Commonwealth v. Golding (Lawyers Weekly No. 11-086-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-768 Appeals Court COMMONWEALTH vs. CHRISTOPHER GOLDING. No. 13-P-768. Middlesex. May 5, 2014. – July 23, 2014. Present: Grasso, Grainger, & Milkey, JJ. Firearms. Controlled Substances. Constitutional Law, Vagueness of statute. Indictments found and returned in the Superior Court Department on April 30, 2009. The case was heard by Thomas P. Billings, J. Stephen Neyman for the defendant. Hallie White Speight, Assistant District Attorney (David Solet, Assistant District Attorney, with her) for the Commonwealth. GRAINGER, J. Following a jury-waived trial in the Superior Court, the defendant was convicted of possession of a machine gun while in the commission of a felony (G. L. c. 265, § 18B), two counts of possession of a machine gun (G. L. c. 269, § 10[c]), and possession of a silencer (G. L. c. 269, § 10A).[1] The judge found that the defendant had participated in an exchange of drugs for firearms with an undercover special agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). We are unpersuaded by the numerous evidentiary, statutory, and constitutional arguments the defendant raises on appeal, and affirm the judgments. Factual background. The judge could have found the following: On the basis of information received from a confidential informant, an ATF agent arranged for the controlled purchase of a hand grenade from the defendant. The grenade that the defendant sold to the informant contained no live explosives; confronted thereafter with the defective nature of his merchandise, thedefendant offered to “make up the grenades” in a meeting with the informant and an undercover ATF agent at which the participants discussed the possibility of supplying machine guns and a silencer to the defendant. The negotiations began with a proposed exchange of weapons; thereafter the defendant offered to provide marijuana for the machine guns. The participants eventually agreed that the defendant would provide payment for the firearms in the form of OxyContin pills. After the defendant had taken possession of the firearms, he was arrested. We refer to additional facts as they pertain to the issues raised on appeal. Sufficiency of the evidence. The defendant asserts that the evidence was insufficient to support his conviction of possession of a machine gun while in the commission of a felony, G. L. c. 265, § 18B.[2] The basis of his argument is that the defendant’s receipt of the machine guns from the undercover officer as payment […]
Commonwealth v. Fisher (Lawyers Weekly No. 11-084-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-837 Appeals Court COMMONWEALTH vs. CYRUS S. FISHER. No. 13-P-837. Hampshire. May 9, 2014. – July 22, 2014. Present: Cohen, Sikora, & Agnes, JJ. Search and Seizure, Motor vehicle, Reasonable suspicion. Controlled Substances. Constitutional Law, Search and seizure, Reasonable suspicion. Practice, Criminal, Motion to suppress, Interlocutory appeal. Complaint received and sworn to in the Northampton Division of the District Court Department on November 26, 2012. A pretrial motion to suppress evidence was heard by Jacklyn M. Connley, J. An application for leave to prosecute an interlocutory appeal was allowed by Barbara A. Lenk, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. Michael J. Russo, III, Assistant District Attorney (Thomas H. Townsend, Assistant District Attorney, with him) for the Commonwealth. Leah R. Kunkel for the defendant. AGNES, J. This is an interlocutory appeal by the Commonwealth from an order of a District Court judge allowing the defendant’s motion to suppress evidence. See Mass.R.Crim.P. 15, as appearing in 422 Mass. 1501 (1996). The judge found, on the basis of the undisputed evidence, that the police were lawfully engaged in a community caretaking function when they responded to a report that a person in a car may be either having a seizure or suffering from a drug overdose. What followed, as the facts below indicate, was the discovery of evidence indicating that the person in the vehicle, later identified as the defendant, Cyrus S. Fisher, possessed cocaine, a Class B controlled substance, and additional contraband. For the reasons that follow, we conclude the judge erred in finding that the officer exceeded the scope of his authority when, during a well-being check, he ordered the defendant to step out of his motor vehicle. Accordingly, we reverse the order allowing the defendant’s motion to suppress. Background. The essential facts are not in dispute. The only witness to testify at the hearing on the defendant’s motion to suppress was Northampton police Officer Brendan McKinney. He was the second police officer to arrive at the scene, a gasoline station and convenience store located on King Street. It was approximately 1:25 A.M. on November 24, 2012, when he arrived and found Officer McGrath already on scene. A third police cruiser and the fire department soon arrived. […]
