In re R.B.

479 Mass. 712

98 N.E.3d 678

R.B., petitioner.

SJC–12415

Supreme Judicial Court of Massachusetts, Bristol..

Argued February 5, 2018.

Decided June 11, 2018.

Brandon L. Campbell, for the petitioner.

Brendan J. Frigault, for the Commonwealth.

Patrick Levin, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

CYPHER, J.

In February, 2011, the petitioner was committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person, pursuant to G. L. c. 123A, § 12. The following year, he filed a petition for examination and discharge. G. L. c. 123A, § 9. A jury found that the petitioner continued to be sexually dangerous, and an order entered continuing his commitment.

On appeal, the petitioner argues for the first time that the order of commitment should be reversed because a written report of a psychological examination conducted approximately twenty-four years before should not have been admitted at trial. The Commonwealth contends (among other things) that because the petitioner did not object to the report's admission at trial, the issue is waived and we should not review it on appeal. We are thus asked to decide squarely whether an appellate court will consider unpreserved arguments on appeals from sexual dangerousness proceedings under G. L. c. 123A. We conclude that, as in criminal cases, such arguments are to be reviewed for a substantial risk of a miscarriage of justice. We also conclude that there was no error in the admission of the report. In addition, we reject the petitioner's argument that his trial counsel was ineffective for conceding during his closing argument that two of the Commonwealth's expert witnesses were "very credible." The order of commitment is affirmed.¹

Background. The jury could have found the following facts. The petitioner has a lengthy history of sexual violence. Before becoming an aggressor, the petitioner was himself a victim. He had a "horrible childhood" marked by "substantial trauma" stemming from neglect, drug use, and physical and sexual abuse. He suffered that abuse at the hands of his mother, his sisters, his half-sisters, and their friends, until he grew old enough to protect himself. Asked how these experiences were connected with his subsequent sexual offending, the petitioner responded, "In order to get rid of it, I had to give it away."

The petitioner was committed as a sexually dangerous person based on three separate cases. First, in 1990, when he was fourteen years old, the petitioner was adjudicated delinquent on two counts of indecent assault and battery on a seven year old girl, who claimed that the petitioner had grabbed her crotch and kissed her. Next, in 1994, when the petitioner was eighteen years old, he was convicted of two counts of indecent assault and battery on a fourteen year old girl. She alleged that, on one occasion, he tried to kiss her and put his hands down her pants; the next day, he lifted her shirt and attempted to touch her breasts. For this offense the petitioner received a one-year suspended sentence.

Third, in 2001, the petitioner pleaded guilty to aggravated rape, assault by means of a dangerous weapon, and armed robbery. On this occasion, the petitioner approached a woman outside a bar, held a knife to her throat, and led her to the nearby woods, where he violently raped and robbed her. The petitioner was sentenced to ten years in State prison on the aggravated rape conviction, and to lesser sentences on the remaining convictions, including five years of probation. At the completion of the committed portion of his sentences, the petitioner was civilly committed as a sexual dangerous person.² During his periods of incarceration and civil commitment, the petitioner received over one hundred disciplinary reports; some included violent behavior, but none involved sexual misconduct.

In October, 2012, the petitioner filed a petition for discharge pursuant to G. L. c. 123A, § 9, claiming that he is no longer a sexually dangerous person. The case was tried before a jury in the Superior Court in March, 2016. The Commonwealth presented testimony from three expert witnesses, including two qualified examiners, Dr. Mark Schaefer and Dr. Robert Joss, and a psychologist who is a member of the community access board (CAB), Dr. Niklos Tomich.³ Both qualified examiners diagnosed the petitioner with antisocial personality disorder, and concluded that the petitioner was sexually dangerous. Tomich testified that he and the CAB unanimously concluded that the petitioner remained sexually dangerous; in addition to antisocial personality disorder, Tomich diagnosed the petitioner with sexual sadism disorder (Schaefer and Joss concluded that there was insufficient evidence to diagnose the petitioner with sexual sadism). The petitioner presented no expert testimony on his behalf, although an aunt testified that, if released, the petitioner could live with her in New Hampshire and she would help him find a job and enroll in therapy.

The jury returned a verdict finding that the petitioner is a sexually dangerous person, and the petitioner was ordered to remain committed to the treatment center for an indeterminate period, pursuant to G. L. c. 123A, §§ 9, 14 (d ). The petitioner timely appealed, and we transferred his case from the Appeals Court on our own motion.

