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16-P-1710                                               Appeals Court

               COMMONWEALTH    vs.    ALFRED P. FUSI.



              No. 16-P-1710.         February 1, 2017.


Sex Offender. Practice, Civil, Sex offender. Evidence, Sex
     offender, Expert opinion. Probable Cause.


     After a hearing at which expert witnesses engaged by the
Commonwealth and the defendant offered conflicting opinions
concerning the defendant's sexual dangerousness, a judge of the
Superior Court concluded that the Commonwealth had not
established probable cause to believe the defendant is sexually
dangerous, dismissed the Commonwealth's petition seeking his
commitment as a sexually dangerous person pursuant to G. L.
c. 123A, § 12, and ordered him released from custody. 1 Though
the judge applied the correct legal standard to the
determination of probable cause, his conclusion that the
evidence did not establish probable cause was in error, and
therefore we reverse.

     At a probable cause hearing conducted pursuant to G. L.
c. 123A, § 12(c), the judge is to conduct "a two-part inquiry,
one quantitative and the other qualitative. 'The judge must be
satisfied, first, that the Commonwealth's admissible evidence,
if believed, satisfie[s] all of the elements of proof necessary
to prove the Commonwealth's case. Second, she must be satisfied
that the evidence on each of the elements is not so incredible,
insubstantial, or otherwise of such a quality that no reasonable
person could rely on it to conclude that the Commonwealth had

     1
       A single justice of this court allowed the Commonwealth's
motion for a stay of the release order pending appeal, and
directed that the appeal proceed on an expedited basis.
                                                                   2


met its burden of proof.'" Commonwealth v. Reese, 438 Mass.
519, 524 (2003), quoting from Commonwealth v. Blanchette, 54
Mass. App. Ct. 165, 175 (2002). At issue in this appeal is
whether the Commonwealth's evidence satisfied the second,
qualitative, prong of the Blanchette test. 2

     The defendant was convicted of two rapes of young women,
both strangers, that he committed in 1980 and 1981, when he was
nineteen and twenty years of age, respectively. The second of
the two rapes occurred while he was released on bail awaiting
his trial for the first. In addition to those convictions, the
defendant was charged with open and gross lewdness in 1981, and
indecent exposure in 1982, while both rape charges were pending. 3
While incarcerated, he was disciplined on several occasions,
including for an incident in 1996 in which he drew five drawings
of a female correction officer including some portraying her in
the nude; two of the drawings were described as "quite
explicit," and notes written on the backs of two of the drawings
included such statements as, "It would of came [sic] out way
better if you would pose for me!" and "Your [sic] in my
thoughts." Following the imposition of discipline for that
infraction, the defendant sent a letter to the prison
superintendent suggesting that he (the defendant) was led to
draw the nude pictures of the correction officer by her
flirtatious and suggestive conduct toward him. 4 Both the
Commonwealth's and the defendant's experts assigned to him a
score of "five," in the "moderate to high range," on the STATIC-
99R model for assessing risk of sexual recidivism. While
incarcerated, the defendant participated in sex offender
treatment, but suspended his participation at the point at which
he would have been required to acknowledge his offenses, citing
a pending appeal. However, he did not resume participation
after his appeal concluded, and he continued in his interview
with the Commonwealth's expert to deny his involvement in either
of the two rapes of which he was convicted. The Commonwealth's

     2
       The parties agree that the judge correctly concluded that
the evidence satisfied the quantitative prong.
     3
       The charge of open and gross lewdness was disposed by
nolle prosequi, and the charge of indecent exposure was
dismissed. The police reports regarding both incidents were
admitted in evidence at the hearing, and the defendant asserts
no claim on appeal that their admission was error.
     4
       As the judge observed, however, the defendant's last
disciplinary violation occurred in 2006.
                                                                   3


expert opined that the defendant shows features of narcissism
and antisocial personality, and ultimately opined that he meets
the criteria for "other specified personality disorder." The
expert further opined that the defendant's personality disorder
would impair his capacity for impulse control, including sexual
impulses.

