Commonwealth v. Bradway

Decision Date18 October 2004
Docket NumberNo. 02-P-491.,02-P-491.
Citation816 NE 2d 152,62 Mass. App. Ct. 280
CourtAppeals Court of Massachusetts

Present: Cypher, Grasso, & Kafker, JJ.

Colleen A. Tynan for the respondent.

Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.


The respondent, Stephen Bradway, appeals from a judgment and order of the Superior Court finding him a sexually dangerous person and committing him to the treatment center for sexually dangerous persons. On appeal, the respondent claims that the trial judge committed error by admitting in evidence expert opinion testimony from the statutorily mandated "qualified examiners." The respondent claims the judge should have subjected the testimony to a Daubert-Lanigan1 assessment and excluded it as unreliable. The respondent also contends that the Commonwealth failed to prove that he is likely to reoffend, as required by G. L. c. 123A, and that there were not any less restrictive alternatives to confinement.

We affirm as we conclude that the statute was drafted with the intention that the qualified examiners' expert opinion testimony be admitted for consideration by the fact finder. Also, the evidence at trial was sufficient for the trial judge to conclude that the Commonwealth proved beyond a reasonable doubt that the respondent is likely to reoffend if not confined to a secure facility.

1. Background. The judge's fact findings, which are supported by the record, establish that the respondent, age thirty-seven at the time of trial, had committed numerous sex offenses.2 The respondent committed his first sex offense at the age of seventeen, against his nine year old sister. For this offense, the respondent was adjudicated a delinquent by reason of rape of a child under sixteen and was committed to the Department of Youth Services.

In May, 1985, when he was twenty-one, the respondent pleaded guilty to rape of a child with force and indecent assault and battery on a child. The child was the four year old grandson of the woman with whom he was living. He received six years' probation, with special conditions, and was required to undergo sex-offender treatment.

In September, 1992, the respondent pleaded guilty to two counts of forcible rape of a child as well as two counts of indecent assault and battery on a child under the age of fourteen. The offenses involved two boys, aged eight and thirteen, for whom he was babysitting; they were the nephews of his girlfriend. He received four concurrent sentences of seven to ten years at the Massachusetts Correctional Institution at Cedar Junction.

The Commonwealth filed a petition pursuant to G. L. c. 123A, § 1, on February 28, 2001, the date that the respondent was due to be released from prison. He was ordered detained on the same day, and after a hearing, probable cause was found to believe he was a sexually dangerous person. The respondent waived his right to a jury, and a bench trial ensued.

The Commonwealth introduced the testimony of two qualified examiners, Stephen DeLisi, Ph.D., and Peter Cohen, M.D., who had interviewed the respondent and reviewed his records. Each opined that the respondent was a pedophile, as defined in the Diagnostic and Statistical Manual of Mental Disorders (rev. 4th ed. 2000), by the American Psychiatric Association (commonly referred to as DSM-IV), and the judge so found. The qualified examiners also testified, and the judge found, that the respondent was likely to reoffend if not confined to a secure facility. The respondent submitted no expert testimony of his own.

In determining that the respondent was likely to reoffend, the judge and the experts found significant the respondent's "recurrent commission of sexual assaults against children . . . during a ten year period, including the most recent following a period of probation during which the respondent obtained some sex offender treatment."3

The judge also emphasized that DeLisi found significant the "diversity of victims, both related and unrelated, both male and female and the increasing force" used against the victims, culminating in the final attack, the repeated rape of the thirteen year old boy, in which the respondent, "lying on top of the victim on a bed, . . . placed his hand over the victim's mouth, and . . . ejaculated on the boy's back."

The judge also found that at the time of trial, the respondent had not completed the sexual offender treatment program (SOTP) and seemed to have little understanding of the factors that led to his offenses and no "firm grasp of relapse prevention plans and strategies, other than an overly simplistic `I know I can't be around children.'"4 The judge's findings also reflected the qualified examiners' emphasis on the respondent's isolation and history of difficulty in establishing appropriate peer relationships with adults.

