Opinion
19-P-707
11-18-2020
DAVID BONACETO, petitioner.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a thirteen year history of various indecent assaults, and attendant convictions and incarcerations, in 2007 the petitioner was committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person. In 2014 he filed a petition seeking release, pursuant to G. L. c. 123A, § 9. In 2018, after a trial, a jury concluded that he remained a sexually dangerous person.
At the 2018 trial, the Commonwealth presented three expert witnesses, each of whom testified that the petitioner suffered from frotteuristic disorder, and that he remained a sexually dangerous person. In so testifying, the experts expressed their opinions to a "reasonable degree of professional certainty" -- language customarily employed when offering expert opinions in the courts of the Commonwealth. The petitioner's appeal claims that this formulation was improper and confusing, and grounds for reversal. We affirm.
Background. The petitioner's criminal history includes a litany of convictions for sexual offenses, committed against ten different female victims between 1994 and 2003. In virtually all of these incidents, the petitioner approached female strangers, attempted some nominal conversation, and then proceeded to touch them in inappropriate ways without their consent. The petitioner was promptly apprehended and prosecuted after each incident, and as a result, several of the incidents occurred while under the supervision of probation for the prior infractions, constituting violations of probation. In total, the petitioner served three periods of incarceration between 1995 and 2007. In November of 2007, the petitioner was civilly committed to the treatment center. On December 8, 2014, the petitioner filed a petition for examination and discharge, pursuant to G. L. c. 123A, § 9.
At the 2018 trial, three expert psychologists testified for the Commonwealth -- Dr. James Schrage, a forensic psychologist who serves as a member of the community access board (CAB) and was its representative at trial, and two qualified examiners who had reviewed the petitioner's record and interviewed him prior to trial. All three psychologists testified that the petitioner suffered from frotteuristic disorder, at a level that meets the statutory definition of a mental abnormality under G. L. c. 123A, § 1. The psychologists each explained that their diagnosis was informed by the petitioner's long history of offenses as well as information contained in his treatment reports; the petitioner had candidly discussed his compulsions with treatment staff, and had admitted that he had committed many similar offenses over the years, and many for which he was never charged. The petitioner also had a substantial history of sexual misconduct during his incarcerations and even after arriving at the treatment center, although the psychologists each noted that the petitioner had shown improvements in recent years. The psychologists also testified to the petitioner's spotty overall record of compliance with his courses of treatment, including both successes and remaining challenges to his recovery.
All three psychologists stated that the petitioner possessed risk factors that placed him at an elevated risk of reoffending if released, and opined that he remained a sexually dangerous person. Dr. Schrage testified that the CAB's unanimous position was that the petitioner remained a sexually dangerous person, and that he held the same opinion to "a reasonable degree of professional certainty." The two qualified examiners were questioned by the Commonwealth using essentially the same phrase:
"[D]octor, based on your training and your experience, your review of [the petitioner]'s records, and your interview with [the petitioner], do you have an opinion, to a reasonable degree of professional certainty, whether [the petitioner] is, today, a sexually dangerous person?"Both qualified examiners answered in the affirmative.
The petitioner presented three witnesses who testified on his behalf, including a social worker who had worked with him to develop a release plan for housing and other services, should he be released. The jury returned a verdict that the petitioner remained a sexually dangerous person, and he was remanded to the treatment center to continue treatment.
Discussion. On appeal, the petitioner argues that the use of the phrase "reasonable degree of professional certainty" violated his right to due process under the Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. While he couches his argument in various ways, the thrust of the argument is that the phrase was not defined, either by the testifying experts or by the judge, and could be very confusing to the jurors. The petitioner objects to the word "certainty," and also notes that the standard could be confused with the ultimate standard the jury must apply -- beyond a reasonable doubt. He thus claims that the experts failed to adequately explain the degree of certitude intended, and that the phrase usurps the jury's role and dilutes the Commonwealth's burden of proof. The petitioner also argues that the use of the phrase should be abandoned in the Commonwealth; he points out that other entities -- most notably the National Commission on Forensic Science -- have raised and recognized these same potential issues with the use of the phrase.
The argument the petitioner now advances was not made in any way at trial. There was no objection to the experts' use of the phrase. Accordingly, our review is for whether the experts' adoption of the phrase was error, and if so, whether it created a substantial risk of a miscarriage of justice. In making this determination, we consider: (1) the strength of the Commonwealth's case against the petitioner, (2) the nature of the error and whether it was "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error," and (3) whether it can be inferred "from the record that counsel's failure to object was not simply a reasonable tactical decision." Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).
We conclude that there was no substantial risk of a miscarriage of justice here. In so ruling, we need not address the appropriateness of the phrase in question, because in the context of this trial, the petitioner has not raised a likelihood that the use of the phrase had an impact on the jury's decision. Each psychologist testified at length regarding the bases of their opinion, which included the history of the petitioner's inability to control his compulsions, including while incarcerated, committed, and while under the supervision of probation. Despite some small inconsistencies, the psychologists largely testified along the same lines regarding the petitioner's risk factors. This testimony was not refuted by the petitioner's expert, who instead testified to the release plan she created with the petitioner to mitigate his risk of reoffending.
Similar phraseology has been employed in our courts for many years, and was approved by the Supreme Judicial Court in an opinion regarding the testimony of ballistics experts, in 2011. Commonwealth v. Pytou Heang, 458 Mass. 827 (2011). In Pytou Heang, the Supreme Judicial Court endorsed the use of the phrase "reasonable degree of ballistic certainty" by an expert, noting that it could help the jury make sense of what is ultimately an "empirically based but subjective [opinion]." Id. at 848. The formulation used by the experts in this case, "reasonable degree of professional certainty," is not materially different than the formulation in Pytou Heang.
Nevertheless, it is true that the "reasonable degree of . . . certainty" language has received some criticism recently. The defendant cites in his brief the 2016 report of the National Commission on Forensic Science, which expressed concern over the use of such phrases. See National Commission on Forensic Science, Recommendations to the Attorney General Regarding Use of the Term "Reasonable Scientific Certainty" (2016).
Moreover, the trial judge deftly instructed the jury on how to assess the testimony given by the experts, and his instructions addressed at least some of the concerns the petitioner now raises. For example, the judge expressly addressed the difference between expert testimony and the use of the phrase "to a reasonable degree of professional certainty," and the jury's separate duty to determine sexual dangerousness beyond a reasonable doubt. He instructed the jury prior to deliberations:
"Expert witnesses do not decide cases; juries do. . . . It's up to you to evaluate the credibility of each of the witnesses and decide whether and to what extent you accept their opinions . . . . When an expert expresses an opinion, even one that he or she says is based on a 'reasonable degree of professional certainty,' keep in mind that the expert is testifying according to the principles of psychology. You have a different task, determining whether something is proven beyond a reasonable doubt. Psychologists and psychological principles do not determine whether something is proven beyond a reasonable doubt; juries do that."We presume that the jury followed these instructions. Commonwealth v. Pope, 406 Mass. 581, 588 (1990).
Accordingly, the use of the phrase "to a reasonable degree of professional certainty" in this trial created no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Rubin, Desmond & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: November 18, 2020.