USF Insurance Company v. Langlois, et al. (Lawyers Weekly No. 11-085-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1387 Appeals Court USF INSURANCE COMPANY vs. DAVID LANGLOIS & others,[1] trustees,[2] & others.[3] No. 13-P-1387. Essex. May 6, 2014. – July 22, 2014. Present: Rapoza, C.J., Brown, & Berry, JJ. Insurance, Fire, Business owner’s policy, Construction of policy, Insured, Illegal acts exclusion. Contract, Insurance, Construction of contract. Civil action commenced in the Superior Court Department on December 23, 2010. The case was heard by James F. Lang, J., on motions for summary judgment. Mark I. Zarrow for the defendants. Thomas M. Tang for the plaintiff. BROWN, J. The defendants appeal the declaratory judgment allowing the plaintiff’s motion for summary judgment. We affirm. 1. Background. The facts giving rise to this action are undisputed. In 1983, the Langlois Family Realty Trust (trust) was formed to hold legal title to real estate in Haverhill. Richard A., Robert, and David Langlois were the original trustees, and Richard J. and Bruce Langlois were, respectively, first and second successor trustees.[4] Richard A. passed away in 1988; however, the trust provided that David and Robert would continue as trustees and that Bruce would only serve as trustee upon the deaths of the original three. Robert, David, Richard J., and Bruce were named the beneficiaries, as joint tenants with rights of survivorship.[5] Smith’s Tavern, Inc. of Haverhill (corporation) leased a building owned by the trust. Robert, David, Richard J., and Bruce all served as directors of the corporation.[6] The corporation operated as a bar and restaurant. David and Robert managed the restaurant; Bruce worked as a bartender. In July, 2010, the plaintiff, USF Insurance Company, issued an insurance policy with the “Named Insured” listed as “LANGLOIS FAMILY TRUST AND SMITH’S TAVERN OF HAVERHILL, INC.” The policy provided a coverage limit of $ 20,000 for loss of business personal property and a coverage limit of $ 150,000 for loss of the building. The policy also contained an exclusions provision, explaining that the plaintiff would not pay for loss or damage caused by “[d]ishonest or criminal act[s] by you, any of your partners, members, officers, managers, employees . . . , directors, trustees, . . . or anyone to whom you entrust the property for any purpose.” On November 12, 2010, Bruce set fire to the building leased by the corporation and was charged with arson. He pleaded guilty, confessing […]
Watkins v. Commonwealth (Lawyers Weekly No. 10-128-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11635 ERNEST WATKINS vs. COMMONWEALTH. July 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. Ernest Watkins appeals from a judgment of a single justice of this court denying, without a hearing, a petition for relief under G. L. c. 211, § 3, from the denial of his motion to dismiss an indictment charging him with murder in the first degree. We affirm. Watkins was fourteen years old at the time of the incident that gave rise to the indictment. He moved to dismiss the indictment and remand the matter to the Juvenile Court on the ground that subjecting him to adult criminal proceedings in the Superior Court pursuant to G. L. c. 119, § 74,[1] rather than youthful offender proceedings in the Juvenile Court, would violate his rights to equal protection and due process. A judge in the Superior Court denied the motion. His G. L. c. 211, § 3, petition followed. The case is before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires an appellant in these circumstances to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” Watkins has not carried his burden under the rule. It is well established that “[t]he denial of a motion to dismiss in a criminal case is not appealable until after trial, and we have indicated many times that G. L. c. 211, § 3, may not be used to circumvent that rule. Unless a single justice decides the matter on the merits or reserves and reports it to the full court, neither of which occurred here, a defendant cannot receive review under G. L. c. 211, § 3, from the denial of his motion to dismiss.” Limbaugh v. Commonwealth, 465 Mass. 1018, 1019 (2013), quoting Bateman v. Commonwealth, 449 Mass. 1024, 1024-1025 (2007). We have recognized a narrow exception in cases where the motion to dismiss raises a double jeopardy claim of substantial merit. See Neverson v. Commonwealth, 406 Mass. 174, 175-176 (1989). Watkins’s argument that his claim is similar to a double jeopardy claim is unavailing. He is not claiming that he has a right not to be tried at all, but a right to be tried in a different forum. If he […]
