Souza
87 Mass. App. Ct. 162
| Mass. App. Ct. | 2015Background
- George Souza, age 69 at trial, sought release from civil confinement as a "sexually dangerous person" (G. L. c. 123A, § 9). A jury deadlocked and the trial judge granted Souza a directed verdict; the Commonwealth appealed.
- Souza has two key sexual-offense convictions: a 1971 New York conviction for rape of a 13-year-old and a 2000 Massachusetts guilty plea for indecent assault and battery on a nine-year-old (incident in 1990). He also has a lengthy criminal history and multiple disciplinary reports while confined.
- Two Commonwealth experts (including a Qualified Examiner, Kelso) diagnosed pedophilia and antisocial personality disorder (APD), opined Souza had poor impulse control, and concluded he posed a high risk to reoffend. The CAB chair (Tomich) filed a minority CAB report supporting confinement.
- Defense experts (including the other QE and the CAB majority author) relied on Souza’s age, PPG results showing no significant sexual arousal, limited treatment progress, and other factors to conclude he was not currently sexually dangerous.
- The trial judge granted a directed verdict for Souza, reasoning the Commonwealth failed to prove pedophilia under the DSM‑IV (disputing whether the 1971 victim was prepubescent) and that APD alone, without proof of current inability to control sexual impulses, was insufficient. The Supreme Judicial Court reversed and remanded for retrial.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Souza) | Held |
|---|---|---|---|
| Sufficiency of evidence to permit retrial on SDP status | Expert testimony (QE + CAB minority) showing pedophilia or APD, repetitive/compulsive sexual misconduct, high Static-99R risk — enough for a rational juror to find SDP beyond a reasonable doubt | Evidence insufficient: advanced age, long lapse since offense, negative PPG, limited recent sexualized conduct — judge correctly directed verdict | Reversed: viewed in light most favorable to Commonwealth, evidence (experts, Static-99R, offenses) was sufficient for jury determination; judge erred in weighing credibility/factual disputes |
| Use of DSM‑IV pedophilia definition and proof of prepubescence of 1971 victim | DSM is not legally binding; jury may find mental abnormality without strict DSM conformity; Souza’s conduct with an under‑age victim supports diagnosis | Commonwealth relied on DSM-defined pedophilia; trial judge found lack of foundation (uncertain whether 13‑year‑old was prepubescent) justified directed verdict | Court: jury should decide credibility and DSM‑analytic disputes; trial judge improperly substituted her view for jury on clinical factual question |
| Weight and role of Qualified Examiner (QE) testimony vs. other experts | Once QE requirement satisfied, jurors may consider all expert testimony; judge should not direct jurors to give special weight to QE testimony | Trial judge restricted jury reliance on non‑QE expert (allowed CAB testimony but said Soto couldn’t be found SDP solely on it) | Court: instruction that suggested special evidentiary primacy for QE was confusing and inadvisable; avoid telling jury how to weigh experts once QE gatekeeping satisfied |
| Consideration of age, time lapse, and confinement in assessing current dangerousness | Age and lapse are protective factors but do not preclude finding of current dangerousness when experts account for them (e.g., Static‑99R still high) | Age and decades without sexual acting‑out, negative PPG, and limited in‑custody sexual behavior make proof of present inability to control impulses lacking | Court: age and lapse are relevant but not dispositive; experts’ risk assessments sufficed to take issue to jury |
Key Cases Cited
- Commonwealth v. Cowen, 452 Mass. 757 (discussing standard of reviewing evidence in SDP context)
- Commonwealth v. Blake, 454 Mass. 267 (articulating sufficiency standard for SDP proof)
- Commonwealth v. Boyer, 61 Mass. App. Ct. 582 (standard for elements of sexual dangerousness)
- Commonwealth v. Reese, 438 Mass. 519 (either diagnosis—APD or pedophilia—can satisfy SDP definition; limits on rejecting expert testimony as insubstantial)
- Commonwealth v. Starkus, 69 Mass. App. Ct. 326 (DSM is a psychiatric, not legal, authority; DSM definitions are not binding in SDP proceedings)
- Commonwealth v. Husband, 82 Mass. App. Ct. 1 (legal definition of personality disorder not required to match DSM exactly)
- Commonwealth v. Rodriquez, 364 Mass. 87 (jury instruction procedure for deadlocked juries; Tuey‑Rodriquez charge)
- Commonwealth v. Blanchette, 54 Mass. App. Ct. 165 (lapse of time and confinement do not automatically defeat SDP proof when other factors support experts’ opinions)
- Sheridan, Petitioner, 422 Mass. 776 (jury voting rules in SDP release trials)
- Kansas v. Hendricks, 521 U.S. 346 (constitutional framework for civil confinement based on mental abnormality)