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
24-P-608
ELI PARISEAU, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On July 30, 2010, a Superior Court judge adjudicated Eli
Pariseau, the petitioner, a sexually dangerous person and
committed him to the Massachusetts Treatment Center. The
petitioner filed a petition pursuant to G. L. c. 123A, § 9 for
examination and discharge to determine whether he remained
sexually dangerous on June 21, 2019. After a trial, on January
19, 2023, a jury returned a verdict that the petitioner remains
sexually dangerous. The petitioner appeals, arguing that
(1) the prosecutor's admittedly erroneous closing argument
prejudiced the petitioner, (2) the judge improperly "allowed the
Commonwealth's experts to testify to the "above average" risk of
reoffense they assigned to the petitioner through the Static- 99R, 1 (3) the judge improperly allowed testimony on uncharged
allegations of the petitioner's misconduct, and (4) the judge
improperly excluded evidence that the petitioner was
preclassified as a level three sex offender by the Sex Offender
Registry Board (SORB). We affirm. 2
Discussion. Because the petitioner did not object to the
closing argument or to the testimony of uncharged allegations of
the petitioner's misconduct, 3 those claims were not preserved,
and we therefore review to determine whether any error created a
substantial risk of a miscarriage of justice. 4 See R.B.,
1 The Static-99R is an actuarial tool that predicts an adult male sex offender's likelihood of reoffending based on a number of static factors, including, inter alia, the offender's age and number of prior sex offenses. Commonwealth v. George, 477 Mass. 331, 335 n.2 (2017).
2 After his January 2023 trial, a jury again found the petitioner to be sexually dangerous on September 12, 2025. The petitioner is scheduled for another trial, pursuant to G. L. c. 123A, § 9, on November 2, 2026. Because many of the same issues raised here are likely to arise again in the petitioner's subsequent trials pursuant to § 9, we exercise our discretion to review the petitioner's claims of error. See Thaddeus v. Secretary of the Executive Office of Health & Human Servs., 101 Mass. App. Ct. 413, 418 (2022).
3 The petitioner contends that he preserved the uncharged conduct issue by raising it in a motion in limine prior to trial. However, counsel for the petitioner conceded that the alleged conduct was admissible if it related to an offense for which the petitioner was convicted and did not object when witnesses for the Commonwealth referenced the uncharged conduct. See Mass. G. Evid. § 103(a)(1) note (2025).
4 The petitioner argues that he preserved his argument in a motion in limine in which he asked the court to preclude the
2 petitioner, 479 Mass. 712, 717-718 (2018). The petitioner
preserved his other claims, which we review for prejudicial
error. See Green, petitioner, 475 Mass. 624, 629 (2016).
1. Closing argument. During closing argument, in an
effort to convey to the jury the risk of the petitioner's
likelihood to reoffend the prosecutor asked the jury to imagine
whether they were willing to eat from a box of one hundred
cookies where they knew twelve to eighteen of the cookies were
fatally poisonous, thereby analogizing to an estimate of the
petitioner's likelihood of reoffending. 5 The argument was nearly
identical to one that a panel of this court previously concluded
was improper. 6 See DeAmicis, petitioner, 104 Mass. App. Ct. 1112
(2024). In that case the panel reasoned as follows.
"Although the Supreme Judicial Court has held that the seriousness of the harm is a factor in determining likelihood of reoffense, see [Commonwealth v. Boucher, 438
Commonwealth from arguing that it was the jury's responsibility to protect public safety. However, in allowing the motion, the judge explicitly distinguished raising concerns about public safety from raising the petitioner's risk of reoffense, noting that the latter was permissible.
5 Two expert witnesses for the Commonwealth testified that of the sex offenders who receive the same score as the petitioner from the administration of the Static-99R, 12.8 percent sexually reoffend within five years and 18.8 percent sexually reoffend within ten years.
6 The prosecutor in the present case, who was also the prosecutor in DeAmicis, petitioner, did not have the benefit of this decision when he used the argument again here and stated that he stopped making the argument when it was challenged on appeal.
3 Mass. 274, 276 (2002)], the question before the jury is whether the risk is 'likely.' See G. L. c. 123A, § 1. The prosecutor's analogy to poison cookies, however, implies that in the defendant's case, any amount of risk is too great a risk. That is a misstatement of the law, and the prosecutor's analogy was thus improper."
Id.
