NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-326
COMMONWEALTH
vs.
FREDERICK PALLAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was
found to be a sexually dangerous person (SDP), and was committed
to the Massachusetts Treatment Center for an indefinite period.
See G. L. c. 123A, § 14 (d). On appeal, he argues that the
trial judge erred in failing to give a so-called Suave
instruction, see Commonwealth v. Suave, 460 Mass. 582, 588
(2011), and that the prosecutor exceeded the bounds of
permissible advocacy during cross-examination of certain
witnesses and, again, during closing argument. Because we agree
with the defendant that the judge's instructions were
insufficient, thereby entitling him to a new trial, we vacate
the judgment and set aside the verdict.
Discussion. 1. Jury instructions. Because the defendant
timely objected to the absence of a Suave instruction at trial, we review the defendant's claim for prejudicial error. See
Commonwealth v. Vargas, 475 Mass. 338, 348 (2016). "The failure
to give a requested jury instruction is reversible error only if
the requested instruction is (1) substantially correct, (2) was
not substantially covered in the charge given to the jury, and
(3) concerns an important point in the trial so that the failure
to give it seriously impaired the defendant's ability to
effectively present a given defense" (citation omitted).1
Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013).
"To commit a person as an SDP, the jury must determine that
the person has been 'convicted of a sexual offense, suffers from
a mental abnormality . . . that renders him a menace to the
health and safety of others, and is likely to engage in sexual
offenses if not confined." Commonwealth v. George, 477 Mass.
331, 338 (2017), quoting Commonwealth v. Fay, 467 Mass. 574,
580, cert. denied, 574 U.S. 858 (2014). "The term 'menace,' as
it is used in the definition of '[m]ental abnormality' in G. L.
c. 123A, § 1, and as that term is used in the definition of
'[s]exually dangerous person,' which requires proof of the
likely commission of a 'sexual offense,' connotes a person whose
1 "Before a judge is required to give a requested instruction, there must be some basis in evidence, viewed in the light most favorable to the proponent, supporting the requested instruction." Commonwealth v. Anestal, 463 Mass. 655, 674 (2012), quoting Commonwealth v. Cook, 419 Mass. 192, 201 (1994).
2 conduct will objectively put his victim in fear of bodily harm
by reason of a battery and, specifically, a contact sex crime"
(emphasis added). Fay, 467 Mass. at 580-581, quoting Suave, 460
Mass. at 588. Thus, to establish that the defendant is an SDP,
the Commonwealth must prove that the defendant, if not confined,
is likely to commit future sexual crimes that are either (1)
contact offenses, or (2) noncontact offenses that would "instill
in his victims a reasonable apprehension of being subjected to a
contact sex crime." Suave, 460 Mass. at 588. See Fay, supra;
Commonwealth v. Walker, 467 Mass. 1017, 1018-1019 (2014).
We agree with the defendant that the outcome here is
controlled by Commonwealth v. Spring, 94 Mass. App. Ct. 310, 324
(2018), a recent case with facts strikingly like the one at bar.2
In Spring, supra at 321-322, the trial judge did not instruct
the jury on the requirement set out by the Supreme Judicial
Court in Suave and its progeny, that if a defendant is
determined to be likely to solely commit noncontact sexual
offenses, he cannot be found to be an SDP unless it is also
found that the noncontact offenses would instill in his victims
a reasonable apprehension of being subjected to a contact sex
offense. See Suave, 460 Mass. at 588; Walker, 467 Mass. at
1018. We held that trial counsel's failure to request such an
2 Neither the parties nor the judge had the benefit of Spring at the time of trial in April 2017.
3 instruction amounted to constitutionally ineffective assistance
of counsel warranting a new trial. Spring, supra at 320-324.
We explained that because the judge did not define "menace" in
the context of noncontact offenses, the instructions did not
properly set forth each essential element of a c. 123A finding.
