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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Given,
Present: Beck,
Kass, & Doerfer, JJ.
The case was
tried before James P. Donohue, J.
David H. Erickson for the defendant.
John J. Conte, District Attorney for the Middle District, & Ellyn H.
Lazar-Moore, Assistant District Attorney, for the Commonwealth.
DOERFER, J.
After a trial held pursuant to G. L. c. 123A,
§ 14, a jury determined that the defendant was a sexually dangerous
person. At trial, over objection, a police report was admitted in evidence that
referred to an allegation that the defendant had sexually assaulted an
unidentified child; this allegation did not result in any indictment of the
defendant. The admission of this evidence constituted prejudicial error[1]
requiring a new trial.
Evidence at trial. In 1984 the defendant was convicted of indecent assault and
battery on a child under fourteen. The victim was the ten year old son of the
defendant's cousin, and the incident occurred on or about
The only issues at trial were whether the defendant suffers from a mental
abnormality or personality disorder and whether that mental abnormality or
personality disorder makes him likely to engage in sexual offenses if he is not
confined to a secure facility. G. L. c. 123A, § 1. The trial on these issues
included the testimony of two experts for the Commonwealth and two for the
defendant who came to differing conclusions whether the defendant was a
sexually dangerous person as defined by the statute. The defendant also
testified. The judge allowed police reports in evidence under G. L. c. 123A, §
14(c).
The defendant objected to the admission of a portion of one police report that
included information about an alleged sexual assault involving an unidentified
child that was never prosecuted. The police report in issue related to the
investigation of the forcible rape of Francine. In her interview with the
police, Francine recounted a sequence of events involving the defendant, who
had requested and received permission from her uncle to take her to a roller
rink. On the way, the defendant said that he needed to pick up his
stepchildren. The defendant and Francine then went into a residence where his
stepchildren were supposed to be and, when they were not there, he put his hand
down Francine's blouse and in her pants. Francine threatened to tell her uncle,
and they left. At the roller rink Francine started to call her father, but when
the defendant, who was watching, started to approach her, Francine handed the
phone to a bystander and told that bystander to complete the call and to ask
Francine's father to come and get her. Francine said the defendant forced her
into his car, locked all the doors, and forcibly penetrated her vaginally.
Francine said she then managed to escape back into the roller rink. Her father
arrived, and the defendant told him that Francine was upset because he was
unable to buy her a soda. The defendant took off quickly in his car, and
Francine told her father what had happened.
The report then states, "[Francine] later said that while they were in the
locked car there was a 6 year-old boy inside the car also and that Ed tried to
molest him, too. The 6 year-old was standing outside waiting for his ride [she]
said. [Francine] mentioned something about the 6 year-old calling his mom and
his mom calling his Dad on the cellular phone and that his Dad would be picking
him up. The 6 year-old's Dad arrived and the boy ran over to his dad's car and
he was crying and had a cut on his hand. [Francine] also said that the boy's
father had called the police on his cellular phone in the car. Then the boy and
his dad got in their car. Then [Francine] said [the defendant] approached the
boy's father's car and the boy's father took off."[4] As previously
stated, these allegations concerning the six year old boy did not result in any
indictment.
Inadmissibility of portions of the police report. The defendant argues that G.
L. c. 123A, § 14(c), is unconstitutional as applied in this case because the
judge was not required to rule on the reliability of the hearsay supposedly
made admissible by the statute. We need not consider the constitutional
argument, however, because the evidence in question was not admissible under
the statute. Commonwealth v. Markvart, 437
"Juvenile and adult court probation
records, psychiatric and psychological records and reports of the person named
in the petition, including the report of any qualified examiner, as defined in
section 1, and filed under this chapter, police reports relating to such
person's prior sexual offenses, incident reports arising out of such person's
incarceration or custody, oral or written statements prepared for and to be offered
at the trial by the victims of the person who is the subject of the petition
and any other evidence tending to show that such person is or is not a sexually
dangerous person shall be admissible at the trial if such written information
has been provided to opposing counsel reasonably in advance of trial."
In Commonwealth v. Markvart, supra, the
The record is clear that the police report was admitted, without limitation,
for the truth of the matter stated therein, namely that the defendant had
sexually assaulted a six year old boy on the same occasion that he sexually
assaulted Francine.[6] This information was available to the jury in
assessing whether the defendant was a sexually dangerous person. There was no
doubt about the use to which the jury were allowed to put this information
because the judge specifically told the jury they could consider both charged
and uncharged sexual misconduct:
"But in deciding the likelihood that Mr.
