Opinion
19-P-989
04-08-2021
Hammad ABDULLAH, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Superior Court, a jury determined that the petitioner, Hammad Abdullah, remains a sexually dangerous person as defined by G. L. c. 123A, § 1. The petitioner contends that the judge erred in admitting and excluding certain testimony, and in providing an erroneous reasonable doubt instruction. We affirm.
Background. The petitioner was convicted of sexual offenses on three occasions. In 1979, he met the first victim, a fifteen year old girl, in a park. They had never previously met. The petitioner offered to drive the victim around to find her boyfriend. While looking for the boyfriend, the petitioner "drove to an isolated area and raped her several times." Based on this assault, the petitioner pleaded guilty to four counts of rape of a child with force, assault and battery by means of a dangerous weapon, unnatural act with a child under sixteen, and sodomy. He was sentenced to concurrent prison sentences of not more than ten years and not less than seven years on one charge of rape of a child with force and assault and battery by means of a dangerous weapon.
In June 1990, the petitioner was arrested for rape of a child. The second victim, a fourteen year old girl, met the petitioner three months prior to the rape. On the night of the assault, the victim was at the petitioner's house, where he supplied her with alcohol. He asked the victim "if [she] wanted to have sex with him," she initially said "no" and then later said "yes." "During the time [the petitioner and the victim] were having sex," the victim told him that "he was hurting [her]." The next day, the victim told her mother what had happened. On September 17, 1990, the petitioner pleaded guilty to rape and abuse of a child (no force) and was sentenced to a term of not more than six years or less than four years at a correctional institution.
In or around 1995, the petitioner met the third victim, an adult woman, whom he lived with and married in a "Wiccan ceremony." They had a "volatile relationship." "[T]here were several incidents where [the petitioner] had been charged with assault and battery on her." They engaged in "fighting, violent, and aggressive behaviors as well as sexual bondage." In 1999, the petitioner, while intoxicated, began pressuring her to have sex. "[S]he did not want to have sex with [him], so he became aggressive." He pulled off the victim's clothes and raped her. On September 18, 2000, he pleaded guilty to rape, assault and battery, and threatening; he was sentenced to six to nine years in prison and a term of probation.
The record is ambiguous as to whether the third victim and the petitioner legally married.
In 1997, the petitioner was charged with assault and battery of the victim; he was found guilty and sentenced to a two-year suspended sentence and a term of probation. After violating probation, the petitioner was sentenced to two years in a house of correction.
In 2009, the petitioner was committed to the Massachusetts Treatment Center (MTC) as a sexually dangerous person pursuant to G. L. c. 123A. On November 15, 2013, he filed a petition for examination and discharge from the MTC pursuant to G. L. c. 129A, § 9. At the ensuing jury trial, the Commonwealth presented testimony from three expert witnesses, including two qualified examiners, Dr. Manju Vachher and Dr. Mark Schaefer, and a member of the community access board, Dr. Gregg Belle. The Commonwealth's experts testified, inter alia, that the petitioner suffered from a personality disorder and mental abnormality, as defined in G. L. c. 123A, § 1, that he was unable to control his sexual impulses, that he remained sexually dangerous, and that he was likely to reoffend sexually. The petitioner presented two expert witnesses, Dr. Fabian Saleh and Dr. Eric Brown, who testified that the petitioner was not sexually dangerous. The petitioner also presented testimony from two former residents of the MTC. The jury found the petitioner to be a sexually dangerous person.
We note that while Dr. Vachher and Dr. Belle diagnosed the petitioner with a mental abnormality, Dr. Schaefer did not.
At the time of trial, the petitioner was sixty years old and used a wheelchair. The expert witnesses all considered his age as a factor tending to lower his risk of reoffending sexually.