Id. at 320-321. As a result, we were left with "a serious doubt
whether the jury verdict would have been the same had the
correct instruction been given, particularly where . . . there
was no evidence of a history of noncontact offenses that would
put a future victim in reasonable apprehension of a contact
sexual offense." Id. at 324. This reasoning applies equally in
today's case.3
Here, like in Spring, 94 Mass. App. Ct. at 312, the
Commonwealth presented evidence at trial that the defendant had
a history of both contact and noncontact sex offenses -- namely,
3 The Commonwealth argues that a Suave instruction is not required when, as here, there is sufficient evidence to show a likelihood of committing future contact offenses. Our decision in Spring, 94 Mass. App. Ct. at 321, 324, essentially rejected this argument. The Commonwealth also contends that Spring is distinguishable because in that case the jury received no explanation of the term menace, while the judge here instructed the jury on the "essence" of the requirement under Suave. We disagree. The judge's instructions here did not expound on the term "menace" in any meaningful way to convey that, if the jury were to conclude that the defendant was likely to solely commit a noncontact offense, such as possessing child pornography, the anticipated offense must "instill in his victims a reasonable apprehension of being subjected to a contact sex crime." Suave, 460 Mass. at 588.
4 possession of child pornography -- with his most recent contact
offense occurring over twenty years before the SDP trial. The
Commonwealth's sole witness at trial was qualified examiner Dr.
Gregg Belle, who opined that the defendant suffered from "both a
mental abnormality and a personality disorder as defined by
statute." Dr. Belle also testified that the defendant was
likely to commit a sexual offense if not confined to a secure
facility, and therefore, he met the statutory definition of an
SDP. Dr. Belle did not opine, however, on whether the defendant
was more likely to commit a child pornography offense or a
contact offense. The defendant relied on the testimony of Dr.
Joseph Plaud and qualified examiner Dr. Robert Joss. Both
experts testified that the defendant was not an SDP, and that he
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-326
COMMONWEALTH
vs.
FREDERICK PALLAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was
found to be a sexually dangerous person (SDP), and was committed
to the Massachusetts Treatment Center for an indefinite period.
See G. L. c. 123A, § 14 (d). On appeal, he argues that the
trial judge erred in failing to give a so-called Suave
instruction, see Commonwealth v. Suave, 460 Mass. 582, 588
(2011), and that the prosecutor exceeded the bounds of
permissible advocacy during cross-examination of certain
witnesses and, again, during closing argument. Because we agree
with the defendant that the judge's instructions were
insufficient, thereby entitling him to a new trial, we vacate
the judgment and set aside the verdict.
Discussion. 1. Jury instructions. Because the defendant
timely objected to the absence of a Suave instruction at trial, we review the defendant's claim for prejudicial error. See
Commonwealth v. Vargas, 475 Mass. 338, 348 (2016). "The failure
to give a requested jury instruction is reversible error only if
the requested instruction is (1) substantially correct, (2) was
not substantially covered in the charge given to the jury, and
(3) concerns an important point in the trial so that the failure
to give it seriously impaired the defendant's ability to
effectively present a given defense" (citation omitted).1
Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013).
"To commit a person as an SDP, the jury must determine that
the person has been 'convicted of a sexual offense, suffers from
a mental abnormality . . . that renders him a menace to the
health and safety of others, and is likely to engage in sexual
offenses if not confined." Commonwealth v. George, 477 Mass.
331, 338 (2017), quoting Commonwealth v. Fay, 467 Mass. 574,
580, cert. denied, 574 U.S. 858 (2014). "The term 'menace,' as
it is used in the definition of '[m]ental abnormality' in G. L.
c. 123A, § 1, and as that term is used in the definition of
'[s]exually dangerous person,' which requires proof of the
likely commission of a 'sexual offense,' connotes a person whose
1 "Before a judge is required to give a requested instruction, there must be some basis in evidence, viewed in the light most favorable to the proponent, supporting the requested instruction." Commonwealth v. Anestal, 463 Mass. 655, 674 (2012), quoting Commonwealth v. Cook, 419 Mass. 192, 201 (1994).
