense, sexual urges and sexually arousing fantasies, of at least six months' duration, involving sexual activity with a prepubescent child." Id. at 284. Nothing in the definitions of either paraphilia or pedophilia indicated that a person who has such a disorder has a mental disease or defect that makes him likely to lack the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the law.
"The paraphilias are characterized by arousal in response to sexual objects or situations that are not part of normative arousal-activity patterns and that in varying degrees may interfere with the capacity for reciprocal, affectionate sexual activity." DSM-III-R at 279. The essential features of paraphilias are "recurrent intense sexual urges and sexually arousing fantasies involving either (1) nonhuman objects, (2) the suffering or humiliation of oneself or one's partner, (not merely simulated), or (3) children or other nonconsenting persons." Id. A diagnosis of paraphilia is made "only if the person has acted on these urges, or is markedly distressed by them." Id. In addition to pedophilia, the paraphilias include exhibitionism, fetishism, frotteurism, sexual masochism, sexual sadism, transvestic fetishism, voyeurism, and paraphilias not otherwise specified. Id. at 280.
Legal research also would not have signaled to the average qualified attorney that there was a reason to pursue the defense of lack of criminal responsibility. The inexplicable nature of a crime alone does not provide a foundation for an insanity defense. Commonwealth v.Mattson, 377 Mass. 638, 644 (1979). Further, when Barrett pled guilty, there were no reported cases in Massachusetts in which pedophilia had been raised as evidence of lack of criminal responsibility. Indeed, prior to the defendant's guilty plea in 1991, there appear to have been only four reported cases in which pedophilia was offered as evidence in a defense based on lack of criminal responsibility. See United States v.Benedict, 27 M.J. 253 (C.M.A. 1988); People v. Stewart, 89 Cal.App.3d 992 (1979); United States v. George, 6 M.J. 880 (C.M.A. 1979); Sherrill v.Maryland, 14 Md. App. 146 (1972). In Benedict, Stewart, and George, the defense was unsuccessful. In Sherrill, 14 Md. App. at 157, the Court ordered a new trial because the statutory definition of criminal responsibility had changed from "mental disease or defect" to "mental disorder" and the wrong definition had been applied by the trial court.
Defense counsel has also cited no reported cases in Massachusetts since Barrett pled guilty in which pedophilia was the basis of a defense of lack of criminal responsibility.
Even at the hearing on his motion for a new trial, Barrett offered no expert testimony that, at the time of commission of the offenses, he suffered from a mental disease or defect and, as result of that mental disease or defect, he lacked the ability to conform his conduct to the requirements of the law. Compare Roberio, 428 Mass. at 280 (in view of the psychologist's testimony, lack of criminal responsibility would have been a substantial defense). Dr. Daignault has not evaluated the defendant for criminal responsibility and he rendered no opinion, to a reasonable degree of psychological certainty, as to whether the defendant met that standard in 1991. Nor did Barrett introduce any other evidence from which it could be inferred that, in the absence of expert evidence, lack of criminal responsibility would have been a substantial defense. Cf. Commonwealth v. Harris, 387 Mass. 758, 762 (1982) (noting that testimony of defendant maintaining that he did not commit acts could only weaken and be weakened by alternative defense that he lacked legal responsibility for those acts).
In sum, this record does not show that Barrett's counsel unreasonably ignored a plausible insanity defense. The facts known or accessible to an ordinary fallible lawyer did not raise a reasonable doubt as to the defendant's mental condition.
III. Newly Discovered Evidence
Lastly, the defendant argues that he is entitled to a new trial on the basis of newly discovered evidence. Specifically, Barrett contends that Dr. Daignault's opinion that he suffers from pedophilia and is likely to reoffend is newly discovered evidence.
A defendant seeking a new trial on the basis of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction. Commonwealth v. LeFave, 430 Mass. 169, 176 (1999). Newly discovered evidence is evidence that was unavailable at the time of trial and could not have been discovered with reasonable diligence. Id. Assuming that Dr. Daignault's diagnosis was unavailable in 1991 and could not have been discovered with reasonable diligence, that opinion does not cast doubt on the justice of Barrett's conviction.
