Opinion
19-P-202
08-04-2020
COMMONWEALTH v. ROBERT LAFLAMME.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
After a jury-waived trial in the Superior Court, the defendant was found to be a sexually dangerous person (SDP), and he was committed to the Massachusetts Treatment Center under G. L. c. 123A, § 14 (d).
On appeal he argues the following: (1) the evidence at trial was insufficient to commit him as an SDP; (2) the qualified examiners (QEs) failed to empirically support their opinions on his risk factors, rendering their opinions nonprobative and inadmissible; and (3) the Commonwealth did not prove that he had serious difficulty controlling his behavior, separate from proof of his likelihood of future offense, as required by constitutional due process. We affirm.
Background. In 2016, while the defendant was serving a State prison sentence on convictions of possession of child pornography and dissemination of obscene material to a minor, the Commonwealth filed a petition in the Superior Court to commit the defendant as an SDP under G. L. c. 123A, § 14.
The defendant was fifty-two years old at the time of his SDP trial in 2017. At trial, the Commonwealth relied on the testimony of two QEs, Drs. Angela Johnson and Gregg Belle. Both testified that the defendant met the statutory definition of an SDP. The defendant countered with the testimony of his expert witness, Dr. Frederick Winsmann, who opined that the defendant was not an SDP.
Discussion. 1. Sufficiency of the evidence. An SDP is defined under G. L. c. 123A, § 1, as "any person who [1] has been . . . convicted of . . . a sexual offense and who [2] suffers from a mental abnormality or personality disorder which [3] makes the person likely to engage in sexual offenses if not confined to a secure facility." On appeal, the defendant challenges the sufficiency of the evidence only as to the third element.
We review a sufficiency challenge to an SDP determination "under the settled standard: 'whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G. L. c. 123A, § 1.'" Commonwealth v. Husband, 82 Mass. App. Ct. 1, 4 (2012), quoting Commonwealth v. Blake, 454 Mass. 267, 271 (2009) (Ireland, J., concurring). We defer to any of the trial judge's findings that are based on expert testimony, and "will not substitute our judgment for that of the trier of fact." Husband, supra, quoting Commonwealth v. Sargent, 449 Mass. 576, 583 (2007).
The defendant specifically argues, relying on Commonwealth v. Suave, 460 Mass. 582, 588 (2011), that the evidence at trial was insufficient to support the finding that he was likely to commit either a contact sex crime or a noncontact sex crime that would "instill in his victims a reasonable apprehension of being subjected to a contact sex crime." We disagree.
Suave is distinguishable, as the judge noted. In Suave, 460 Mass. at 588, the Supreme Judicial Court (SJC) held that absent evidence that a defendant "had ever stalked, lured, approached, confined, or touched a victim," and where "there was no reason to believe he would target children" or that his "future sexual offenses would escalate into contact offenses, the judge should have concluded that, as a matter of law, the manner in which the defendant would likely commit a future 'sexual offense' . . . would not render him a 'menace to the health and safety of other persons'" under the definition of "mental abnormality" in G. L. c. 123A, § 1. However, the SJC went on to note that "[e]ach case is fact specific," and that it could "easily envision a case where the outcome might be different, based on the specific behavior of a particular defendant." Suave, supra at 589.
Suave, 460 Mass. at 588, explains the following: "The term 'menace,' as it is used in the definition of '[m]ental abnormality' in G. L. c. 123A, § 1, and as that term is used in the definition of '[s]exually dangerous person,' which requires proof of the likely commission of a 'sexual offense,' connotes a person whose conduct will objectively put his victim in fear of bodily harm by reason of a battery and, specifically, a contact sex crime. In other words, the Commonwealth must show the defendant's predicted sexual offenses will instill in his victims a reasonable apprehension of being subjected to a contact sex crime."