     In his written memorandum of decision, the judge
principally relied on the relatively modest number of
disciplinary violations committed by the defendant during the
term of his incarceration, and the absence of any since 2006, to
reject the Commonwealth's expert's diagnosis that the defendant
exhibits antisocial or narcissistic personality traits. In so
doing, the judge, in our view, conducted his own personal
assessment of the expert's credibility, "based on his own
opinion of the proper application of the [DSM-V], and the
significance of [the expert's] testimony and the [DSM-V]."
Reese, 438 Mass. at 526. In order to conclude that no
reasonable person could rely on the expert's opinion, the judge
necessarily rejected the expert's expressed concern over the
defendant's failure to complete sex offender treatment,
including his continuing failure to accept responsibility for
the offenses that resulted in his incarceration, and his
persistence in assigning blame for his inappropriate and
sexualized drawings of the female correction officer to his
belief that she was flirting with him in an effort to establish
a romantic relationship.

     As explained in Reese, supra at 523-524, the task of a
judge at a § 12(c) hearing is analogous to that of a judge at a
bind-over hearing. However, as the Supreme Judicial Court
observed in that case, the analogy is not perfect. Id. at 523.
In particular, the judge at a § 12(c) hearing must assess the
evidence without the benefit of the most critical evidence of
sexual dangerousness to be offered at any eventual trial: the
examination conducted pursuant to G. L. c. 123A, § 13(a), by a
qualified examiner. 5 "Consequently, the hearing judge, in

     5
       Qualified examiners, appointed by a judge following a
determination of probable cause, "are central to the statutory
scheme designed to evaluate the likelihood of a sex offender to
reoffend." Johnstone, petitioner, 453 Mass. 544, 551 (2009),
quoting from Commonwealth v. Bradway, 62 Mass. App. Ct. 280,
283-284 (2004). So central is the qualified examiner role that
the Commonwealth cannot meet its burden at a trial on sexual
dangerousness unless a qualified examiner opines that the
defendant is sexually dangerous, even if another expert opines
                                                                   4


assessing the credibility of expert witnesses who will not yet
have access to the most important sources of information in the
case at the time they are called to testify, must act with even
more restraint than a judge assessing the credibility of
Commonwealth witnesses in the context of a bind-over hearing."
Reese, supra at 524. Though the Commonwealth's evidence is not
free from weakness, and though the defendant's counsel ably
illustrated those weaknesses through cross-examination of the
expert at the probable cause hearing and in argument on appeal
in this court, viewed as a whole the Commonwealth's evidence "is
not so incredible, insubstantial, or otherwise of such a quality
that no reasonable person could rely on it to conclude that the
Commonwealth had met its burden of proof." Ibid., quoting from
Blanchette, 54 Mass. App. Ct. at 175.

     The order dismissing the Commonwealth's petition is
reversed, and the matter is remanded for entry of an order
finding probable cause, and for such further proceedings on the
petition as may be appropriate under c. 123A. 6

                                   So ordered.


     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
     Eric Tennen for the defendant.




to that effect. Id. at 551-552. In addition, though the
opinion of a qualified examiner must be credible in order to
support a verdict of sexual dangerousness, the question of
credibility ordinarily is for the jury. See Green, petitioner,
475 Mass. 624, 630-631 (2016).
     6
       As the defendant's counsel acknowledged at oral argument,
because our assessment is whether the evidence satisfies the
standard established in Reese, our conclusion is one of law. In
addition, unlike the circumstances in Reese and Blanchette,
where the judge did not apply the correct legal standard, or in
Commonwealth v. Blanchette, 60 Mass. App. Ct. 924, 925 n.5
(2004), where significant time had passed since the probable
cause hearing subject to that appeal, there is no reason in the
present case for further hearing on the question of probable
cause.