Discussion. 1. "High risk" designation. At trial, the Commonwealth's qualified examiner, Dr. Vachher, testified regarding the use of the Static-99R risk assessment tool. "The Static-99R is an actuarial tool, designed to predict the recidivism risk of sexual offenses in adult male sex offenders who have been convicted of at least one sexual offense." Commonwealth v. George, 477 Mass. 331, 335 n.2 (2016). Dr. Vachher explained that Static-99R tool "has standard ten variables on which you score" an individual, and that numerical score then corresponds to a percentage indicating the recidivism risk. The applicable recidivism risk depends on whether an individual belongs in the routine sample group or the "high risk/high need" sample group. In the case of the petitioner, Dr. Vachher determined that he scored a five on the Static-99R tool, which corresponded to a risk of recidivism of 15.2 percent for those in the routine sample group and 21.2 percent for those in the "high risk/high need" sample group. On cross-examination, the petitioner elicited from Dr. Vachher that she placed him in the "high risk/high need" sample group, and that she believed he "has a high risk of reoffending."
Both qualified examiners and the petitioner's expert witnesses agreed that the petitioner scored a five on the Static-99R. The Commonwealth's third expert, Dr. Belle, noted that the community access board does not use the Static-99R tool.
The petitioner now contends that the judge erred in allowing Dr. Vachher to testify that the petitioner belonged in the Static-99R "high risk/high need" sample group; specifically, the petitioner challenges the expert's use of the term "high risk" before the jury. The petitioner's argument relies on George, 477 Mass. at 339-340, wherein the Supreme Judicial Court held that Static-99R "risk category labels" -- i.e., "low," "low-moderate," "moderate-high," and "high" -- were inadmissible. The Court determined that the risk category labels did not aid "the jury in determining sexual dangerousness" because "the meaning of risk category labels is often unclear." Id. at 340. The petitioner contends that the same reasoning in George should apply to the use of the "high risk/high need" label of the sample group.
Here, the judge allowed the petitioner's motion in limine to exclude testimony on the Static-99R risk category labels.
When the Commonwealth sought to elicit testimony from Dr. Vachher on the recidivism rate from the "high risk/high need" sample group that corresponded to the petitioner's Static-99R score, the petitioner objected that there was a lack of foundation for this question. Because the petitioner did not object to this testimony on the basis that he now appeals, our review is limited to whether the alleged error created a substantial risk of a miscarriage of justice. See R.B., petitioner, 479 Mass. 712, 717-718 (2018) (unpreserved arguments are reviewed "for a substantial risk of a miscarriage of justice").
Following the petitioner's objection, the judge held a voir dire of Dr. Vachher and ruled that the testimony on the "high risk/high need" sample group was admissible because the petitioner "does have the similar characteristics to the routine sample as well as the high risk/high need sample. And both of those samples are directly related -- or, the use of those sample groups were directly related to a study outcome from recidivism." We discern no error and no abuse of discretion where the judge reviewed the contested testimony and determined it was relevant and admissible. See Wyatt, petitioner, 428 Mass. 347, 355 (1998) ("Whether evidence is relevant is a question ‘addressed to the sound discretion of the trial judge’ " [citation omitted]). Furthermore, it was the petitioner who elicited from Dr. Vachher that she placed him in the "high risk/high need" sample group and that she believed "[the petitioner] has a high risk of reoffending." See Commonwealth v. Marrero, 427 Mass. 65, 70 (1998) (no error where defendant elicited challenged testimony himself on cross-examination).
The petitioner also contends that the expert's use of the term "high risk" was inadmissible because it compromised the jury's fact-finding role. However, both Dr. Vachher and Dr. Brown, the petitioner's expert witness, explained the application of the recidivism rates of the routine sample group and the "high-risk/high need" sample group to the petitioner's numerical score. "The jury remain[ed] free to credit or discredit [either expert's] opinion testimony" on which sample group and recidivism rate applied to the petitioner. Green, petitioner, 475 Mass. 624, 631 (2016). In addition, Dr. Vachher's testimony that the petitioner "has a high risk of reoffending" did not intrude on the jury's role as fact finder. See George, 477 Mass. at 338-339 (testimony from qualified examiner on likelihood of reoffense was proper).
