Commonwealth v. Pariseau

967 N.E.2d 154, 81 Mass. App. Ct. 705, 2012 WL 1503084, 2012 Mass. App. LEXIS 181
CourtMassachusetts Appeals Court
DecidedMay 2, 2012
DocketNo. 10-P-2092
StatusPublished
Cited by1 cases

This text of 967 N.E.2d 154 (Commonwealth v. Pariseau) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Pariseau, 967 N.E.2d 154, 81 Mass. App. Ct. 705, 2012 WL 1503084, 2012 Mass. App. LEXIS 181 (Mass. Ct. App. 2012).

Opinion

Kafker, J.

In Commonwealth v. Blake, 454 Mass. 267, 281 (2009) (Blake), the Supreme Judicial Court adopted a thirty-day deadline for the issuance of a decision following a jury-waived trial in a sexually dangerous person (SDP) proceeding pursuant to G. L. c. 123A, § 14, without specifying a particular remedy if the deadline were missed. In the instant case, the defendant, Eli Pariseau, was found to be an SDP at such a jury-waived [706]*706trial, but the decision did not issue for four months.1 On appeal, the defendant argues that there was insufficient evidence for the judge to find him sexually dangerous beyond a reasonable doubt, and that he is entitled to release or to a new trial due to the delay between the conclusion of the trial and the issuance of a decision on the merits.

We conclude that the evidence was more than sufficient to warrant the defendant’s adjudication as an SDP beyond a reasonable doubt: Pariseau is a dangerous pedophile who has committed numerous sex crimes after prior convictions of other sex crimes; he also refuses treatment. We further conclude that the posttrial delay in the issuance of the decision violated the thirty-day rule imposed in Blake, but that the violation does not justify dismissal of the petition or a new trial, as the defendant’s sexual dangerousness was well-established in a fair trial that was not affected by the delay in the issuance of the decision, and the trial judge immediately issued his decision once the delay was brought to his attention.

1. Background, a. Procedural history. The jury-waived trial took place on February 18, 2010. At the defendant’s request, the trial judge gave the parties approximately thirty days to submit proposed findings of fact and rulings of law. After these were filed on March 15, 2010, no activity occurred in the case for over four months, until July 27, 2010, when the defendant’s counsel sent a letter to the court inquiring about the status of the case. Three days later, on July 30, 2010, a decision and judgment issued. The trial judge did not explain the reasons for the delay.

b. Facts. We summarize the trial judge’s findings of fact, which are not challenged on appeal. The defendant was convicted of indecent assault and battery on a child under the age of fourteen in 1981, and open and gross lewdness in 1984. The victims in those cases were nine and three year old girls. In 1991, he received a sentence of fifteen to twenty years in State prison on twenty-two counts of rape of a child. The latter convie[707]*707tians stemmed from incidents in the summer of 1990, in which he sexually assaulted an eleven year old boy orally and anally on a nearly daily basis, and forced the victim by threats to molest two younger girls. Based on this pattern of conduct and the testimony of the qualified examiners, the trial judge found that the defendant suffers from a mental abnormality, namely pedophilia.

The trial judge further found, based again on the qualified examiners’ testimony, that the defendant is likely to sexually re-offend if not confined to a secure facility. Among the factors the judge considered was that the defendant scored in the highest category for risk of reoffense on the Static-99 assessment, an “actuarial tool” used in the field. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 636 n.33 (2011). The defendant reoffended twice in the past after being incarcerated for sexual offenses. He has also refused to engage in sex offender treatment and has not admitted responsibility for his wrongdoing. In fact, the judge found that the respondent did not view his criminal behavior as wrong. While the defendant’s age of fifty-eight reduced somewhat his risk of reoffense, the trial judge found that the other factors outweighed any such reduction in risk.

2. Sufficiency of the evidence. An individual may be committed to the Massachusetts Treatment Center as an SDP if he has been convicted of a sexual offense and he “suffers from a mental abnormality or personality disorder which makes [him] likely to engage in sexual offenses if not confined to a secure facility.” G. L. c. 123A, § 1, as amended by St. 1999, c. 74, § 6. See G. L. c. 123A, § 14(d).

The defendant primarily attacks the sufficiency of the evidence as to likelihood of reoffending. Specifically, he contends that pedophilia is not always chronic and therefore does not inherently establish that he is likely to reoffend. He emphasizes that there was no evidence that he acted on his pedophilic tendencies while in the State prison for twenty years. He further contends that there has not been a direct link in the scientific literature between either the denial of offense or the refusal to participate in sex offender treatment and an increased risk of recidivism.

There was ample evidence of the defendant’s likelihood to [708]*708reoffend. Both qualified examiners testified as to their findings. They also explained how they utilized actuarial tools to guide and structure their analysis and how that analysis properly placed the defendant in a “high risk for reoffending” category. They appropriately relied on the fact that the defendant had reoffended after being convicted twice of sex offenses.2 “Weighing and crediting the testimony are for the trier of fact, and we will not substitute our judgment for that of the trier of fact.” Hill, petitioner, 422 Mass. 147, 156, cert, denied, 519 U.S. 867 (1996). The evidence was more than sufficient to support the trial judge’s conclusion.

To counter this evidence, the defendant relies heavily on the lack of sexual misconduct while he was incarcerated. Acknowledging that he had little to no contact with children while incarcerated, the defendant points to testimony from both experts that other pedophiles they, have dealt with have found outlets for their deviant urges in prison such as collecting photographs or magazines relating to children and watching television shows geared toward children. There was no evidence of such conduct by the defendant, but neither was there affirmative evidence that he had not engaged in such activity. A fact finder may find an incarcerated pedophile sexually dangerous even without “contemporaneous or recent conduct indicating sexual dangerousness.” Id. at 157. See Commonwealth v. Chapman, 444 Mass. 15, 24 n.16 (2005). It is not surprising that “[ejxamples of recent conduct showing sexual dangerousness may often be lacking where the individual’s dangerous disposition is of a sort that there will be no occasion for that disposition to manifest itself in a secure environment.” Hill, petitioner, supra.

The other arguments that the defendant raises also go to the weight rather than the sufficiency of the evidence. As for the contention that denial does not correlate with recidivism, Dr. Hazelett’s written report, admitted as a trial exhibit, noted that “Mr. Pariseau’s particular form of denial goes beyond simply [709]*709denying his actions. He offers an explanation (i.e., he was in fact investigating the unfit parents of his victims) which is strikingly implausible on its face. This suggests that Mr. Pariseau has a very distorted concept of social norms and expectations ....

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Related

Commonwealth v. Pariseau
2 N.E.3d 859 (Massachusetts Supreme Judicial Court, 2014)

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Bluebook (online)
967 N.E.2d 154, 81 Mass. App. Ct. 705, 2012 WL 1503084, 2012 Mass. App. LEXIS 181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-pariseau-massappct-2012.