Com. v. Rosenberg

• Decision Date: 06 June 1991
• Citation: 573 N.E.2d 949,410 Mass. 347
• Parties: COMMONWEALTH v. Jack Matthew ROSENBERG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 949

573 N.E.2d 949

410 Mass. 347

COMMONWEALTH v. Jack Matthew ROSENBERG.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 5, 1990.

Decided June 6, 1991.

Matthew H. Feinberg (Matthew A. Kamholtz, with him), for defendant.

Nijole Makaitis, Asst. Dist. Atty., for the Commonwealth (William J. Connors, for the Department of Youth Services, with her).

Before LIACOS, C.J., and ABRAMS, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

In 1984, at the age of fourteen, the defendant, Jack Matthew Rosenberg, was placed in the custody of the Department of Youth Services (department), after he pleaded guilty to delinquency by reason of murder and kidnapping. ¹ As the defendant approached his eighteenth birthday, the department issued an order extending his commitment. Following a bench trial and a jury-waived trial de novo, the order was confirmed. In 1988, the department issued another order extending commitment. See G.L. c. 120, § 19 (1988 ed.) (requiring new order within two years). The order was confirmed after a bench trial in the West Roxbury Division of the District Court Department, the original committing court. The defendant sought a jury trial de novo in the appellate session of the Juvenile Court Department. See G.L. c. 120, § 20 (1988 ed.). A jury found beyond a reasonable doubt that the defendant was dangerous by reason of mental illness, and confirmed the department's order extending commitment of the defendant. A judge of the Juvenile Court confirmed the order in accordance with the jury verdict. This appeal by the defendant challenges his extended commitment to the custody of the department pursuant to G.L. c. 120, §§ 16-20 (1988 ed.). ² We allowed the defendant's application for direct appellate review. We affirm.

The facts adduced at the jury trial are as follows. The Commonwealth presented the testimony of four witnesses duly qualified as experts. Dr. Carol N. Maurer, a supervising psychiatrist at at Pennsylvania treatment center where the department placed the defendant, diagnosed the defendant as being mentally ill by reason of a bipolar affective disorder in remission. ³ Dr. Maurer also stated in her diagnosis that the defendant suffered from a sexual identity disorder, pedophilia, and a narcissistic personality disorder. In her opinion, neither pedophilia nor a narcissistic personality disorder was a mental illness, but, she testified, the latter could intensify a bipolar affective disorder. Based on her diagnosis, Dr. Maurer stated her opinion that the defendant was dangerous by reason of mental illness and was "capable, when frustrated, of carrying out the same act [the murder of a child] again." ⁴

The Commonwealth's second witness, Dr. Albert J. Scott, who holds a doctoral degree in education, evaluated the defendant on one occasion at the treatment center. He diagnosed the defendant as suffering from a bipolar affective disorder and a borderline personality disorder with antisocial tendencies. Dr. Scott classified both disorders as mental illnesses and considered the defendant dangerous to himself and others as a result of these disorders. ⁵

Dr. Craig Latham, a forensic psychologist with the Department of Mental Health, had examined the defendant on one occasion. He testified that the defendant was a danger to the public, that he "had not received any treatment" for his "sex offender" behavior, and, according to staff reports, had been "committing repeated acts of sexual aggression and manipulative behavior toward younger residents in the program." In Dr. Latham's opinion, the defendant exhibited "a pattern of behavior that, if left unchecked or untreated, would continue," and that the "circumstances [for which the defendant was originally committed] could occur again." Dr. Latham opined, however, that there was no evidence of bipolar disorder and that pedophilia was not a mental illness. He concluded that the defendant was not mentally ill and was not subject to commitment. ⁶

The Commonwealth presented, as its final witness, Dr. George L. Hardman, a psychiatrist who had examined the defendant once three years before the trial. The doctor's diagnosis of the defendant included a bipolar affective disorder in remission and a narcissistic personality disorder, both of which Dr. Hardman classified as mental illnesses. Based on his review of the defendant's records prior to the trial and on the reports of Drs. Maurer, Scott, Latham, and Seghorn, Dr. Hardman stated his opinion that the defendant still suffered from these disorders and still presented a danger.

The defendant presented the testimony of one witness, Dr. Theoharis Seghorn, whose diagnosis and opinion were based on a personal evaluation of the defendant and interview with the staff at the treatment center conducted in conjunction with Dr. Latham, and on evaluation reports in the defendant's file, as well as on the results of a penile plethysmograph examination (discussed infra ). This witness concluded that the defendant was not mentally ill and was not dangerous by reason of mental illness.

