Christopher FLADGER, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial in the Superior Court on his petition for release pursuant to G. L. c. 123A, § 9, a jury found that the petitioner, Christopher Fladger, remains a sexually dangerous person. Based on that finding, the judge ordered the continuation of the petitioner's commitment to the Massachusetts Treatment Center. On appeal, the petitioner claims that the judge denied him a fair trial by interrupting his counsel's questioning and excessively calling counsel to sidebar. The petitioner also claims error in the admission of an expert opinion that the petitioner has a sexual sadism disorder. We affirm.
Discussion. 1. Judicial intervention. The petitioner claims that the judge excessively interrupted his counsel's questions and, on multiple occasions, called counsel to sidebar in a way that demonstrated partiality and violated the petitioner's right to a fair trial. The petitioner further contends that objections to the judge's interruptions would have been futile, such that we should consider the issue preserved and review to determine whether any error was harmless beyond a reasonable doubt. Because we discern no error in the judge's intervention, we need not decide whether the issue was properly preserved.
The judge called counsel to sidebar on multiple occasions to determine whether proposed evidence was relevant and admissible. We see no error in those interventions. After all, it was the judge's responsibility to make certain that the witnesses and the jury were not exposed to inadmissible evidence. See Mass. G. Evid. § 103(d) (2020). Nor was it improper for the judge to intervene when the petitioner sought, through the testimony of expert witnesses, to offer facts that were not before the jury. McHoul, petitioner, 445 Mass. 143, 148 n.4 (2005). See Commonwealth v. Haley, 363 Mass. 513, 518 (1973) (judge may exclude inadmissible evidence without waiting for objection by counsel). Further, the judge was entitled to interrupt where she perceived repetitive cross-examination and improperly phrased questions. See Commonwealth v. Jackson, 419 Mass. 716, 722 (1995).
We are mindful that judges managing a trial must strike a delicate balance between “meddlesomeness on the one hand and ineffectiveness and impotence on the other.” Commonwealth v. Carter, 475 Mass. 512, 525 (2016), quoting Commonwealth v. Brown, 462 Mass. 620, 632 (2012). To be sure, “an overspeaking judge is no well-tuned cymbal” (citation omitted). Haley, 363 Mass. at 518. But a judge is not a “mere functionary to preserve order and lend ceremonial dignity to the proceedings” (citation omitted). Id. It is the judge's task to make certain that the parties are treated fairly and to “see that justice is done” (citation omitted). Carter, supra. While the transcript reflects that the judge intervened often, we do not agree with the petitioner's characterization of the interruptions and sidebar requests as “incessant” and “unnecessary,” or that they interfered with the petitioner's presentation of evidence in a way that violated due process. Having carefully reviewed the trial transcript, we are satisfied that the judge's comments and questions did not impact the petitioner's right to a fair trial.2
2. Expert opinion. Dr. Andrea Barnes is a licensed psychologist and a member of the community access board (board)3 who participated in an evaluation of the petitioner and authored a report addressing his treatment progress. Dr. Barnes testified that, after reviewing the petitioner's criminal history, his sex offender treatment, and his disciplinary record while institutionalized, she concluded that he remained sexually dangerous. More specifically, she testified that the board diagnosed the petitioner with the mental abnormality of sexual sadism disorder. For the first time on appeal, the petitioner claims that the opinion regarding sexual sadism should not have been admitted because it was scientifically unreliable. Because this claim was not preserved, we review the issue to determine whether there was error and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
In Commonwealth v. Hunt, 462 Mass. 807 (2012), the Supreme Judicial Court stated that the Commonwealth's experts in sexually dangerous person cases “may offer the opinion - assuming it is sufficiently supported by empirical evidence - that those who receive or complete sex offender treatment are less likely sexually to reoffend than those who do not” (emphasis added). Id. at 818. Seizing on the highlighted language, the petitioner argues that Dr. Barnes's opinion regarding sexual sadism was inadmissible because it was not sufficiently supported by empirical evidence. The Commonwealth responds that Hunt does not require all aspects of an expert's testimony to be supported by scientific data, but that, in any event, Dr. Barnes's testimony was supported by the diagnostic criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013). We need not decide the scope of the Supreme Judicial Court's decision in Hunt because we are confident that the admission of the expert opinion in this case, even if error, did not create a substantial risk of a miscarriage of justice.
First, the petitioner had an opportunity to, and did, cross-examine Dr. Barnes regarding the basis for the diagnoses of sexual sadism. The jury also heard a contrary opinion offered by the petitioner's expert. More fundamentally, however, the definition of a sexually dangerous person can be met by evidence of either a mental abnormality or a personality disorder. See G. L. c. 123A, § 1. The jury heard ample evidence that the petitioner suffers from an antisocial personality disorder which makes him likely to reoffend sexually if not confined to a secure facility. Therefore, evidence that the petitioner had the mental abnormality of sexual sadism was not required for the Commonwealth to sustain its burden of proof, and we cannot reasonably conclude that the expert opinion “materially influenced” the verdict. Freeman, 352 Mass. at 564. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
2. Although we conclude there was no error here, we caution that frequent sua sponte intervention in the presence of the jury can create an appearance of partiality. But even were we to conclude that the judge intervened more often than was necessary, we see no prejudice. The judge instructed the jury that they “should not consider any rulings, questions, comments, expressions or my instruction on the law as any indication of my opinion on how you should decide this case because I have no opinion about the facts or what your verdict should be. That is your sole and exclusive duty and responsibility as jurors.” We presume the jury followed those instructions. Commonwealth v. Meadows, 33 Mass. App. Ct. 534, 539 (1992).
3. The board is a team of five mental health professionals who perform annual evaluations of civilly committed residents at the treatment center to determine if they remain sexually dangerous.
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