Commonwealth v. Mackie

100 Mass.App.Ct. 78

175 N.E.3d 896

COMMONWEALTH

v.George MACKIE.

No. 20-P-530

Appeals Court of Massachusetts, Worcester.

Argued May 10, 2021.

Decided July 29, 2021.

John S. Day, Boston, for the defendant.

Donna-Marie Haran, Assistant District Attorney, for the Commonwealth.

Present: Milkey, Henry, & Singh, JJ.

MILKEY, J.

A Superior Court jury found that the defendant was a "sexually dangerous person" (SDP) within the meaning of G. L. c. 123A, § 1. Accordingly, the trial judge entered an order committing him to the Massachusetts Treatment Center for an indefinite period. On appeal, the defendant principally challenges the Commonwealth's reliance on police reports and other documentary material that set forth allegations that he had committed various sexual offenses for which he never was convicted. The defendant repeatedly opposed the introduction of such evidence in a pretrial motion in limine and during the trial. The judge admitted the challenged evidence, relying in great part on our decision in Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 867 N.E.2d 811 (2007). We agree with the defendant that, notwithstanding Starkus, the admission of some of the evidence was error, and that a new trial is warranted. We disagree with the defendant's separate argument that the Commonwealth's evidence was legally insufficient to support his adjudication as an SDP.

Background. 1. The 2003 indictments and 2006 plea bargain. In 2003, the defendant was indicted for ten sexual offenses involving a twelve year old boy whom the defendant recently had adopted. The litany of charges regarding the boy, to whom we refer by the pseudonym Cole, included rape of a child (two counts); rape (two counts); indecent assault and battery on a child under the age of fourteen (two counts); indecent assault and battery on a person aged fourteen or older (two counts); open and gross lewdness; and dissemination of matter harmful to a minor. The allegations that Cole had made were detailed in reports from the Shirley and Ayer police.¹

In 2006, the 2003 case was resolved through a plea agreement in which the defendant pleaded guilty only to two counts of assault and battery, which were treated as lesser included offenses of the indictments for indecent assault and battery of a person under the age of fourteen.² The indictment for disseminating material harmful to a minor was dismissed, and the other indictments were placed on file without a change of plea. A transcript of the plea colloquy in that case was not admitted in evidence at the SDP trial and is not before us.

2. The 2009 case. In 2009, a Superior Court jury convicted the defendant of two counts of rape of a child. The victim of those rapes was a thirteen year old boy to whom we refer by the pseudonym Allen. According to the police report regarding these incidents, the defendant had "groomed" Allen by purchasing him presents and showing him pornography, among other things.³ The police report also referenced evidence that the defendant during the same time period similarly had tried to groom an eleven year old boy to whom we refer by the pseudonym Brent. Allen and Brent knew each other, and the defendant sometimes met them together. The defendant was not charged with any sexual misconduct involving Brent.

3. The SDP trial. Near the conclusion of the defendant's prison sentence for the rapes of Allen, the Commonwealth petitioned to have him confined as an SDP. As required by G. L. c. 123A, § 13 (a ), the defendant was examined by two qualified examiners (QEs). See Johnstone, petitioner, 453 Mass. 544, 547, 903 N.E.2d 1074 (2009) (discussing role of QEs in SDP process). One of the QEs, Dr. Robert H. Joss, concluded that the defendant met the criteria to be classified as an SDP. At the trial, the Commonwealth called Dr. Joss as its principal witness. In proving the underlying facts, the Commonwealth relied principally on documentary evidence, such as the police reports relating to the incidents involving Cole, Allen, and Brent. The information contained in the police reports was also repeated in the QE report prepared by Dr. Joss, which separately was admitted as an exhibit. The Commonwealth called two additional witnesses, whose testimony amounted to fifteen total pages of transcript.⁴

Prior to trial, the defendant filed a motion in limine seeking to exclude the Commonwealth's evidence insofar as it provided evidence of sex offenses for which he never was convicted. The defendant especially focused on the material that laid out Cole's allegations. The judge denied this portion of the motion. In concluding that the documentary material regarding Cole was admissible, the judge expressly relied on our decision in Starkus.

