Green

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SJC-11999

JAMES GREEN, petitioner.

Suffolk. March 10, 2016. - October 4, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.1

Sex Offender. Evidence, Sex offender, Expert opinion.

Practice, Civil, Sex offender, Instructions to jury.

Petition filed in the Superior Court Department on August

11, 2011.

The case was heard by Laurence D. Pierce, J., and a motion

for a new trial was heard by him.

The Supreme Judicial Court granted an application for

direct appellate review.

Mary P. Murray for the Commonwealth.

Michael A. Nam-Krane for the petitioner.

Joseph M. Kenneally, for Committee for Public Counsel

Services, amicus curiae, submitted a brief.

HINES, J. This is an appeal from the denial of the

Commonwealth's motion for a new trial after a jury found the

1

Justices Spina, Cordy, and Duffly participated in the

deliberation on this case prior to their retirements.

2

petitioner, James Green, no longer sexually dangerous in a

proceeding brought pursuant to G. L. c. 123A, § 9. In the

motion for a new trial, the Commonwealth challenged as erroneous

and prejudicial the judge's instruction that in order to find

the petitioner sexually dangerous, the jury must credit the

expert opinion testimony of the qualified examiner. The

Commonwealth claims that the judge's instruction was erroneous

because it improperly commented on the weight a jury must give

to a witness's testimony and prejudicial because it precluded

the jury's full consideration of testimony by the community

access board (CAB).2

We granted direct appellate review to clarify the reach of

Johnstone, petitioner, 453 Mass. 544 (2009), where we

interpreted G. L. c. 123A as creating a unique and central role

for the qualified examiner3 in proceedings under the statute.

2

The community access board (CAB) reviews all records of a

person adjudicated as a sexually dangerous person (SDP) and

confined at the Massachusetts Treatment Center (treatment

center) and reports those findings to the chief administrative

officer of the treatment center. G. L. c. 123A, § 6A, second

par. The CAB also conducts annual reviews of the current sexual

dangerousness of each person held at the treatment center. Id.

These reports are admissible in hearings involving persons

adjudicated as sexually dangerous. Id.

3

A qualified examiner is either (1) a physician who is

licensed by the Commonwealth and certified or eligible to be

certified in psychiatry by the American Board of Psychiatry and

Neurology; or (2) a psychologist who is licensed by the

Commonwealth. In all cases, a qualified examiner is designated

as such by the Department of Correction and has at least two

3

Our conclusion in Johnstone, that a petitioner is entitled to be

discharged without trial if neither qualified examiner opines

that the petitioner remains a sexually dangerous person (SDP)

and that the Commonwealth may not rely on the CAB or other

sources to obtain the necessary expert testimony, established a

"gatekeeper" role for the qualified examiner. While our holding

in Johnstone makes clear that a trial is foreclosed unless at

least one qualified examiner opines that the petitioner remains

sexually dangerous, we did not explicitly address whether, after

crossing that threshold, the Commonwealth may meet its burden to

prove sexual dangerousness regardless of the probative value of

the qualified examiner's testimony. We conclude, based on the

centrality of the qualified examiner's role in SDP proceedings,

that a finding of sexual dangerousness must be based, at least

in part, on credible qualified examiner opinion testimony and

that a jury instruction to that effect is essential to the

informed exercise of the jury's fact-finding function.4

Therefore, we affirm the judge's denial of the Commonwealth's

motion for a new trial.

years of experience with diagnosis or treatment of sexually

aggressive offenders. Qualified examiners need not be employees

of the Department of Correction (department) or of any facility

or institution of the department. G. L. c. 123A, § 1.

4

We acknowledge the amicus brief submitted by the Committee

for Public Counsel Services.

4

Background.5 After being convicted of three separate sex

offenses between 1991 and 2002, Green volunteered for treatment

while incarcerated. After being convicted of another sex

offense in 2006, he was transferred to the Massachusetts

Treatment Center in 2007. Prior to his scheduled release, the

Commonwealth filed a petition6 to commit Green as an SDP.7 In

July, 2011, after a jury trial, Green was found sexually

dangerous. Two months later, in August, 2011, Green filed a

petition for discharge pursuant to G. L. c. 123A, § 9.8 As

5

Although both parties recite at great length the

underlying facts of the defendant's convictions, we need not

repeat that history, as it is relevant only to prejudice, an

issue we do not reach given our conclusion that the challenged

jury instruction was not erroneous.

