Michael KAMPER, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the petitioner was found to remain a sexually dangerous person (SDP) under G. L. c. 123A, § 9. On appeal, he claims the judge erred in giving certain jury instructions related to the efficacy of sex offender treatment. The petitioner argues this error was exacerbated by the judge's interjections during his counsel's examination of witnesses and after his counsel's opening and closing statements. Because we discern no error, the judgment is affirmed.
Background. The petitioner commenced this action seeking to be discharged from his commitment to the Massachusetts Treatment Center (MTC) as an SDP. At the time of this petition, he was seventy-one years old. The petitioner was incarcerated for five and one-half years for several convictions of rape of a child and indecent assault and battery on a person under fourteen years, and has spent the last nineteen years civilly committed as an SDP.
Prior to trial, the Commonwealth filed a motion in limine to prevent the petitioner's counsel from challenging the adequacy of the sex offender treatment; the appropriateness of civil commitment to manage a sex offender; and from describing the MTC as punitive or from referring to civil commitment as punishment. The petitioner's counsel agreed that she would steer clear of any of these areas and the trial judge allowed the motion.
On August 6, 2019, a jury trial commenced. Several experts gave testimony on the issue whether the petitioner, who had been in treatment for approximately nineteen years, continued to be an SDP. The Commonwealth called three expert witnesses to testify that the petitioner was still an SDP, and the petitioner called three expert witnesses who opined to the contrary.2 The jury also heard evidence about the length and the type of treatment the petitioner received at the MTC. Both the Commonwealth and the petitioner introduced evidence of the petitioner's treatment as it related to his future risk to reoffend.
Throughout the trial, the petitioner's counsel and his witnesses repeatedly strayed from the terms of the court-approved stipulation. The petitioner's counsel struggled to refrain from referring to the MTC as punishment. For instance, in her opening statement, she told the jury that the petitioner had been imprisoned for the past twenty-four years. Numerous similar misstatements followed, and in some cases, the judge stepped in to comment or help counsel. The judge suggested that counsel ask questions to distinguish prison from civil commitment, and even proposed alternative language she might use. In one instance after a witness referred to the petitioner's twenty-five years of “incarceration,” the judge commented that “the jury understands [that] in some ways it's like prison and [in] some ways it's not like prison to be at the [MTC].”
During her closing argument, the petitioner's counsel raised the quality of treatment, again in violation of the stipulation, when she commented that: “I would suggest if after [nineteen] years they can't establish treatment for this fellow in [nineteen] years, then that treatment may not be worth very much.” The Commonwealth objected and the judge gave a limiting instruction:
“[T]here may have been a reference to the fact that if treatment is not working after [nineteen] years, it probably is not adequate or effective treatment. I'm going to advise you to disregard that, and the reason is that jurors are not allowed to have opinions and form their verdict based on whether or not they agree with the way the [MTC] treats patients. Rather, your opinion is just whether the petitioner is sexually dangerous today. So let me repeat that. You may not consider whether the treatment is something that you agree with or approve of because it's not a referendum on that. Your verdict really is the petitioner sexually dangerous today.”
The petitioner's counsel did not object to this instruction. Nor did she object to the similar instruction in the final charge, where the judge explained:
“The Commonwealth has the burden of proving beyond a reasonable doubt that the petitioner is today a sexually dangerous person by evidence presented in this trial. The petitioner has no burden to prove anything in this case. The burden is on the Commonwealth and it stays on the Commonwealth throughout the trial.
“In deciding whether the Commonwealth has met its burden of proving beyond a reasonable doubt that the petitioner is today a sexually dangerous person, you are to base your decision only on the evidence that was admitted during the course of this trial.
“You are not to base your decision on what your feelings or opinions may be regarding the law that permits sexually dangerous persons to be confined at the Treatment Center.
“You are not to base your decision on what your feelings or opinions may be regarding the treatment provided at the [MTC], the adequacy or effectiveness of the treatment program, the conditions of [the] petitioner's residency at the [MTC], or the actions the [MTC]'s staff may or may not have taken toward him.
“The focus of your deliberations must be on whether the Commonwealth has proved beyond a reasonable doubt that the petitioner is today a sexually dangerous person. If the Commonwealth has failed to meet its burden, you will find that he is not a sexually dangerous person. If the Commonwealth has satisfied its burden, you will find that he is a sexually dangerous person.”
On August 13, 2019, the jury found that the petitioner remained an SDP. This appeal timely followed.
Discussion. The petitioner claims that the judge's limiting and closing instructions regarding the treatment at the MTC improperly shifted the burden of proof to him and caused the jury to be confused or misled. The petitioner also claims that this error was heightened by the judge's interjections throughout trial and the corrections to counsel's opening and closing statements.3 Because these issues are raised for the first time on appeal, we review to ascertain whether the alleged error created a substantial risk of a miscarriage of justice. R.B., petitioner, 479 Mass. 712, 717-718 (2018). “The substantial risk standard requires us to determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made’ ” (citation omitted). Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 91 (2019).
The judge's instructions. First, we discern no error in the judge's instructions. Both the judge's limiting and final instructions to the jury were grounded in the law. See Wyatt, petitioner, 428 Mass. 347, 355-360 (1998). Rather than confusing or misleading the jury, the instructions served to keep the jury focused on the narrow issue to be decided: whether the petitioner remained sexually dangerous. Nor did the instructions shift the burden of proof to the petitioner. The judge's final instructions explicitly and repeatedly stated that the burden rested with the Commonwealth.
The judge's conduct during trial. The petitioner also claims he was unfairly prejudiced because of the judge's interruptions during trial that were directed towards his counsel.
The record does not support the petitioner's claim. Not only did the petitioner's counsel comment on the worth of the treatment program but she also, at various times throughout the trial, referred to the MTC as prison or incarceration.4 The Commonwealth objected on several occasions, holding the petitioner's counsel to her agreement that the terminology would not be used. In accordance with his role of enforcing the stipulation, the judge merely sustained the objection and corrected the record.
In making determinations of admissibility, a trial judge is required to balance “meddlesomeness on the one hand and ineffectiveness and impotence on the other” (quotation and citation omitted). Commonwealth v. Carter, 475 Mass. 512, 525 (2016). Here, there is no evidence that the judge exhibited bias or was overly stringent in her corrections. Quite the opposite is true. At sidebar, the judge offered suggestions to the petitioner's counsel so that she could stay clear of violating the agreement. There was no appreciable risk that this created any appearance of partiality, or that the judge acted as an advocate, was hostile, or suggested that the petitioner be found an SDP. Instead, the judge properly ruled upon objections to ensure the jury remained focused on what the parties agreed were the central issues of the case. There was no error.
2. The petitioner also called three family members and two others who testified about the support they would offer the petitioner if he were released.
3. To the extent that the petitioner raises a constitutional challenge to the adequacy of the sex offender treatment and to the SDP statute, his appeal of the judgment on the jury verdict is not the proper forum in which to advance these claims.
4. Notably, there were instances where the petitioner's counsel self-corrected and properly rephrased her wording without judicial intervention.
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