The allegations that Cole and Brent made were conveyed to potential jurors even before the trial began, because the judge included them in the pretrial summary of the case that she provided to the jury venire. In fact, apparently drawing from the substance of the police reports, which had been repeated in Dr. Joss's QE report, the judge presented to the venire the allegations that Cole and Brent had made as unqualified statements of fact.⁵ During the trial itself, the judge admitted the police reports and other documentary evidence detailing Cole's and Brent's allegations over the defendant's repeated objections.⁶

The defendant testified in his own behalf. He stated that during his 2006 plea colloquy, he did not admit to facts supporting any charge that he sexually assaulted Cole. Although the Commonwealth questions the defendant's credibility, it makes no claim that he admitted to the sexual nature of the assault and battery to which he pleaded guilty. As noted, the plea colloquy itself is not before us. On the current record, it appears that the defendant consistently has denied ever committing any sexual offense with respect to Cole, and admits only to having restrained Cole as a form of discipline. In his trial testimony, the defendant also denied that he had raped Allen even though a jury had convicted him of those charges.

In addition to his own testimony, the defendant called two experts to testify to why they believed that he did not meet the criteria of an SDP. One was the other QE who had examined the defendant, Dr. Gregg Anthony Belle. The other was Dr. Joseph J. Plaud, an independently retained forensic psychologist. At one point during cross-examination, the prosecutor had Dr. Belle confirm that in applying the actuarial model known as the "Static-99R" test to the defendant, Dr. Belle had assumed that the defendant had been charged with sex offenses against victims other than Allen.

Discussion. 1. Sufficiency. In order to prove that the defendant was an SDP, the Commonwealth had to establish, among other things, that he suffered from a "mental abnormality or personality disorder." G. L. c. 123A, § 1 (definition of "sexually dangerous person"). As laid out in the testimony and report of Dr. Joss, the Commonwealth's theory of the case was that the defendant suffered from the mental abnormality known as "pedophilic disorder." The defendant argues that the Commonwealth's proof on this issue was legally insufficient. For the following reasons, we disagree.

In assessing the legal sufficiency of the Commonwealth's evidence, we, of course, view the evidence in the light most favorable to the Commonwealth, including by drawing all reasonable inferences in the Commonwealth's favor. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). See also Souza, petitioner, 87 Mass. App. Ct. 162, 169, 27 N.E.3d 395 (2015) (applying Latimore test to SDP adjudication). In addition, we consider all the evidence that was admitted, "without regard to the propriety of [its] admission." Commonwealth v. Sepheus, 468 Mass. 160, 164, 9 N.E.3d 800 (2014), quoting Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98, 920 N.E.2d 45 (2010). The ultimate question is whether, based on the evidence viewed in the Commonwealth's favor, "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." Souza, supra, quoting Commonwealth v. Blake, 454 Mass. 267, 271, 909 N.E.2d 532 (2009) (Ireland, J., concurring).

Dr. Joss, the Commonwealth's expert, opined that the defendant met the diagnostic criteria for pedophilic disorder that are set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-V).⁷ Such a diagnosis requires that an adult have "[o]ver a period of at least [six] months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child or children (generally age [thirteen] or younger)." The defendant argues that there was insufficient proof that he met the DSM-V criteria: in particular, that there was a lack of proof that any children he was sexually attracted to were prepubescent, and that any such attraction recurred over at least a six-month period.

As an initial matter, we note that in proving a mental abnormality or personality disorder, the Commonwealth need not satisfy the precise definitions set forth in the DSM, even where the Commonwealth's own expert expressly relied on those definitions. Compare Souza, 87 Mass. App. Ct. at 170, 27 N.E.3d 395, with id. at 176-177, 27 N.E.3d 395 (Milkey, J., dissenting). In any event, here the evidence was sufficient even if the Commonwealth were bound by the DSM-V definition. The Commonwealth presented evidence that in 2003, the defendant repeatedly raped his twelve year old son (Cole), and then, years later, raped a thirteen year old boy (Allen) and tried to groom (and to lure into his car) an eleven year old boy (Brent). Such evidence provided ample basis for a rational juror to conclude, beyond a reasonable doubt, that the defendant exhibited intense sexual urges toward prepubescent children that recurred over a...