Discussion. 1. Standard of review. Because the petitioner's first argument on appeal is one that he did not raise at trial—an objection to the admission of a report from a psychological evaluation conducted while the petitioner was in custody for committing his first offense in the 1990s—our threshold question is one on which our appellate courts have provided conflicting guidance in recent years: whether appellate courts should consider defendants' unpreserved arguments on appeals from sexual dangerousness proceedings under G. L. c. 123A, and if so, under what standard.

Relying on one strain of authority, the Commonwealth argues that such arguments are waived, and should not be considered at all. See, e.g., McHoul, petitioner, 445 Mass. 143, 157, 833 N.E.2d 1146 (2005), cert. denied, 547 U.S. 1114, 126 S.Ct. 1912, 164 L.Ed.2d 668 (2006) (declining to consider challenges to jury instructions not raised during trial under § 9 ); Commonwealth v. Mazzarino, 81 Mass. App. Ct. 358, 367, 963 N.E.2d 112 (2012)(objection to testimony that defendant refused to speak with qualified examiner not raised below and therefore waived). This position finds support in the general principle, applied far more readily in the civil context, that appellate courts do not consider issues that were not raised below. See, e.g., Albert v. Municipal Court of Boston, 388 Mass. 491, 493–494, 446 N.E.2d 1385 (1983) ; see also Commonwealth v. Oakes, 407 Mass. 92, 94 n.4, 551 N.E.2d 910 (1990), quoting Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).

The defendant, citing this court's more recent opinions, argues that appellate courts should (and already do) review unpreserved arguments in sexual dangerousness proceedings for a substantial risk of a miscarriage of justice. See Commonwealth v. George, 477 Mass. 331, 335 n.3, 76 N.E.3d 217 (2017) (reviewing unpreserved objection for substantial risk of miscarriage of justice); Commonwealth v. Fay, 467 Mass. 574, 583 n.9, 5 N.E.3d 1216, cert. denied, ––– U.S. ––––, 135 S.Ct. 150, 190 L.Ed.2d 109 (2014) (same). This is the same standard that applies generally to unpreserved arguments in criminal cases. See, e.g., Commonwealth v. Randolph, 438 Mass. 290, 294, 780 N.E.2d 58 (2002). It requires a court to consider broadly whether it has "a serious doubt whether the result of the trial might have been different had the [alleged] error not been made." Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002), quoting Commonwealth v. LeFave, 430 Mass. 169, 174, 714 N.E.2d 805 (1999).

This split in authority regarding the scope of our review stems in part from the quasi civil, quasi criminal nature of sexual dangerousness proceedings. On the one hand, "[w]e have repeatedly emphasized the fundamental difference between criminal punishment and civil commitment of a sexually dangerous person, stating that a ‘G. L. c. 123A proceeding is neither criminal nor penal in nature, but is a civil proceeding to which constitutional rights afforded criminal defendants do not necessarily apply.’ " Commonwealth v. Curran, 478 Mass. 630, 637, 88 N.E.3d 862 (2018) (Kafker, J., concurring), quoting Commonwealth v. Burgess, 450 Mass. 366, 374, 878 N.E.2d 921 (2008).⁴ At the same time, we have recognized that, like criminal punishment, commitment due to sexual dangerousness infringes on an individual's protected liberty interest. See, e.g., Commonwealth v. Nieves, 446 Mass. 583, 590, 846 N.E.2d 379 (2006), citing G. L. c. 123A, §§ 6A, 14 ("The defendant's interest is weighty. If committed, his loss of liberty would be total. ... Commitment is for an indeterminate period ..., and he has a strong interest in avoiding such commitment"); Commonwealth v. Bruno, 432 Mass. 489, 502, 735 N.E.2d 1222 (2000), quoting Commonwealth v. Travis, 372 Mass. 238, 250, 361 N.E.2d 394 (1977) ("While commitment proceedings under c. 123A are civil proceedings, the potential deprivation of liberty to those persons subjected to these proceedings ‘mandates that due process protections apply’ "). In fact, we have stated that a determination of sexual dangerousness "may have far more serious consequences for the individual than criminal punishment," given that persons are "subject to a one day to life commitment." Travis, supra at 246, 361 N.E.2d 394. See G. L. c. 123A, § 14 (d ).⁵

"[I]n deciding what safeguards are required, it is necessary to look at the nature of the right which the State seeks to circumscribe. The more precious the right, the greater the protection, whether the...