2 conduct will objectively put his victim in fear of bodily harm
by reason of a battery and, specifically, a contact sex crime"
(emphasis added). Fay, 467 Mass. at 580-581, quoting Suave, 460
Mass. at 588. Thus, to establish that the defendant is an SDP,
the Commonwealth must prove that the defendant, if not confined,
is likely to commit future sexual crimes that are either (1)
contact offenses, or (2) noncontact offenses that would "instill
in his victims a reasonable apprehension of being subjected to a
contact sex crime." Suave, 460 Mass. at 588. See Fay, supra;
Commonwealth v. Walker, 467 Mass. 1017, 1018-1019 (2014).
We agree with the defendant that the outcome here is
controlled by Commonwealth v. Spring, 94 Mass. App. Ct. 310, 324
(2018), a recent case with facts strikingly like the one at bar.2
In Spring, supra at 321-322, the trial judge did not instruct
the jury on the requirement set out by the Supreme Judicial
Court in Suave and its progeny, that if a defendant is
determined to be likely to solely commit noncontact sexual
offenses, he cannot be found to be an SDP unless it is also
found that the noncontact offenses would instill in his victims
a reasonable apprehension of being subjected to a contact sex
offense. See Suave, 460 Mass. at 588; Walker, 467 Mass. at
1018. We held that trial counsel's failure to request such an
2 Neither the parties nor the judge had the benefit of Spring at the time of trial in April 2017.
3 instruction amounted to constitutionally ineffective assistance
of counsel warranting a new trial. Spring, supra at 320-324.
We explained that because the judge did not define "menace" in
the context of noncontact offenses, the instructions did not
properly set forth each essential element of a c. 123A finding.
Id. at 320-321. As a result, we were left with "a serious doubt
whether the jury verdict would have been the same had the
correct instruction been given, particularly where . . . there
was no evidence of a history of noncontact offenses that would
put a future victim in reasonable apprehension of a contact
sexual offense." Id. at 324. This reasoning applies equally in
today's case.3
Here, like in Spring, 94 Mass. App. Ct. at 312, the
Commonwealth presented evidence at trial that the defendant had
a history of both contact and noncontact sex offenses -- namely,
3 The Commonwealth argues that a Suave instruction is not required when, as here, there is sufficient evidence to show a likelihood of committing future contact offenses. Our decision in Spring, 94 Mass. App. Ct. at 321, 324, essentially rejected this argument. The Commonwealth also contends that Spring is distinguishable because in that case the jury received no explanation of the term menace, while the judge here instructed the jury on the "essence" of the requirement under Suave. We disagree. The judge's instructions here did not expound on the term "menace" in any meaningful way to convey that, if the jury were to conclude that the defendant was likely to solely commit a noncontact offense, such as possessing child pornography, the anticipated offense must "instill in his victims a reasonable apprehension of being subjected to a contact sex crime." Suave, 460 Mass. at 588.
4 possession of child pornography -- with his most recent contact
offense occurring over twenty years before the SDP trial. The
Commonwealth's sole witness at trial was qualified examiner Dr.
Gregg Belle, who opined that the defendant suffered from "both a
mental abnormality and a personality disorder as defined by
statute." Dr. Belle also testified that the defendant was
likely to commit a sexual offense if not confined to a secure
facility, and therefore, he met the statutory definition of an
SDP. Dr. Belle did not opine, however, on whether the defendant
was more likely to commit a child pornography offense or a
contact offense. The defendant relied on the testimony of Dr.
Joseph Plaud and qualified examiner Dr. Robert Joss. Both
experts testified that the defendant was not an SDP, and that he
posed a low risk to commit a contact sexual offense in the
future.
During the final charge, the trial judge, over defense
counsel's objections, did not instruct the jury on what
anticipated offending would render the defendant "a menace to
the health and safety of other persons" for purposes of an SDP
determination.4 Instead, the judge instructed the jury that
4 The judge's instructions largely tracked the model jury instructions in effect at the time of trial. The model instructions, however, called for a Suave instruction "only '[i]f the petitioner has a history of committing only noncontact sexual offenses not involving children." Spring, 94 Mass. App. Ct. at 317 n.14, quoting Massachusetts Superior Court Criminal
5 "[t]o satisfy its burden of proving that the [defendant] suffers
from a mental abnormality, the Commonwealth must prove beyond a
reasonable doubt that the [defendant] has a mental condition
that causes him, at a minimum, serious difficulty in controlling
his sexual behavior at the present time." As for the third
element of the statute, the judge instructed that the
Commonwealth must prove that "as a result of a mental
abnormality, [the defendant] is likely to commit sexual offenses
in the future if not confined."
