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15-P-660                                             Appeals Court

                      JUSTO ESTERAZ, petitioner.


                             No. 15-P-660.

        Suffolk.       June 14, 2016. - September 22, 2016.

                Present:   Trainor, Vuono, & Blake, JJ.


Sex Offender. Evidence, Sex offender, Expert opinion,
     Scientific test. Practice, Civil, Sex offender, Waiver,
     Assistance of counsel. Waiver.



     Petition filed in the Superior Court Department on December
2, 2010.

    The case was tried before Merita A. Hopkins, J.


    Ethan C. Stiles for the petitioner.
    Melissa A. Juarez for the Commonwealth.


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

returned a verdict finding that the petitioner, Justo Esteraz,

remained a sexually dangerous person (SDP) as defined by G. L.

c. 123A, § 1.    He appeals, arguing that the judge erred by

failing to hold a Daubert/Lanigan hearing to determine the

admissibility of the results of a risk assessment tool known as
                                                                       2


the Multisample Age-Stratified Table of Sexual Recidivism Rates

(MATS-1), which purports to measure an individual's likelihood

to reoffend.    See Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579, 592-595 (1993); Commonwealth v. Lanigan, 419 Mass.

15, 24-26 (1994).     He also claims that his trial counsel was

ineffective in his advocacy for the admission of the same

evidence.    We affirm, addressing, in our discretion, the

question whether the MATS-1 evidence was directly admissible as

part of the petitioner's expert's report.

       1.   Background.   The petitioner was civilly committed as an

SDP on October 18, 2010.     On December 2, 2010, he filed a

petition for release and discharge pursuant to G. L. c. 123A,

§ 9.

       At the time of trial, the petitioner was a seventy-four

year old man with a significant history of charged and uncharged

crimes of sexual abuse spanning over four decades.     The

petitioner's victims include three generations of young girls in

his extended family, including his daughter, nieces,

granddaughters, and step-granddaughters.     His conduct has

included fondling, vaginal and digital penetration, and oral

sex.    The petitioner's criminal record includes four convictions

in 1994 for sex crimes committed in Puerto Rico and four

convictions in 2008 in Massachusetts for indecent assault and

battery on a child under fourteen years of age.
                                                                   3


    Pursuant to G. L. c. 123A, § 9, the petitioner was examined

by two qualified examiners who prepared reports opining that the

petitioner remained an SDP.   Those reports explained that,

despite the petitioner's advanced age, his extensive and

prolonged history of sexual abuse, which continued into his

sixties, suggested he was likely to reoffend.   The examiners

also considered that the petitioner greatly minimized his

culpability for his conduct and, at times, suggested his victims

were somewhat culpable by offering complicit consent.      The

examiners also noted the petitioner remained capable of sexual

activity, had accomplished only limited progress in sex offender

treatment, and his only support in the community is his

daughter, who is the mother of three of his victims, and it is

unclear what, if any, contact the petitioner would have with

them.

    The petitioner was also examined by his own independent

expert, Dr. Leonard Bard, who concluded that the petitioner was

no longer an SDP.   That opinion was based, in part, on the use

of two risk assessment tools that measure an individual's

likelihood to reoffend:   the MATS-1 and the STATIC-99R.     Dr.

Bard's application of those tools, respectively, predicted the

petitioner had a 2.5 percent, and 2.8 percent, chance of

sexually reoffending.   Upon receipt of Dr. Bard's report, the

Commonwealth filed a motion in limine to exclude all references
                                                                    4


to the MATS-1 evidence on the ground that it was unreliable and

inadmissible under the Daubert/Lanigan standard.   The petitioner

filed an opposition to the Commonwealth's motion, arguing for

the admissibility of the MATS-1 evidence.   The petitioner did

not, however, request a Daubert/Lanigan hearing.

     On the second day of trial, the judge heard oral argument

on the Commonwealth's motion.   The petitioner's counsel stated

that he "had discussed for the purposes of judicial economy

. . . not hav[ing] [his expert] testify with regard to the MATS-

1, because there is also a STATIC-99 score . . . that was

substantially the same," and "[his] theory of the case [did not]

rest on MATS-1 or STATIC-99."   He nevertheless renewed his

argument that the MATS-1 evidence was directly admissible as

part of the expert's report under G. L. c. 123A, or, if the

judge disagreed, that the MATS-1 evidence met the standards for

admissibility under Daubert/Lanigan.1   The judge concluded that a

Daubert/Lanigan hearing was required to determine if the MATS-1

evidence was admissible, but declined to schedule one where the

petitioner had failed to timely request such a hearing before



     1
       It appears from the transcript that the parties had agreed
to stipulate to the exclusion of the MATS-1 evidence on the
first day of trial. One day later, apparently at the insistence
of a Committee for Public Counsel Services attorney present at
the trial, the petitioner changed course and argued the
substance of his opposition to the motion in limine.
                                                                     5


the trial had commenced.   She accordingly allowed the

Commonwealth's motion to exclude the MATS-1 evidence.