The Commonwealth concedes the argument was improper and we
agree. Nevertheless, the closing argument did not create a
substantial risk of a miscarriage of justice. The Commonwealth
presented strong evidence that the petitioner remained sexually
dangerous, including the fact that he sexually reoffended twice,
continues to deny any criminal conduct, and engaged in treatment
only for a limited time before stopping treatment altogether,
and engaged in consensual sex with another resident of the
treatment center -- against the treatment center's policies --
just months prior to his trial. In addition, the judge twice
instructed the jury that closing arguments are not evidence,
including one time immediately before closing arguments were
presented to the jury. See Commonwealth v. Andrade, 468 Mass.
543, 549 (2014) ("The jury are presumed to follow the judge's
instructions").
2. Static-99R risk category labels. "The Static-99R is an
actuarial tool, designed to predict the recidivism risk of
sexual offenses in adult male sex offenders who have been
convicted of at least one sexual offense." Commonwealth v.
4 George, 477 Mass. 331, 335 n.2 (2017). In George, the Supreme
Judicial Court held that the previously used risk-of-reoffense
categories that labeled an adult male sexual offender's risk of
reoffense as "low," "low-moderate," "moderate-high," and "high,"
were inadmissible because they "lack[ed] probative value in the
sexual dangerousness calculus and should not be admitted at
trial," id. at 339-340, but noted that "[t]o resolve the
shortcomings of the Static-99R risk category labels, test
developers have created new risk category labels, and "[the
court] take[s] no position on the admissibility of those
labels," id. at 340 n.8.
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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
24-P-608
ELI PARISEAU, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On July 30, 2010, a Superior Court judge adjudicated Eli
Pariseau, the petitioner, a sexually dangerous person and
committed him to the Massachusetts Treatment Center. The
petitioner filed a petition pursuant to G. L. c. 123A, § 9 for
examination and discharge to determine whether he remained
sexually dangerous on June 21, 2019. After a trial, on January
19, 2023, a jury returned a verdict that the petitioner remains
sexually dangerous. The petitioner appeals, arguing that
(1) the prosecutor's admittedly erroneous closing argument
prejudiced the petitioner, (2) the judge improperly "allowed the
Commonwealth's experts to testify to the "above average" risk of
reoffense they assigned to the petitioner through the Static- 99R, 1 (3) the judge improperly allowed testimony on uncharged
allegations of the petitioner's misconduct, and (4) the judge
improperly excluded evidence that the petitioner was
preclassified as a level three sex offender by the Sex Offender
Registry Board (SORB). We affirm. 2
Discussion. Because the petitioner did not object to the
closing argument or to the testimony of uncharged allegations of
the petitioner's misconduct, 3 those claims were not preserved,
and we therefore review to determine whether any error created a
substantial risk of a miscarriage of justice. 4 See R.B.,
1 The Static-99R is an actuarial tool that predicts an adult male sex offender's likelihood of reoffending based on a number of static factors, including, inter alia, the offender's age and number of prior sex offenses. Commonwealth v. George, 477 Mass. 331, 335 n.2 (2017).
2 After his January 2023 trial, a jury again found the petitioner to be sexually dangerous on September 12, 2025. The petitioner is scheduled for another trial, pursuant to G. L. c. 123A, § 9, on November 2, 2026. Because many of the same issues raised here are likely to arise again in the petitioner's subsequent trials pursuant to § 9, we exercise our discretion to review the petitioner's claims of error. See Thaddeus v. Secretary of the Executive Office of Health & Human Servs., 101 Mass. App. Ct. 413, 418 (2022).
3 The petitioner contends that he preserved the uncharged conduct issue by raising it in a motion in limine prior to trial. However, counsel for the petitioner conceded that the alleged conduct was admissible if it related to an offense for which the petitioner was convicted and did not object when witnesses for the Commonwealth referenced the uncharged conduct. See Mass. G. Evid. § 103(a)(1) note (2025).
4 The petitioner argues that he preserved his argument in a motion in limine in which he asked the court to preclude the
2 petitioner, 479 Mass. 712, 717-718 (2018). The petitioner
preserved his other claims, which we review for prejudicial
error. See Green, petitioner, 475 Mass. 624, 629 (2016).
