Opinion
16-P-197
05-04-2017
ANTHONY DELUCK, petitioner.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
On September 10, 2004, following a trial in the Superior Court on his petition for release pursuant to G. L. c. 123A, § 9, a jury found that the petitioner, Anthony DeLuck, should remain committed as a sexually dangerous person (SDP). On appeal, the petitioner argues that (1) parts of the community access board (CAB) report constituted inadmissible hearsay that should have been redacted, and (2) the jury should have been given an instruction similar to the one given in Commonwealth v. Suave, 460 Mass. 582, 586 (2011). We affirm.
Background. In 2007, the petitioner was adjudicated an SDP and committed to Bridgewater State Hospital for a duration of one day to life. On September 20, 2010, he filed a petition for hearing and discharge pursuant to G. L. c. 123A, § 9. The matter proceeded to trial in 2014, where the Commonwealth called several expert witnesses to testify, including two qualified examiners and one CAB member. The Commonwealth also submitted in evidence the CAB report, pursuant to G. L. c. 123A, which contained findings of the other CAB members, including a unanimous opinion that the petitioner was still sexually dangerous. See G. L. c. 123A, §§ 6A, 9. The jury found that the petitioner remained an SDP.
Discussion. The petitioner argues that elements of the CAB report were hearsay, and therefore should have been redacted. However, this claim is not persuasive because the entirety of the CAB report is admissible under G. L. c. 123A. See §§ 6A, 9. CAB reports and the opinions contained therein are admissible pursuant to statute even if they contain otherwise inadmissible hearsay. See McHoul, petitioner, 445 Mass. 143, 146 (2005). Accordingly, there was no error in the admission in evidence of the CAB report or the opinion evidence contained therein.
The Commonwealth contends that the defendant waived the claims he makes on appeal because he failed to raise them at trial. See McHoul, petitioner, 445 Mass. 143, 157 (2005) (failure to raise claims below constitutes waiver). The petitioner, while conceding that the issues were not preserved, contends that the panel should review his claim under the substantial risk of a miscarriage of justice standard. See Commonwealth v. Lynch, 70 Mass. App. Ct. 22, 28 (2007). The petitioner suggests that since this was a close case and this court has considered waived issues in the past, we should consider the merits of this case. We need not resolve the parties' disagreement over the availability of review because, even if we were to accept the petitioner's position, we conclude that there was no error, and therefore no substantial risk of a miscarriage of justice.
The petitioner also contends that the jury should have been given a Suave instruction, requiring the Commonwealth to show that the petitioner's actions gave his victims a reasonable apprehension of being subjected to a contact sex crime. See Suave, 460 Mass. at 586. However, Suave is inapposite. Suave involved a noncontact sex offender, whereas here, the petitioner was convicted of both contact and noncontact offenses. Furthermore, Suave did not involve a petition for release pursuant to § 9, but a petition for commitment under G. L. c. 123A, §§ 12-16. Suave, supra. No Suave instruction was necessary.
We note that the petitioner has filed a subsequent petition pursuant G. L. c. 123A, § 9, which is scheduled to be heard in January, 2018.
Conclusion. For the foregoing reasons, the judgment that the petitioner remains an SDP is affirmed.
Judgment affirmed.
By the Court (Green, Massing & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 4, 2017.