Commonwealth v. Ortiz

Decision Date13 June 2018
Docket Number16–P–1654
Citation100 N.E.3d 790,93 Mass.App.Ct. 381
Parties COMMONWEALTH v. Lucas ORTIZ.
CourtAppeals Court of Massachusetts

James J. Cipoletta, Revere, for the defendant.

Christina L. Crowley, Assistant District Attorney, for the Commonwealth.

Present: Blake, Neyman, & Ditkoff, JJ.

DITKOFF, J.

Following a Superior Court jury trial on the Commonwealth's petition pursuant to G. L. c. 123A, § 12(b ), the defendant, Lucas Ortiz, was found to be a sexually dangerous person (SDP) as defined by G. L. c. 123A, § 1, and was ordered committed to the Massachusetts Treatment Center. On appeal, the defendant claims that the trial judge improperly excluded the results of a penile plethysmograph (PPG) exam conducted by his retained expert. Concluding that the PPG was subject to assessment for reliability under Commonwealth v. Lanigan, 419 Mass. 15, 26, 641 N.E.2d 1342 (1994), and that the judge acted within his discretion in finding that the defendant failed to show that the absence of deviant arousal on the PPG as conducted by the examining expert is a reliable basis for diagnosis or predictions of future sexual dangerousness, we affirm.

Background. At the time of trial, the defendant was thirty-nine years old. In 1992, when the defendant was seventeen years old, he was a member of a Boy Scout troop. During this time, he committed sexual offenses against four younger Boy Scouts who were between the ages of eleven and thirteen years old. During each of the offenses, the defendant told the child that he had a son who was taken by kidnappers and that his son's release would be facilitated by the child having sexual intercourse with the defendant. In one of the offenses, the defendant threatened the boy with a knife. In 1993, the defendant committed an additional sexual offense against a twelve year old boy using the ruse of conducting a physical exam of the child as a condition to becoming a member of a gang.

As a result of these offenses, the defendant was convicted of multiple counts of rape of a child and indecent assault and battery on a child, and one count of assault by means of a dangerous weapon. He was incarcerated for two years, and in 1995 he was released on probation. As a condition of his probation, the defendant was ordered to have no unsupervised contact with individuals under the age of eighteen.

Within six months of his release from incarceration, the defendant befriended a fifteen year old boy. While alone in a car with the boy, the defendant demanded that the boy perform oral sex on him, and threatened him at knifepoint.1 The defendant was found to have violated his probation on the earlier offenses, and ultimately was convicted of indecent assault and battery, assault and battery, and assault by means of a dangerous weapon. The defendant continued to be incarcerated through 2012, at which time the Commonwealth filed the instant petition in anticipation of his release from custody.

Pursuant to G. L. c. 123A, § 13(a ), the defendant was examined by two qualified examiners. Each of the examiners prepared reports opining that the defendant was sexually dangerous pursuant to the statute and likely to reoffend sexually. The qualified examiners each diagnosed the defendant with pedophilia, as well as other sexual and personality disorders relevant to his likelihood of reoffending.

The defendant was also examined by two experts retained by him. A psychologist specializing in neuropsychology examined the defendant and opined that he suffered from no diagnosable mental illness. A second psychologist, Dr. Joseph Plaud, opined that the defendant could not be diagnosed with a sexually-based mental disorder or personality disorder.

Dr. Plaud's opinion relied in part on his examination of the defendant using a PPG. He reported that when examined, the defendant displayed sexual arousal to adult consensual sexual scenarios, and did not display deviant arousal to children.

Prior to trial, the Commonwealth filed a motion to exclude from evidence the results of the PPG test conducted by Dr. Plaud, arguing that the test was not reliable and that, regardless, the Commonwealth had not received timely notice of the evidence.2 The trial judge conducted a Daubert Lanigan hearing midtrial.3

At the hearing, the defendant presented only the testimony of Dr. Plaud. Dr. Plaud testified that the PPG is a device designed to measure an individual's pattern of arousal in response to different sexual stimuli. The device acts by using a mercury and rubber band to measure changes in the tumescence of the penis. When Dr. Plaud conducts testing, the device is applied by the individual being tested, without his supervision.

The stimuli used in the exam are not standardized, and Dr. Plaud testified that he had developed his own set. Although many treatment programs use solely auditory stimuli, Dr. Plaud uses both auditory and visual stimuli. Dr. Plaud conceded that the test was subject to manipulation by intentional failure to pay attention to the stimulus, but indicated that he had devised certain measures to avoid this, such as requiring a subject to respond to dots appearing on the screen at random intervals. Dr. Plaud indicated that medications could affect test results as well.

