VAN LEW v. << (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner, Joseph S. Van Lew, filed a petition for examination and discharge pursuant to G. L. c. 123A, § 9. Following a jury trial, the jury found that he remains a sexually dangerous person, and the court ordered him to remain civilly committed. On appeal, he challenges the admission of certain evidence at his trial.

First, over objection, Joseph Plaud, one of the petitioner's independent examiners, testified on cross-examination that it “sounds like it would be right” “to say less than five percent” of criminally confined sex offenders are actually committed as sexually dangerous. Petitioner contends this evidence was irrelevant. Assuming, without deciding, that this testimony was indeed irrelevant, though, it was never mentioned again at trial and played essentially no substantive role in the proceedings. Consequently, any error in its admission was not prejudicial. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

The petitioner also objects on the ground of relevance to the admission of evidence of the percentage of sex offenders particular examiners had found sexually dangerous. Specifically, he objects to testimony on direct examination of Katrin Rouse-Weir and Kaitlyn Peretti, the Commonwealth's qualified examiners (QE), about how often each finds someone they are examining sexually dangerous. When Rouse-Weir was asked how often she finds someone sexually dangerous “when the district attorney is considering whether to file a petition ․ [t]o commit somebody as sexually dangerous,” she responded, “I would say 95 percent of the time I find them not sexually dangerous”; when asked how often she does not find someone sexually dangerous when assigned as a QE at the initial commitment stage, she responded, “I would say probably somewhere around 60 percent, 65 maybe”; and when asked the same question about the discharge stage, she responded, “I would say probably 40 percent.” Peretti testified that out of the thirteen people she had evaluated, she found six were not sexually dangerous. The petitioner argues that we review for prejudicial error, Flebotte, 417 Mass. at 353; the Commonwealth argues that we review only for a substantial risk of a miscarriage of justice, Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). We need not decide the question, as it is immaterial. The admission of this evidence was not in error. The statistical data to which the petitioner takes exception were relevant to the credibility of the examiners.²

Judgment affirmed.

FOOTNOTES

2.   The petitioner raises no objection to the Commonwealth raising these statistics that bolstered its witnesses' credibility on direct examination before any evidence attacking their credibility was introduced. We therefore express no opinion on the propriety of the procedure followed. Likewise, as the petitioner has not raised any contention that, in the circumstances here, the risk of unfair prejudice from this evidence substantially outweighed its probative value, we express no opinion on the circumstances under which that might be the case with respect to such statistical evidence.