In re Murphy

99 Mass.App.Ct. 1124

168 N.E.3d 384 (Table)

Conrad MURPHY, petitioner.

19-P-1778

Appeals Court of Massachusetts.

Entered: May 12, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2010 the petitioner was adjudged to be a sexually dangerous person and he was civilly committed to the Massachusetts Treatment Center (treatment center). In 2019 a jury found, on the petitioner's petition for examination and discharge, that the petitioner remains a sexually dangerous person and a judgment entered dismissing his petition. On appeal, the petitioner argues that the jury should not have heard evidence concerning his refusal to participate in sex offender treatment. The petitioner also argues that the prosecutor's opening and closing arguments were prejudicial; the trial judge improperly interfered with the petitioner's ability to present his case and restricted one witness's testimony; and the testifying experts improperly opined "to a reasonable degree of professional certainty." We affirm.

Background. The petitioner was convicted of indecent assault and battery in September 1987. In December 1989, following two additional convictions for sexually violent conduct, the petitioner pleaded guilty to charges of mayhem, indecent assault and battery, assault with intent to rape, armed assault with intent to murder, and assault and battery with a dangerous weapon. The December 1989 convictions arose from an incident in which the defendant induced a sixteen year old girl to enter his apartment; when she refused to engage in sex with him, the petitioner beat her with a hammer, threatened to kill her, and penetrated the victim's anus with his penis.

The petitioner's post-conviction behavior was characterized by frequent disciplinary breaches, many of which involved violent conduct. But, over time and particularly after his transfer to the treatment center in 2005, the petitioner's behavior improved and the "level of violence [was] reduced." In the five years before the petitioner's hearing on his petition for examination and discharge the petitioner was not often reported for disciplinary breaches and "none [of the reports were] of a serious nature"; the petitioner was not cited for disciplinary violations after 2015. The petitioner has not participated in sex offender treatment, either while in prison, where such treatment was made available to him, or since transfer to the treatment center.

The petitioner was adjudged a sexually dangerous person on August 6, 2010. See G. L. c. 123A, § 12. The petitioner filed the petition for examination and discharge at issue here in 2016, after which the five-member community access board (CAB) reviewed his case and two qualified examiners, Drs. Gans and Belle, examined him. See G. L. c. 123A, §§ 1 & 9. At trial a unanimous CAB and both examiners opined, among other things, that: the petitioner's underlying sexual crimes were repetitive and compulsive; the petitioner continues to suffer from mental disorders or abnormalities, namely, sexual sadism disorder ² and antisocial personality disorder; and that the petitioner remained a sexually dangerous person who likely will reoffend sexually if released from a secure facility. After a multi-day trial in which the petitioner presented competing expert testimony, the jury returned a verdict that "the Commonwealth proved beyond a reasonable doubt that the Petitioner ... is a sexually dangerous person today."

Discussion. 1. Evidence of refusal of sex offender treatment. Prior to trial, the petitioner moved in limine to preclude the Commonwealth from introducing any evidence that he refused to participate in sex offender treatment. During hearing on the motion, the judge indicated her understanding of the caselaw regarding the admissibility of such evidence (noting the lack of any case on point governing the circumstances presented) and then turned to the parties for their argument. Before any ruling on the motion, defense counsel suggested a resolution, indicating that he had discussed it with the petitioner. Defense counsel suggested that the Commonwealth could argue that the petitioner chose not to participate in treatment as long as the petitioner could argue that the reason for his choice was to protect his legal position.

On appeal, however, the petitioner contends that the judge erred in admitting evidence that he refused to participate in sex offender treatment. Because the petitioner stipulated to admission of this evidence, we need not decide whether such evidence violated the petitioner's Fifth and Fourteenth Amendment protections against self-incrimination. Cf. Commonwealth v. Hunt, 462 Mass. 807, 814 (2012) ; Commonwealth v. Cahoon, 86 Mass. App. Ct. 266, 269-270 (2014). Our present review thus is limited to determining whether there was error, and if so, whether admission of that evidence created a substantial risk of a miscarriage of justice. R.B., petitioner, 479 Mass. 712, 717-718 (2018).