Here, the judge concluded that although the QEs did not specifically predict a future contact sex crime or a future noncontact sex crime that would cause a victim to reasonably fear a contact sex crime, the defendant's "behavior" made him a "menace to the health and safety of other persons, particularly minors." In contrast to Suave, the judge here found that the defendant, among other things, committed a contact sex crime against his eight year old niece, lured that same niece into the woods in an attempt to commit a separate contact sex crime against her, exposed himself to three other children on at least four different occasions, and showed pornography to yet another child.
These facts were sufficient for the judge to find that the defendant was a "menace" within the meaning of G. L. c. 123A, § 1, satisfying this prong of the SDP test. See Commonwealth v. Fay, 467 Mass. 574, 581-582 (2014) (sufficient evidence that defendant was menace even "where he [wa]s likely to commit only noncontact sexual offenses," because "evidence showed that the defendant was likely to target children . . . [and] all of the predicate offenses . . . included either luring behavior, approaching behavior, or both").
The defendant's arguments under Commonwealth v. Almeida, 467 Mass. 1015, 1016 (2014), and Commonwealth v. Walker, 467 Mass. 1017, 1018 (2014), are unavailing. In Almeida, supra, quoting Suave, 460 Mass. at 183, the SJC ruled that where a judge does not "make any finding that [a] defendant is a menace on the specific basis that [his] predicted future noncontact offenses are likely to instill in his victims 'a reasonable apprehension of being subjected to a contact sex crime,'" an SDP determination cannot stand under Suave. Similarly, the SJC ruled in Walker, supra, that where a judge finds "future contact offenses [to be] less than likely, the possibility of future contact offenses may not be considered in determining whether the defendant is a 'menace.'" The SJC went on to explain that "[i]f, however, the judge [finds] that the defendant is likely to commit contact offenses, this likelihood alone is sufficient to support a conclusion that the defendant is a 'menace,' regardless of the judge's findings regarding . . . noncontact offenses." Id.
We note that Dr. Belle specifically testified to his opinion that the defendant was "likely to commit both" a contact offense and a noncontact offense.
"In assessing the risk of reoffending, it is for the fact finder to determine what is 'likely.'" Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). "Such a determination must be made on a case-by-case basis, by analyzing a number of factors, including the seriousness of the threatened harm, the relative certainty of the anticipated harm, and the possibility of successful intervention to prevent that harm." Id. "While 'likely' indicates more than a mere propensity or possibility, it is not bound to the statistical probability inherent in a definition such as 'more likely than not,'" nor does it "amount[] to a quantifiable probability. . . . [B]y its plain meaning, [it] demands contextual, not statistical, analysis." Id. at 277.
Here, given the QEs' testimony detailing the defendant's pedophilic disorder, the history of his sex offenses and their probable impact, and the judge's findings that the defendant is "likely to engage in sexual offenses" and "continue[s] [to] struggle with deviant thoughts and fantasies of prepubescent children despite years of treatment," we can infer the judge determined that the defendant would likely commit a future contact sex crime, or a noncontact sex crime that would cause his victim to reasonably fear a contact sex crime. Viewing the trial evidence in the light most favorable to the Commonwealth, that determination was supported by sufficient evidence.
2. Empirical support for QEs' opinions. Relying on Commonwealth v. Hunt, 462 Mass. 807, 818 (2012), the defendant argues that the QEs repeatedly failed to support with empirical evidence their opinions regarding the defendant's risk factors. There was no error.
In Hunt, 462 Mass. at 819, the SJC held that evidence that a defendant refused sex offender treatment conditioned on a waiver of confidentiality is inadmissible, while evidence that a defendant did not receive treatment is admissible. The SJC stated that an expert may offer the opinion, "assuming it is sufficiently supported by empirical evidence," that those who receive treatment are less likely to reoffend. Id. at 818. The defendant seems to read this statement to require the Commonwealth's experts to support all aspects of their oral testimony with empirical data. Such a reading is overbroad.
