Green, petitioner

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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.
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
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.
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
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
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.
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
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.”
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.
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).
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
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
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
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
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
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

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