During deliberations, the jury sent a note to the judge
requesting the legal definition of "sexual offense" as used in
Practice Jury Instructions §§ 10.1.4(c) n.1, at 10-18; 10.2.3(c) n.1 at 10-35 (2d ed. 2013). The model instructions for SDP cases under G. L. c. 123A, §§ 9 and 12, have since been updated and now state under the second element of an SDP charge:
"To show that [the defendant] has a mental abnormality that makes him predisposed to be a sexual 'menace,' the Commonwealth must prove that [the defendant] has some mental condition that makes him likely to commit sexual crimes that either (1) involve physical contact with nonconsenting adults or with children who are too young to consent, or (2) would instill in his victims 'a reasonable apprehension of being subjected' to a sexual crime involving such physical contact."
Massachusetts Superior Court Criminal Practice Jury Instructions § 9.1.2(b), at 9-7; § 9.2.2(b), at 9-18 (Mass. Cont. Legal Educ. 3d ed. 2018). The same menacing conduct language was also added under the third element -- "Likely to Engage in Sexual Offenses Unless Confined." See Massachusetts Superior Court Criminal Practice Jury Instructions, supra at § 9.1.2(c), at 9-10; § 9.2.2(c), at 9-22.
6 the judge's written instructions.5 In response, the judge
instructed the jury on the definition of sexual offense under
G. L. c. 123A, § 1, reciting a list of sexual offenses
enumerated in the statutory definition, including the possession
of child pornography. About eight minutes later, the jury
returned a general verdict finding the defendant to be sexually
dangerous.
In the circumstances of this case, an instruction defining
the term "menace" as applied to noncontact offenses was
warranted. See Commonwealth v. Almeida, 467 Mass. 1015, 1016
(2014) (vacating verdict in jury-waived trial and remanding for
judge to make menacing finding "within the Suave framework").
The judge's instructions therefore did not "'properly set forth
each essential element' of the statute" (citation omitted).
Spring, 94 Mass. App. Ct. at 320-321. This error deprived the
defendant of his ability to present a meaningful defense at
trial,6 and allowed the jury to conclude that the defendant was
5 The judge's written instructions were not included in the record appendix on appeal. 6 During closing argument, defense counsel emphasized that it had
been twenty-four years since the defendant had committed a contact sexual offense, which Dr. Plaud and Dr. Joss found to be significant in their respective evaluations. Without a Suave instruction, however, defining the predicted conduct required to find the defendant a "menace," the defendant was deprived of his primary argument of defense at trial, i.e., that the likelihood he may possess child pornography, and nothing more, was not sufficient to find him to be sexually dangerous. See Commonwealth v. Fantauzzi, 91 Mass. App. Ct. 194, 206-207
7 sexually dangerous in circumstances that do not permit such a
finding. See id., 94 Mass. App. Ct. at 324 ("a verdict based on
a finding that the defendant was likely to possess child
pornography, without more, would require reversal").
Applying the prejudicial error standard, a test that is
"quantitatively more favorable to a defendant than the
substantial risk of a miscarriage of justice test" we applied in
Spring, Commonwealth v. Alphas, 430 Mass. 8, 23 (1999) (Greaney,
J., concurring), "there is a reasonable possibility that the
error might have contributed to the jury's verdict" (citation
omitted). Commonwealth v. Odgren, 483 Mass. 41, 46 (2019). The
defendant is therefore entitled to a new trial.
Conclusion.7 The judgment is vacated, and the verdict is
set aside.
So ordered.
By the Court (Milkey, Singh & Brennan, JJ.8),
Clerk
Entered: April 25, 2023.
(2017), and cases cited (failure to give requested self-defense instruction reversible error when "self-defense was the defendant's primary defense"). 7 Given our disposition here, we need not address the defendant's
other claims of error. 8 The panelists are listed in order of seniority.