Commonwealth v. Ronald Franklin.

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

22-P-212

COMMONWEALTH

vs.

RONALD FRANKLIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the Superior Court, the defendant,

Ronald Franklin, was found to be a sexually dangerous person

(SDP), and was committed to the Massachusetts Treatment Center

under G. L. c. 123A, § 14 (d). On appeal, he argues that (1) a

psychologist improperly opined as to the defendant's risk of

reoffense; (2) the prosecutor improperly shifted the burden of

proof by her questions on cross-examination of the defendant and

in her closing argument; and (3) the judge improperly instructed

on the meaning of the word "likely" as used in the statutory

definition of SDP, G. L. c. 123A, § 1, by paraphrasing

Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). We affirm.

Background. In July 2020, based on a review of the

defendant's records, forensic psychologist Dr. Gregg A. Belle

issued a report opining that there was probable cause to believe
that the defendant was an SDP. As a result, the Commonwealth

filed a petition in the Superior Court to commit the defendant

as an SDP.

Before the commitment trial, the defendant moved in limine

to preclude the introduction of Dr. Belle's report absent an

evidentiary hearing pursuant to Daubert v. Merrell Dow Pharms.,

Inc., 509 U.S. 579, 597 (1993), and Commonwealth v. Lanigan, 419

Mass. 15, 26 (1994). The judge denied the motion. The

Commonwealth moved in limine to admit Dr. Belle's testimony,

which the judge allowed.

At the time of trial in 2021, the defendant was sixty-one

years old. He had previously been convicted of two counts of

rape of a child, indecent assault and battery on a child under

fourteen, and dissemination of pornographic material to a minor.

He committed those sex offenses between 1997 and 2000 against

his girlfriend's two daughters when they were between five and

seven years old and ten and eleven years old (first victims).

For those convictions, the defendant was sentenced to ten to

twelve years in State prison. During that incarceration, he did

not participate in sex offender treatment because his case was

on appeal. After completing his committed sentence, he was on

probation on conditions including that he stay away from

children under sixteen years old. He was required to register

as a level three sex offender.

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On October 22, 2018, the defendant was living in a motel.

He befriended an eleven year old girl who also lived there, and

showed her his phone containing photographs of adult naked

women. A police report documented that the defendant had

tickled the girl, accidentally touched her buttocks, and filmed

her doing cartwheels, handstands, and backbends. As a result,

the defendant was convicted of disseminating obscene matter to a

minor. He was also convicted of failure to register as a sex

offender.

At trial, the Commonwealth relied on the testimony of one

qualified examiner (QE), Dr. Kaitlyn Peretti, who opined that

the defendant met the criteria for a diagnosis of pedophilic

disorder. Dr. Peretti further opined that the defendant also

met the definition for being a menace to society based on his

past and recent offenses, and that he was likely to reoffend

sexually if not confined to a secure facility.

The Commonwealth also presented the testimony of Dr. Belle

and introduced in evidence his report of the probable cause

evaluation, see Commonwealth v. Bruno, 432 Mass. 489, 511

(2000).1 Dr. Belle opined that the defendant was a sexually

dangerous person, and that his clinical diagnosis was pedophilic

1 Asked during trial if he objected to admission of Dr. Belle's
report, the defendant's counsel said, "No objection, Judge,
subject to what we discussed about certain redactions."

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disorder. Based on his score of three on the Static-99R

assessment, Dr. Belle opined that the defendant had a 7.9

percent chance of reoffending in a five-year period. Dr. Belle

testified that the defendant's age at the time of trial, sixty-

one, would ordinarily reduce his risk to reoffend, but age did

not have a protective effect for the defendant, because he was

fifty-seven years old when he was arrested for his most recent

sex offense, an age when his risk for recidivism statistically

would be approaching zero. In addition, Dr. Belle did not

consider probation as reducing the defendant's risk to reoffend,

because he had offended against the victim in the motel while on

probation.

The defendant's QE, Dr. Angela Johnson, and expert witness,

Dr. Leonard A. Bard, opined that the defendant was not sexually

dangerous. Dr. Johnson testified that the defendant did not

meet the criteria of having a lack of control over his sexual

impulses, nor the criteria for pedophilic disorder.

The jury found the defendant to be sexually dangerous and

the judge committed him to the Massachusetts Treatment Center

for an indeterminate period, pursuant to G. L. c. 123A,

§ 14 (d). The defendant timely appealed.

Discussion. Admission of Dr. Belle's testimony. The

defendant argues that Dr. Belle improperly opined that the

defendant's likelihood of recidivism was increased by his lack

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of participation in sex offender treatment, his antisocial

orientation, and his minimization and denial of his crimes. The

defendant argues that he preserved this issue for appellate

review by filing his pretrial Daubert-Lanigan motion. That

motion was focused on excluding Dr. Belle's report, to which the

defendant did not object at trial.2 In those circumstances, we

doubt that the defendant preserved the admissibility of

Dr. Belle's testimony for appellate review, but do not pause to

consider that issue, because even if the error had been

preserved, we discern no error here.