1. Closing argument. During closing argument, in an
effort to convey to the jury the risk of the petitioner's
likelihood to reoffend the prosecutor asked the jury to imagine
whether they were willing to eat from a box of one hundred
cookies where they knew twelve to eighteen of the cookies were
fatally poisonous, thereby analogizing to an estimate of the
petitioner's likelihood of reoffending. 5 The argument was nearly
identical to one that a panel of this court previously concluded
was improper. 6 See DeAmicis, petitioner, 104 Mass. App. Ct. 1112
(2024). In that case the panel reasoned as follows.
"Although the Supreme Judicial Court has held that the seriousness of the harm is a factor in determining likelihood of reoffense, see [Commonwealth v. Boucher, 438
Commonwealth from arguing that it was the jury's responsibility to protect public safety. However, in allowing the motion, the judge explicitly distinguished raising concerns about public safety from raising the petitioner's risk of reoffense, noting that the latter was permissible.
5 Two expert witnesses for the Commonwealth testified that of the sex offenders who receive the same score as the petitioner from the administration of the Static-99R, 12.8 percent sexually reoffend within five years and 18.8 percent sexually reoffend within ten years.
6 The prosecutor in the present case, who was also the prosecutor in DeAmicis, petitioner, did not have the benefit of this decision when he used the argument again here and stated that he stopped making the argument when it was challenged on appeal.
3 Mass. 274, 276 (2002)], the question before the jury is whether the risk is 'likely.' See G. L. c. 123A, § 1. The prosecutor's analogy to poison cookies, however, implies that in the defendant's case, any amount of risk is too great a risk. That is a misstatement of the law, and the prosecutor's analogy was thus improper."
Id.
The Commonwealth concedes the argument was improper and we
agree. Nevertheless, the closing argument did not create a
substantial risk of a miscarriage of justice. The Commonwealth
presented strong evidence that the petitioner remained sexually
dangerous, including the fact that he sexually reoffended twice,
continues to deny any criminal conduct, and engaged in treatment
only for a limited time before stopping treatment altogether,
and engaged in consensual sex with another resident of the
treatment center -- against the treatment center's policies --
just months prior to his trial. In addition, the judge twice
instructed the jury that closing arguments are not evidence,
including one time immediately before closing arguments were
presented to the jury. See Commonwealth v. Andrade, 468 Mass.
543, 549 (2014) ("The jury are presumed to follow the judge's
instructions").
2. Static-99R risk category labels. "The Static-99R is an
actuarial tool, designed to predict the recidivism risk of
sexual offenses in adult male sex offenders who have been
convicted of at least one sexual offense." Commonwealth v.
4 George, 477 Mass. 331, 335 n.2 (2017). In George, the Supreme
Judicial Court held that the previously used risk-of-reoffense
categories that labeled an adult male sexual offender's risk of
reoffense as "low," "low-moderate," "moderate-high," and "high,"
were inadmissible because they "lack[ed] probative value in the
sexual dangerousness calculus and should not be admitted at
trial," id. at 339-340, but noted that "[t]o resolve the
shortcomings of the Static-99R risk category labels, test
developers have created new risk category labels, and "[the
court] take[s] no position on the admissibility of those
labels," id. at 340 n.8. Further, the Supreme Judicial Court
noted that its holding was "limited" to only the risk category
labels, and "[b]oth the Static-99R score and the corresponding
percentage . . . continue to be admissible." Id. at 341.
Relying on George, the petitioner contends that it was
prejudicial error to allow the Commonwealth's expert witnesses
to testify to the "above average" risk of reoffense they
assigned to the petitioner through the Static-99R. We disagree.
The Supreme Judicial Court determined that the previously
used risk category labels were inadmissible because the Static-
99R test developers acknowledged an "absence of accepted
standards or metrics connecting the risk category labels to
specific meanings, such as recidivism rates, psychological
features, or expected treatment needs" (quotation and citation
5 omitted). George, 477 Mass. at 340. As a result, the new risk
labels now categorize a person's risk of reoffense as "very
low," "below average," "average," "above average," and "well
above average," depending on how an offender's risk of reoffense
compares to other male sexual offenders. The new categories
therefore are directly linked to the admissible aspects of the
Static-99R through an objective measure, that being whether the
petitioner is more or less likely to reoffend than an average
adult male sex offender. Cf. id.
Even assuming without deciding that the new labels were
inadmissible, as applied here any error would be nonprejudicial.