The defendant alleges the following errors occurred at the jury trial: (1) The judge abused his discretion in failing to declare a mistrial when members of the jury panel were left in a court hallway, prior to the taking of evidence, with members of a group calling themselves "Parents of Murdered Children"; (2) the judge erred in admitting the testimony of Dr. Scott in violation of the psychotherapist-patient privilege; (3) the judge erred in admitting testimony of Dr. Maurer to the extent that her testimony relied on confidential conversations between the defendant and his therapist, Timothy Blackson, allegedly an agent of Dr. Maurer; (4) the judge erred in admitting the testimony of Dr. Hardman, as it was based on stale information; (5) the judge improperly instructed the jury regarding Dr. Seghorn's reliance on the results of a penile plethysmograph examination; (6) there was insufficient evidence to prove that the defendant was dangerous by reason of mental illness; and (7) the judge should have excluded testimony regarding personality disorders because such disorders are not mental illnesses under 104 Code Mass.Regs. § 3:01(a) (1986). The defendant also contends that the two-tier de novo review of a department order extending commitment violated his right not to be put in jeopardy twice and his right to due process; that G.L. c. 120 does not authorize multiple extensions, and that multiple extensions violated his right to due process; that the commitment procedure under G.L. c. 120 denied the defendant his right to equal protection of the laws; and finally, that commitment without proof of a recent overt act demonstrating dangerousness deprived the defendant of his due process rights.

1. Motion for a mistrial. The defendant claims that the judge should have declared a mistrial when it was discovered that members of the jury had been seated in a hallway among members of a group known as "Parents of Murdered Children," all of whom wore buttons bearing the name of the group. The defendant fails to cite any authority to support this claim.

The judge conducted a voir dire examination of the jurors in accordance with the procedure prescribed in Commonwealth v. Jackson, 376 Mass. 790, 800-801, 383 N.E.2d 835 (1978), to determine whether any possible prejudicial information had reached any juror. Having found no prejudice, see Commonwealth v. Palmariello, 392 Mass. 126, 142, 466 N.E.2d 805 (1984) (judge has right to rely on juror statements), the judge took the added precaution of dismissing one juror who sat particularly close to the group. The judge also ordered all the buttons confiscated. The denial of the motion for a mistrial was not an abuse of the judge's discretion.

2. Evidentiary Issues.

a. Psychotherapist-patient privilege. The defendant argues that it was error to admit the testimony of one expert witness, Dr. Scott, a psychologist who evaluated the defendant, because Dr. Scott failed to give the defendant the appropriate warning prescribed in Commonwealth v. Lamb, 365 Mass. 265, 311 N.E.2d 47 (1974), prior to evaluating him. The judge ruled that the defendant's conversations with Dr. Scott did not fall within the statutory bounds of the psychotherapist-patient privilege, G.L. c. 233, § 20B (1988 ed.), because Dr. Scott has a doctoral degree in education, not a doctoral degree in the field of psychology. ⁷ "The patient-psychotherapist privilege has never been recognized at common law. Commonwealth v. Gordon, 307 Mass. 155, 158, 29 N.E.2d 719 (1940). We are thus not inclined here to extend the patient-psychoteherapist privilege beyond the bounds established by the Legislature. See Usen v. Usen, 359 Mass. 453, 457 (1971)." Commonwealth v. Mandeville, 386 Mass. 393, 409, 436 N.E.2d 912 (1982). See Adoption of Diane, 400 Mass. 196, 201, 508 N.E.2d 837 (1987). There was no error.

The defendant contends that the judge erred in allowing Dr. Maurer, a psychiatrist who qualifies as a psychotherapist under G.L. c. 233, § 20B, ⁸ and who allegedly supervised the defendant's therapist, to testify to her opinion of the defendant' mental state which was based in part on communications between the defendant and his therapist. ⁹ The defendant argues that the therapist was an agent of Dr. Maurer, and, therefore, communications between the defendant and his therapist should be privileged to the extent communications between the defendant and Dr. Maurer would be privileged.

The therapist, Timothy Blackson, does not qualify independently as a psychotherapist under G.L. c. 233, § 20B, because he holds neither a medical degree in psychiatry nor a doctoral degree in the field of psychology. We have recognized the possibility of extending this statutory privilege to an agent of a psychotherapist where there exists a confidential relationship between the patient and the psychotherapist, see Commonwealth v. Mandeville, ...