Commonwealth v. Frederick Pallas.

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-326

COMMONWEALTH

vs.

FREDERICK PALLAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

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

found to be a sexually dangerous person (SDP), and was committed

to the Massachusetts Treatment Center for an indefinite period.

See G. L. c. 123A, § 14 (d). On appeal, he argues that the

trial judge erred in failing to give a so-called Suave

instruction, see Commonwealth v. Suave, 460 Mass. 582, 588

(2011), and that the prosecutor exceeded the bounds of

permissible advocacy during cross-examination of certain

witnesses and, again, during closing argument. Because we agree

with the defendant that the judge's instructions were

insufficient, thereby entitling him to a new trial, we vacate

the judgment and set aside the verdict.

Discussion. 1. Jury instructions. Because the defendant

timely objected to the absence of a Suave instruction at trial,
we review the defendant's claim for prejudicial error. See

Commonwealth v. Vargas, 475 Mass. 338, 348 (2016). "The failure

to give a requested jury instruction is reversible error only if

the requested instruction is (1) substantially correct, (2) was

not substantially covered in the charge given to the jury, and

(3) concerns an important point in the trial so that the failure

to give it seriously impaired the defendant's ability to

effectively present a given defense" (citation omitted).1

Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013).

"To commit a person as an SDP, the jury must determine that

the person has been 'convicted of a sexual offense, suffers from

a mental abnormality . . . that renders him a menace to the

health and safety of others, and is likely to engage in sexual

offenses if not confined." Commonwealth v. George, 477 Mass.

331, 338 (2017), quoting Commonwealth v. Fay, 467 Mass. 574,

580, cert. denied, 574 U.S. 858 (2014). "The term 'menace,' as

it is used in the definition of '[m]ental abnormality' in G. L.

c. 123A, § 1, and as that term is used in the definition of

'[s]exually dangerous person,' which requires proof of the

likely commission of a 'sexual offense,' connotes a person whose

1 "Before a judge is required to give a requested instruction,
there must be some basis in evidence, viewed in the light most
favorable to the proponent, supporting the requested
instruction." Commonwealth v. Anestal, 463 Mass. 655, 674
(2012), quoting Commonwealth v. Cook, 419 Mass. 192, 201 (1994).

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conduct will objectively put his victim in fear of bodily harm

by reason of a battery and, specifically, a contact sex crime"

(emphasis added). Fay, 467 Mass. at 580-581, quoting Suave, 460

Mass. at 588. Thus, to establish that the defendant is an SDP,

the Commonwealth must prove that the defendant, if not confined,

is likely to commit future sexual crimes that are either (1)

contact offenses, or (2) noncontact offenses that would "instill

in his victims a reasonable apprehension of being subjected to a

contact sex crime." Suave, 460 Mass. at 588. See Fay, supra;

Commonwealth v. Walker, 467 Mass. 1017, 1018-1019 (2014).

We agree with the defendant that the outcome here is

controlled by Commonwealth v. Spring, 94 Mass. App. Ct. 310, 324

(2018), a recent case with facts strikingly like the one at bar.2

In Spring, supra at 321-322, the trial judge did not instruct

the jury on the requirement set out by the Supreme Judicial

Court in Suave and its progeny, that if a defendant is

determined to be likely to solely commit noncontact sexual

offenses, he cannot be found to be an SDP unless it is also

found that the noncontact offenses would instill in his victims

a reasonable apprehension of being subjected to a contact sex

offense. See Suave, 460 Mass. at 588; Walker, 467 Mass. at

1018. We held that trial counsel's failure to request such an

2 Neither the parties nor the judge had the benefit of Spring at
the time of trial in April 2017.

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instruction amounted to constitutionally ineffective assistance

of counsel warranting a new trial. Spring, supra at 320-324.

We explained that because the judge did not define "menace" in

the context of noncontact offenses, the instructions did not

properly set forth each essential element of a c. 123A finding.

Id. at 320-321. As a result, we were left with "a serious doubt

whether the jury verdict would have been the same had the

correct instruction been given, particularly where . . . there

was no evidence of a history of noncontact offenses that would

put a future victim in reasonable apprehension of a contact

sexual offense." Id. at 324. This reasoning applies equally in

today's case.3

Here, like in Spring, 94 Mass. App. Ct. at 312, the

Commonwealth presented evidence at trial that the defendant had

a history of both contact and noncontact sex offenses -- namely,

3 The Commonwealth argues that a Suave instruction is not
required when, as here, there is sufficient evidence to show a
likelihood of committing future contact offenses. Our decision
in Spring, 94 Mass. App. Ct. at 321, 324, essentially rejected
this argument.
The Commonwealth also contends that Spring is
distinguishable because in that case the jury received no
explanation of the term menace, while the judge here instructed
the jury on the "essence" of the requirement under Suave. We
disagree. The judge's instructions here did not expound on the
term "menace" in any meaningful way to convey that, if the jury
were to conclude that the defendant was likely to solely commit
a noncontact offense, such as possessing child pornography, the
anticipated offense must "instill in his victims a reasonable
apprehension of being subjected to a contact sex crime." Suave,
460 Mass. at 588.

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possession of child pornography -- with his most recent contact

offense occurring over twenty years before the SDP trial. The

Commonwealth's sole witness at trial was qualified examiner Dr.

