Opinion
No. 11–P–316.
2012-05-18
COMMONWEALTH v. Daniel MacKINNON.
By the Court (COHEN, GRAINGER & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
MacKinnon appeals his commitment to the Massachusetts Treatment Center after adjudication as a sexually dangerous person (SDP). He raises a host of issues mainly related to the admission of certain evidence. We find no merit in these claims and therefore affirm. We recite the facts as the jury could have found them in conjunction with our discussion of the legal issues.
Discussion. Admissibility of victim testimony. The defendant first challenges the admission, at the SDP trial, of testimony by SG
regarding uncharged alleged sexual offenses.
SG was also the victim in the underlying sexual offense.
“We have long recognized that the admissibility of the various records and reports in sexually dangerous person proceedings represents ‘a very radical departure’ “ from the ordinary rules of evidence. McHoul, petitioner, 445 Mass. 143, 147 (2005), quoting from Commonwealth v. McGruder, 348 Mass. 712, 715 (1965), cert. denied, 383 U.S. 972 (1966). G.L. c. 123A, § 14( c ), states that, “oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial.” In the present case, SG was one of the defendant's victims and she offered oral testimony as a percipient witness about his uncharged behavior at trial. Her testimony about the defendant's sexually abusive actions towards her was not hearsay and tended to show that he was sexually dangerous.
The defendant also complains that SG's testimony was a surprise at trial, terming it “undiscoverable” evidence of new criminal behavior, hence fundamentally unfair. He asserts that the absence of a formal avenue for discovery in SDP proceedings left him with no more than a vague premonition of possible adverse testimony before the trial, and that this was insufficient for him to prepare a defense. The record, however, reveals no effort before trial by the defendant to ascertain greater particulars of the evidence which he knew, at least weeks and possibly months in advance, the Commonwealth intended to introduce. He also did not seek to conduct a voir dire of SG at trial. His complaint that he could not obtain particulars is fatally undermined by his failure to make any attempt to do so.
He also sought no recess after the complained of testimony to provide an opportunity to investigate the charges and provide rebuttal.
Finally, the defendant challenges the admission of SG's testimony, asserting that the judge failed to weigh the prejudice it would cause against its probative value. However, it is clear from the record that the judge did weigh the evidence. As the purpose of an SDP proceeding is to determine whether the defendant would be sexually dangerous if released into society, G.L. c. 123A, § 1, testimony regarding previous acts of sexual violence is highly probative and, by its very nature, prejudicial. Given its high probative value and the fact that the defendant had ample opportunity to cross-examine the witness, it cannot be said that the probative value was substantially outweighed by the danger of unfair prejudice. See Mass. G. Evid. § 403 (2011).
Expert opinion. The defendant appeals the use of this same uncharged conduct by the Qualified Examiner (QE) called by the Commonwealth, in her report, which was also admitted in evidence.
The information properly relied upon in a QE's report is governed by G.L. c. 123A, § 13( b ). The district attorney may provide the QE with witness statements related to sexual conduct that did not result in a conviction. See Commonwealth v. Markvart, 437 Mass. 331, 334–335 (2002). Also, QEs “as expert witnesses, may base their opinions on (1) facts personally observed; (2) evidence already in the records or which the parties represent will be admitted during the course of the proceedings, assumed to be true in questions put to the expert witnesses; and (3) ‘facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion.’ “ Id. at 337, quoting from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). While the form of the information provided to the QE does not have to satisfy evidentiary requirements, the underlying “facts or data” must be “admissible through appropriate witnesses.” Markvart, supra at 337.
As stated, the evidence of the uncharged conduct that was provided to the expert was independently admissible, and was properly admitted through SG's testimony. Consequently, there was no abuse of discretion in allowing the expert to base her opinion on this material and testify regarding this same uncharged conduct.
