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13-P-396                                             Appeals Court

                       JACK GAMMELL, petitioner.



                             No. 13-P-396.

           Bristol.       April 3, 2014. - July 15, 2014.

              Present:    Kafker, Brown, & Sikora, JJ.


Sex Offender. Evidence, Sex offender, Expert opinion,
     Scientific test, Age. Witness, Expert.



     Petition filed in the Superior Court Department on November
6, 2009.

     The case was tried before Bonnie H. MacLeod, J.


     David Hirsch for the petitioner.
     Brendan J. Frigault for Massachusetts Treatment Center.


     KAFKER, J.   The petitioner, Jack Gammell, appeals the

judgment of the Superior Court finding him still sexually

dangerous pursuant to G. L. c. 123A, § 9.    He raises three

issues on appeal:     (1) whether a qualified examiner may testify

regarding his evaluation of the credibility of various

statements made by the petitioner during the clinical interview;
                                                                    2


(2) whether the trial judge properly excluded from the trial the

results of a penile plethysmograph assessment (PPG test) by the

treatment center, including references to the assessment in a

qualified examiner's report, when there had been no attempt to

establish the reliability of the assessment; (3) whether the

judge also properly excluded evidence on the possible effects of

reduced testosterone resulting from aging on the likelihood of

reoffending, when the petitioner had never been tested and

therefore could submit no evidence of his own testosterone

levels.   We affirm, as we discern no error in any of the trial

judge's rulings.

     Background.   The petitioner is currently civilly committed

to the Massachusetts Treatment Center (treatment center)

pursuant to G. L. c. 123A, § 9.   At trial, the Commonwealth

presented the reports and testimony of two qualified examiners,

Michael Henry, Psy.D., and Gregg Belle, Ph.D., as well as the

testimony and report of a member of the community access board

(CAB), Katrin Rouse-Weir, Ed.D.   All diagnosed the petitioner

with pedophilia and determined that he remained a sexually

dangerous person (SDP).   The petitioner presented the testimony

of Eric Brown, Psy.D., and Joseph J. Plaud, Ph.D, each of whom

opined that Gammell was no longer an SDP.

     The jury were warranted in finding the following facts

regarding the petitioner's history of offenses.   The petitioner,
                                                                      3


age fifty-four at the time of trial, first offended at the age

of twelve or thirteen, when he engaged in sexual activity with

his eleven year old neighbor.    He was adjudicated delinquent of

indecent assault and battery and placed on probation.      While on

probation, he again engaged in sexual activity with the same

girl.   His probation was revoked.   In 1991, when he was thirty-

four, he sexually molested a two year old girl at least twenty

times over a seven or eight month period, including fondling the

child's chest, buttocks, and vagina.    He was arrested,

convicted, and sentenced to eight to ten years in State prison,

three to serve, for indecent assault and battery on a child

under fourteen.    While on probation, he was convicted of an

assault and battery on his girlfriend and was sentenced to serve

the remainder of his sentence.    Testimony was also presented

regarding the petitioner's admission that he sexually assaulted

his girlfriend's eight year old daughter in 1986.

     Discussion.   1.   Testimony regarding the petitioner's

credibility.   At trial, one of the qualified examiners, Michael

Henry, testified regarding various statements made by the

petitioner to him during a 2006 clinical examination provided

for by statute.    See G. L. c. 123A, § 13(a).   In response to the

petitioner's denial of having sexual fantasises about children,

Henry said, "[M]y impression then and my impression remains that

it's inaccurate.    It's a falsehood, that he is not telling the
                                                                      4


truth."   Elsewhere, Henry referred to his report:     "Mr. Gammell

stated that he only sexually assaulted [the two year old girl]

on one occasion and denied previous reports that he molested the

child on multiple occasions . . . . I didn't credit it as a

truthful statement."      He also explained that the petitioner

"talks about sort of a very improbable process of, in his mind,

turning a two year old child into an 18 year old, that goes from

a toddler-age person to someone with large breasts and buttocks

and, essentially, that's what he was truly interested in. . . .

