Green, petitioner
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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 […]
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Esteraz, petitioner
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 15-P-660 Appeals Court JUSTO ESTERAZ, petitioner. No. 15-P-660. Suffolk. June 14, 2016. – September 22, 2016. Present: Trainor, Vuono, & Blake, JJ. Sex Offender. Evidence, Sex offender, Expert opinion, Scientific test. Practice, Civil, Sex offender, Waiver, Assistance of counsel. Waiver. Petition filed in the Superior Court Department on December 2, 2010. The case was tried before Merita A. Hopkins, J. Ethan C. Stiles for the petitioner. Melissa A. Juarez for the Commonwealth. BLAKE, J. After a trial in the Superior Court, the jury returned a verdict finding that the petitioner, Justo Esteraz, remained a sexually dangerous person (SDP) as defined by G. L. c. 123A, § 1. He appeals, arguing that the judge erred by failing to hold a Daubert/Lanigan hearing to determine the admissibility of the results of a risk assessment tool known as the Multisample Age-Stratified Table of Sexual Recidivism Rates (MATS-1), which purports to measure an individual’s likelihood to reoffend. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-595 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994). He also claims that his trial counsel was ineffective in his advocacy for the admission of the same evidence. We affirm, addressing, in our discretion, the question whether the MATS-1 evidence was directly admissible as part of the petitioner’s expert’s report. Background. The petitioner was civilly committed as an SDP on October 18, 2010. On December 2, 2010, he filed a petition for release and discharge pursuant to G. L. c. 123A, § 9. At the time of trial, the petitioner was a seventy-four year old man with a significant history of charged and uncharged crimes of sexual abuse spanning over four decades. The petitioner’s victims include three generations of young girls in his extended family, including his daughter, nieces, granddaughters, and step-granddaughters. His conduct has included fondling, vaginal and digital penetration, and oral sex. The petitioner’s criminal record includes four convictions in 1994 for sex crimes committed in Puerto Rico and four convictions in 2008 in Massachusetts for indecent assault and battery on a child under fourteen years of age. Pursuant to G. L. c. 123A, § 9, the petitioner was examined by two qualified examiners who prepared reports opining that the petitioner remained an SDP. Those reports explained that, despite the petitioner’s advanced age, his extensive and prolonged history of […]
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Jaynes, petitioner (Lawyers Weekly No. 11-189-15)
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 14-P-1248 Appeals Court CHARLES JAYNES, petitioner. No. 14-P-1248. Plymouth. October 19, 2015. – December 16, 2015. Present: Berry, Green, & Blake, JJ. Name. Probate Court, Change of name. Constitutional Law, Freedom of religion, Equal protection of laws. Religion. Religious Land Use and Institutionalized Persons Act of 2000. Petition filed in the Plymouth Division of the Probate and Family Court Department on June 18, 2012. The case was heard by Catherine P. Sabaitis, J. Charles Jaynes, pro se. Michael Adam Chinman for Robert Lee Curley. BLAKE, J. On June 18, 2012, Charles Jaynes filed a petition pursuant to G. L. c. 210, § 12, to change his name,[1] citing in support of his request his “Wiccan religious tenets.” After a hearing, a judge of the Probate and Family Court denied the petition. On appeal, Jaynes argues that the judge abused her discretion and that the denial violates the free exercise clause of the First Amendment and the equal protection clause of the Fourteenth Amendment to the United States Constitution; art. 2 of the Massachusetts Declaration of Rights; art. 46 of the Amendments to the Massachusetts Constitution; and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq. (2012). We affirm. 1. Background. Jaynes is currently serving a life sentence, with the possibility of parole, for the 1997 kidnapping and second degree murder of a ten year old boy. See Commonwealth v. Jaynes, 55 Mass. App. Ct. 301 (2002). After Jaynes filed his petition, an order entered requiring notice by publication. Following publication in a local newspaper, nine individuals filed affidavits of objection; three of those persons also filed appearances in the matter. One of those three was the victim’s father. On November 20, 2012, a hearing was held, at which Jaynes testified that “my old heathen name is religiously offensive. It is also spiritually debilitating due to the fact that God and Jesus Christ had given me a new name.” Based on his testimony,[2] the judge found that a name change is not essential to Jaynes’s Wiccan faith. Jaynes does not challenge this finding on appeal.[3] The victim’s father, his counsel Michael Chinman, and two of the other nine objectors spoke in opposition. The victim’s father briefly described the crimes Jaynes had committed and noted Jaynes’s […]
Souza, petitioner (Lawyers Weekly No. 11-024-15)
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-1052 Appeals Court GEORGE SOUZA, petitioner. No. 13-P-1052. Suffolk. June 3, 2014. – March 18, 2015. Present: Kantrowitz, Milkey, & Hanlon, JJ. Sex Offender. Practice, Civil, Sex offender, Directed verdict, Instructions to jury. Evidence, Sex offender, Expert opinion. Petition filed in the Superior Court Department on February 2, 2009. The case was tried before Diane M. Kottmyer, J. Mary P. Murray for the Commonwealth. Michael A. Nam-Krane for the petitioner. HANLON, J. George Souza filed a petition in Superior Court seeking release from his civil confinement as a “sexually dangerous person” (SDP). See G. L. c. 123A, § 9. At trial, the jury was unable to reach a verdict and, thereafter, the trial judge allowed Souza’s motion for a directed verdict of not guilty. The Commonwealth appeals, arguing there was sufficient evidence to permit a retrial. We agree and reverse. Background. We recite the evidence heard by the jury in the light most favorable to the Commonwealth. Commonwealth v. Cowen, 452 Mass. 757, 763 (2008). Souza has a significant adult criminal record, extending over a period from 1963 until his last conviction in 2000.