Lu v. City of Boston, et al. (Lawyers Weekly No. 10-127-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11611 FREIDRICH LU vs. CITY OF BOSTON & others.[1] July 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. Declaratory Relief. Practice, Civil, Pendency of prior action. The plaintiff, Freidrich Lu, filed a complaint in the county court pursuant to G. L. c. 231A, § 1, essentially seeking a judgment declaring that the Trustees of the Boston Public Library (trustees) are not a subsidiary corporation, division or unit of the city of Boston (city), that the trustees and the city “are two separate, independent legal entities,” and that members of the city of Boston Law Department (law department) may not provide legal representation to the trustees or library employees. A single justice of this court denied Lu’s motion for summary judgment, dismissed the complaint, and denied postjudgment relief. Lu appeals. We affirm. Background. This declaratory judgment action has its genesis in a civil rights action that Lu commenced in the United States District Court for the District of Massachusetts against the defendant trustees and a library employee, defendant George Hulme. In general, Lu alleged that, in violation of his civil rights, he was denied entrance to the Boston Public Library. A judge of that court denied Lu’s motion seeking disqualification of the law department as counsel for the trustees and Hulme, and concluded that “[t]he [t]rustees constitute a municipal entity that oversees the Library as a department of the [c]ity of Boston,” and that the law department may represent the trustees and Hulme. Lu then commenced this action in the county court, seeking a contrary determination. Discussion. The complaint in this case essentially deals with the same controversy that exists between the parties in the Federal litigation. As such, it does not present a proper occasion for declaratory relief. Jacoby v. Babcock Artificial Kidney Ctr., Inc., 364 Mass. 561, 562 (1974). The single justice correctly concluded that: “For all practical purposes, the only ‘actual controversy’ the plaintiff claims is his challenge to the [Federal] judge’s denial of his motion to disqualify counsel, which he seeks to undermine by obtaining a contrary legal determination from this court regarding the relationship between the [t]rustees and the [c]ity of Boston. This is not an appropriate ground to bring a declaratory judgment claim. If the plaintiff wishes to appeal [the Federal District Court judge’s] denial of his motion to disqualify […]
Golrick v. U.S. Bank, N.A. (Lawyers Weekly No. 10-126-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11632 JEANNE A. GOLRICK vs. U.S. BANK, N.A. July 17, 2014. Supreme Judicial Court, Superintendence of inferior courts. The petitioner filed a petition in the county court pursuant to G. L. c. 211, § 3, challenging a Superior Court order denying her request that the respondent’s attorney be disqualified from representing the respondent in the underlying litigation between the parties. A single justice of this court denied the petition without a hearing, and the petitioner appealed. We affirm. The case is before us on a memorandum and appendix filed by the petitioner pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule requires the petitioner to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” She has failed to carry her burden. The alternative remedy in this case is clear: the petitioner can adequately obtain review of the order denying disqualification of the respondent’s counsel in an appeal from the adverse final judgment.[1] Masiello v. Perini Corp., 394 Mass. 842, 850 (1985) (citation omitted). Borman v. Borman, 378 Mass. 775, 779 (1979). General Laws c. 211, § 3, is not a substitute for the normal process of trial and appeal, and the petitioner has not demonstrated any extraordinary circumstances rendering the ordinary remedy inadequate. Judgment affirmed. The case was submitted on the papers filed, accompanied by a memorandum of law. Jeanne A. Golrick, pro se. David W. Merritt for the respondent. [1] The Superior Court docket indicates that judgment now has entered for the respondent and that the petitioner has in fact filed a notice of appeal. Full-text Opinions
