MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After being convicted of multiple rapes, the petitioner in 2012 was found by a jury to be a sexually dangerous person (SDP). In 2016, the petitioner filed a petition pursuant to G. L. c. 123A, § 9, alleging that he no longer qualified as an SDP and therefore was entitled to be released. Following trial, a Superior Court jury disagreed. On appeal, the petitioner asserts various errors in the judges instructions to the jury, including in an answer she gave to a jury question. The petitioner also argues that the prosecutors closing argument was improper. Because we conclude that any errors did not cause a substantial risk of a miscarriage of justice, we affirm.
Background. Little would be served by providing detail of the many serious sexual offenses for which the petitioner was convicted. For present purposes, it suffices to note that there was ample evidence to establish that he forcibly raped three female victims, two of whom were in their early teens.
At the § 9 trial, the Commonwealth presented three expert witnesses who testified that the petitioner suffered from a personality disorder (specifically, antisocial personality disorder), and that, as a result, he likely would reoffend if released. Two of the Commonwealths experts testified as qualified examiners (QEs), and the third testified as a representative of the Community Access Board (CAB). The petitioner presented two expert witnesses -- both psychologists -- who provided their opinions that he did not meet the criteria of an SDP.
1. Jury instructions. The petitioner argues that the instructions to the jury were problematic in various respects. We address these in turn.
In a § 9 trial, the Commonwealth has the burden of proving, beyond a reasonable doubt, that the sex offender currently meets the criteria of an SDP. See Hill, petitioner, 422 Mass. 147, 156 (1996). At one point during her lengthy instructions to the jury, the judge stated that the jury were to determine whether the petitioners mental conditions that led to his offending “remain intact.” The petitioner argues that this wording “subtly skew[ed]” the Commonwealths burden of proof by indicating that the existence of such a condition had previously been proven and shifting the jurys focus to whether that condition had been alleviated.
In reviewing the adequacy of jury instructions, we are to view them “as a whole to determine whether [they are] legally correct, rather than tested by fragments which may be open to just criticism.” McHoul, petitioner, 445 Mass. 143, 156 (2005). As the Commonwealth points out, the judge repeatedly told the jury that the Commonwealth had the burden of proving beyond a reasonable doubt the petitioners current sexual dangerousness, and that they had to determine this based on the trial evidence presented to them. Viewing the instructions as a whole, we disagree with the petitioners contention that the “remain intact” reference lowered the Commonwealths burden of proof.
The petitioner also argues that reversal is required because the judges instructions on proof beyond a reasonable doubt did not include all of the language mandated by Commonwealth v. Russell, 470 Mass. 464, 477 (2015). Specifically, the petitioner points out that in her final instructions, the judge omitted the phrase “[w]hen we refer to moral certainty, we mean the highest degree of certainty possible in matters relating to human affairs -- based solely on the evidence that has been put before you in this case.” Because the petitioner raised no objection to this, our review is limited to whether the omission caused a substantial risk of a miscarriage of justice. We agree with the Commonwealth that this case is controlled by Commonwealth v. Whitson, 97 Mass. App. Ct. 798, 801-803 (2020), where the same phrase erroneously was omitted but the instructions otherwise complied with those mandated by Russell. Here, as there, no substantial risk of a miscarriage of justice has been shown.
2
The petitioner also argues that the judge erred in responding to a question posed by the jury regarding whether QEs were court appointed.
3
Specifically, he argues that the judge was required to answer that question “no,” instead of by doing what the judge did, namely, to instruct the jury to look to the evidence they had heard. According to the petitioner, by not resolving the jurys apparent uncertainty on this issue, there was a danger that the jury believed that QEs were court appointed, and therefore that the jury potentially viewed the QEs’ testimony as worthy of more credence than that of a witness called by one of the litigants. We are unpersuaded.
“The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly” (citation omitted). Commonwealth v. Monteagudo, 427 Mass. 484, 488 (1998). Especially where, as here, witness testimony answered the question the jury posed, we discern no abuse of discretion in the judges referring the jury to look to the evidence they had heard. We additionally note that in discussing the independent role that QEs are supposed to serve, the Supreme Judicial Court in fact has analogized it to that of a court-appointed expert. See Chapman, petitioner, 482 Mass. 293, 303 (2019) (“an expert who serves as a [QE] is recognized to be independent and to serve as though appointed by a court․ The [QEs], in other words, are not retained by, paid by, or beholden to any party”). It follows that even if the judge erred by not answering the jury question “no,” the petitioner still could not demonstrate how such an error prejudiced him.