[1] In 1971, he pled guilty in New York to “rape in the second degree” for having “engaged in sexual intercourse with . . . [a] female less than . . . fourteen years of age.”[2] Souza has maintained that the victim was working as a “prostitute” at the time, that she looked eighteen to him, and that she agreed to engage in sex with him. Nevertheless, in one interview, he also stated, “[A] little girl came . . . it was my fault . . . this little child . . . I should never [have] went with this child.” When asked how old the girl had been, he said, “I have no idea . . . I don’t even want to guess.” He was then twenty-seven years old. On another occasion, in 2011, Souza asserted that the police entered the room where he was with the victim “before any sexual activity took place.” More recently, in a group therapy session in 2012, Souza, discussing the New York offense, told the group that he had “engag[ed] in sexual intercourse with a 15-year-old prostitute . . . [and] that she did not look 15 because they […]
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 […]
Aldrich, petitioner (Lawyers Weekly No. 10-094-14)
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, Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11515 ROBERT ALDRICH, petitioner. June 4, 2014. Habeas Corpus. Supreme Judicial Court, Superintendence of inferior courts. Robert Aldrich appeals from a judgment of a single justice of this court denying his petition for a writ of habeas corpus or, in the alternative, for relief under G. L. c. 211, § 3. We affirm. Aldrich was charged with, among other offenses, unarmed burglary. A jury trial proceeded in the Superior Court, after which Aldrich was convicted of various offenses. The transcript as prepared by the court reporter states that when the jury delivered their verdict, the clerk asked the foreperson whether Aldrich was guilty of “armed burglary.” The foreperson responded that Aldrich was “guilty as charged.” Aldrich moved to vacate what he argued was an unlawful conviction of an uncharged offense and sentence thereon. The Commonwealth responded with a motion to correct the record, arguing that the reference to “armed burglary” was merely a transcription error. After a hearing, the trial judge allowed the Commonwealth’s motion and denied Aldrich’s motion.[1] Aldrich’s petition ensued. A writ of habeas corpus “cannot be employed as a substitute for ordinary appellate procedure.” Sheriff of Suffolk County v. Pires, 438 Mass. 96, 99 (2002), quoting Crowell v. Commonwealth, 352 Mass. 288, 289 (1967). A petition for the writ must be based on “grounds distinct from the issues at the indictment, trial, conviction, or sentencing stage.” Glawson v. Commonwealth, 445 Mass. 1019, 1020 (2005), quoting Stewart, petitioner, 411 Mass. 566, 568 (1992). Aldrich’s request is clearly based on a claimed error that occurred at the conviction stage and that can, if warranted, be remedied in the appellate process. While Aldrich argues that there is an exception to this rule “where the court or magistrate by whose purported authority the imprisonment was imposed had no jurisdiction to impose it,” Crystal, petitioner, 330 Mass. 583, 591 (1953), it is not at all clear that this is the case here. There is a dispute whether the transcript reference to “armed burglary” accurately reflects what was spoken in court. The trial judge resolved that dispute against Aldrich. On the record before her, the single justice was not compelled to conclude that the judge did so wrongly or that Aldrich’s conviction was beyond the Superior Court’s jurisdiction. In these circumstances, there was no […]
Edwards, petitioner (Lawyers Weekly No. 10-035-13)
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‑11120 RAYMOND EDWARDS, petitioner. Norfolk. November 5, 2012. ‑ March 7, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ. Practice, Civil, Dismissal of appeal, Intervention, Judicial discretion. Statute, Construction. Committee for Public Counsel Services. Witness, Expert, Fee. Evidence, Sex offender, Expert opinion. Petition filed in the Superior Court Department on August 1, 2008. Following transfer, the case was tried before Douglas H. Wilkins, J., and posttrial motions for supplemental funds and for reconsideration were considered by him. The Supreme Judicial Court granted an application for direct appellate review. Ryan M. Schiff, Committee for Public Counsel Services, for intervener. Anne M. Thomas, Assistant Attorney General, for the Commonwealth. GANTS, J. The primary issue presented on appeal is whether, in determining the reasonable compensation to be paid to an expert retained by an indigent petitioner seeking release from commitment as a sexually dangerous person under G. L. c. 123A, § 9 (§ 9), a judge is bound by the hourly rate determined for that expert by the Committee for Public Counsel Services (CPCS) under § 9 (i). We hold that a judge is bound by CPCS’s determination of an hourly rate but still retains the authority to determine whether the total amount billed is reasonable by examining whether the services provided were reasonably necessary to provide the petitioner as effective a case as he would have had if he were financially able to pay. Because we conclude that the judge acted in accordance with these limits in determining the reasonable amount of the expert’s fee, we affirm. Background. In 2008, Raymond Edwards (petitioner), a person committed to the Massachusetts Treatment Center as a sexually dangerous person pursuant to G. L. c. 123A, § 12 (§ 12),[1] filed a petition seeking release from commitment under § 9.[2] After being found indigent, the petitioner filed a motion under G. L. c. 261, § 27C (§ 27C), inserted by St. 1974, c. 694, § 3, requesting that the judge authorize funds in the amount of $ 5,000 to retain the services of an “independent qualified examiner” to evaluate the petitioner and assist in the preparation of his case.[3] In making this request, the petitioner asserted that “[t]he cost of an independent expert examination, report, and testimony typically totals about $ 5,000″ and “[r]arely” costs less than $ 4,000, and that an independent […]