Opinion
14-P-772
09-22-2015
WILLIAM E. JANOWICZ, 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
William E. Janowicz (petitioner) appeals from a judgment, entered after a jury trial, that he remains a sexually dangerous person (SDP) under G. L. c. 123A, §§ 1, 9. He argues that certain evidence was erroneously admitted and that the Commonwealth's evidence of his current sexual dangerousness was insufficient. We affirm.
The Commonwealth argues that the matter is moot, citing McIntire, petitioner, 458 Mass. 257 (2010). According to the Commonwealth's brief, "[a]fter the 2009 jury verdict [in the present case], Janowicz filed another G. L. c. 123A, § 9 petition for discharge. S.A.1. A jury trial was held on that petition in Suffolk Superior Court in October 2012. S.A. 1. The jury returned a verdict that Janowicz remained sexually dangerous on October 19, 2012. Janowicz is also appealing from the 2012 verdict that he remains sexually dangerous. S.A. 1." Unfortunately nothing in the record before this court, including the Commonwealth's supplemental appendix and addendum, supports those representations. There is a docket sheet for what appears to be a subsequent petition for discharge, filed November 26, 2012; however, the last entry, "Appointment of Counsel," is dated April 5, 2013.
Background. In 1977, when he was twenty-one years old, the petitioner pleaded guilty to his governing offenses of armed assault with intent to maim, sodomy, two counts of indecent assault and battery on a child under fourteen, unnatural acts with a child under sixteen, and assault and battery by means of a dangerous weapon (needle and hot iron). His victims were a five year old girl and seven year old boy for whom he was babysitting. He received an eighteen-year sentence. In 1986, he was civilly committed to the Massachusetts Treatment Center as an SDP.
Despite pleading guilty, the petitioner consistently has denied committing any offenses against the male victim.
The petitioner has been diagnosed with pedophilia and schizotypal personality disorder. In the past, he reported masturbating three to four times per day. At the time of trial, he masturbated twice per day. While incarcerated on his governing offenses, the petitioner was investigated for sexually assaulting another inmate, and, while committed at the treatment center, he pretended that he was a woman and maintained pen pal relationships with young girls. The petitioner's letters to these children were sexual in nature. He has never received mental health treatment and first participated in sex offender treatment in January, 2007. However, he did not participate in sex offender treatment in 2008 or 2009. Also, in an April, 2007, review by the Community Access Board (CAB), the petitioner reiterated his intention to drink alcohol upon release from custody because he did not believe that alcohol was a problem for him and did not contribute to his sexual offending.
He discontinued treatment in March, 2007.
The petitioner was drinking alcohol when he committed the governing offenses and has stated that he is an alcoholic.
Discussion. 1. Evidence of nonparticipation in treatment. Citing Commonwealth v. Hunt, 462 Mass. 807 (2012), the petitioner first argues error in the admission of evidence that he had withdrawn from or refused sex offender treatment. Because this issue was not raised before or during the trial, it is waived. See Commonwealth v. Mazzarino, 81 Mass. App. Ct. 358, 367 (2012). Even if it were not, the petitioner concedes that there is no evidence that waiving confidentiality was a prerequisite to receiving treatment. As a result, "[t]he issue is not whether [the petitioner] was 'obligated' to participate in sex offender treatment programs, but rather the effect of his failure to participate in such programs on the current state of his mental abnormality and therefore his sexual dangerousness." Commonwealth v. Chapman, 444 Mass. 15, 24 (2005). The petitioner's failure, over the course of thirty years, meaningfully to participate in treatment of any kind was "particularly relevant to [his] present ability to control a mental abnormality (pedophilia) that otherwise creates a substantial risk of additional sexual offenses." Ibid. His "refusal to participate in sex offender treatment [was] not being used against him in a criminal proceeding; his refusal [wa]s insufficient alone to support a finding of sexual dangerousness, and the Commonwealth [was] merely giving 'evidentiary value' to his refusal." Hunt, supra at 815. There was no error.
2. Sufficiency of the evidence. The petitioner next challenges the sufficiency of the evidence. "To establish that the defendant is an SDP, the Commonwealth was required to prove that (1) the defendant was convicted of a sexual offense; (2) the defendant suffers from a mental abnormality or personality disorder; and (3) the defendant's mental abnormality or personality disorder makes him likely to engage in sexual offenses if not confined to a secure facility." Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 268 (2014). "[W]e review the evidence in the light most favorable to the Commonwealth." Ibid.
There is no dispute that the petitioner was convicted of a sexual offense, and all four expert witnesses testified that he has pedophilia and schizotypal personality disorder. One qualified examiner testified that pedophilia is a chronic condition, and that those afflicted require treatment to "learn interventions and strategies to reduce sexual interest in children, to reduce sexual arousal to children, to be able to manage their sexual urges," and to learn techniques to avoid reoffending. Another qualified examiner testified that the petitioner's personality disorder makes it difficult for him to connect with others, including therapists, increasing his danger to others. There was substantial evidence that the petitioner has not received any mental health treatment and that he has dropped out of sex offender treatment. The jury could credit the qualified examiner's testimony that "research has consistently shown that people who drop out of treatment . . . present a higher risk of reoffending than people who . . . complete or significantly progress through treatment."
In addition, both qualified examiners testified that the petitioner's offenses were compulsive, which the Commonwealth was required to prove. See Dutil, petitioner, 437 Mass. 9, 15 (2002). The jury also could conclude from the petitioner's letters to young girls while he was committed, his ordering of magazines geared toward younger women, and his frequent masturbation while fantasizing about women, that he presently has a "general lack of power to control" his pedophilia and sexual impulses. Ibid. See and compare Hill, petitioner, 422 Mass. 147, 157 (1996) (noting that "[e]xamples of recent conduct showing sexual dangerousness may often be lacking where the individual's dangerous disposition is of a sort that there will be no occasion for that disposition to manifest itself in a secure environment"), with Commonwealth v. Pariseau, 81 Mass. App. Ct. 705, 708 (2012), S.C., 466 Mass. 805 (2014) (experts testified "that other pedophiles they have dealt with have found outlets for their deviant urges in prison such as collecting photographs or magazines relating to children and watching television shows geared toward children"). Together with evidence that the petitioner had no concrete plans for housing, employment, or treatment upon release, the jury could reasonably conclude beyond a reasonable doubt that the petitioner currently presents a high risk of reoffending, and remains sexually dangerous.
To one qualified examiner, the letters show that the petitioner's deviant interests have persisted and are so great that they override institutional controls.
The petitioner did not identify any treatment programs that he would attend upon release. He would not be subject to community supervision, and he could not provide the names of people he claimed to know who would help him transition into the community. While the petitioner stated his intent to stay with his sister, his own expert noted that the sister had not visited the petitioner since the 1980's, and the telephone number for the sister provided by the petitioner no longer was in service.
The petitioner's expert considered the petitioner's age to be a mitigating factor, suggesting that he no longer is sexually dangerous. The Commonwealth's witnesses disagreed, in light of his continued and frequent masturbation. "Weighing and crediting the testimony are for the trier of fact," Hill, 422 Mass. at 156, and this jury apparently concluded that the petitioner's age did not mitigate his current sexual dangerousness.
Judgment affirmed.
By the Court (Grainger, Hanlon & Carhart, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 22, 2015.