Given will engage in the commission of sexual offenses if not confined to a
secure facility you are free to draw inferences based upon his past sexual
misconduct and the testimony of the experts. Mr. Given's past sexual misconduct
need not have led to criminal charges in order for you to consider that in
determining the issues before you. You may . . . also consider any sexual
misconduct charges that have [been] brought to your attention" (emphasis
supplied).
The only uncharged conduct in evidence was the
alleged incident relating to the six year old boy described in the police
report.
Harmless error standard. The defendant objected to the admission of the
evidence and thus we consider whether the admission of the evidence was
harmless error. Commonwealth v. Federico, 425
Error in the admission of evidence over objection is harmless only if we can be
"sure that the error did not influence the jury, or had but very slight
effect . . . ." Commonwealth v. Flebotte, 417
Where the error is in the admission of evidence we look to see whether,
"On balance there was enough potential force to the [erroneously admitted
evidence] so that we cannot shrug off the error attending its admission as
harmless. There is danger in speculation long after the fact about what impact
inadmissible evidence may have had on a jury's reasoning. . . . [C]ourts should
set aside a conviction unless sure that the error did not influence the jury,
or had but slight effect." Commonwealth v. Seminara,
We must review the evidence properly admitted at trial to determine if we are
sure that the improperly admitted evidence had no, or very slight, influence on
the verdict of the jury. The experts disagreed on several points. On the Commonwealth's
side they testified that the defendant was a pedophile and thus suffered
"from a mental abnormality or personality disorder." The defendant's
experts said he was in remission. The defendant's experts gave weight to the
fact that the defendant's victims were related or known to him as diminishing
the likelihood of his reoffending. Both of these features of the defense
experts' testimony were undermined by the evidence of his alleged assault on
the unidentified six year old boy. The defendant's testimony and his counsel's
argument at trial were that he had served nine years in prison and had learned
his lesson; that he had worked out a relapse prevention program; that he had
engaged in some therapy relating to his sexually dangerous conduct (the degree
of which was contested at trial); and that his offending was related to alcohol
abuse and depression arising out of various personal misfortunes. Although he
had multiple offenses, some while on probation or on bail, there was sharp
disagreement among the experts on the likelihood of his re-offending. His
experts tended to rely on statistical models and deprecated the subjective
clinical aspects of the approach of the Commonwealth's experts.
On this record we cannot be sure that the inadmissible evidence had no, or very
slight, influence on the verdict of the jury.
Other issues. There was no error in denying the defendant's motion for a
required finding of not guilty. The Commonwealth's experts supplied sufficient
testimony to support a conclusion that the defendant met the statutory
definition of a sexually dangerous person. The other arguments on appeal have
either been waived or submitted by appellate counsel under the reservations of
Commonwealth v. Moffett, 383
Judgment reversed.
Special verdict set aside.
FOOTNOTES:
[1] The controlling decisions, as will be seen, were
handed down after the trial and, thus, the error does not reflect any
inattention on the part of the trial judge.
[2] A pseudonym.
[3] On the combination of these two sets of
indictments he pleaded guilty to two charges of rape of a child, five charges
of indecent assault and battery on a child under fourteen, and two charges of
indecent assault and battery on a mentally retarded child.
[4] Another part of the
police report, in the form of questions to the complainant and her answers,
stated:
Q. "Where in the car did this happen?"
A. "In the back seat, there was also a little boy in the car with us at
this time and that [the defendant] did the same thing to the little boy."
Q. "Were the seats up or down?"
A. "It was up."
Q. "Can you tell me something about the little boy."
A. "Not really, I think he was 6 years old."
[5] The Commonwealth argues that defendant did not
object at trial on the ground that the statute did not apply, and thus that the
defendant cannot argue the issue on appeal. Both parties argue the
constitutional issue on appeal. Because the statute does not permit the
admission of this evidence, we should not reach the question whether the
statute would be constitutional if it did provide for the admission of the
evidence, even though the scope of the statute was not argued at trial.
Constitutional questions should not be considered in the abstract or on a
hypothetical basis. "[I]ssues of statutory interpretation should be
resolved prior to reaching any constitutional issue." Massachusetts
Prisoners Assn. Political Action Comm. v. Acting Governor, 435 Mass. 811, 816
(2002), quoting from 1010 Memorial Drive Tenants Corp. v. Fire Chief of
Cambridge, 424 Mass. 661, 663 (1997).
[6] The entire police report could be used by the
experts in formulating their opinions, because the information in the report
was otherwise admissible. Markvart, supra at 337, citing Department of Youth
Servs. v. A Juvenile, 398
[7] For a general discussion of the application of
the harmless error doctrine in civil cases see Smith & Zobel, Rules
Practice § 61.2.