It's very improbable, so I didn't really credit it as a truthful

statement.      I saw it as his attempt to be deceptive and avoid

the obvious topic [that he] molested a child."      Henry stated

that he did not "credit" Gammell's statement that he had his

last fantasy about a child after his arrest for his offense with

[the two year old child] in 1991.      Discussing the petitioner's

attraction to children, Henry said that Gammell was not "being

open and frank and truthful about his problem or that he has any

kind of appreciation about what this means about him and what

he's going to need to do to keep himself and other people safe

in the future."      There were no objections to any of these

statements. 1



     1
       For cases applying a substantial risk of miscarriage of
justice standard to SDP cases, see Commonwealth v. Starkus, 69
Mass. App. Ct. 326, 340 (2007); Commonwealth v. Lynch, 70 Mass.
                                                                     5


     We have not previously addressed the question whether a

qualified examiner can testify as to his opinion regarding the

credibility of statements made by a petitioner during the

clinical examination as part of his evaluation of the sexual

dangerousness of the petitioner.    Relying on criminal cases, and

the general rule set out therein, the petitioner states, "No

witness, expert or not, may offer an opinion as to the

credibility of another witness."    Commonwealth v. Polk, 462

Mass. 23, 36 (2012).    See Commonwealth v. Ianello, 401 Mass.

197, 201-202 (1987); Commonwealth v. Montanino, 409 Mass. 500,

504 (1991).   We conclude, however, that the distinct statutory

responsibilities of the qualified examiners create an exception

to the general rule.

     "There can be no question that qualified examiners are

central to the statutory scheme designed to evaluate the

likelihood of a sex offender to reoffend. . . .    Within that

scheme, the qualified examiners are established as independent,

court-appointed experts.    They are integral to nearly every step

of the civil commitment process set out in G. L. c. 123A."

Johnstone, petitioner, 453 Mass. 544, 551 (2009) (quotation and

citations omitted).    Unless at least one of the qualified

examiners concludes that a petitioner is sexually dangerous, the



App. Ct. 22, 29 (2007); Commonwealth v. Dresser, 71 Mass. App.
Ct. 454, 458 n.10 (2008).
                                                                     6


petitioner cannot be civilly committed.    "[I]f the petitioner in

a discharge proceeding refuses to be personally interviewed by

examiners and lacks good cause for doing so, 'such person shall

be deemed to have waived his right to a hearing on the petition

and the petition shall be dismissed upon motion filed by the

[C]ommonwealth.'"    Id. at 551-552, quoting from G. L. c. 123A,

§ 9.

       The statute also provides a "'very radical departure' from

ordinary evidentiary rules," particularly in regard to the

qualified examiners.    McHoul, petitioner, 445 Mass. 143, 147

(2005), quoting from Andrews, petitioner, 368 Mass. 468, 473

(1975).    According to G. L. c. 123A, § 14(c), "Juvenile and

adult court probation records, psychiatric and psychological

records and reports of the person named in the petition,

including the report of any qualified examiner, . . . police

reports relating to such person's prior sexual offenses,

incident reports arising out of such person's incarceration or

custody, oral or written statements prepared for and to be

offered at the trial by the victims of the person who is the

subject of the petition and any other evidence tending to show

that such person is or is not a sexually dangerous person shall

be admissible at the trial if such written information has been

provided to opposing counsel reasonably in advance of trial."

(Emphasis supplied.)
                                                                   7


     The statute further provides that "the court shall supply

to the qualified examiners copies" of many of the reports and

much of the information referenced above.    G. L. c. 123A,

§ 13(b).   If such reports have been admitted in evidence, it is

permissible for the qualified examiners "to reference that

evidence in their own expert testimony."    McHoul, petitioner,

supra at 146.   The court has rejected arguments that the

qualified examiners "should not have been permitted to testify

to the jury about out-of-court statements the petitioner made to

others and observation of the petitioner's conduct made by

others on which the [qualified examiners] based their opinions,"

so long as those statements and observations appeared in reports

made admissible by the SDP statute itself.    Ibid. 2

     In this context, we conclude that the Legislature also

intended that the qualified examiners be permitted to testify

concerning the credibility of statements made by the petitioner

to the qualified examiner in the clinical evaluation required by

statute, if such credibility determinations figure into their


     2
       The court in McHoul emphasized that hearsay appearing in
otherwise admissible reports was expressly made admissible by
statute, and could be relied on by the qualified examiners. The
court concluded that the reports made admissible by statute "by
their nature, often include the gathering of information from a
variety of hearsay sources," thus signifying "the Legislature's
determination that such hearsay should be admitted in sexually
dangerous person proceedings." Id. at 153. Otherwise, it would
make "mincemeat of the documents that the Legislature deemed
admissible." Ibid.
                                                                     8


opinion regarding the sexual dangerousness of the petitioner.

