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13-P-1792                                           Appeals Court

              COMMONWEALTH   vs.   EAGLE EYES CUEVAS.1


                           No. 13-P-1792.

         Hampden.      December 9, 2014. - March 24, 2015.

            Present:   Cypher, Wolohojian, & Blake, JJ.


Sex Offender. Evidence, Sex offender, Prior conviction,
     Authentication. Due Process of Law, Sex offender,
     Assistance of counsel. Constitutional Law, Assistance of
     counsel. Practice, Civil, Challenge of jurors. Practice,
     Criminal, Challenge to jurors, Assistance of counsel,
     Waiver.



     Civil action commenced in the Superior Court Department on
July 12, 2010.

    The case was tried before Constance M. Sweeney, J.


     Edward B. Fogarty for the defendant.
     Deborah D. Ahlstrom, Assistant District Attorney, for the
Commonwealth.


    BLAKE, J.    After a jury trial in the Superior Court, the

defendant, Eagle Eyes Cuevas, was found to be a sexually

dangerous person and committed to the Massachusetts Treatment

    1
        Also known as Leonides Cuevas.
                                                                   2


Center at Bridgewater for between one day and life.   On appeal,

Cuevas argues that it was reversible error to admit prior out-

of-State convictions, claiming that the records were not

properly authenticated and did not demonstrate that he was

represented by counsel.   He also claims that it was error to

deny his request for fourteen peremptory jury challenges.     We

affirm.

     Background.   At trial, the Commonwealth presented the

reports and testimony of two qualified examiners, Dr. Katrin

Rouse-Weir and Dr. Michael Murphy.   Both examiners interviewed

Cuevas and reviewed his treatment records, his Department of

Correction records, and his criminal history, which included

both sexual and drug offenses.   As a result of their work, both

opined that Cuevas was a pedophile who was likely to reoffend

and therefore met the statutory definition of a sexually

dangerous person as set forth in G. L. c. 123A.2   Cuevas

presented no expert evidence of his own.


     2
       Rouse-Weir opined that Cuevas suffered from a mental
disorder, pedophilia, based on his interest in prepubescent
children and that Cuevas demonstrated characteristics of
antisocial personality disorder. Rouse-Weir concluded that
probationary requirements and treatment were insufficient to
prevent Cuevas from reoffending.

     Murphy also concluded that Cuevas met the standard to be
adjudicated sexually dangerous. Notably, Cuevas told Murphy
that he fantasized about having sex with his girlfriend's son
and detailed how he groomed the child to accept his sexual
advances. See note 4, infra. Cuevas admitted to Murphy that he
                                                                      3


     The jury could have found the following regarding Cuevas's

history of offenses.     In 1995, in New York, he pleaded guilty to

attempted sexual abuse in the first degree for touching a girl's

breast.3   Cuevas received a committed sentence of eighteen months

to three years in prison.    In 2004, in Massachusetts, Cuevas was

convicted of rape of a child and indecent assault and battery on

a child under the age of fourteen for sexual assaults that

occurred on diverse dates between 1999 and 2003.4    Cuevas

received a sentence of not less than five but no more than seven

years in prison with lifetime community parole.

     Discussion.    1.   Admission of the New York convictions.   It

is the Commonwealth's burden to prove beyond a reasonable doubt

that Cuevas is a sexually dangerous person.     Commonwealth v.

Mazzarino, 81 Mass. App. Ct. 358, 365 (2012).     To do so, the

Commonwealth must prove "(1) a conviction of a sexual offense;

(2) the existence of a mental abnormality or personality

disorder; and (3) whether the mental abnormality or personality

disorder makes the person likely to engage in sexual offenses if

not confined to a secure facility."     Commonwealth v. Blake, 454


was a pedophile. Murphy also concluded that any protective
factors were insufficient to protect the public if Cuevas were
to be released.
     3
         The victim was thirteen years old.
     4
       Cuevas pleaded guilty to these offenses. The victim, the
son of the defendant's girlfriend, was six years old when the
defendant began to sexually assault him.
                                                                     4


Mass. 267, 271 (2009) (Ireland, J., concurring).     See G. L.

c. 123A, § 1.

     As proof of the prior conviction in New York, the

Commonwealth offered a certified copy of two documents provided

by New York:    a "certificate of disposition indictment" and a

"CRIMS appearance history" (CRIMS records).5    The CRIMS records

include attorney data, charges, and appearance dates.

     a.   Proper attestation.    Cuevas first contends the

documents were not properly attested.     See G. L. c. 233, § 76.

We disagree.    "[A]n 'attested' copy of a document is one which

has been examined and compared with the original, with a

certificate or memorandum of its correctness, signed by the

persons who have examined it."     Commonwealth v. Deramo, 436

Mass. 40, 47 (2002), quoting from Black's Law Dictionary 127-128

(6th ed. 1990).    "In New York, a Certificate of Disposition is a

judicial record of the offense of which a defendant has been

convicted."     United States v. Green, 480 F.3d 627, 632 (2d Cir.