6

After a person has been convicted of a sex offense,

adjudicated as a sexual offender, or charged with a sex offense

but deemed incompetent to stand trial, the Commonwealth may file

a petition alleging that the individual is an SDP who should be

civilly committed when his or her criminal custody ends. G. L.

c. 123A, §§ 1, 12 (b). See Commonwealth v. Nieves, 446 Mass.

583, 585-587 (2006).

7

In accordance with the statutory definition, an SDP either

(1) "suffers from a mental abnormality or personality disorder

which makes the person likely to engage in sexual offenses if

not confined to a secure facility;" or (2) has been previously

adjudicated as an SDP and engages in misconduct that "indicates

a general lack of power to control . . . sexual impulses,"

making the person "likely to attack or otherwise inflict injury

on . . . victims because of uncontrolled or uncontrollable

desires." See G. L. c. 123A, § 1; Nieves, 446 Mass. at 586-587.

8

A person committed to the treatment center is entitled to

file a petition for examination and discharge once every twelve

months. G. L. c. 123A, § 9, first par. A discharge petition

can be filed by the committed person or that person's parents,

spouse, issue, next of kin, or friend. The Department of

5

permitted by the statute, the Commonwealth requested a jury

trial to determine whether the petitioner remained an SDP.

During pretrial hearings in March, 2015, the judge informed

the parties of his intention to instruct the jury that they may

not find the petitioner to be sexually dangerous unless they

credited the testimony of a qualified examiner who so opines.

See Johnstone, 453 Mass. at 553. The judge provided a written

copy of the instructions, and the Commonwealth renewed its

objection.

At trial, the qualified experts disagreed as to whether the

defendant had a qualifying mental condition, whether his age

reduced his likelihood of reoffending, and whether his treatment

protocol during confinement was effective. The Commonwealth

presented two experts who opined that Green remained sexually

dangerous. The qualified expert called by the Commonwealth, Dr.

Nancy Connolly, testified that the defendant had "personality

disorder with antisocial features," and that if released, "he

would not be able to control his sexual impulses." Dr. Angela

Johnson, representing a unanimous vote among CAB members,9 agreed

with Dr. Connolly's diagnosis and testified that the CAB was

Correction may file a petition if it concludes that a person is

no longer an SDP. Id. In all cases, a fact finder must

determine that the petitioner is no longer sexually dangerous in

order for the petitioner to be released.

9

The CAB determines a petitioner's sexual dangerousness by

a majority vote.

6

concerned about the defendant's plan to return to the town where

he perpetrated his second offense without the benefit of

monitoring by the probation department. Green presented three

experts who opined that he was no longer sexually dangerous.

Dr. Joseph Plaud and Dr. Leonard Bard testified that Green did

not meet the criteria for either a personality disorder or

mental abnormality. The other qualified examiner, Dr. Margery

Gans, joined Green's experts in opining that he was no longer

sexually dangerous, given his advanced age, participation in

treatment, improvements in impulse control, cooperation with

authority, and identification of cognitive distortions that

"drove" his behavior in the past.

The judge instructed the jury as follows:10

"In order to find that Mr. Green is a sexually

dangerous person you must credit the opinion of Dr. Nancy

Connolly, who testified in her capacity as a qualified

examiner and opined that Mr. Green is a sexually dangerous

person as defined in the law at the present time. It is

not required that you accept all of the reasons given by

Dr. Connolly for her opinion. You might find support for

the opinion anywhere in the evidence, including the

testimony of Dr. Angela Johnson, the CAB representative.

However, you cannot find that Mr. Green is a sexually

dangerous person today unless you give credit to the

opinion of Dr. Connolly that Mr. Green suffers from a

10

See Massachusetts Superior Court Criminal Practice Jury

Instructions § 10.1.3 (Mass. Cont. Legal Educ. 2013), entitled

"Opinion of CAB Representative Insufficient," proposing a model

instruction for cases "[w]here the opinions of the Qualified

Examiners are split and a Qualified Examiner and a member of the

CAB testify that Petitioner is today a sexually dangerous

person."

7

mental condition that causes him serious difficulty in

controlling his sexual impulses at the present time."

