In re Milliken
| Decision Date | 06 April 2022 |
| Docket Number | 20-P-1374 |
| Parties | SEAN MILLIKEN, petitioner. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After committing a litany of sex offenses, Sean Milliken, the petitioner, was found to be a sexually dangerous person (SDP) and was civilly committed. Years later, a jury denied his G L. c. 123A, § 9, petition for release. On appeal, the petitioner argues that, under Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), it was error for the judge to exclude portions of expert testimony related to his recidivism risk. We affirm.
Background.
From 1984 to 1999, the petitioner committed multiple sex offenses against numerous child victims. He repeatedly reoffended despite arrest, conviction, incarceration, and supervised probation. In 2010, a jury found the petitioner to be a sexually dangerous person and he was civilly committed to the Massachusetts Treatment Center. During his incarceration and civil commitment, the petitioner received numerous disciplinary sanctions, including some for sexual misconduct.
In September 2014, the petitioner sought release from civil confinement pursuant to G. L. c. 123A, § 9.
Prior to his § 9 trial, the petitioner was evaluated by five doctors, including Dr. Angela Johnson, who assessed the petitioner's recidivism risk. All but one of these doctors employed the Static-99R, an actuarial tool commonly used to measure recidivism risk based on "static risk factors."[1] These doctors used the numerical score generated by the Static-99R as a factor in their assessment of the petitioner's recidivism risk. They agreed that the petitioner scored a nine on the Static-99R, a score that corresponded with a forty-three percent rate of sexual recidivism within five years.
All the doctors also considered relevant "dynamic risk factors "[2] and all but Dr. Johnson applied their clinical judgment to determine whether those factors aggravated or mitigated the petitioner's recidivism risk. Instead of relying on her clinical judgment, Dr. Johnson employed the STABLE-2007 to weigh the impact of the petitioner's dynamic risk factors on his recidivism risk. Dr. Johnson combined the Static-99R with the STABLE-2007 in a "composite assessment" that produced a risk level associated with a significantly lower recidivism rate, fourteen percent within five years.[3]
The petitioner's counsel filed a motion in limine seeking to admit "evidence regarding the STABLE-2007 and the results of that assessment at trial." After a hearing on the admissibility of the STABLE-2007, the judge denied the motion and excluded reference to Dr. Johnson's use of the STABLE-2007 from her written report and testimony. In 2019, [4] after a ten-day trial, a jury found that the petitioner remained a sexually dangerous person. The petitioner appealed.
Commonwealth v. Powell, 450 Mass. 229, 238 (2007), citing Lanigan, supra at 25-26. "[G]eneral acceptance in the relevant community of the theory and process on which an expert's testimony is based, on its own, continues to be sufficient to establish the requisite reliability for admission in Massachusetts courts regardless of other [Lanigan] factors." Powell, supra, quoting Commonwealth v. Patterson, 445 Mass. 626, 640 (2005). The additional factors provide "an alternate method of establishing reliability" when general acceptance has not been established. Powell, supra. The party seeking admission bears the "burden of proof to demonstrate the reliability of the expert opinion . . . by a preponderance of the evidence." Commonwealth v. Camblin, 478 Mass. 469, 476 (2017).
Admissibility under Lanigan Canavan's Case, 432 Mass. 304, 312 (2000). Thus, we apply "an abuse of discretion standard," allowing judges "to conduct th[is] inherently fact-intensive and flexible . . . analysis." Id.
First, there was no error in the judge's conclusion that the petitioner had not demonstrated that the STABLE-2007 was generally accepted in the relevant scientific community. At the Lanigan hearing, the petitioner presented evidence suggesting that "[t]he STABLE-2007 can help [practitioners] treat, monitor, and supervise sexual offenders." The literature presented by the petitioner showed that the STABLE-2007 was used by practitioners for that purpose.[5] However, acceptance of the STABLE-2007 as an actuarial tool to assess recidivism risk was less widespread, with only about twenty percent of practitioners believing that research supported the STABLE-2007 as the best tool to assess recidivism risk based on dynamic risk factors.[6] Further, as discussed infra in greater detail, the petitioner presented no evidence that the STABLE-2007 was generally accepted when applied to individuals who have been incarcerated for long periods. Notably, the STABLE-2007 Coding Manual (STABLE-2007 manual), [7] which provides guidance to practitioners on how to score offenders using the STABLE-2007, states that "[r]esearch has yet to examine the extent to which STABLE-2007 provides accurate assessments . . . among offenders still in prison while serving long sentences." Even assuming arguendo that the STABLE-2007 was generally accepted as a measure of recidivism risk, the petitioner presented no evidence that it was generally accepted as applied to individuals who --like the petitioner here -- were serving long sentences of incarceration. See Patterson, 445 Mass. at 645 ().
In addition, the judge was not persuaded by the expert witness's presentation of the evidence. The judge found it "troubling" that Dr. Johnson argued that "something was better than noting" when assessing the petitioner's dynamic risk factors.[8] This consideration was warranted where the admission of expert testimony "often . . . hinge[s] on the presentations made by the parties," Canavan's Case, 432 Mass. at 312, and the judge is charged with determining the credibility of an expert witness at a Lanigan hearing. See Patterson, 445 Mass. at 647-648. Thus, the judge did not abuse his discretion by concluding that the petitioner had not met his burden of showing the STABLE-2007's general acceptance for the purpose it was used for here.[9] See Ready, petitioner, 63 Mass.App.Ct. 171, 173 (2005) (). Contrast Patterson, 445 Mass. At 636 ().
Second, there was no abuse of discretion in the judge's application of the additional Lanigan factors. The evidence presented by the petitioner suggested that, when combined with the Static-99R, the "STABLE-2007 added incrementally to Static-99R in the prediction" of recidivism risk. However, the same study acknowledged that further research was "needed on how best to integrate and interpret tools measuring static and dynamic risk factors into an overall judgment on risk."
Further, as noted supra, the evidence raised questions regarding the STABLE-2007's predictive validity when applied to individuals who were incarcerated at the time of the evaluation, especially those who -- like the petitioner here -- had been incarcerated for long periods of time. The STABLE-2007 manual cautions evaluators about the "change in controlled environments" when assessing incarcerated individuals, and notes that "items are primarily scored based on expected behaviour . . . which may or may not be consistent with the individual's current or recent behaviour in prison."[10] While encouraging practitioners to utilize the STABLE-2007 when assessing incarcerated individuals, the STABLE-2007 manual recognized the absence of research assessing its validity when applied to individuals serving long sentences.[11]
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