The SDP statute "expressly provides that 'the report of any qualified examiner . . . shall be admissible at the trial.'" Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 284 (2004), quoting G. L. c. 123A, § 14 (c). A QE's oral testimony is also admissible. See Bradway, supra at 286-287. While a QE's "testimony and reports . . . are not wholly immune to judicial scrutiny," Commonwealth v. Baxter, 94 Mass. App. Ct. 587, 590 (2018), "[o]pinion testimony by a trained psychiatrist or psychologist concerning his or her evaluation and diagnosis of an individual's mental state and possible sexual dangerousness is a type of evidence that is grounded in recognized theories and principles and has long been deemed admissible," Commonwealth v. Camblin, 471 Mass. 639, 649 n.22 (2015).
Of course, "[a] qualified examiner's testimony is . . . subject to the test of rigorous cross-examination. 'If the opinions of the [qualified examiners] are based on incorrect information it would be open to a [defendant], as was done here to some extent, to refute it.'" Bradway, 62 Mass. App. Ct. at 289, quoting Commonwealth v. McGruder, 348 Mass. 712, 716 (1965).
Here, the defendant misapplies Hunt in claiming that the QEs' supposed failure to support their testimony with empirical evidence renders that testimony inadmissible. To the extent that Hunt requires empirical evidence, both experts filed reports with a nonexhaustive list of sources, including the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) and articles in peer-reviewed medical journals.
The QEs' oral testimony regarding the defendant's risk factors, derived from their evaluations of the defendant, was admissible. See Camblin, 471 Mass. at 649 n.22. The QEs were both trained and licensed psychologists with specific training and experience in evaluating sex offenders. After interviewing the defendant and reviewing his court and medical records, prior SDP evaluations, and treatment history, they testified about the defendant's risk factors. Such testimony was proper. See id. Moreover, the QEs were subject to extensive cross-examination during which they explained their conclusions. See Bradway, 62 Mass. App. Ct. at 289 (discussing importance of cross-examination in revealing strengths and weaknesses of expert opinion).
We now address some of the defendant's remaining -- and more specific -- contentions. The defendant argues that, in addition to violating Hunt, in some instances the QEs' opinions lacked a "logical basis." Contrary to the defendant's claim, the QEs explained the bases of their opinions in these instances. The defendant's argument essentially amounts to a claim that the judge should not have credited the QEs' opinions because their logic was flawed. We note that flaws in a QE's "analytical process" affect the weight of their testimony, not its admissibility. See Sacco v. Roupenian, 409 Mass. 25, 30 (1990). See also Commonwealth v. Waller, 90 Mass. App. Ct. 295, 302 (2016) ("imprecision in [a doctor's] opinions . . . goes to their weight, not their admissibility"). The judge "accept[ed] the testimony and reports of the Commonwealth's expert witnesses . . . as credible."
As the trier of fact is in the best position to weigh and credit witness testimony, and as "there is nothing in the record to suggest that the judge could not properly evaluate the expert testimony," Bradway, 62 Mass. App. Ct. at 289-290, we will not substitute our judgment for that of the judge here. See Sargent, 449 Mass. at 583.
Finally, the defendant argues that the QEs failed to support their statements that pedophilic disorder does not go away without treatment. Dr. Johnson testified that if a defendant's risk factors are not mitigated by treatment or "something beyond [his] control," "that's how that person is going to be." She explained that "with [the defendant] nothing is different than when he went into the community last time except that he is a bit older." There was nothing improper about Dr. Johnson's testimony, as her opinion was based on her diagnosis and evaluation of the defendant. See Camblin, 471 Mass. at 649 n.22.
Similarly, in response to the prosecutor's question whether there is a "cure" for pedophilic disorder, Dr. Belle testified that the disorder "in general is a chronic and enduring condition" that is "comparable in terms of its course to alcoholism. . . . It's always something that needs to be addressed." There was nothing improper about this testimony. See Camblin, 471 Mass. at 649 n.22.
In sum, the QEs' testimony regarding the defendant's risk factors was admissible. There was no error below.