Furthermore, even assuming that this testimony was error, it did not create a substantial risk of a miscarriage of justice. Dr. Vachher's testimony regarding the "high risk/high need" sample group was limited, and she noted that the Static-99R tool "doesn't necessarily give you the picture of the individual that is being evaluated ... you have to consider many other factors." Among the additional factors she considered were "his history, his antisocial orientation, his presence of mental abnormality and personality disorder, his ability to conform to the laws and ... the rules, his ability to regulate his emotions, his ability to control his behaviors as well as impulses, ... his participation in the treatment ... [and] the many times that he had committed the same similar offenses." See George, 477 Mass. at 341 (no prejudice in admitting testimony on risk category labels where testimony "was appropriately limited" and "it was presented as only one of many factors in the [sexually dangerous person] calculus").
2. Additional evidentiary challenges. The petitioner next argues that the judge erred in excluding testimony related to three issues. Because the petitioner did not object, our review is again limited to whether the alleged errors created a substantial risk of a miscarriage of justice. R.B., petitioner, 479 Mass. at 717-718.
First, the petitioner contends that the judge erred in excluding testimony from the Commonwealth's expert, Dr. Schaefer, that the petitioner "has tried to get the [the terms of his] probation extended and/or conditions added, but ... apparently he was unsuccessful to this point." Following Dr. Schaefer's testimony, the judge sua sponte called a sidebar conference and decided to provide the jury with a limiting instruction to address the "improper inference" that "the Court has not seen fit to amend [the petitioner's] terms of probation." The judge then instructed the jury, in relevant part, that "once a sentence is imposed by the court to include a term of probation, the court does not change that term of probation and cannot change the term of probation by a petition -- by a request of the Petitioner." The judge's well-intended instruction did not provide full context, and was a misstatement of the law. See Commonwealth v. Goodwin, 458 Mass. 11, 18 (2010), quoting Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 818-819 n.5, 820 (1985) ("A judge may add or modify a probation condition that will increase the scope of the original probation conditions only where there has been a ‘material change in the probationer's circumstances since the time that the terms of probation were initially imposed,’ and where the added or modified conditions are not so punitive as to significantly increase the severity of the original probation"); Commonwealth v. Morales, 70 Mass. App. Ct. 839, 841, 843 (2007) (judge allowed defendant's motion to modify terms of probation where designation of defendant as sexually dangerous person qualified as "material change in circumstances permitting a modification in the conditions of probation").
Nonetheless, we discern no substantial risk of a miscarriage of justice where, prior to striking the testimony and instructing the jury, the judge called the parties to sidebar to discuss her concerns, invited both parties to provide their input, the petitioner agreed with the judge's determination stating "I have no comment, your Honor. I'll leave it to your judgment," the judge's erroneous instruction was not significant in the context of the trial, and the Commonwealth's overall case was strong. See R.B., petitioner, 479 Mass. at 718. In sum, we conclude the instruction did not "materially influence[ ]" the verdict (citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
The petitioner next argues that the judge erred in prohibiting him from eliciting testimony regarding the alleged availability of drugs and alcohol in the MTC. This evidence, he contends, would have countered the Commonwealth's evidence of the petitioner's history of substance abuse and lack of impulse control. The judge excluded the testimony, stating that the petitioner had already elicited it, that he had "fully elicited the fact that he hasn't gotten any [observational behavioral reports] for it," that drugs and alcohol "can be disinhibitors" and were "not directly attributable to sexual impulses," and that the petitioner had given "notification that these individuals were here for his support system and release plan, not for the purposes of talking about the activity in the Treatment Center." While the judge was mistaken in her first reason -- the petitioner had in fact not yet elicited this evidence -- she did not abuse her discretion in concluding that the petitioner had failed to give adequate notice of the proposed testimony. Furthermore, we discern no substantial risk of a miscarriage of justice given the strength of the Commonwealth's case, the petitioner's assent to exclude this testimony, the petitioner's elicitation of testimony that there was no evidence that he had possessed or used drugs or alcohol while at the MTC, and the volume of evidence of the petitioner's lack of impulse control. See R.B., petitioner, 479 Mass. at 718.