On the second day of the jury's deliberations in this case,

the Appeals Court issued its decision in Souza, petitioner, 87

Mass. App. Ct. 162, 173 (2015), concluding in dicta that a

nearly identical instruction was erroneous in "suggesting the

relative weight the jury can or should assign to the various

Commonwealth experts."11 The Appeals Court added that the

judge's instruction was "not compelled by Johnstone" because

"Johnstone held only that the Commonwealth cannot continue to

pursue SDP confinement of someone unless at least one of the two

assigned [qualified examiners] concludes that the person is an

SDP." Id. In this case, relying on Souza, the Commonwealth

moved to reinstruct the jury. After a telephone hearing, the

judge denied the motion, reasoning that the parties were

informed before trial that the instruction would be given; seven

hours of deliberation had already occurred; and reinstruction

11

The instruction deemed erroneous in Souza, petitioner, 87

Mass. App. Ct. 162, 172 (2015), stated:

"You heard of testimony from Dr. Tomich, a

representative of the community access board. The law

permits a representative of the community access board to

testify in all proceedings like this one, and you may

certainly rely upon the testimony of Dr. Tomich. However,

you cannot find that the petitioner, Mr. Souza, is sexually

dangerous based solely on the testimony of Dr. Tomich. In

order for you to find that Mr. Souza is today a sexually

dangerous person, you must find support for that

determination in the opinion that [sic] Dr. Kelso, who

testified as a qualified examiner."

8

would lead to confusion and distract from the jury's fair

consideration of the evidence. That same day, the jury returned

their verdict that Green was not an SDP.

On the day of the defendant's anticipated discharge, the

Commonwealth moved for a new trial or, in the alternative, for a

stay of discharge pending appeal. The judge denied the motion

for a new trial but reserved decision on the motion for a stay

in order to determine whether the probation department could

supervise the defendant after release.12 After further hearings,

the judge also denied the Commonwealth's motion to stay the

petitioner's discharge pending appeal but stayed the effective

date of discharge by five days to permit the Commonwealth to

seek review by a single justice of the Appeals Court, which it

then did.

After a single justice of the Appeals Court granted the

Commonwealth's motion for stay, Green appealed that decision to

the full Appeals Court and filed an application for direct

appellate review by this court. The Commonwealth also filed a

separate appeal from the jury's verdict and an application for

direct appellate review. Both applications for direct appellate

12

The judge determined that he lacked the authority to

require the probation department to supervise Green where the

probation department itself had determined that it lacked

jurisdiction to monitor individuals released from civil

confinement because such persons have not been "charged with 'an

offense or crime'" or "adjudicated a delinquent," G. L. c. 276,

§§ 87, 87A, and G. L. c. 119, § 58.

9

review were granted, and the appeals were consolidated for

hearing by this court. Thereafter, Green filed a motion to

vacate the stay in the county court. On April 28, 2016, this

court ordered that Green be discharged effective May 2, 2016.

Green's motion pending in the county court was thereafter

dismissed as moot on May 18, 2016.

Discussion. 1. Standard of review. We review jury

instructions for legal error resulting in prejudice to the

moving party.13 See Commonwealth v. Kelly, 470 Mass. 682, 687-

688 (2015); Kelly v. Foxboro Realty Assocs., 454 Mass. 306, 310

(2009). A "charge is to be considered as a whole to determine

whether it is legally correct, rather than tested by fragments

which may be open to just criticism" (citation omitted).

McHoul, petitioner, 445 Mass. 143, 156 (2005), cert. denied, 547

U.S. 1114 (2006). Instructions that convey the proper legal

standard, particularly when tracking model jury instructions,

are deemed correct. Commonwealth v. Young, 461 Mass. 198, 210

(2012). Because the judge's instruction is derived from our

ruling in Johnstone, we review it within that context to

determine if it was error.

13

The issue was preserved by the Commonwealth's written

motion in limine, its objection at the charge conference, and

repeated acknowledgements by the trial judge. See Commonwealth

v. Grady, 474 Mass. 715, 719 (2016) (motion in limine preserves

appellate rights as to subject of motion in limine).

10

2. The principle of Johnstone. As noted, Johnstone, 453

Mass. at 545, established a gatekeeper role for the qualified

examiner in an SDP proceeding, mandating discharge of the

petitioner before trial unless at least one qualified examiner

opines that the petitioner remains sexually dangerous.

