Opinion
15-P-92
03-18-2016
BALTAZAR MORALES, 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
The petitioner, Baltazar Morales, appeals from a Superior Court judgment that entered after a jury verdict that he is a sexually dangerous person. The petitioner committed four sexual offenses with boys between six and twelve years of age between 1982 and 1997, all of which resulted in sentences of incarceration. In 2003, he was temporarily committed to the Massachusetts Treatment Center (treatment center), and in 2005, he was found to be sexually dangerous.
In May, 2010, the petitioner filed a petition in Worcester County for examination and discharge pursuant to G. L. c. 123A, § 9. The petition was transferred to the unified session of the Superior Court for Suffolk County where an eight-day jury trial was held in September, 2013. The petitioner raises two arguments in this appeal: (1) that the trial judge provided the jury with an incorrect definition of a sexually dangerous person; and (2) the failure to provide a proper definition did not permit the jury to find the petitioner to be a sexually dangerous person beyond a reasonable doubt.
Discussion. 1. Definition of sexually dangerous person. The petitioner asserts that the instruction given to the jury on the definition of a sexually dangerous person improperly lowered the Commonwealth's burden of proof by not requiring a showing that he suffers from a "mental abnormality" or a "personality disorder." This argument is based on a selective reading of the three subsections of the definition of a sexually dangerous person in G. L. c. 123A, § 1. The petitioner asserts that the judge gave an instruction under subsection (iii) which, unlike subsections (i) and (ii), does not include language stating that a person suffers from a mental abnormality or personality disorder. This argument misses the mark.
The petitioner asserts that because he was initially committed under subsection (i) he is entitled to be tried under that section at this time. There is no merit in this argument. In 1999, G. L. c. 123A, § 1, was amended by St. 1999, c. 74, § 6, to insert the definitions of mental abnormality and personality disorder in the definition of sexually dangerous person. There has been no subsequent change in those definitions since that time; therefore the petitioner's trial was conducted under the same definition of sexually dangerous person as in his initial commitment in 2005. See Johnstone, petitioner, 72 Mass. App. Ct. 123, 131 (2008) ("In determining whether a petitioner remains a sexually dangerous person, the Commonwealth must use the same definition of sexual dangerousness . . . as in an initial commitment proceeding"), S.C., 453 Mass. 544 (2009).
First, the "present version of G. L. c. 123A includes definitions of 'sexually dangerous person' that require that the individual suffer from a 'mental abnormality' or 'personality disorder.'" Dutil, petitioner, 437 Mass. 9, 12 (2002). "Our decisions since 1988 have . . . required that the Commonwealth demonstrate present dangerousness, . . . and the link of this dangerousness to a mental condition. . . . [W]e today reiterate our view that [G. L. c. 123A] requires the Commonwealth to prove a present mental condition that results in uncontrolled sexual impulses." Dutil, supra at 16.
Second, the statutory definitions standing alone are not used as jury instructions. The petitioner overlooks the necessity for the judge to correctly set the definitions into a framework for the jury's consideration. We summarize the following excerpts from the judge's instructions:
"[Y]ou cannot find the petitioner is a Sexually Dangerous Person today unless you credit the opinion of at least one Qualified Examiner that Mr. Morales suffers today from a mental condition that causes him serious difficulty in controlling his sexual impulses at the present time."The judge further instructed:
"While you may consider past conduct, your focus must be on the present. The question you must decide is whether Mr. Morales today suffers from a mental condition, not whether he suffered in the past from a mental condition."
There were no objections at any time during the jury charge conference or during the judge's charge to the jury.
However, the petitioner states in his brief that a timely objection rendered the instructions subject to a harmless error analysis. There is no citation to the record accompanying this argument nor was there an objection on this issue during the charge conference or during or after the charge to the jury. "It is black letter law that objections to evidence, or to any challenged order or ruling of the trial judge, are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent." See Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192-193 (2002), and cases cited.
We conclude there was no error and that the jury were properly instructed. The jury are presumed to follow the judge's instructions. Wyatt, petitioner, 428 Mass. 347, 359 (1998).
2. The jury verdict. The petitioner's second argument, restated at the conclusion of his brief, is that "[g]iven the strength of the defense witnesses' testimony and the overall weakness of the Commonwealth's, it is impossible to know whether the jury would have found beyond a reasonable doubt that Mr. Morales remained sexually dangerous had the judge provided them with a proper definition of sexual dangerousness."
We have determined that, in fact, the jury were properly instructed with regard to how to determine whether the petitioner is a sexually dangerous person. A review of the record shows a significant amount of evidence was presented to the jury, largely through expert opinion. That evidence has not been materially challenged by the petitioner. Thus, issues of the petitioner's mental condition (pedophilia), risk of reoffending as developed actuarially through Static 99R scores, cognitive limitations and borderline intellectual range, limited progress in treatment, and lack of preparation of a release plan, all were addressed in the testimony and reports of the parties listed in the margin. Finally, two qualified examiners opined that the petitioner is a sexually dangerous person. There is no risk that the jury improperly found the petitioner to be a sexually dangerous person.
The record contains the reports of qualified examiners Katrin Rouse-Weir and Gregg A. Belle; the May, 2013, annual review of the community access board (CAB), submitted by representative Andrea Barnes; the 2003 report of the qualified examiner Niklos Tomich; and a report of a neuropsychologist, Maria Munoz, all of whom testified.
The petitioner submitted an opinion of Joseph Plaud, a licensed psychologist who testified. Former treatment center residents Jorge Borea and Luis Cornier testified for the petitioner.
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 18, 2016.