In George, the admission of testimony referencing the erroneous
risk labels was found to be nonprejudicial because of "the
limited nature of the use of the Static-99R in the qualified
examiners' over-all risk assessment analysis." George, 477
Mass. at 341. The same reasoning applies here, where the
prosecutor did not reference the risk category labels during his
closing argument, the two expert witnesses for the Commonwealth
collectively only referenced the risk labels three times, the
experts contextualized the labels using scores and risk of
reoffense percentages that the Supreme Judicial Court recognized
as admissible in George, supra at 341-342, and they further
characterized their evaluations of the petitioner's risk of
reoffense using dynamic factors not considered by the Static-
6 99R. In sum, we conclude that it was not error for the
Commonwealth's experts to refer to the "above average" risk
category label that they assigned to the petitioner through the
Static-99R, and even if it had been error, any references to the
risk category label were so limited as to be nonprejudicial.
3. Testimony of uncharged conduct. "[P]olice reports
relating to [the petitioner's] prior sexual offenses . . . shall
be admissible at the trial if such written information has been
provided to opposing counsel reasonably in advance of trial."
G. L. c. 123A, § 14 (c). "[O]ther information in police reports
-- including any statements describing the defendant's conduct
and the circumstances attendant to the offense -- is also
admissible. The fact that that information could have, but did
not, result in additional criminal charges is irrelevant to its
admissibility under § 14 (c)." Commonwealth v. Given, 441 Mass.
741, 745 (2004). A report of uncharged conduct "[is] relevant
to the crime charged" if it "show[s] a pattern of conduct and
the probable existence of the same passion or emotion at the
time in issue." Commonwealth v. Starkus, 69 Mass. App. Ct. 326,
333 (2007).
At trial, two of the Commonwealth's expert witnesses
referenced a police report related to the petitioner's 1984
conviction for open and gross lewdness. In that report it was
alleged that the petitioner had also sexually abused two six
7 year old girls, though the petitioner was never charged based on
these allegations. The petitioner contends that the reported
allegations did not relate to a crime that he was charged with,
and so it was error to admit the references to this uncharged
conduct. We disagree.
Evidence that the petitioner allegedly abused two six year
old girls was relevant to the petitioner's 1984 conviction for
open and gross lewdness. See Starkus, 69 Mass. App. Ct. at 333.
Specifically, the petitioner claims that his 1984 conviction was
based on a misunderstanding, namely that he was giving the three
year old victim a bath and was using the bathroom when the
victim's father came upon them. Thus, evidence that the
petitioner had allegedly abused two additional prepubescent
victims around the time he was found alone, with his pants down,
in a room with a three year old victim was relevant to show that
the petitioner's 1984 conviction was not the result of a
misunderstanding, but rather was part of a pattern of conduct of
intentional sexual assaults against prepubescent children. See
4. The petitioner's preclassification as a level three sex
offender. Before trial, the judge allowed the Commonwealth's
motion in limine to exclude evidence of the fact that the SORB
preclassified the petitioner as a level three sex offender on
the ground that it was not relevant to whether the petitioner
8 remained sexually dangerous and introduced a "wholly extraneous
issue." The petitioner argues that the judge erred by excluding
evidence of his preclassification because he contends that
public dissemination of his information would reduce his risk of
reoffense, 7 and his likelihood to reoffend is relevant to whether
he remains sexually dangerous. We disagree.
The judge was well within her discretion to exclude the
petitioner's preclassification level on the ground that its
probative value would be substantially outweighed by the risk of
confusing the issues presented to the jury (or, as the judge put
it, by introducing a "wholly extraneous issue"). See
Mass. G. Evid. § 403 (2025) ("The court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . confusing the issues . . ."). Both parties
during the pretrial hearing recognized the lack of record
evidence supporting the efficacy of the SORB's publication
system. See generally Moe v. Sex Offender Registry Board, 467
Mass. 598, 612 n.11 (2014) (noting lack of evidence that
internet publication of sex offenders prevented sexual crimes).
It is therefore predictable that admitting the petitioner's
preclassification level would have risked inviting the parties
7 The SORB is required to publish the sex offender information of level two and level three sex offenders in an online database available to the public. G. L. c. 6, § 178D.
9 to introduce evidence on the efficacy of internet publication of
sex offenders, an issue that the jury was not tasked with
deciding. See Mass. G. Evid. § 403.
Judgment affirmed.
By the Court (Vuono, Desmond & Toone, JJ. 8),
Clerk
Entered: January 28, 2026.
8 The panelists are listed in order of seniority.