Commonwealth v. George
477 Mass. 331
| Mass. | 2017Background
- Commonwealth filed a G. L. c. 123A petition to adjudicate Richard George a sexually dangerous person (SDP); after a jury trial he was committed to the Massachusetts Treatment Center indefinitely.
- Defendant had prior sexual convictions: (1) 1978 indecent assault and battery on a nine‑year‑old; (2) later convictions for aggravated rape and rape involving a 49‑year‑old woman, for which he served 15–25 years.
- Two qualified examiners (Belle, Ph.D., and Rouse‑Weir, Ed.D.) interviewed George, diagnosed antisocial personality disorder (ASPD), and opined he was likely to reoffend sexually if not confined.
- Examiners relied on criminal history, extensive institutional disciplinary incidents (including sexually threatening/explicit conduct toward female staff and sexual misconduct in custody), failed/terminated sex‑offender treatment, and Static‑99R actuarial scoring (raw scores reported; examiners used category labels “moderate‑high” and “high”).
- Defendant moved to exclude expert testimony on likelihood of reoffense and Static‑99R category labels; motions were denied, trial evidence admitted, and defendant offered no evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an ASPD diagnosis alone can support SDP commitment | ASPD is a recognized personality disorder under G. L. c. 123A and, when tied to evidence showing lack of control over sexual impulses, supports commitment | ASPD is too broad and common in prisons; using it permits preventive detention of typical recidivists in violation of substantive due process | ASPD may be a sufficient predicate only if other evidence establishes a nexus showing the disorder causes a general lack of control over sexual impulses leading to likely sexual reoffense if not confined; upheld on these facts |
| Whether qualified examiners may testify about likelihood of reoffense (ultimate issue) | Expert opinion is necessary and appropriately assists the jury on predictive questions beyond ordinary experience | Such testimony improperly invades the jury’s fact‑finding role | Admissible; expert opinion on likelihood is essential and properly presented to the jury |
| Whether Static‑99R risk category labels (e.g., “moderate‑high,” “high”) are admissible | Static‑99R results assist in assessing risk | Category labels are subjective, unclear, and risk shifting factfinder to experts | Risk category labels are inadmissible (lack probative value); raw Static‑99R score and corresponding percentage remain admissible |
| Whether erroneous admission of Static‑99R labels was prejudicial | Any error was harmless given the limited role of Static‑99R among many factors | Labels could have unduly influenced jury | Error was nonprejudicial here because examiners used Static‑99R only as one component among numerous dynamic and historical factors |
Key Cases Cited
- Kansas v. Crane, 534 U.S. 407 (2002) (U.S. Supreme Court decision on civil commitment standards and nexus between mental condition and inability to control dangerous behavior)
- Commonwealth v. Fay, 467 Mass. 574 (2014) (elements required for SDP adjudication under G. L. c. 123A)
- Green, petitioner, 475 Mass. 624 (2016) (definition and role of qualified examiner in SDP proceedings)
- Johnstone, petitioner, 453 Mass. 544 (2009) (expert evidence required because predictive behavioral questions are beyond ordinary experience)
- Commonwealth v. Boucher, 438 Mass. 274 (2002) (risk assessment considerations in confinement decisions)
- Souza, petitioner, 87 Mass. App. Ct. 162 (2015) (recognizing ASPD may satisfy SDP definitional requirements when combined with other evidence)