In re White

100 Mass.App.Ct. 1123

182 N.E.3d 335 (Table)

Raymond WHITE, petitioner.

20-P-1233

Appeals Court of Massachusetts.

Entered: February 3, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After being convicted of multiple rapes, the petitioner in 2012 was found by a jury to be a sexually dangerous person (SDP). In 2016, the petitioner filed a petition pursuant to G. L. c. 123A, § 9, alleging that he no longer qualified as an SDP and therefore was entitled to be released. Following trial, a Superior Court jury disagreed. On appeal, the petitioner asserts various errors in the judge's instructions to the jury, including in an answer she gave to a jury question. The petitioner also argues that the prosecutor's closing argument was improper. Because we conclude that any errors did not cause a substantial risk of a miscarriage of justice, we affirm.

Background. Little would be served by providing detail of the many serious sexual offenses for which the petitioner was convicted. For present purposes, it suffices to note that there was ample evidence to establish that he forcibly raped three female victims, two of whom were in their early teens.

At the § 9 trial, the Commonwealth presented three expert witnesses who testified that the petitioner suffered from a personality disorder (specifically, antisocial personality disorder ), and that, as a result, he likely would reoffend if released. Two of the Commonwealth's experts testified as qualified examiners (QEs), and the third testified as a representative of the Community Access Board (CAB). The petitioner presented two expert witnesses -- both psychologists -- who provided their opinions that he did not meet the criteria of an SDP.

1. Jury instructions. The petitioner argues that the instructions to the jury were problematic in various respects. We address these in turn.

In a § 9 trial, the Commonwealth has the burden of proving, beyond a reasonable doubt, that the sex offender currently meets the criteria of an SDP. See Hill, petitioner, 422 Mass. 147, 156 (1996). At one point during her lengthy instructions to the jury, the judge stated that the jury were to determine whether the petitioner's mental conditions that led to his offending "remain intact." The petitioner argues that this wording "subtly skew[ed]" the Commonwealth's burden of proof by indicating that the existence of such a condition had previously been proven and shifting the jury's focus to whether that condition had been alleviated.

In reviewing the adequacy of jury instructions, we are to view them "as a whole to determine whether [they are] legally correct, rather than tested by fragments which may be open to just criticism." McHoul, petitioner, 445 Mass. 143, 156 (2005). As the Commonwealth points out, the judge repeatedly told the jury that the Commonwealth had the burden of proving beyond a reasonable doubt the petitioner's current sexual dangerousness, and that they had to determine this based on the trial evidence presented to them. Viewing the instructions as a whole, we disagree with the petitioner's contention that the "remain intact" reference lowered the Commonwealth's burden of proof.

The petitioner also argues that reversal is required because the judge's instructions on proof beyond a reasonable doubt did not include all of the language mandated by Commonwealth v. Russell, 470 Mass. 464, 477 (2015). Specifically, the petitioner points out that in her final instructions, the judge omitted the phrase "[w]hen we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case." Because the petitioner raised no objection to this, our review is limited to whether the omission caused a substantial risk of a miscarriage of justice. We agree with the Commonwealth that this case is controlled by Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 801-803 (2020), where the same phrase erroneously was omitted but the instructions otherwise complied with those mandated by Russell. Here, as there, no substantial risk of a miscarriage of justice has been shown.²

The petitioner also argues that the judge erred in responding to a question posed by the jury regarding whether QEs were court appointed.³ Specifically, he argues that the judge was required to answer that question "no," instead of by doing what the judge did, namely, to instruct the jury to look to the evidence they had heard. According to the petitioner, by not resolving the jury's apparent uncertainty on this issue, there was a danger that the jury believed that QEs were court appointed, and therefore that the jury potentially viewed the QEs’ testimony as worthy of more credence than that of a witness called by one of the litigants. We are unpersuaded.

"The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly" (citation omitted). Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998). Especially where, as here, witness testimony answered the question the jury posed, we discern no abuse of discretion in the judge's referring the jury to look to the evidence they had heard. We additionally note that in discussing the independent role that QEs are supposed to serve, the Supreme Judicial Court in fact has analogized it to that of a court-appointed expert. See Chapman, petitioner, 482 Mass. 293, 303 (2019) ("an expert who serves as a [QE] is recognized to be independent and to serve as though appointed by a court.... The [QEs], in other words, are not retained by, paid by, or beholden to any party"). It follows that even if the judge erred by not answering the jury question "no," the petitioner still could not demonstrate how such an error prejudiced him.

2. Closing argument. One of the petitioner's two experts was Dr. Paul Zeizel. In his closing argument, the prosecutor argued that the jury should discredit Zeizel's testimony because he "actively tried to deceive" them. The petitioner argues that this attack was unsupported by the evidence and requires reversal in light of the central role that Zeizel played in the petitioner's defense. Before we proceed further, some background is in order.

A report that was prepared by the CAB -- and admitted as an exhibit -- summarized a number of psychological evaluations that the petitioner had been administered. One such evaluation, known as the "interpersonal reactivity index" (IRI) test, indicated that the petitioner had empathy toward others.⁴ This tended to undercut the Commonwealth's claim that the petitioner suffered from antisocial personality disorder. The results of other tests were less supportive of the petitioner's position. On the interview portion of a test known as "Hare psychopathy check list - revised" (PCL-R), the petitioner scored a 24. That score, while below the generally accepted threshold for psychopathy, was considered "elevated."⁵ Even more supportive of the Commonwealth's position were the results of the "short version" of that check list (PCL:SV). Specifically, the petitioner scored an 18 on the PCL:SV, which "was above the general cutoff for psychopathy" for that form of the test. Based on the results of both PCL tests, the evaluation referenced in the CAB report concluded that "psychopathy should be regarded as a critical issue in the management and treatment of [the petitioner]."

In his testimony, Zeizel addressed the evaluations discussed in the CAB report. On direct examination, he focused on the IRI test, which, as noted, produced the results most favorable to the petitioner. On cross-examination, the prosecutor asked Zeizel about the PCL:SV test results, the test most helpful to the Commonwealth. Zeizel agreed with the prosecutor's specific characterizations as to how the petitioner did on that test, and with the overall conclusion -- which had been drawn from the results of both that test and the verbal portion of the PCL-R test -- that "psychopathy should be regarded as a critical issue in the management and treatment of [the petitioner]." Zeizel then began to expound on the PCL-R test, specifically with regard to how a score of 30 was needed to be considered a psychopath under that test. However, the prosecutor put an end to Zeizel's volunteering his views on that particular subject by pointing out that no question was pending, and then switching subjects in his questioning.

The transcript shows that on redirect, petitioner's counsel sought to provide Zeizel an opportunity to say what he was going to say about the PCL-R test before the prosecutor cut him off. However, in teeing the issue up, counsel mistakenly referenced the PCL:SV test, not the PCL-R one. Following counsel's prompt, Zeizel went on to make the point he earlier started to make about the PCL-R test, all while specifically referencing that test by name, not the...