The qualified examiner's opinion regarding the sexual

dangerousness of the petitioner is critical to the entire

evaluation process.   Essential to that evaluation is the

qualified examiner's opinion regarding the information being

provided by the petitioner during the clinical evaluation.    This

includes whether the petitioner is being truthful regarding his

prior sexual offenses, his present attraction to children, and

his future ability to control his sexual impulses.   Not allowing

such testimony by the qualified examiner would require qualified

examiners to present to the jury an incomplete and distorted

basis for their opinions.   The statute clearly intends just the

opposite:   the qualified examiners are to be presented all

relevant information and provide a thorough report of their

analysis, which is to be presented to the jury, notwithstanding

the ordinary rules of evidence.

     To ensure that the qualified examiners do not usurp the

role of the jury, the petitioner must be able to present his own

experts, who will have similar freedom to opine on the

credibility of the petitioner's testimony during their own

clinical evaluations.   See Santos, petitioner, 461 Mass. 565,

570 (2012).   That is exactly what occurred in the instant case.

     2.   Exclusion of penile plethysmograph evidence.   Prior to

trial, the Commonwealth moved to exclude from trial all evidence
                                                                     9


of the results of a PPG test administered to the petitioner

during his commitment to the treatment center, including

references to the PPG test in the petitioner's experts' reports,

or the reports of the qualified examiner or the CAB.    The

Commonwealth moved to exclude the evidence on the ground that

PPG testing did not meet the Daubert-Lanigan 3 standards for

admissibility.   The petitioner opposed the motion, claiming the

PPG test was reliable.   When the issue was raised on the day of

trial, the judge concluded the evidence was inadmissible without

a Daubert-Lanigan hearing, which the petitioner had not

requested.    During the trial, the petitioner asked the judge to

reconsider her exclusion of the PPG evidence, but the request

was denied.

     On appeal, the petitioner argues that the Daubert-Lanigan

requirements are inapplicable to G. L. c. 123A cases.    He relies

on the language in the statute making reports of the qualified

examiners and the CAB admissible, as well as the decisions in

Commonwealth v. Bradway, 62 Mass. App. Ct. 280 (2004), and

Santos, petitioner, supra.   In Bradway, this court concluded,

based on well-established precedent, that the Legislature could

expressly overrule evidentiary requirements.   See Bradway, supra

at 284-285.   See also McHoul, petitioner, 445 Mass. at 147-148


     3
       See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 (1994).
                                                                     10


("[W]e have repeatedly applied the evidentiary rules prescribed

by the Legislature for such proceedings").    We explained that

the qualified examiners' clinical evaluations, reports, and

testimony were all required, and were made admissible by

statute, as the "Legislature has made a considered decision to

draw on qualified and experienced professionals in the field to

bring to bear their knowledge and informed judgment on the

necessary, but difficult, task of evaluating whether sex

offenders are likely to reoffend."    Bradway, supra at 287.   We

therefore rejected the petitioner's contention in that case that

"Daubert-Lanigan assessment is required, and will not be

satisfied, because the qualified examiners' opinion testimony is

inherently unreliable, particularly when it is based on clinical

evaluation rather than actuarial factors."    Ibid.