The defendant argues that Dr. Belle's opinion testimony was

inadmissible because he did not serve as a QE in this case and

therefore his testimony should not have been admitted absent a

Daubert-Lanigan hearing. There was no error. "[A]ny . . .

evidence tending to show that [the defendant] 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." G. L. c. 123A, § 14 (c). See

Commonwealth v. Cowen, 452 Mass. 757, 761 (2008) ("a qualified

probable cause expert . . . may testify at the commitment

hearing"). Contrast Commonwealth v. Ridley, 491 Mass. 321, 327-

2 In a single phrase, the defendant's pretrial motion asked that
the judge "[p]rohibit this witness from testifying," but the
previous sentence referred to an expert who did not testify in
this case.

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328 (2023) (expert testimony on juvenile brain development not

relevant, because not specific to defendant).

The defendant also argues that Dr. Belle's testimony was

not admissible because Dr. Belle did not provide any studies

showing its reliability. In particular, the defendant finds

fault with Dr. Belle's testimony that the defendant had "an

antisocial orientation," because Dr. Belle acknowledged that the

defendant did not have a personality disorder or a disciplinary

history. Dr. Belle opined that the defendant's character traits

that increased his risk for reoffending included his having been

convicted of sex offenses on more than one occasion, and his

having minimized or denied aspects of the sex offenses against

the first victims, which Dr. Belle considered "noteworthy" in

terms of the defendant's risk to reoffend. To the extent that

the defendant found fault with Dr. Belle's opinion, he was free

to -- and did -- attack it on cross-examination, including by

asking about studies on which it was based. "Vigorous cross-

examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and

appropriate means of attacking shaky but admissible evidence."

Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 328 n.40 (2010),

quoting Daubert, 509 U.S. at 596. See Mass. G. Evid. § 703

(2022).

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The defendant further argues that Dr. Belle's testimony

that persons who receive sex offender treatment are less likely

to reoffend sexually than those who do not violated Commonwealth

v. Hunt, 462 Mass. 807 (2012). Hunt held that "[a]t an SDP

civil commitment proceeding, a [QE] or the Commonwealth's expert

witness may offer the opinion –- assuming it is sufficiently

supported by empirical evidence -– that those who receive or

complete sex offender treatment are less likely sexually to

reoffend than those who do not." Id. at 818. The defendant

argues that Dr. Belle's opinion was not sufficiently supported

by empirical evidence. We disagree. Dr. Belle explained:

"Empirically means research, so I'm looking at information in

the research, peer review journal articles, for example, that

would determine risk factors which may increase or decrease

one's risk to reoffend sexually." To the extent that the

defendant wanted to probe Dr. Belle's knowledge of those

empirical studies, that was a subject for cross-examination or

the presentation of the defense experts. See id at 818 & n.8.

It did not render Dr. Belle's opinion inadmissible.

Cross-examination of defendant. The defendant argues that

the prosecutor improperly shifted the burden of proof during her

cross-examination of him.

On direct examination, the defendant testified that while

in prison on the sentences for the child sex offenses, he passed

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the time by working, reading, and gardening. On cross-

examination, he testified that he did not participate in sex

offender treatment because his case was on appeal. The

prosecutor asked about other programs, such as those involving

violence reduction and "health awareness," and he testified that

no such programs were available. Asked if he could have

requested to be reclassified and transferred to a different

facility where more programming was available, the defendant

replied, "Yeah, I didn't want to leave Gardner . . . the other

prisons weren't good environments for me." When the prosecutor

asked, "Even though those other prisons might have had some

programming that you could have done?" the defendant replied,

"It just wasn't worth going there." The defendant did not

object to those questions, and so we review for a substantial

risk of a miscarriage of justice.

That questioning did not shift the burden of proof. "[T]he

prosecutor did not focus the jury's attention on a specific

element missing from the defense, nor did the prosecutor

otherwise suggest to the jury -- either implicitly or explicitly

-- that the defendant had an affirmative duty to counter the

Commonwealth's evidence against him." Commonwealth v. Johnson,

463 Mass. 95, 113 (2012). No substantial risk of a miscarriage

of justice arose.

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Prosecutor's closing argument. The defendant contends that

in her closing argument the prosecutor improperly urged the jury

not to be "distracted" by scientific evidence, shifted the

burden of proof, and misquoted Dr. Johnson's report. The

defendant objected on the first of those grounds, but not on the

latter two. In those circumstances, we review the prosecutor's

argument to which the defendant did object for prejudicial

error, see Commonwealth v. Cole, 473 Mass. 317, 333 (2015), and

his remaining claims to determine if a substantial risk of a

miscarriage of justice arose, see Commonwealth v. Sanders, 101

Mass. App. Ct. 503, 511 (2022).

