Opinion
10-P-1698
12-28-2011
COMMONWEALTH v. S.B.
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
After a jury trial in November, 2009, the defendant was found to be a sexually dangerous person. He appeals, arguing that one of the Commonwealth's examiners did not meet the G. L. c. 123A, § 1, requirements for a qualified examiner, and that it was prejudicial error to allow her testimony and admit her report in evidence. He requests a new trial. We affirm.
Discussion. 1. At trial, defense counsel moved for a hearing, alleging that one of the Commonwealth's examiners, Dr. Angela Amadeo, did not have the two years of experience required by G. L. c. 123A, § 1, and asserted that such experience is a prerequisite for her testimony and admission of her report. The trial judge conducted a voir dire inquiry where Dr. Amadeo responded to questions asked by defense counsel about her professional experience. The judge summed up that experience:
Massachusetts General Laws c. 123A, § 1, as amended by St. 1993, c. 489, § 1, defines a qualified examiner as a 'physician who is licensed pursuant to section two of chapter one hundred and twelve who is either certified in psychiatry by the American Board of Psychiatry and Neurology or eligible to be so certified, or a psychologist who is licensed pursuant to sections one hundred and eighteen to one hundred and twenty-nine, inclusive, of chapter one hundred and twelve; provided, however, 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. A 'qualified examiner' need not be an employee of the department of correction or of any facility or institution of the department.'
'[Dr. Amadeo] had eleven-plus months post-doctorate and then since January, 2008 [Dr. Amadeo was designated a qualified examiner in January, 2008,] she had six months training, and then [in July, 2008,] she began to do evaluations. She saw [the defendant] in September of 2009; that's over two years.'Counsel stated: 'Okay; I come up with twenty-six months,
Your Honor.' No further questions concerning Dr. Amadeo's qualifications were raised at trial, or by defense counsel in closing argument, and there was no objection to the judge's standard instruction on assessing the credibility of expert witnesses.
On appeal, however, the defendant raises a new challenge to Dr. Amadeo's qualifications by asserting, as he interprets the statute, that a psychiatrist or psychologist must have two years of experience before being designated a qualified examiner. According to this interpretation, Dr. Amadeo had only about seventeen months of experience before she conducted her first examination in July, 2008.
Citing the requirement of the statute 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,' see G. L. c. 123A, § 1, the defendant urges that has had indicates that the two years of experience must necessarily precede designation by the commissioner even when the examiner has that experience at the time the examination is being challenged. There is no merit in such an interpretation. The two years' experience required is not temporally separated from designation by the commissioner, but is stated as an additional requirement. The defendant has not cited any authority, nor have we found any, that supports his interpretation of the statute.
'Because of the importance of their role in G. L. c. 123A proceedings, it is essential that a person designated as a qualified examiner is indeed qualified to give an opinion whether a person is or remains a sexually dangerous person [and] a certain amount of deference should be given to the commissioner of correction's designation . . . as a qualified examiner . . . . That deference, however, does not remove entirely a judge's traditional role in deciding whether a witness should be qualified as an expert.' LeSage, petitioner, 76 Mass. App. Ct. 566, 571 (2010). '[I]n determining whether a witness is qualified to give an expert opinion,' the judge must determine 'whether the witness has sufficient 'education, training, experience and familiarity with the subject matter of the testimony," and the judge's determination is 'guided by the statutory requirement that the individual have two years' experience in the diagnosis or treatment of sexually aggressive offenders.' Id. at 571-572, quoting from Commonwealth v. Richardson, 423 Mass. 180, 183 (1996). The defendant fails to show any error or abuse of discretion in the judge's determination that Dr. Amadeo had the requisite experience to qualify as an examiner.
The Commonwealth offered testimony and reports from two examiners who both concluded the defendant continued to meet the criteria for a sexually dangerous person and was likely to reoffend. The defendant offered the testimony and reports of two independent examiners who concluded that he was not likely to reoffend.
The defendant does not dispute any essential facts of the testimony or report of Dr. Amadeo or the Commonwealth's other examiner.
2. The defendant advances several other arguments which we have not overlooked, but do not address because they are founded on his erroneous view that Dr. Amadeo was unqualified, are raised for the first time on appeal, or do not constitute proper appellate argument. Mass.R.A.P. 16(a)(4), 367 Mass. 921 (1975).
Judgment affirmed.
By the Court (Cypher, Vuono & Rubin, JJ.),