     In Santos, the court "agree[d] with the petitioner that

excluding his experts' reports could create an unfair imbalance

of evidence, especially because it would otherwise be difficult

for petitioners to respond to the information in the CAB and

qualified examiner reports, much of which is hearsay."     Santos,

supra at 569.   The court further explained that "[t]he

petitioner's experts' reports ought to be have been admitted,

but only on the same basis as those of the qualified examiners

and the CAB."   Id. at 573 n.11.   That basis, the court

explained, included redactions.
                                                                  11


     The petitioner extrapolates from these cases to argue that

PPG testing evidence is not subject to Daubert-Lanigan review,

and there could be no redaction of any references to PPG testing

in the reports prepared by the qualified examiners, the CAB, or

the petitioner's own experts.   The ultimate question is again

whether the Legislature intended to override the ordinary rules

of evidence.   Unlike the clinical evaluation addressed in

Bradway, supra, PPG testing is not expressly provided for by

statute as an essential aspect of a qualified examiner's own

review.    Rather, it is an assessment device that was employed by

the treatment center in this case, and only referenced in

passing in the CAB report and in one of the qualified examiner's

reports.   The petitioner nevertheless relies on these

references, and the reasoning in Bradway and Santos, to argue

that the PPG testing evidence is per se admissible.   But the

Legislature's requirement that the qualified examiners' reports

be admissible does not mean that everything in the reports is

automatically exempt from further review for admissibility and

redaction.   Moreover, whether particular redactions are

permissible or required in the otherwise admissible reports and

testimony of these experts is not resolved in Bradway and

Santos, but rather must be analyzed according to the standards

set out in Department of Youth Servs. v. A Juvenile, 398 Mass.
                                                                   12


516, 531 (1986); Commonwealth v. Markvart, 437 Mass. 331, 335-

337 (2002); and McHoul, petitioner, supra at 149-151.

     In Markvart, the court was presented with the admissibility

in c. 123A proceedings of police reports and witness statements

from a nol prossed complaint that had been considered by

qualified examiners.   See Markvart, supra at 332.    The court

concluded that the reports were not independently admissible

according to the statute, as they were not reports or statements

related to convictions or adjudications, and were therefore

subject to redaction from the qualified examiners' reports

presented to the jury according to the principles set out in

Department of Youth Servs. v. A Juvenile, supra.     See id. at

336-337.   The court further explained that the statute expressly

contemplated that "qualified examiners may use 'such other

information as may be pertinent or helpful to the examiners in

making the diagnosis and recommendation.'"   Ibid., quoting from

G. L. c. 123A, § 13(b).   In determining what information meets

that requirement the court stated:   "Qualified 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
                                                                  13


an opinion."   Id. at 337, quoting from Department of Youth

Servs., supra.   The court also noted that a voir dire may be

required to determine whether the facts or data are

independently admissible, and defense counsel may request such a

voir dire.   Id. at 337 n.5.

     We interpret this line of cases to draw a distinction

between evidence that is independently made admissible by

statute and evidence that remains subject to further

consideration and redaction.   We conclude that the PPG tests

here fall into the latter category.   They are not expressly made

admissible by statute, nor are they an essential part of the

qualified examiners' evaluation as set out in the statute.

Rather, they are an assessment device employed by the treatment

center that must be independently admissible and constitute a

permissible basis for a qualified examiner to rely on in

formulating an opinion.

     Here, we have no basis from the record or case law to

determine whether PPG tests constitute a permissible basis for

an expert to consider in formulating an opinion.   This is not an

ordinary medical procedure, test, or report.   The petitioner

made no attempt to "lay an adequate foundation either by

establishing general acceptance in the scientific community or

by showing that the evidence is reliable or valid through

alternate means."   Canavan's Case, 432 Mass. 304, 310 (2000).
                                                                     14


Nor did he request a voir dire.       See Markvardt, supra at 337

n.5.       The one case provided by the petitioner to the trial judge

to support the admission of the testing, Commitment of Sandry,

67 Ill. App. 3d 949 (2006), is from out-of-State and is

inconclusive.       In these circumstances, we discern no error in

the redaction of the report to exclude the PPG test.

       3.    Reduced testosterone levels.   Finally, the defendant

claims the judge erred in sustaining the Commonwealth's

objection to questioning on the effects of declining

testosterone resulting from aging on the risk of reoffending.

We conclude that the judge properly rejected this line of

questioning as entirely speculative as there had never been

testing of the defendant's testosterone levels, and thus there

was no evidence to present on the issue. 4

                                        Judgment affirmed.




       4
       Experts for the Commonwealth and for the defendant did,
however, both testify regarding a decline in risk of reoffense
after age fifty. Even without testimony about testosterone
levels, the defendant had that evidence available for argument.