The prosecutor's statement during closing argument urging

the jury not to be "distracted . . . by discussions about

actuarial tools or studies or statistics [or] the differences

between personality disorder[s]" did not create prejudicial

error. The defendant argues that this statement was prejudicial

because, he contends, it amounted to advising the jury "to

ignore approximately half the evidence at trial." The jury

would not have understood the prosecutor's statement not to be

"distracted" by certain evidence as amounting to a request that

they "ignore" it. Indeed, the experts presented by both the

Commonwealth and the defendant relied on actuarial tools and

statistics; the experts agreed on the results of those tools,

but disagreed as to whether the dynamic risk factors should be

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interpreted to label the defendant a sexually dangerous person.

In context, the prosecutor was merely highlighting the elements

in dispute between the parties. Contrast Hunt, 462 Mass. at 825

(prosecutor improperly argued that defendant was "sexually

frustrated" after years in prison without "access to the

children that he desires"). There was no prejudicial error.

The defendant next argues that the prosecutor's use of a

rhetorical question in closing argument, to which he did not

object, was burden-shifting. The defendant argues that the

prosecutor shifted the burden when she argued, "Has [the

defendant] convinced you that he understands his offending

behavior?" Viewing this question in the context of the closing

argument as a whole, it did not create a substantial risk of a

miscarriage of justice. This question was in the context of the

prosecutor's discussing the requirements for finding the

defendant sexually dangerous and arguing from the defendant's

own testimony and demeanor that he was. "So long as the

prosecutor's closing argument is grounded in the evidence, the

prosecutor may 'argue the evidence and the fair inferences which

can be drawn from the evidence.'" Commonwealth v. Childs, 94

Mass. App. Ct. 67, 76 (2018), quoting Commonwealth v. Rivera, 91

Mass. App. Ct. 796, 801 (2017). Further, defense counsel did

not object or seek curative instructions on the parts of the

prosecutor's argument said to be burden-shifting. "[T]he

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absence of any such request from experienced counsel is some

indication that the tone, manner, and substance of the now

challenged aspects of the prosecutor's argument were not

unfairly prejudicial." Commonwealth v. Toro, 395 Mass. 354, 360

(1985).

The defendant further argues that during the prosecutor's

closing argument, she misquoted Dr. Johnson's report, and the

effect of the misquotation was "possibly crucial." During

closing argument, the prosecutor told the jury to note that

Dr. Johnson's report had said that "it's very likely" that the

defendant's conduct toward the victim in the motel could have

escalated to a sexual offense, when in fact that report stated,

"It is also possible that [the defendant] was engaging in overt

grooming of [the victim] and that given enough time, he might

have escalated to a hands-on sexual assault." While the

prosecutor did misquote Dr. Johnson's report as saying "very

likely" instead of "possible," no substantial risk of a

miscarriage of justice arose. The judge instructed the jurors

that "[i]f . . . either of the lawyers called your attention to

[a] matter of evidence that you do not remember collectively as

a juror, then you're free to ignore them because it's your

memory of the testimony that must control your deliberations in

this case." Here, where the prosecutor's misstatement was based

on Dr. Johnson's report, which was admitted in evidence and

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available to the jury during deliberations, it is particularly

unlikely that the jury would have been influenced by the

misstatement.

Jury instruction defining "likely." The defendant argues

that the judge improperly instructed the jury by defining the

meaning of the word "likely" as used in the definition of an SDP

in G. L. c. 123A, § 1, by paraphrasing the Supreme Judicial

Court's holding in Boucher, 438 Mass. at 276. He did not object

to the instruction, and so we review the issue for a substantial

risk of a miscarriage of justice. See R.B., petitioner, 479

Mass. 712, 717-718 (2018).

The judge instructed:

"It is not enough for the Commonwealth to establish that
[the defendant] has a propensity or a tendency to commit
sexual offenses or that there is a possibility that he may
do so. Instead, the Commonwealth must prove that it is
reasonably to be expected, given the particular facts and
circumstances at hand, that if [the defendant] is not
confined in the treatment center, that he will commit
additional sexual crimes involving physical contact either
in Massachusetts or elsewhere."

The defendant concedes that the judge's instruction comported

with Boucher, 438 Mass. at 276-277, but contends that the

definition is unconstitutionally vague. The Supreme Judicial

Court in Boucher specifically stated that its definition, later

paraphrased by the judge in the instruction quoted above, was "a

contextual construction of 'likely' [that] is not so vague as to

be unfair." Id. at 277 n.2. See Commonwealth v. Husband, 82

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Mass. App. Ct. 1, 7 (2012) (it is for fact finder to determine

what is "likely"). The jury instruction defining "likely" did

not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

By the Court (Ditkoff,
Singh & Grant, JJ.3),

Clerk

Entered: March 10, 2023.

3 The panelists are listed in order of seniority.

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