Commonwealth v. Baptista (Lawyers Weekly No. 11-083-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-1407 Appeals Court COMMONWEALTH vs. JOHN BAPTISTA. No. 12-P-1407. Bristol. February 7, 2014. – July 16, 2014. Present: Sikora, Hines, & Maldonado, JJ. Practice, Criminal, Sentence. Evidence, Prior misconduct. Rape. Indecent Assault and Battery. Indictments found and returned in the Superior Court Department on February 14, 2007. The cases were tried before Richard T. Moses, J., and a proceeding to revise sentence was had by him. Alan D. Campbell for the defendant. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. SIKORA, J. In March of 2012, a Superior Court jury convicted the defendant, John Baptista, of rape of a child by force and indecent assault and battery on a child under the age of fourteen years. See G. L. c. 265, § 22A; G. L. c. 265, § 13B. Two weeks after sentencing, the trial judge, pursuant to Mass.R.Crim.P. 29(a), 378 Mass. 899 (1979), sua sponte convened a hearing and thereafter increased the defendant’s sentence for the conviction of rape of a child by force. The defendant appeals from his convictions and from the imposition of the increased sentence. For the following reasons, we affirm. Background. 1. Facts. The jury heard the following evidence. In New Bedford, from approximately 1994 and into 1997, the victim, Michael,[1] lived with his mother, two older sisters, and the defendant. The defendant cared for Michael when his mother was at work. Michael, who was twenty-two years old at the time of trial, testified that on multiple occasions the defendant entered his bedroom, touched his penis and buttocks, and manually penetrated his rectum. He recounted that the defendant had threatened to “chop [him] into little pieces” if he disclosed the abuse.[2] 2. Sentencing. At the time of sentencing, the defendant was serving a term of fifteen to twenty-five years in State prison for a conviction in 1999 of rape by force of one of Michael’s sisters. On March 15, 2012, at the conclusion of a subsequent offender bench trial, the judge sentenced the defendant to seven to ten years in State prison on the conviction of rape of a child by force, subsequent offense; and five to seven years on the conviction of indecent assault and battery on a person under the age of fourteen years, subsequent offense. The judge imposed those sentences to be served concurrently with each other and […]
Commonwealth v. Peck (Lawyers Weekly No. 11-081-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12-P-132 Appeals Court COMMONWEALTH vs. MELISSA PECK. No. 12-P-132. Berkshire. March 12, 2014. – July 16, 2014. Present: Vuono, Grainger, & Agnes, JJ. Practice, Criminal, Cross-examination by prosecutor, Loss of evidence by prosecution, Preservation of evidence. Evidence, Cross-examination, Prior inconsistent statement, Impeachment of credibility, Expert opinion, Exculpatory. Witness, Cross-examination, Impeachment, Expert. Fraud. Insurance, Defrauding insurer, Motor vehicle insurance. Motor Vehicle, Insurance. Conspiracy. Larceny. Attempt. Complaint received and sworn to in the Pittsfield Division of the District Court Department on November 25, 2009. The case was tried before Fredric D. Rutberg, J. Esther J. Horwich (Justin R. Dashner with her) for the defendant. James F. Petersen, Assistant District Attorney, submitted a brief for the Commonwealth. AGNES, J. At trial, the defendant, Melissa Peck, testified as the only witness for the defense and denied the allegations that she and her former husband had engaged in an automobile insurance fraud.[1] On cross-examination, over objection, the judge permitted the prosecutor to ask her a series of questions about prior incriminating statements she allegedly made to a former boyfriend, after the date of the alleged offenses, despite the fact that the judge was aware that the Commonwealth did not have admissible evidence from another witness that the statements had been made. It was error to permit this type of cross-examination of the defendant, which improperly impeached the witness by insinuation, and unfairly “cast on the other side (here the defendant-witness) a burden somehow to fend against it.” Commonwealth v. Delrio, 22 Mass. App. Ct. 712, 721 (1986). Because we determine that the improper cross-examination was prejudicial, we must reverse the convictions.[2] Background. The jury could have found that on July 14, 2008, the defendant parked her car on North Street in front of the Berkshire Medical Center (BMC) in Pittsfield. While she was inside the BMC, Pittsfield parking authority Officer Thomas Siok checked the license plate numbers of the cars parked on North Street and discovered that the defendant’s vehicle had several unpaid parking tickets. Siok followed parking authority protocol and attached a “boot” to the defendant’s car. This device is designed to prevent a vehicle from being moved until the appropriate authority unlocks and removes it.[3] The defendant got a ride to city hall to pay the parking tickets. There, she learned that the […]
