Opinion
No. 15–P–768.
10-07-2016
Henry LAPAN, Jr., petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a trial in the Superior Court on his petition for release pursuant G.L. c. 123A, § 9, a jury found that the petitioner, Henry Lapan, Jr., should remain committed as a sexually dangerous person. On appeal the petitioner claims that (1) expert opinions in the community access board (CAB) report should have been excluded at trial as inadmissible hearsay, and (2) parts of the Commonwealth's opening statement and closing argument were improper. We affirm.
1. CAB report. At trial, a CAB report containing the expert opinions of five CAB members, all of whom agreed that the petitioner remains sexually dangerous, was admitted in evidence. Only one of the five CAB members testified at trial. She stated that “all five members unanimously agreed that [the petitioner] remains sexually dangerous.” For the first time on appeal, the petitioner claims the expert opinions of CAB members who did not testify at trial were inadmissible hearsay. We disagree.
We note that there is conflicting authority as to whether the petitioner's failure to raise this issue in the trial court bars further review, or whether we review any error for a substantial risk of a miscarriage of justice. Compare McHoul, petitioner, 445 Mass. 143, 156–157 (2005), cert. denied, 547 U.S. 1114 (2006) (issue raised for first time on appeal is waived); and Commonwealth v. Mazzarino, 81 Mass.App.Ct. 358, 367 (2012) (same); with Commonwealth v. Starkus, 69 Mass.App.Ct. 326, 340 (2007) (reviewing for substantial risk of miscarriage of justice); Commonwealth v. Lynch, 70 Mass.App.Ct. 22, 28–29 (2007) (same); Commonwealth v. Dresser, 71 Mass.App.Ct. 454, 458 n. 10 (2008) (same); and Gammell, petitioner, 86 Mass.App.Ct. 8, 10 n. 1 (2014) (same). We need not decide this issue, however, because even upon review, the petitioner is not entitled to relief.
General Laws c. 123A, § 6A, as appearing in St.1993, c. 489, § 4, requires the CAB to prepare reports on the “current sexual dangerousness of all persons at the treatment center” and further provides that “[t]he reports shall be admissible in a hearing under section nine.” In other words, CAB reports and the opinions contained therein are admissible pursuant to statute even if they contain otherwise inadmissible hearsay. See McHoul, petitioner, supra at 146 (no error where admitted reports are “among those made admissible by statute, notwithstanding that they contain hearsay”). Accordingly, there was no error in the admission in evidence of the CAB report or the opinion evidence contained therein. Id. at 147–153. Moreover, because the report was properly admitted, it was “permissible for the expert witness[ ] to reference that evidence in [her] own expert testimony.” Id. at 146.
2. Commonwealth's opening and closing. Because the petitioner did not object to the Commonwealth's opening statement or closing argument, “we review his claim to determine whether there was error and, if so, whether it gave rise to a substantial risk of a miscarriage of justice.” Commonwealth v. Shanley, 455 Mass. 752, 773 (2010). “We consider the challenged comments in light of the entire argument, the judge's instructions, and the evidence at trial.” Commonwealth v. Burns, 49 Mass.App.Ct. 677, 679 (2000).
In opening, counsel for the Commonwealth stated:
“[T]he Treatment Center, run by the Department of Correction, has a two-fold, two-tier objective; one, to treat its residents; and, two, to keep the community safe. You'll hear through the evidence that the Treatment Center has afforded, of which he's taken advantage of, the treatment over the years. But the second tier of keeping the public safe, that will be up to you ” (emphasis supplied).
The Commonwealth concedes that the highlighted portion of that statement was improper. We agree that the statement should not have been made, but there was no substantial risk of a miscarriage of justice. The judge cautioned counsel for the Commonwealth that the statement was improper, and that it should not be repeated in closing argument. The judge further explained that she did not want to emphasize the error by addressing it with a curative instruction. The petitioner did not object to the statement or the judge's decision not to give a curative instruction. “Although not dispositive, we consider the fact that the [petitioner] did not object to the statements at trial as ‘some indication that the tone [and] manner ... of the now challenged aspects of the [Commonwealth's] argument were not unfairly prejudicial.’ “ Commonwealth v. Lyons, 426 Mass. 466, 471 (1998), quoting from Commonwealth v. Mello, 420 Mass. 375, 380 (1995). See Commonwealth v. Johnson, 46 Mass.App.Ct. 398, 408 (1999). We note also that, before opening statements and again in her final charge, the judge clearly instructed the jury that opening statements are not evidence. See ibid. In short, “[t]he remark, although better left unsaid, does not require reversal.” Ibid., quoting from Commonwealth v. Wallace, 417 Mass. 126, 133 (1994).
The petitioner also claims that the Commonwealth improperly vouched for the testifying CAB member when, in closing, counsel for the Commonwealth stated:
“In the words of [the CAB member], [the petitioner] is not there to get an accounting degree. He's there to seek treatment, he's there to enter treatment, he's there to complete treatment and satisfy all the requirements. And she was honest. She said it's life-long.” (Emphasis supplied.)
“Improper vouching occurs if ‘an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury.’ “ Commonwealth v. Felder, 455 Mass. 359, 368 (2009), quoting from Commonwealth v. Ortega, 441 Mass. 170, 181 (2004). The Commonwealth's statement that “she was honest” was an improper comment on the credibility of a witness. However, we discern no substantial risk of a miscarriage of justice. “The judge carefully instructed the jury that it was their job ‘to assess and evaluate the credibility ... of the witnesses,’ and [s]he informed them that closing arguments are not evidence.” Commonwealth v. Nicholson, 20 Mass.App.Ct. 9, 18 (1985).
The petitioner claims that several other statements in the Commonwealth's closing were not supported by the evidence or were an improper appeal to the jury's sympathy and emotions. We discern no error. See Commonwealth v. Colon, 449 Mass. 207, 224 (2007) (“[A]ll of the factual assertions the [petitioner] points to as improper were supported by the evidence admitted or based on logical inferences drawn therefrom”).