2. Closing argument. One of the petitioners two experts was Dr. Paul Zeizel. In his closing argument, the prosecutor argued that the jury should discredit Zeizels testimony because he “actively tried to deceive” them. The petitioner argues that this attack was unsupported by the evidence and requires reversal in light of the central role that Zeizel played in the petitioners defense. Before we proceed further, some background is in order.
A report that was prepared by the CAB -- and admitted as an exhibit -- summarized a number of psychological evaluations that the petitioner had been administered. One such evaluation, known as the “interpersonal reactivity index” (IRI) test, indicated that the petitioner had empathy toward others.
4
This tended to undercut the Commonwealths claim that the petitioner suffered from antisocial personality disorder. The results of other tests were less supportive of the petitioners position. On the interview portion of a test known as “Hare psychopathy check list - revised” (PCL-R), the petitioner scored a 24. That score, while below the generally accepted threshold for psychopathy, was considered “elevated.”
5
Even more supportive of the Commonwealths position were the results of the “short version” of that check list (PCL:SV). Specifically, the petitioner scored an 18 on the PCL:SV, which “was above the general cutoff for psychopathy” for that form of the test. Based on the results of both PCL tests, the evaluation referenced in the CAB report concluded that “psychopathy should be regarded as a critical issue in the management and treatment of [the petitioner].”
In his testimony, Zeizel addressed the evaluations discussed in the CAB report. On direct examination, he focused on the IRI test, which, as noted, produced the results most favorable to the petitioner. On cross-examination, the prosecutor asked Zeizel about the PCL:SV test results, the test most helpful to the Commonwealth. Zeizel agreed with the prosecutors specific characterizations as to how the petitioner did on that test, and with the overall conclusion -- which had been drawn from the results of both that test and the verbal portion of the PCL-R test -- that “psychopathy should be regarded as a critical issue in the management and treatment of [the petitioner].” Zeizel then began to expound on the PCL-R test, specifically with regard to how a score of 30 was needed to be considered a psychopath under that test. However, the prosecutor put an end to Zeizels volunteering his views on that particular subject by pointing out that no question was pending, and then switching subjects in his questioning.
The transcript shows that on redirect, petitioners counsel sought to provide Zeizel an opportunity to say what he was going to say about the PCL-R test before the prosecutor cut him off. However, in teeing the issue up, counsel mistakenly referenced the PCL:SV test, not the PCL-R one. Following counsels prompt, Zeizel went on to make the point he earlier started to make about the PCL-R test, all while specifically referencing that test by name, not the PCL:SV test. Zeizel pointed out that the petitioners PCL-R score was “not low,” but that it “falls short of being considered a sociopath[ ] or an antisocial personality disordered person.” On recross-examination, the prosecutor returned to the PCL:SV results, and secured from Zeizel an acknowledgement that on that test, the petitioners score was “above the general cut-off for psychopathy.”
In his closing argument, the prosecutor characterized Zeizel as doing “a lot of dancing around, trying to finesse his way around these issues, not being very honest.” He went on to accuse Zeizel not only of ignoring the test results that were not favorable to the petitioner, but also of actively trying to deceive the jury about them:
“So, Dr. Zeizel sat right up there and tried to deceive you. First, he didnt even talk about it when he said [the petitioner] didnt have antisocial personality disorder or psychopathy. And then, when I caught him on the next page in that report that he relied on, he tried to say, ‘No, its below the cut-off, which is 40,’ on a different test. So, when youre thinking about credibility and how much you can credit their testimony, think of that with Dr. Zeizel because that was what Dr. Zeizel was about. Somebody who couldnt take the time to update his report from eight years ago, and somebody who actively tried to deceive you.”
Having carefully reviewed Zeizels testimony, we agree with the petitioner that the prosecutors characterization of Zeizel as deceitful exceeded the bounds of propriety.
