COMMONWEALTH v. CORDEIRO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A jury found that the defendant, Jodi Cordeiro, is a sexually dangerous person as defined by G. L. c. 123A, § 1, and a judge ordered him committed to the Massachusetts Treatment Center. On appeal, the defendant contends that the judge committed reversible error by barring one of his expert witnesses from testifying about an interview and psychological testing that the expert conducted on the eve of trial. We affirm.

1. Procedural background. On November 23, 2012, the Commonwealth petitioned to have the defendant committed as a sexually dangerous person. Two qualified examiners, Dr. Michael Murphy and Dr. Robert Joss, interviewed the defendant and reviewed the defendant's record. Both filed reports finding that the defendant was a sexually dangerous person. Dr. Murphy subsequently moved from the Commonwealth. The Commonwealth, with the assent of the defendant, moved to substitute another qualified examiner, and Dr. Gregg Belle was appointed as the substitute. The defendant refused an interview with Dr. Belle. Dr. Belle, who had Dr. Murphy's original report for reference, also found that the defendant was a sexually dangerous person.

The defendant hired his own expert witnesses, Dr. Robert Halon and Dr. Joseph Plaud, who both authored reports opining that the defendant was not a sexually dangerous person. For his report, Dr. Plaud interviewed the defendant around the same time that Dr. Murphy and Dr. Joss did so. Because Dr. Halon lives in California, defense counsel opted to have him come to Massachusetts to interview the defendant just prior to trial.

Because of defense counsel's numerous health emergencies and the defendant's desire to retain his counsel, the trial was continued numerous times for approximately three years. Dr. Halon interviewed the defendant on March 20, 2016, the night before trial was scheduled to begin. The Commonwealth then moved in limine to bar Dr. Halon from referencing the interview.² The judge granted the Commonwealth's motion and denied the defendant's motion.

At trial, Dr. Joss and Dr. Belle testified for the Commonwealth, and Dr. Halon and Dr. Plaud testified for the defendant. Dr. Halon did not mention his interview of the defendant during his testimony, and the defendant submitted a version of Dr. Halon's report that relied only on documentary evidence. After a five-day trial, the jury found the defendant to be sexually dangerous pursuant to G. L. c. 123A, § 1. This appeal followed.

2. Discussion. Defendants in sexually dangerous person proceedings “may retain experts ․ to perform ․ examination[s] on [their] behalf,” but if they intend to rely on testimony of those experts, they must provide copies of the experts' reports to the court and to the prosecution “no later than ten days prior to the scheduled trial.” G. L. c. 123A, § 14 (b). Here, the defendant filed a report from Dr. Halon with the court on March 7, 2016, more than ten days prior to the trial scheduled for March 21, 2016. That report was based solely on Dr. Halon's record review and noted that he had not yet conducted an interview with the defendant. Dr. Halon interviewed the defendant on March 20, 2016, the day before trial was set to begin and two days before it did begin. The judge -- citing “late disclosure issues” as well as the defendant's refusal to be interviewed by Dr. Belle -- permitted Dr. Halon to testify to the contents of his filed report, but not to any additional findings from his subsequent interview with the defendant.

Abuse of discretion occurs where the judge “made a 'clear error of judgment in weighing' the factors relevant to the decision, ․ such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9. 15 (1st Cir. 2008). Here, no such error occurred. See, e.g., Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 335 (2007) (trial judge acted within discretion in excluding report where defendant did not follow proper discovery procedures). Where the defendant's actions effectively “divest[ ] the Commonwealth of the ability to challenge the expert's conclusions,” as occurred here with the late disclosure of the interview, it is reasonable to exclude the offered evidence. Id. Because exclusion of the testimony based on the late disclosure while allowing testimony based on the timely report constitutes a reasonable alternative, the trial judge did not abuse his discretion in this case, and no error occurred.

Judgment affirmed.

FOOTNOTES

2.   The defendant filed a cross motion to admit Dr. Halon's testimony, including references to interviews.