Opinion
10-P-522
02-07-2012
PAUL ROBBINS, petitioner.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial before a Superior Court jury, the petitioner was committed, pursuant to G. L. c. 123A, § 14, as a sexually dangerous person. On appeal he contends that (1) the trial judge erred in failing to conduct a Daubert-Lanigan hearing prior to the testimony of psychologist Manju Vachher, one of the Commonwealth's qualified examiners; (2) Dr. Vachher was unqualified to serve as a qualified examiner in that she lacked the requisite experience prior to her designation as a qualified examiner; and (3) the trial judge improperly limited jury voir dire regarding bias. Substantially for the reasons set forth in the Commonwealth's brief at pages 11 through 28, we affirm.
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592- 595 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 25-27 (1994).
1. Daubert-Lanigan. The argument raised by the petitioner is controlled by this court's decision in Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 283- 290 (2004), in which we rejected a claim that the trial judge should have conducted a Daubert-Lanigan hearing prior to receiving the testimony of two qualified examiners.
Although the petitioner is correct that we did not in Bradway resolve the constitutional arguments he now makes, we did express skepticism, id. at 285 n.7, about such arguments given the United States Supreme Court's holding in Barefoot v. Estelle, 463 U.S. 880, 896-903 (1983) (psychiatric predictions of future dangerousness deemed constitutionally admissible in sentencing stage of death penalty cases). At trial, the petitioner had the opportunity to, and did in fact, elicit testimony from his own expert witnesses attacking the methodology on which the qualified examiners' testimony was based (even though he ultimately was unable to prevail before the jury). Therefore, the petitioner is left to argue that he has a constitutional right to a Daubert-Lanigan hearing to convince a judge to keep the jury from even hearing the testimony of the qualified examiners, but he is unable to locate any case that stands for that proposition. We decline to adopt such a principle here.
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2. Dr. Vachher's qualifications. In her curriculum vitae, Dr. Vachher stated that by the year 2000, she had been a clinical instructor in the department of psychiatry at Harvard Medical School for thirteen years and had been a designated forensic psychologist for the Department of Mental Health for ten years. The petitioner does not argue that Dr. Vachher was not qualified to offer her opinion as a qualified expert at the time of trial. Rather he argues that she was not qualified at the time of her designation. However, the petitioner has failed to provide us with any evidence in the record to support the claim.
3. Voir dire. We find no merit in the petitioner's argument that his right to trial by a fair and impartial jury was compromised by the judge's failure to ask prospective jurors whether they held opinions regarding whether a sexual offender could be rehabilitated. The judge proposed asking the prospective jurors whether they had any views or opinions regarding whether a person who has been convicted of sexual offenses was capable of being rehabilitated and whether that would interfere with the juror's ability to be fair. In response, counsel for the petitioner stated, 'I can redraft [what he originally proposed], Your Honor.'
Here, the petitioner made no indication that the changes suggested by the judge altered the question he had proposed in any way he thought was material, and he did not object when the question was asked; his claim therefore was waived. Moreover, the judge, in addition to asking the venire the revised question, informed the venire of the allegations, and asked each potential juror at least two other questions designed to determine whether the juror had the ability to be fair and impartial. There was no error.
Corrected judgment affirmed.
By the Court , (Graham, Rubin Milkey, JJ.),