The expert evidence was originally received de bene, as the respondent had filed a motion to exclude the opinion testimony of the Commonwealth's witnesses as unreliable according to the Daubert-Lanigan test. The judge ultimately denied the motion. At trial he stated that "the statute governs" the admissibility of the testimony.5 He also went on to say that "frankly, testimony of a trained experienced psychologist and psychiatrist would generally meet a Daubert analysis." In his decision, without expressly addressing the Daubert-Lanigan question, he found "the testimony and opinions of the Commonwealth's witnesses to be based upon sufficient education, training and experience, and upon a reasonable degree of medical or psychological certitude; both have had experience in the evaluation and treatment of sex offenders. The opinions of the Commonwealth's witnesses are credible and supported in the evidence, notwithstanding that neither had utilized `actuarial tests.' Both incorporated `actuarial factors' in guiding their opinions."

2. Admissibility of expert testimony. Whether the testimony of qualified examiners is admissible absent a determination that the anticipated testimony meets the standards set by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), and Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), is an issue of first impression for the appellate courts of Massachusetts.

There can be no question that qualified examiners are central to the statutory scheme designed to evaluate the likelihood of a sex offender to reoffend. The Legislature defined the qualifications of these examiners with specificity. Each must be "a physician who is licensed . . . and who is either certified in psychiatry by the American Board of Psychiatry and Neurology or eligible to be so certified, or a psychologist who is licensed.. . ." The examiner must also have "two years of experience with diagnosis or treatment of sexually aggressive offenders" and be designated by the Commissioner of Correction. See G. L. c. 123A, § 1, as appearing in St. 1993, c. 489, § 1. The examiners possessed these qualifications in the instant case.

The role of the qualified examiners is defined by statute as follows: "If the court is satisfied that probable cause exists to believe that the person named in the petition is a sexually dangerous person, the prisoner . . . shall be committed to the treatment center for a period not exceeding 60 days for the purpose of examination and diagnosis under the supervision of two qualified examiners. . . ." G. L. c. 123A, § 13(a), as inserted by St. 1999, c. 74, § 8. The examiners shall "file with the court a written report of the examination and diagnosis and their recommendation of the disposition of the person named in the petition." Ibid. The statute also expressly provides that "the report of any qualified examiner . . . shall be admissible at the trial . . . ." G. L. c. 123A, § 14(c), as appearing in St. 1999, c. 74, § 8.6

The Legislature's power to mandate the use of qualified examiners and the consideration of their evidence in court is also well-established. As the Supreme Judicial Court stated in Meunier's Case, 319 Mass. 421, 425 (1946), "the Legislature doubtless has the power to prescribe the rules of evidence and the methods of proof to be employed in trials in court and in hearings before administrative boards. It may change the rules of common law or those provided by existing statutes, and may make competent that which had been previously inadmissible."7

Moreover, in interpreting the previous version of c. 123A,8 which was nearly identical to the current version on this issue, the court determined that "the legislative purpose is plain. The examining psychiatrists are to have access to a wide range of information in making their diagnoses. . . . The opinions of the examining psychiatrists based on such information were to be competent." Commonwealth v. McGruder, 348 Mass. 712, 715 (1965), cert. denied, 383 U.S. 972 (1966). The court also stated that "these provisions are a very radical departure from the rules of evidence which ordinarily govern," but concluded that "the Legislature has made its policy clear in this regard and it is not for us to quarrel with it." Ibid. See Commonwealth v. Boucher, 438 Mass. 274, 280 (2002) (emphasizing "the well-settled and logical rule of statutory construction that, when the Legislature reenacts a statute using the same language, the Legislature must be presumed to have adopted the prior judicial construction of that language"); Commonwealth v. Given, 441 Mass. 741, 744 (2004).

Notwithstanding the statute's reliance upon the involvement and input of qualified examiners, the respondent argues that their testimony should not have been admitted without satisfying the admissibility standards of Daubert-Lanigan and that those standards would not have been met in the instant case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, which gave rise to our Lanigan framework, has as its foundation rule 702 of the...

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