     2.   Waiver.   In his appellate brief, the petitioner argues

that the judge should have held a Daubert/Lanigan hearing, and

that, if such a hearing had been held, the MATS-1 evidence would

have been admitted.    In passing, the petitioner also claims that

"[t]he trial judge erred in excluding the MATS-1."     In response

to a question at oral argument, appellate counsel clarified that

he is, indeed, arguing in the alternative that the risk

assessment evidence is directly admissible, without the need for

a Daubert/Lanigan hearing.    Because that argument was not

sufficiently raised in the appellant's brief, it is waived.2    See

Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Warner-

Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n.7 (1998);

Larson v. Larson, 30 Mass. App. Ct. 418, 428 (1991).

Nevertheless, in the exercise of our discretion, we comment on

the direct admissibility of MATS-1 evidence, as the issue is

likely to recur.

     3.   Direct admissibility of MATS-1 evidence.   General Laws

c. 123A, § 9, provides that, following the filing of a petition


     2
       Even if the argument was not waived, we would find no
substantial risk of a miscarriage of justice. See Commonwealth
v. Fay, 467 Mass. 574, 583 n.9, cert. denied, 135 S. Ct. 150
(2014). But see McHoul, petitioner, 445 Mass. 143, 156-157
(2005).
                                                                  6


for release from confinement, "[t]he court shall order the

petitioner to be examined by two qualified examiners, who shall

conduct examinations, including personal interviews, of the

person on whose behalf such petition is filed and file with the

court written reports of their examinations and diagnoses, and

their recommendations for the disposition of such person."

G. L. c. 123A, § 9, inserted by St. 1993, c. 489, § 7.

Thereafter, at a G. L. c. 123A, § 9, trial, "[s]aid reports

shall be admissible."   Ibid.

     In Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 284-289

(2004), this court interpreted comparable language in G. L.

c. 123A, § 14(c), to mean that the Legislature had expressly

overruled evidentiary requirements that would have otherwise

made the clinical evaluations, reports, and testimony of

qualified examiners subject to the requirements Daubert/Lanigan.3

In Santos, petitioner, 461 Mass. 565, 572-573 (2012), the

Supreme Judicial Court interpreted G. L. c. 123A, § 9, to

likewise allow petitioners to admit the reports of their own

experts at trial.

     A few years later, in Gammell, petitioner, 86 Mass. App.

Ct. 8 (2014), this court was presented with the question of

     3
       The Supreme Judicial Court has explained that the
evidentiary provisions of G. L. c. 123A, §§ 9 and 14, are to be
construed in the same manner. See McHoul, petitioner, 445 Mass.
143, 149 (2005); Santos, petitioner, 461 Mass. 565, 571 (2012).
                                                                    7


whether penile plethysmograph (PPG) assessment evidence

appearing in an expert's report was directly admissible under

Bradway and Santos absent a Daubert/Lanigan hearing.    The court

held that, because PPG evidence was neither "expressly made

admissible by statute, nor . . . an essential part of the

qualified examiners' evaluation as set out in the statute," it

was not admissible without further evaluation.    Id. at 15.   In

reaching that opinion, the court relied on language from

Commonwealth v. Markvart, 437 Mass. 331 (2002).    That case

provides that "[q]ualified examiners, as expert witnesses, may

base their opinions on (1) facts personally observed; (2)

evidence already in the records or which the parties represent

will be admitted during the course of the proceedings . . .; and

(3) facts or data not in evidence if the facts or data are

independently admissible and are a permissible basis for an

expert to consider in formulating an opinion."    Id. at 337

(quotation omitted) (holding that police reports and witness

statements from nol prossed criminal complaints, while not

directly admissible under the statute, may be used to the form

the basis of a qualified examiner's opinion).    See Ready,

petitioner, 63 Mass. App. Ct. 171, 173-179 (2005) (affirming

trial judge's exclusion of the Abel Assessment for Sexual

Interest test on Daubert/Lanigan grounds based on judge's

finding that the test was neither generally accepted in the
                                                                    8


relevant scientific community nor a reliable measure of sexual

interest).