Stone-Ashe v. Department of Environmental Protection, et al. (Lawyers Weekly No. 11-082-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-489 Appeals Court WENDY STONE-ASHE, trustee,[1] vs. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.[2] No. 13-P-489. Suffolk. January 14, 2014. – July 16, 2014. Present: Trainor, Graham, & Agnes, JJ. Trust, Public trust. Department of Environmental Protection. Administrative Law, Agency’s authority, Regulations. Regulation. Real Property, Littoral property, Harbors, Wharf, Restrictions. Harbors. Evidence, Expert opinion. Witness, Expert. Civil action commenced in the Superior Court Department on October 29, 2010. The case was heard by Bonnie H. MacLeod, J., on a motion for judgment on the pleadings. Richard A. Nylen, Jr., for the plaintiff. Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendants. GRAHAM, J. The plaintiff, Wendy Stone-Ashe, trustee of the Stone-Ashe Realty Trust,[3] appeals from a Superior Court judgment that affirmed a final decision of the Commissioner (commissioner) of the Department of Environmental Protection (department), which concluded that a seawall on the plaintiff’s property lies seaward of the historic high water mark and, therefore, is under the jurisdiction of the department and subject to public rights pursuant to G. L. c. 91. Substantially for the reasons stated in the decisions of the commissioner and the Superior Court judge, we affirm. Background. 1. Statutory and regulatory framework. “Under the public trust doctrine, the Commonwealth holds tidelands in trust for the use of the public for, traditionally, fishing, fowling, and navigation.” Moot v. Department of Envtl. Protection, 448 Mass. 340, 342 (2007), S.C., 456 Mass. 309 (2010). See generally Boston Waterfront Dev. Corp. v. Commonwealth, 378 Mass. 629, 631-632 (1979) (detailing history of public trust doctrine). In enacting G. L. c. 91, the Legislature delegated at least some of its authority to preserve and regulate the Commonwealth’s tidelands to the department. Moot v. Department of Envtl. Protection, supra at 347. General Laws c. 91, § 1, inserted by St. 1983, c. 589, § 21, defines “[t]idelands” as “present and former submerged lands and tidal flats lying below the mean high water mark.” “Private tidelands” are defined as “tidelands held by a private party subject to an easement of the public for the purposes of navigation and free fishing and fowling and of passing freely over and through the water.” Ibid. The department’s jurisdiction extends only to the tidelands seaward of the historic high water mark. “[B]ecause actual high and low water marks can change over time, notably pursuant to licenses to fill […]
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Gammell, petitioner (Lawyers Weekly No. 11-080-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-396 Appeals Court JACK GAMMELL, petitioner. No. 13-P-396. Bristol. April 3, 2014. – July 15, 2014. Present: Kafker, Brown, & Sikora, JJ. Sex Offender. Evidence, Sex offender, Expert opinion, Scientific test, Age. Witness, Expert. Petition filed in the Superior Court Department on November 6, 2009. The case was tried before Bonnie H. MacLeod, J. David Hirsch for the petitioner. Brendan J. Frigault for Massachusetts Treatment Center. KAFKER, J. The petitioner, Jack Gammell, appeals the judgment of the Superior Court finding him still sexually dangerous pursuant to G. L. c. 123A, § 9. He raises three issues on appeal: (1) whether a qualified examiner may testify regarding his evaluation of the credibility of various statements made by the petitioner during the clinical interview; (2) whether the trial judge properly excluded from the trial the results of a penile plethysmograph assessment (PPG test) by the treatment center, including references to the assessment in a qualified examiner’s report, when there had been no attempt to establish the reliability of the assessment; (3) whether the judge also properly excluded evidence on the possible effects of reduced testosterone resulting from aging on the likelihood of reoffending, when the petitioner had never been tested and therefore could submit no evidence of his own testosterone levels. We affirm, as we discern no error in any of the trial judge’s rulings. Background. The petitioner is currently civilly committed to the Massachusetts Treatment Center (treatment center) pursuant to G. L. c. 123A, § 9. At trial, the Commonwealth presented the reports and testimony of two qualified examiners, Michael Henry, Psy.D., and Gregg Belle, Ph.D., as well as the testimony and report of a member of the community access board (CAB), Katrin Rouse-Weir, Ed.D. All diagnosed the petitioner with pedophilia and determined that he remained a sexually dangerous person (SDP). The petitioner presented the testimony of Eric Brown, Psy.D., and Joseph J. Plaud, Ph.D, each of whom opined that Gammell was no longer an SDP. The jury were warranted in finding the following facts regarding the petitioner’s history of offenses. The petitioner, age fifty-four at the time of trial, first offended at the age of twelve or thirteen, when he engaged in sexual activity with his eleven year old neighbor. He was adjudicated delinquent of indecent assault and battery and placed on probation. While on probation, he again […]