Underlying the Commonwealth's challenge to the jury instruction

is an interpretation of Johnstone that limits the qualified

examiner's statutory role to that of gatekeeper. We disagree

that Johnstone should be interpreted so narrowly.

The thrust of Johnstone is that because a person may be

involuntarily and indefinitely committed as an SDP, due process

and G. L. c. 123A require proof of sexual dangerousness beyond a

reasonable doubt based on expert testimony from a designated

qualified examiner. Johnstone, 453 Mass. at 547, 549, citing

Kansas v. Crane, 534 U.S. 407 (2002), Kansas v. Hendricks, 521

U.S. 346 (1997), and Dutil, petitioner, 437 Mass. 9 (2002).

Although both qualified examiner and CAB evidence are

presumptively admissible to prove sexual dangerousness, "the

statutory scheme . . . expressly sets the qualified examiners

apart from the other sources of expert evidence." Johnstone,

supra at 552. Qualified examiner opinion testimony, regardless

of its probative value, merely opens the door to trial.

However, to prevail at trial, the Commonwealth may not rely

solely on the fact that the qualified examiner has satisfied his

11

or her gatekeeping responsibility. At trial, the qualified

examiner testimony serves a different and more important

purpose; it is the essential basis for a finding of sexual

dangerousness. This is because qualified examiners are

recognized in G. L. c. 123A as independent, skilled, and

accountable experts who play a unique and central role in G. L.

c. 123A proceedings. "Allowing the Commonwealth to rely on

other potential sources of expert testimony, such as the CAB, to

prove the petitioner's current sexual dangerousness . . . would

deny the examiners their place in a statutory scheme,"

Johnstone, supra, which is intended to strike an appropriate

balance between fairness to an offender and the interest in

public safety. Johnstone, therefore, elevates the qualified

examiner's role beyond mere gatekeeping.

3. The propriety of the qualified examiner instruction.

The statutory imperative undergirding Johnstone would be

nullified if the jury were permitted to find a person sexually

dangerous by relying on evidence that we have concluded is

insufficient to meet the Commonwealth's burden. See Johnstone,

453 Mass. at 545 (testimony of CAB member and accompanying CAB

report insufficient to avoid directed verdict). A jury verdict

finding the petitioner sexually dangerous based on evidence

other than the qualified examiner's opinion is a distinct

possibility where qualified examiner and CAB testimony are both

12

presented but the jury are not informed of the qualified

examiner's centrality to the proceeding. To avoid this result,

the jury must, in some fashion, be guided in distinguishing the

role of the qualified examiner from that of the CAB members who

testify at trial. A jury instruction that the qualified

examiner's opinion must be found credible to warrant a finding

of sexual dangerousness satisfies this purpose. Thus, there was

no error in the judge's instruction that the jury must credit

the qualified examiner's opinion to reach a finding of sexual

dangerousness.

We address briefly the Commonwealth's argument that any

instruction directing jurors to credit a specific expert's

opinion interferes with the jury's function. See Commonwealth

v. Cowen, 452 Mass. 757, 762 (2008) ("The matter of how much

weight is to be given a witness, particularly an expert witness,

is a matter for the trier of fact, not an appellate court").

This argument is unavailing. The instruction at issue does not

usurp the jury's function because it does not dictate the weight

to be given to the qualified examiner's opinion. It merely

instructs the jury that they must determine it to be credible in

order to find a person sexually dangerous. Our decision today

does not remove a jury's ability to decide for themselves

13

whether a witness's opinion is credible.14 The jury remain free

to credit or discredit an expert's opinion testimony. See

Commonwealth v. Blake, 454 Mass. 267, 275 (2009) (Ireland, J.,

concurring) ("appropriate remedy for a fact finder who views an

opinion as baseless is to disregard it"). To the contrary, we

reinforce the jury's role by declining to sever the pivotal

function of the qualified examiner from the Commonwealth's duty

to present sufficient evidence of a petitioner's sexual

dangerousness.

Conclusion. The judge's instruction appropriately

preserved the centrality of qualified examiners in proceedings

to determine sexual dangerousness. Accordingly, there was no

error in the judge's instructions to the jury, and we conclude

that there is no basis on which to grant a new trial.

Order denying motion for

a new trial affirmed.

14

Indeed, we can infer that the jury did not credit the

opinion of the Commonwealth's qualified examiner, Dr. Connolly,

because the jurors concluded that Green was no longer sexually

dangerous.