Gregg Belle, who opined that the defendant suffered from "both a

mental abnormality and a personality disorder as defined by

statute." Dr. Belle also testified that the defendant was

likely to commit a sexual offense if not confined to a secure

facility, and therefore, he met the statutory definition of an

SDP. Dr. Belle did not opine, however, on whether the defendant

was more likely to commit a child pornography offense or a

contact offense. The defendant relied on the testimony of Dr.

Joseph Plaud and qualified examiner Dr. Robert Joss. Both

experts testified that the defendant was not an SDP, and that he

posed a low risk to commit a contact sexual offense in the

future.

During the final charge, the trial judge, over defense

counsel's objections, did not instruct the jury on what

anticipated offending would render the defendant "a menace to

the health and safety of other persons" for purposes of an SDP

determination.4 Instead, the judge instructed the jury that

4 The judge's instructions largely tracked the model jury
instructions in effect at the time of trial. The model
instructions, however, called for a Suave instruction "only
'[i]f the petitioner has a history of committing only noncontact
sexual offenses not involving children." Spring, 94 Mass. App.
Ct. at 317 n.14, quoting Massachusetts Superior Court Criminal

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"[t]o satisfy its burden of proving that the [defendant] suffers

from a mental abnormality, the Commonwealth must prove beyond a

reasonable doubt that the [defendant] has a mental condition

that causes him, at a minimum, serious difficulty in controlling

his sexual behavior at the present time." As for the third

element of the statute, the judge instructed that the

Commonwealth must prove that "as a result of a mental

abnormality, [the defendant] is likely to commit sexual offenses

in the future if not confined."

During deliberations, the jury sent a note to the judge

requesting the legal definition of "sexual offense" as used in

Practice Jury Instructions §§ 10.1.4(c) n.1, at 10-18; 10.2.3(c)
n.1 at 10-35 (2d ed. 2013). The model instructions for SDP
cases under G. L. c. 123A, §§ 9 and 12, have since been updated
and now state under the second element of an SDP charge:

"To show that [the defendant] has a mental abnormality that
makes him predisposed to be a sexual 'menace,' the
Commonwealth must prove that [the defendant] has some
mental condition that makes him likely to commit sexual
crimes that either (1) involve physical contact with
nonconsenting adults or with children who are too young to
consent, or (2) would instill in his victims 'a reasonable
apprehension of being subjected' to a sexual crime
involving such physical contact."

Massachusetts Superior Court Criminal Practice Jury Instructions
§ 9.1.2(b), at 9-7; § 9.2.2(b), at 9-18 (Mass. Cont. Legal Educ.
3d ed. 2018). The same menacing conduct language was also added
under the third element -- "Likely to Engage in Sexual Offenses
Unless Confined." See Massachusetts Superior Court Criminal
Practice Jury Instructions, supra at § 9.1.2(c), at 9-10;
§ 9.2.2(c), at 9-22.

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the judge's written instructions.5 In response, the judge

instructed the jury on the definition of sexual offense under

G. L. c. 123A, § 1, reciting a list of sexual offenses

enumerated in the statutory definition, including the possession

of child pornography. About eight minutes later, the jury

returned a general verdict finding the defendant to be sexually

dangerous.

In the circumstances of this case, an instruction defining

the term "menace" as applied to noncontact offenses was

warranted. See Commonwealth v. Almeida, 467 Mass. 1015, 1016

(2014) (vacating verdict in jury-waived trial and remanding for

judge to make menacing finding "within the Suave framework").

The judge's instructions therefore did not "'properly set forth

each essential element' of the statute" (citation omitted).

Spring, 94 Mass. App. Ct. at 320-321. This error deprived the

defendant of his ability to present a meaningful defense at

trial,6 and allowed the jury to conclude that the defendant was

5 The judge's written instructions were not included in the
record appendix on appeal.
6 During closing argument, defense counsel emphasized that it had

been twenty-four years since the defendant had committed a
contact sexual offense, which Dr. Plaud and Dr. Joss found to be
significant in their respective evaluations. Without a Suave
instruction, however, defining the predicted conduct required to
find the defendant a "menace," the defendant was deprived of his
primary argument of defense at trial, i.e., that the likelihood
he may possess child pornography, and nothing more, was not
sufficient to find him to be sexually dangerous. See
Commonwealth v. Fantauzzi, 91 Mass. App. Ct. 194, 206-207

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sexually dangerous in circumstances that do not permit such a

finding. See id., 94 Mass. App. Ct. at 324 ("a verdict based on

a finding that the defendant was likely to possess child

pornography, without more, would require reversal").

Applying the prejudicial error standard, a test that is

"quantitatively more favorable to a defendant than the

substantial risk of a miscarriage of justice test" we applied in

Spring, Commonwealth v. Alphas, 430 Mass. 8, 23 (1999) (Greaney,

J., concurring), "there is a reasonable possibility that the

error might have contributed to the jury's verdict" (citation

omitted). Commonwealth v. Odgren, 483 Mass. 41, 46 (2019). The

defendant is therefore entitled to a new trial.

Conclusion.7 The judgment is vacated, and the verdict is

set aside.

So ordered.

By the Court (Milkey, Singh &
Brennan, JJ.8),

Clerk

Entered: April 25, 2023.

(2017), and cases cited (failure to give requested self-defense
instruction reversible error when "self-defense was the
defendant's primary defense").
7 Given our disposition here, we need not address the defendant's

other claims of error.
8 The panelists are listed in order of seniority.

8