2007).    See People v. Smith, 258 A.D.2d 245, 248 (N.Y. 1999).

Moreover, "[a] certificate issued by a criminal court, or the

clerk thereof, certifying that a judgment of conviction against

a designated defendant has been entered in such court,




     5
       Both documents were certified by the clerk of the court of
Kings County in New York.
                                                                    5


constitutes presumptive evidence of the facts stated in such

certificate."   N.Y. Crim. Proc. Law § 60.60(1) (McKinney 1970).

     b.   Representation by counsel.   Cuevas contends that the

Commonwealth failed to establish that he was represented by

counsel or that he waived his right thereto when he pleaded

guilty to the charge in New York.

     In Commonwealth v. Proctor, 403 Mass. 146, 148 (1988), the

Supreme Judicial Court held that when the Commonwealth seeks to

introduce a prior conviction in a G. L. c. 123A proceeding, due

process requires it to prove that the defendant was represented

by counsel or that he waived his right to counsel in the prior

proceeding.   Since then, however, the court has held that a

general presumption of regularity inheres, citing the line of

cases beginning with the United States Supreme Court's

announcement of a right to counsel in all criminal prosecutions

in Gideon v. Wainwright, 372 U.S. 335 (1963).    Commonwealth v.

Saunders, 435 Mass. 691, 695-696 (2002).6   Thus, under Saunders,

"the Commonwealth need not come forward with proof on the point

unless the defendant first makes a showing that the conviction

     6
       Contrary to Cuevas's suggestion on appeal, application of
the presumption of regularity is not limited to the factual
circumstances present in Saunders, supra (admission of prior
convictions for impeachment purposes). See Commonwealth v.
Lopez, 426 Mass. 657, 664-665 (1998) (motion for new trial
seeking to vacate guilty pleas); Commonwealth v. McMullin, 76
Mass. App. Ct. 904, 905 (2010) (admission of prior convictions
to prove charge of operating under influence of intoxicating
liquor, fourth offense).
                                                                   6


was obtained without representation by or waiver of counsel."

Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905 (2010).

This the defendant did not do.

     That the conviction originated in New York is likewise no

bar to its admission.   In New York, defendants faced with

felonies are automatically entitled to counsel.    People v. West,

81 N.Y.2d 370, 373-374 (1993).   Further, as in Massachusetts,

"[t]he State right to counsel [in New York] is a cherished

principle, rooted in this State's prerevolutionary

constitutional law and developed independent of its Federal

counterpart."   Id. at 373 (quotation omitted).   The right to

counsel in New York "attaches at arraignment . . . and entails

the presence of counsel at each subsequent critical stage of the

proceedings."   Hurrell-Harring v. State, 15 N.Y.3d 8, 20 (2010)

(citation and quotation omitted).

     The certificate of disposition, read with or without the

CRIMS reports, was sufficient to meet the requirements of G. L.

c. 123A.7



     7
       The certified CRIMS records indicate that Cuevas was
assigned counsel on March 27, 1995, upon his arraignment. There
is no subsequent record indicating that counsel withdrew or was
otherwise discharged. In support of a motion to exclude the
documents below, Cuevas submitted an affidavit from an attorney
who practiced in New York purporting to cast doubt on the
reliability of the CRIMS records. The judge ruled that the
affidavit was conclusory and insufficient to challenge the
Commonwealth's documentary evidence.
                                                                  7


     2.   Peremptory challenges.   Because Cuevas contends that

the sentence for a sexually dangerous person (a lifetime

commitment) is akin to a life sentence in a criminal setting,

which requires twelve peremptory challenges plus one for each

juror seated beyond the initial twelve, he argues that the judge

erred in denying his timely request for a like number of

peremptory challenges.8   The judge allotted six peremptory

challenges to each party.   Cuevas utilized four.

     We recognize that, although sexually dangerous person

petitions are civil in nature, these defendants are afforded

some of the same protections required in criminal cases due to

the possibility of a lifetime confinement.    See Mass.R.Civ.P.

81(a)(1)(8), as amended, 450 Mass. 1405 (2008); Commonwealth v.

Sargent, 449 Mass. 576, 579 n.3 (2007).   See also Gomes v.

Gaughan, 471 F.2d 794, 799-800 (1st Cir. 1973).     In the

circumstances of this case, we need not decide whether the

claimed right to twelve peremptory challenges is one of those

protections.

                                     Judgment affirmed.




     8
       Rule 20(c)(1) of the Massachusetts Rules of Criminal
Procedure, 378 Mass. 890 (1979), requires twelve peremptory
challenges "[u]pon the trial of an indictment for a crime
punishable by imprisonment for life."