Dr. Plaud agreed that false positives and false negatives are an issue with the PPG, and had previously written in an article that the PPG has a false positive error rate of about thirty-five percent. About one-third of sexual offenders show no arousal pattern in response to the exam, and "the vast majority of rapists" show no deviant arousal according to the exam. Although Dr. Plaud testified that studies have correlated deviant arousal as measured by the PPG with increased levels of recidivism, he was not aware of any studies demonstrating that lack of deviant sexual arousal was correlated with the absence of reoffense.

Dr. Plaud testified that there are "thousands and thousands and thousands" of studies using the PPG. During the hearing, however, the defendant did not submit any scholarly articles in evidence. Neither the machine itself nor photographs of it were submitted to the court during the hearing, nor were the stimuli Dr. Plaud used with the defendant. Dr. Plaud testified that he administered the PPG to the defendant using fifteen stimulus images. He was not aware of whether the defendant took any medication that would affect the test results.

After the hearing, the judge excluded the PPG evidence, issuing a written memorandum after the conclusion of the trial. The defendant was permitted to call Dr. Plaud to testify without discussing the PPG, and references to the PPG examination were redacted from his written report.4

The defendant now argues that, in the circumstances of this case, the Daubert Lanigan standards are inapplicable in considering the admissibility of the PPG evidence, and that, even if such standards applied, the PPG evidence was improperly excluded.

Discussion. 1. Standard of review. "The judge serves as a gatekeeper on the admission of expert opinion testimony."

Hicks's Case, 62 Mass. App. Ct. 755, 760, 820 N.E.2d 826 (2005). In making a determination of whether expert testimony is sufficiently reliable to be admitted before a trier of fact, a judge must conduct "a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Lanigan, 419 Mass. at 26, 641 N.E.2d 1342, quoting from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Mass. G. Evid. § 104(a) (2018) ("The court must decide any preliminary question about whether ... evidence is admissible").

Under Daubert Lanigan, a judge "initially considers a nonexclusive list of ... factors [including] ‘whether the scientific theory or process (1) has been generally accepted in the relevant scientific community; (2) has been, or can be, subjected to testing; (3) has been subjected to peer review and publication; (4) has an unacceptably high known or potential rate of error; and (5) is governed by recognized standards.’ " Commonwealth v. Camblin, 478 Mass. 469, 475–476, 86 N.E.3d 464 (2017), quoting from Commonwealth v. Powell, 450 Mass. 229, 238, 877 N.E.2d 589 (2007). See Mass. G. Evid. § 702 (2018).

Daubert Lanigan analysis must be flexible, and "[d]iffering types of methodology may require judges to apply differing evaluative criteria to determine whether scientific methodology is reliable." Canavan's Case, 432 Mass. 304, 314 n.5, 733 N.E.2d 1042 (2000). A trial judge has "broad discretion to determine how to assess the reliability of expert testimony." Palandjian v. Foster, 446 Mass. 100, 111, 842 N.E.2d 916 (2006). "[I]f the process or theory underlying an expert's opinion lacks sufficient reliability or an expert cannot provide a reliable factual basis for his conclusions, the trial judge must exclude the opinion from reaching the trier of fact." Commonwealth v. DiCicco, 470 Mass 720, 729, 25 N.E.3d 859 (2015), citing Lanigan, 419 Mass. at 25–26, 641 N.E.2d 1342.

"We review a judge's determination to admit or exclude expert testimony under Daubert Lanigan for an abuse of discretion." DiCicco, 470 Mass. at 729, 25 N.E.3d 859. The proponent of expert testimony, here the defendant, has the burden to establish the reliability of the proffered testimony. Ibid., citing Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 328 n.41, 930 N.E.2d 91 (2010).

2. Automatic admissibility. Citing G. L. c. 123A, § 14(c ), the defendant argues that the PPG evidence here at issue should not have been subject to a Daubert Lanigan analysis in the first instance, as it was automatically admissible as a portion of an expert report in an SDP case. We disagree.

To date, the Supreme Judicial Court has declined to consider the reliability and admissibility of PPG testing, and our...

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2 cases
  • In re Bilton
    • United States
    • South Carolina Court of Appeals
    • 14 Octubre 2020
    ...about reliability and a lack of uniform standards preclude its admission as evidence at trial. See, e.g., Commonwealth v. Ortiz , 93 Mass.App.Ct. 381, 100 N.E.3d 790, 796–97 (2018) (collecting cases). Some jurisdictions have held that an expert may rely on a PPG as a basis for the expert's ......
  • Doe v. Sex Offender Registry Bd.
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    • Appeals Court of Massachusetts
    • 4 Junio 2020
    ...during the test procedure." Ready, petitioner, 63 Mass. App. Ct. 171, 177 n.6, 824 N.E.2d 474 (2005). See Commonwealth v. Ortiz, 93 Mass. App. Ct. 381, 383, 100 N.E.3d 790 (2018).2 We do not mean to suggest that these are the only factors to be considered. To establish that someone is an SD......

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