With respect to error, there were sound strategic reasons why counsel may have chosen to waive whatever rights his client had under Hunt, 462 Mass. at 814,³ and to allow the now contested evidence in this case. The defendant had a long history of violent sexual offenses, he had undergone no treatment in the nearly three decades since the crimes were committed, and he had not participated in treatment while held at the treatment center. He had been diagnosed with sexual sadism disorder and had a history of violence while in prison. Counsel may well have decided that, given these facts, some explanation was better than no explanation.

However, to the extent that the doctrine of invited error applies, see Commonwealth v. Leary, 92 Mass. App. Ct. 332, 342-343 (2017), we review for a substantial risk of a miscarriage of justice. In this regard, we consider "the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that [counsel's stipulation] was the result of a reasonable tactical decision" (citation omitted). R.B., petitioner, 479 Mass. at 718. We conclude that, even assuming error, there was no such risk.

First, as noted above, defense counsel's decision to stipulate was both tactical and reasonable. Indeed, the petitioner's stipulation offered the petitioner several trial advantages, not least of which is that it allowed him to explain why he chose not to participate in sex offender treatment. Defense counsel told the jury in closing argument that the petitioner "den[ied] his offenses and refus[ed] to talk about them" because "he needed to maintain that denial to protect his right to appeal." He was able to get his story to the jury without testifying and exposing himself to cross-examination. While the petitioner's stipulation no doubt carried risk, his failure to offer an explanation also carried risk. In context, we cannot say that counsel's tactical choice created a substantial risk of a miscarriage of justice. "We do not view the defendant's as one of those rare cases that qualify for the seldom-afforded exception to the waiver rule represented by the substantial risk doctrine." Commonwealth v. Beauchamp, 49 Mass. App. Ct. 591, 604 (2000).

We assess the other factors in light of the strategic decisions made and the procedural and factual context in which this § 9 proceeding arose. The petitioner had already been adjudicated a sexually dangerous person. See G. L. c. 123A, § 1. The five-member CAB and both qualified examiners opined that the petitioner's sexual misconduct was repetitive and compulsive. The CAB concluded that, at the time of trial, the petitioner suffered from two separate, untreated mental abnormalities or disorders -- sexual sadism disorder and antisocial personality disorder -- that "affect[ ] the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." G. L. c. 123A, § 1 ("mental abnormality"). Both qualified examiners, Dr. Belle and Dr. Gans, opined that the petitioner suffered from antisocial personality disorder. Dr. Belle opined that he suffered from sexual sadism disorder; Dr. Gans opined that he suffered "provisionally" from sexual sadism disorder. As discussed above, since his convictions the petitioner has a history of frequent, violent misconduct, both in prison and while civilly committed to the treatment center. From these observations, the CAB and the qualified examiners concluded that the petitioner had not addressed his underlying behavior or developed appropriate interventions that might prevent a recurrence of sexual misconduct if released into the community, and, therefore, that if released the petitioner "is likely to attack or otherwise inflict injury on ... victims because of his uncontrolled or uncontrollable desires." G. L. c. 123A, § 1 ("sexually dangerous person").⁴

The petitioner now points out that the prosecutor characterized his decision as a "refusal" to participate in sex offender treatment, and that this materially prejudiced him. This characterization does not appear to have "figure[d] prominently in the testimony or report of either qualified examiner," however. R.B., petitioner, 479 Mass. at 719. As the petitioner now presents it, the Commonwealth emphasized his refusal to participate either to suggest that the petitioner did not wish to be treated, as was the concern in Hunt, 462 Mass. at 819, or that untreated persons are statistically more likely to reoffend than those who choose to participate in treatment. The record before us does not appear to support either assertion. Qualified examiner Belle, for example, specifically agreed, when questioned by defense counsel, that nonparticipation in treatment does not "in and of itself ... increase risk to reoffend sexually" and that "those who simply did not attend sex offender treatment did not appear to be...