As an initial matter, newly discovered evidence must be evidence that is admissible. Commonwealth v. Tague, 434 Mass. 510, 519 (2001). Dr. Daignault's opinion does not meet that basic test. His "newly discovered" opinion is predicated upon admissions made by the defendant as part of his guilty plea; that plea, of course, would be vacated should a new trial be allowed and admissions made as part of the plea could not form the basis of any admissible opinion rendered by an expert. Dr. Daignault also based his opinion on Barrett's refusal to participate in sexual offender treatment during incarceration, facts that also could not form the basis of any admissible opinion should there be a new trial. Dr. Daignault did not evaluate the defendant for criminal responsibility. He did not opine that the defendant, as a result of pedophilia, lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. The opinion he rendered would be inadmissible in any trial of the defendant for the charged offenses.
Moreover, even if the fact that Barrett is a pedophile is "newly discovered" evidence, there is no evidence that, as a result of being a pedophile, Barrett may have lacked the ability to appreciate the wrongfulness of his conduct or to obey the law. See Commonwealth v.Sheehan, 376 Mass. 765, 769 (1978) ("McHoul standard requires that there be a causal connection between the claimed mental disease or defect and the defendant's substantial incapacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law."). The mere fact that Barrett may suffer from a disorder which is included in the DSM is not proof that Barrett was not criminally responsible. The defendant has proffered no expert evidence that a pedophile, by virtue of being a pedophile, lacks the ability to conform his conduct to criminal laws. The contrary, in fact, was established by Dr. Daignault, who was called by the defendant. A person may be a pedophile who all his life has never sexually touched a child. If a person is intensely sexually attracted to young children and if his urges or fantasies cause him marked distress or interpersonal difficulty, regardless of whether or not he acts on those fantasies or urges, he meets the diagnostic criteria for a pedophile. The defendant's conviction is not inconsistent with the opinion expressed by Dr. Diagnault as to Barrett's probable status today as a sexually dangerous person. See Diaz v. Commissioner of Mental Health, Civil Action No. 94-2185, 3 Mass. L. Rptr. 238, 240, 1994 WL 878866 (Worcester Super. Ct. 1994) (Toomey, J.) (convictions for rape and indecent assault and battery and their implication of criminal responsibility are not inconsistent with subsequent adjudication of defendant as a sexually dangerous person and its implication of an inability to control sexual impulses). Cf. Commonwealth v. DeSalvo, 353 Mass. 476, 482-483 (1968) ("It is not a basis for a legal ruling that the defendant is without substantial capacity to control his conduct that those experts who testify that he has such capacity also testify that he is mentally sick or that a cure is doubtful or that he should be committed because he is dangerous. . . . The [criminal responsibility] issues . . . do not include whether the defendant should have treatment, or whether apart from guilt, he should be segregated. See G.L.c. 123A.").
"The DSM-IV reflects that some percentage of pedophiles do not act on their urges because it declares, 'Individuals with Pedophilia who act on their urges with children may limit their activity to undressing the child and looking, exposing themselves, masturbating in the presence of the child, or gentle touching and fondling of the child.' DSM-IV-TR at 571 (emphasis added). If all pedophiles acted on their urges, then the italicized language would have been unnecessary. Nor can one simply assume from common sense that pedophiles have a general lack of power to control their sexual impulses towards children; many heterosexuals have intense and recurrent sexual fantasies and urges toward adults of the opposite sex, but one would not assume among this population a general lack of power to control these sexual impulses." Commonwealth v.Rodriguez, Civil Action No. 00-0122-A, 13 Mass. L. Rptr. 27, 30, 2001 WL 303058 (Plymouth Super. Ct. 2001) (Gants, J.).
Accordingly, the matters claimed to constitute newly discovered evidence cast no doubt on the justice of Barrett's conviction.
ORDER
For the foregoing reasons, it is hereby ORDERED that the defendant's motion for a new trial is DENIED .
______________________ E. Susan Garsh Justice of the Superior Court
August 28, 2001