A prosecutor may, of course, “argue zealously in support of inferences favorable to the Commonwealths case that reasonably may be drawn from the evidence.” Commonwealth v. Carriere, 470 Mass. 1, 22 (2014). A prosecutor is also allowed reasonable latitude in arguing that a witnesss testimony should not be credited, given that “[t]he credibility of witnesses is obviously a proper subject of comment.” Commonwealth v. Murchison, 418 Mass. 58, 60 (1994). Where supported by the record, a prosecutor “may properly argue not only that a witness is mistaken but also that a witness is lying.” Id. In addition, “enthusiastic rhetoric, strong advocacy, and excusable hyperbole” is acceptable. Commonwealth v. Costa, 414 Mass. 618, 629 (1993).
Here, the prosecutors claim that Zeizel actively deceived the jury was not based on reasonable inferences from his testimony. To be sure, Zeizel did not, absent prompting by the prosecutor, address those test results that undercut the petitioners position. However, that did not make his testimony deceitful. The PCL-R test was an appropriate subject for Zeizel to address, particularly where it was part of the basis for the conclusion included in the CAB report that “psychopathy should be regarded as a critical issue.” Throughout his testimony, Zeizel was precise in identifying which of the PCL tests he was discussing at any point in time, even correcting the prosecutor at one point (even though this arguably was against the petitioners interest). In addition, when Zeizel was pressed by the prosecutor about the PCL:SV test results, his answers were forthright, and included concessions helpful to the Commonwealth. In short, the prosecutors characterizing Zeizel as deceitful simply was not justified on this record.
This does not mean, however, that reversal is required. Because the petitioner did not object to the prosecutors closing on this ground, our review is limited to whether the error caused a substantial risk of a miscarriage of justice. See Commonwealth v. Copeland, 481 Mass. 255, 263-264 (2019). Although we view the question as relatively close, we conclude that the defendant has not demonstrated such a risk. See Commonwealth v. Robinson, 83 Mass. App. Ct. 419, 427 (2013) (defendant carries burden of demonstrating substantial risk of miscarriage of justice).
6
“The fact that the [petitioner] did not object, ‘[a]lthough not dispositive of the issue ․ is some indication that the tone [and] manner ․ of the now challenged aspects of the prosecutors argument were not unfairly prejudicial.’ ” Commonwealth v. Mello, 420 Mass. 375, 380 (1995), quoting Commonwealth v. Toro, 395 Mass. 354, 360 (1985). In fact, it is possible that petitioners counsel did not object on this ground for strategic reasons: counsel might well have concluded that a jury would take offense to the prosecutors ad hominem attack on a clinical psychologist who testified as an expert and made concessions favorable to the Commonwealth.
7
In addition, there was strong evidence that the petitioner continued to suffer from antisocial personality disorder despite his advanced age. For example, he was cited for physically assaulting another resident of the Massachusetts Treatment Center just seven months before trial. Finally, the judge repeatedly instructed the jurors that they were “the sole judges of the credibility of the witnesses,” and that they “alone [were to] decide the credibility and weight [to] give an experts testimony and what conclusions [to] draw from that testimony.”
In light of these considerations, we do not have “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Accordingly, while we conclude that it was error for the prosecutor to characterize Zeizels testimony as deceitful, we also conclude that the petitioner has not shown that he is entitled to a new trial.
Judgment affirmed.
FOOTNOTES
2
. The petitioner separately argues that the judge erred by not providing an instruction that parallels one commonly given in criminal trials about there being a “presumption of innocence.” Putting aside that such an instruction is not actually required in criminal trials, the case law makes clear that it is not required in SDP proceedings. See Wyatt, petitioner, 428 Mass. 347, 352 n.10 (1998); LeSage, petitioner, 76 Mass. App. Ct. 566, 573-574 (2010).
3
. The jury also asked about the number of QEs here and about the number of “professional examiners evaluating the [p]etitioner.” On appeal, the petitioner makes no claim that the judge erred in her response to those questions, which was to refer the jury to the trial evidence.
4
. On direct examination, Zeizel mistakenly referred to this test as a different one. On cross-examination, he correctly referred to it as the “I.R.I. test.” We take judicial notice that “I.R.I.” refers to interpersonal reactivity index. Nothing turns on this nomenclature.
5
. Zeizel testified that psychopathy and antisocial personality disorder are one and the same.
6
. To be clear, we note that we do not agree with the Commonwealths position that the error involved a collateral issue. As is generally true of SDP cases, this case turned on a battle of the experts. In this context, the credibility of one of the petitioners two experts was hardly a collateral issue.
7
. We note that counsel did object on other grounds that are not the subject of this appeal.