Evidence supporting a determination of the petitioner's lack of impulse control included, but was not limited to, abundant expert testimony; evidence of the "extremely impulsive" nature of two of the sex offenses he committed; the "real lack of ability to control [his] impulses" and to regulate his "emotional reactions"; evidence that he "continued to act out his angry impulses" during his time at the MTC; and evidence that he was "still accruing [disciplinary reports] at a pretty high rate" at the MTC, including "11 within the last three years, which is quite high for someone his age."
Finally, the petitioner asserts that the judge erred by prohibiting his expert witness, Dr. Brown, from testifying to the applicability of a sexual sadism diagnosis. We discern no error where the Commonwealth was not provided notice of this testimony as the expert included "nothing regarding sexual sadism in his report." This "divested the Commonwealth of the ability to challenge the expert's conclusions." Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 335 (2007) (judge acted within her discretion to exclude report where defendant failed to comply with discovery order). Moreover, Dr. Brown was permitted to testify that he did not believe that the petitioner had a sexual sadism disorder, the petitioner cross-examined the Commonwealth's experts on their consideration of whether the petitioner had a sexual sadism disorder, and he elicited testimony on this subject from his first expert witness.
The petitioner agreed that the Commonwealth's objection based on lack of notice was a "fair criticism." We acknowledge petitioner counsel's candor in this regard.
Given our conclusions regarding the petitioner's evidentiary claims, we reject the petitioner's argument that the cumulative effect of the judge's rulings requires reversal.
3. Jury instruction. The petitioner argues that the judge erred in instructing the jury on reasonable doubt because she did not define "moral certainty" as required by Commonwealth v. Russell, 470 Mass. 464, 477-478 (2015).
In Russell, the Supreme Judicial Court revised the model jury instruction on reasonable doubt, clarifying that "moral certainty" means "the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case." Id. at 477. Here, the judge instructed the jury on reasonable doubt, see Wyatt, petitioner, 428 Mass. at 352, but in doing so omitted a part of the definition of "moral certainty" mandated by Russell. We agree with the petitioner that this was error, but conclude that it did not create a substantial risk of a miscarriage of justice. See R.B., petitioner, 479 Mass. at 717-718. We review the jury charge "as a whole." Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 802 (2020).
The judge did define "moral certainty" in her preliminary instructions to the jury at the start of trial.
Here, the judge instructed that the Commonwealth must meet its burden of proof only through evidence admitted during the trial, that the jury may not base the verdict on "feelings or opinions," and that "it is not enough for the Commonwealth to establish a probability, even a strong probability, that the Petitioner is today a sexually dangerous person." See Russell, 470 Mass. at 477-478. Although the clarification of "moral certainty" was omitted, the judge instructed that a matter is proved beyond a reasonable doubt when "you have in your minds an abiding conviction to a moral certainty that the matter is true." See Commonwealth v. Veiovis, 477 Mass. 472, 490 (2017) ("use of the phrase ‘abiding conviction’ in conjunction with the moral certainty language does much to alleviate any concerns that the phrase ‘moral certainty’ might be misunderstood in the abstract" [quotation and citation omitted]). When read in totality, the judge's instruction "adequately conveyed the Commonwealth's burden of proof beyond a reasonable doubt," and we are confident that the unobjected-to error did not create a "substantial risk of a miscarriage of justice." Whitson, 97 Mass. App. Ct. at 803.
We note that although the Russell instruction includes the presumption of innocence, the judge here did not instruct on the presumption of nonsexual dangerousness. This was not error as "an instruction on the presumption of non-sexual dangerousness is not constitutionally required in a civil commitment proceeding under G. L. c. 123A." Wyatt, petitioner, 428 Mass. at 352 n.10.
Judgment affirmed.