Exculpatory evidence. The defendant next asserts that the Commonwealth failed to turn over exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963). This claim fails both because the Commonwealth provided the evidence in question to the defendant before trial and because the evidence was inculpatory, not exculpatory. The defendant characterizes the evidence as exculpatory because it would have allowed him to cross-examine the witness more thoroughly. We disagree. The defendant cites nothing in the record to demonstrate that SG's account of the uncharged assault somehow differed from an earlier account or could have been used to impeach her credibility in any other way. The prosecutor informed the defendant prior to trial, as did the QE, about these uncharged allegations, giving him ample opportunity to cross-examine SG or move for a continuance in order to further investigate. Commonwealth v. Emerson, 430 Mass. 378, 382 (1999)(“It is also significant that defense counsel did not request a continuance so that he would have time to investigate the testimony”).
Sufficiency of the evidence. The evidence, construed in the light most favorable to the Commonwealth, was sufficient to establish beyond a reasonable doubt that the respondent met the statutory definition of a sexually dangerous person. Commonwealth v. Starkus, 69 Mass.App.Ct. 326, 336 (2007). While the defendant's own witnesses disagreed, the Commonwealth's QE opined, and the evidence demonstrated, that the defendant had been convicted of a sexual offense, that he suffered from a mental abnormality or personality disorder, and that this made him “likely to engage in sexual offenses if not confined to a secure facility.” G.L. c. 123A, § 1.
Moreover, his contention that the evidence was fatally defective because his behavior did not comport with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, is incorrect as a matter of law. See Starkus, supra at 336.
Jury consideration of QE report. The Commonwealth's QE, in her report, relied on a police report dating from a period when the defendant, then a juvenile, participated in a hazing incident in which a boy was tied to a playground pole without pants. The Commonwealth's QE considered this to be a sex offense. At trial, the Commonwealth's QE did not testify about this incident on direct examination. However, through his cross-examination and his own witnesses, the defendant introduced evidence of this incident to the jury.
This issue is governed by Markvart, supra at 338. There the court ruled that an expert may base her report and opinion on evidence that is not actually admitted, so long as it is independently admissible. However, where the evidence relied upon by the expert is never actually admitted, the expert may not testify to this evidence on direct examination and any expert report submitted to the jury must be redacted to remove mention of this information. “Those details may be elicited during cross-examination, but the decision whether to do so is a strategic one left to the opposing party.” Ibid. (internal citation omitted).
Here the defendant, seeking to challenge the methodology of the Commonwealth's QE, raised the juvenile incident on cross-examination and through his own witnesses. Because the details of the juvenile offense were not provided on direct examination but were elicited by the defendant himself on cross-examination of the Commonwealth's QE, the judge did not redact the QE's report before publishing it to the jury. Having elicited this evidence for his own ends, the defendant cannot now complain that it should not have been admitted.
There was no abuse of discretion.
The judge did not inform the defendant that should the evidence not be admitted, the QE's report would be redacted before going to the jury. The judge is a neutral arbiter and under no obligation to instruct counsel for either party about the legal consequences of strategic decisions, here readily ascertainable from the decision in Commonwealth v. Markvart, 437 Mass. 331 (2002).
QE's qualifications. The defendant contends that because Dr. Vachher's curriculum vitae does not indicate that she had two years experience in the diagnosis or treatment of sexually aggressive offenders when she was designated as a QE by the Commissioner of Correction, the judge erred in allowing her to testify. We are unpersuaded.
General Laws c. 123A, § 1, defining a QE, mandates that “the examiner has had two years of experience with diagnosis or treatment of sexually aggressive offenders and is designated by the commissioner of correction.” The statute does not dictate that the QE must have possessed two years of experience prior to her appointment by the Commissioner. The use of the word “and” indicates, rather, that the QE must both have two years experience with the diagnosis and treatment of sexually aggressive offenders and be qualified by the Commissioner of Correction. See Shea v. Caritas Carney Hosp., Inc., 79 Mass.App.Ct. 530, 537 (2011) (“The rules of statutory construction require a phrase to be ‘given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result’ ”).
The defendant's reliance on LeSage, petitioner, 76 Mass.App.Ct. 566 (2010), is misplaced. In LeSage, the Commonwealth did not demonstrate that the QE had the requisite two years of experience prior to trial. It is irrelevant to our consideration whether Dr. Vachher met the definition of a QE at the time of her designation; she did so at the time of her assignment to this case and at the time of her testimony. During her direct examination, the doctor testified that she has worked with sex offenders since 2000, well over two years. There was no error.
Judgment affirmed.