     The assessment device at issue here, the MATS-1, is an

adjusted actuarial tool that estimates the probability that an

individual will sexually reoffend.   Dr. Bard's report provides

that such risk assessment devices "involve[] the use of one or

more empirically validated actuarial tools and the use of

dynamic factors (empirically validated by numerous independent

researchers) to account for variables that an actuarial tool

cannot assess or that are considered changeable over time."4   In

other words, the MATS-1 tool is a product of scientific

research, testing, and validation that is available for use by


     4
       One law review article on the subject explains that risk
assessment "actuarial scales are developed using statistical
analyses of groups of individuals (in the present case, released
sex offenders) with known outcomes during a 'follow-up' period
(either arrested for or convicted of a new sexual offense, or
not identified as having committed a new sexual offense). These
analyses tell us which items ('predictor variables') do the best
job of differentiating between those who reoffended and those
who did not reoffend within a specified time period. Since some
of these variables inevitably do a better job than others, these
analyses also help us to determine how much weight should be
assigned to each item. The variables are then combined to form
a scale, which is tested on many other groups of offenders
(cross-validation). When the scale has been used on many
samples with a sufficiently large number of offenders, the
scores derived from the scale may be expressed as estimates of
the probability that individuals with that score will reoffend
within a specified time frame." Janus & Prentky, Forensic Use
of Actuarial Risk Assessment with Sex Offenders: Accuracy,
Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443,
1454 (2003).
                                                                    9


individuals treating or examining sexual offenders.    While

aiding an expert or qualified examiner in reaching a

recommendation, the tool, itself, is derived from facts and data

that are outside of the examiner's personal observations of the

petitioner or the record.   Thus, like the assessment test at

issue in Gammell, MATS-1 evidence is "not expressly made

admissible by statute, nor [is it] an essential part of the

qualified examiners' evaluation as set out in the statute."

Gammell, petitioner, supra at 15.   Rather, to be admissible at a

petitioner's trial, the MATS-1 evidence must undergo an

assessment under the standards of Daubert/Lanigan to determine

whether it is independently admissible.   See ibid.5

    4.   Failure to hold a Daubert/Lanigan hearing.    The judge

did not commit error by failing to hold, sua sponte, a

Daubert/Lanigan hearing on the day that Dr. Bard was scheduled

to testify.   The petitioner neither requested a Daubert/Lanigan

hearing, nor indicated that he was either interested in or

prepared to participate in such a hearing.   To the contrary, the

    5
       The reliability and admissibility of evidence based on
scientific, technical, or specialized knowledge is ultimately
for the court to decide. As the Supreme Judicial Court has
observed, although the "Legislature doubtless has the power to
prescribe the rules of evidence and the methods of proof to be
employed in trials in court[,] [] the power to do so does not
mean that the reliability of every type of evidence the
Legislature may deem admissible, particularly in a criminal
case, is automatically insulated from challenge and review on
reliability grounds." Commonwealth v. Camblin, 471 Mass. 639,
648 (2015) (quotation and citation omitted).
                                                                     10


petitioner's counsel advised the judge that the theory of the

case that he had planned did not rest on the MATS-1 or STATIC-99

evidence.   The failure to request a Daubert/Lanigan hearing to

establish the reliability of expert testimony constitutes waiver

of the issue.   See Commonwealth v. Fritz, 472 Mass. 341, 349

(2015); Commonwealth v. Cole, 473 Mass. 317, 328 (2015).

Moreover, judges are afforded substantial latitude in pretrial

and trial management.   See Mazzoleni v. Cotton, 33 Mass. App.

Ct. 147, 150-151 (1992), and cases cited.     See also Mass. G.

Evid. § 702 note (2016).

    5.   Ineffective assistance of counsel.     Equally unavailing

is the petitioner's claim that his trial counsel was ineffective

in his advocacy for the admission of the MATS-1 evidence.     Even

if trial counsel were ineffective, the petitioner cannot show

that he was prejudiced by counsel's actions.     See Commonwealth

v. Saferian, 366 Mass. 89, 96 (1974) (any ineffectiveness must

have "likely deprived the [petitioner] of an otherwise

available, substantial ground of defence").     While the

petitioner was not able to present the MATS-1 evidence, he was

able to present the STATIC-99R evidence, which had a similar

probative value, to the jury.   The STATIC-99R measured the

petitioner's risk of sexually reoffending within a fraction of a

percent of the MATS-1 measurement.   The failure to present

certain evidence does not deprive a petitioner of a substantial
                                                               11


ground of defense where trial counsel is able to develop the

issue with other comparable evidence.   See Commonwealth v.

Mello, 420 Mass. 375, 394 (1995).

                                    Judgment affirmed.