3. Serious difficulty in controlling behavior. In Kansas v. Crane, 534 U.S. 407, 409-410 (2002), the United States Supreme Court (Supreme Court) noted that it
"has 'consistently upheld . . . involuntary commitment statutes when (1) the confinement takes place pursuant to proper procedures and evidentiary standards, (2) there is a finding of dangerousness either to one's self or to others, and (3) proof of dangerousness is coupled . . . with the proof of some additional factor, such as a mental illness or mental abnormality'" (quotations omitted).Fay, 467 Mass. at 584-585, quoting Crane, supra. The Supreme Court went on to explain that commitment requires proof of "serious difficulty in controlling behavior." Id. at 413.
The defendant concedes that a majority of courts have found Crane satisfied by a finding of a disorder leading to predicted sexual reoffense. See, e.g., Richard S. v. Carpinello, 589 F.3d 75, 83-84 (2d Cir. 2009), and cases cited. Nonetheless, he urges us to adopt the minority view, that in order to civilly commit him on the basis of sexual dangerousness, the government must prove as a separate element that he has serious difficulty controlling his behavior. See, e.g., Matter of R.A.S., 930 N.W.2d 162, 165 (N.D. 2019) (embracing minority view). We decline to do so.
In 1997, and again in 2002, the "Supreme Court upheld a statute similar to G. L. c. 123A in the face of constitutional challenges." Fay, 467 Mass. at 584, citing Crane, 534 U.S. at 409-410. See Kansas v. Hendricks, 521 U.S. 346, 357-358 (1997).
As recently as 2014, the SJC reaffirmed the constitutionality of G. L. c. 123A's tripartite test for committing someone as an SDP, stating that "[p]rotecting children from . . . persons suffering from a mental disorder who, as a consequence, are likely to engage in [dangerous] conduct falls well within constitutional boundaries." Fay, 467 Mass. at 586, citing New York v. Ferber, 458 U.S. 747, 757 (1982). As recently as 2019, the SJC discussed this tripartite test as the applicable test for committing someone as an SDP, while acknowledging that "civil commitment is justified only . . . in 'certain narrow circumstances where the individual's dangerousness is linked to a mental illness or abnormality that causes the individual to have serious difficulty in controlling his or her behavior'" (quotation omitted; emphasis added). Chapman, 482 Mass. at 298 (2019), quoting Kenniston v. Department of Youth Servs., 453 Mass. 179, 184 (2009).
The SJC has acknowledged the requirement of Crane, that the government must prove a person's serious difficulty in controlling his behavior in order to civilly commit him as an SDP. See Chapman, 482 Mass. at 298. The SJC has also indicated time and again that G. L. c. 123A's test for committing someone as an SDP is the test to be applied in this Commonwealth. See, e.g., Chapman, supra at 299-300 & n.7; Fay, 467 Mass. at 580.
The defendant's reliance on Commonwealth v. Reyes, 464 Mass. 245, 259 (2013), is misplaced. That case stands for the principle that "[a] judge must instruct a jury on the law applicable to the crime for which a defendant is charged . . . [by] defin[ing] or explain[ing] the offense charged [including] words or phrases in the statutes or cases establishing the offense." Id., quoting W.C. Flanagan, Trial Practice § 20.12, at 642-643 (2d ed. 2005). Contrary to the defendant's suggestion, it does not follow that "Reyes does not permit a finding that proof of one element is implicit in proof of another."
The SJC recognizes that G. L. c. 123A comports with Crane, and with constitutional due process. See Dutil, petitioner, 437 Mass. 9, 18 (2002) (if civil commitment "statute requires a showing that the prohibited behavior is the result of a mental condition that causes a serious difficulty in controlling behavior, the statute meets due process requirements. The language of G. L. c. 123A, as we have interpreted it, clearly requires such a showing"). Even if we were in a position to disagree, we see no reason to do so.
Moreover, even if we were to require the Commonwealth to prove a separate element of serious difficulty in controlling behavior, the judge addressed that criterion when she reasonably concluded that the defendant "lack[ed] . . . power to control his sexual impulses [a]s evident from [his] past crimes as well as [his] governing offense."
Judgment affirmed.
By the Court (Sullivan, Kinder & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 4, 2020.