Commonwealth v. Robert Earl.

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

23-P-1416

COMMONWEALTH

vs.

ROBERT EARL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was adjudicated to be a

sexually dangerous person and was civilly committed to the

Massachusetts Treatment Center. On appeal the defendant argues

that the judge gave an erroneous jury instruction regarding the

assessment of expert testimony, that the prosecutor's closing

argument was improper, and that the defendant's trial counsel

was ineffective. We affirm.

Background. We summarize the facts that the jury could

have found. The defendant was born in 1953 and was sixty-nine

years old at the time of trial. In 1977, while serving in the

United States Air Force, the defendant married, and he and his

wife later had one daughter together. The defendant also
adopted his wife's son, who was six years old at the time of the

adoption.

The defendant sexually abused both his son and daughter

over a period of several years. The defendant would encourage

the son to touch his own penis and had him touch the defendant's

penis and, when the son got older, performed oral sex on him.

When the daughter was six years old, the defendant started

fondling her and "started to show her" how to touch his penis;

this "escalated" to his touching the daughter's vagina with his

fingers and penis. The defendant also had the daughter touch

and "masturbate[]" him.

In 1990, based on his abuse of his son and daughter, the

defendant was convicted after a court martial of taking indecent

liberties with a male child under sixteen years of age, taking

indecent liberties with a female child under sixteen years of

age, committing sodomy with a male child under sixteen years of

age, and committing sodomy with a female child under sixteen

years of age. He was sentenced to eight years in Federal prison

and ultimately served five years.

After being released from prison, the defendant moved to

Massachusetts to live with his sister, first in Bridgewater and

later in Taunton. In 2009 or 2010, the defendant's nephew and

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the nephew's stepdaughter Mary,1 who was six years old, moved

into the Taunton home. Soon thereafter, the defendant began

sexually abusing Mary, touching her vagina with his penis and

hand, "masturbat[ing] her at times," "dry hump[ing]" her, and

putting her hand on his penis. The abuse continued until 2013.

Based on his abuse of Mary, the defendant pleaded guilty in

2017 to three counts of indecent assault and battery on a child

under fourteen years old. He received a two-year committed

sentence and five years of probation. His probation included

the special conditions that he stay away from and have no

contact with Mary and that he stay away from children under

sixteen years old.

On January 14, 2019, the day he was released from jail, the

defendant went to the Taunton home three times. The first time,

at approximately 3:30 P.M., the defendant saw Mary in the window

and left after making eye contact with her. The defendant

returned to the home at approximately 5 P.M. and knocked on the

door; when Mary's seven-year old brother answered, the defendant

gave him a hug and left. The defendant then returned again at

approximately 11:30 P.M. and rang the doorbell several times,

causing the defendant's nephew to call out from the window that

he was going to call the police.

1 A pseudonym.

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In February 2019 the defendant admitting to violating the

terms of his probation. A District Court judge then revoked the

defendant's probation and imposed two consecutive sentences of

two and one-half years in a house of correction.

In October 2022 the Commonwealth filed its current petition

under G. L. c. 123A, § 12, to commit the defendant as a sexually

dangerous person. Two qualified examiners, Dr. Gregg Belle and

Dr. Kerry Nelligan, testified at trial, and both opined that the

defendant met the criteria for a sexually dangerous person as

defined in the statute. After the jury returned a verdict that

the defendant was a sexually dangerous person, the judge ordered

that he be committed to the Massachusetts Treatment Center for

an indeterminate period of one day to life.

Discussion. 1. Jury instruction. The defendant

challenges the following instruction, claiming that it

incorrectly conveyed to the jury that they should believe the

opinions of the experts if they believed the facts on which the

opinions were based:

"Now, in evaluating an expert's credibility you do that in
the same way as you would for any other witness. All those
things I just mentioned, how they act on the witness stand,
are they frank or evasive in answering questions, that sort
of thing, you can consider all of that. But you also have
to consider two other things. First, do they actually have
the education, training, and experience to express an
opinion in that particular field? And secondly, do you
believe the facts on which the opinions are based? Because
if you don't believe the facts on which they're basing

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their opinions -- and remember, it's up to you to decide
what facts are true -- if you don't believe those facts,
then you have no reason to believe the opinions that
they've given."

According to the defendant, this instruction was erroneous

because it failed to convey to the jury that they were free to

disregard the experts' opinions for any reason, even if they

believed the facts underlying the opinions to be true. Because

the claim was not preserved, we review to determine whether any

error gave rise to a substantial risk of a miscarriage of

justice. See Commonwealth v. Gaughan, 99 Mass. App. Ct. 74, 79

(2021).

We discern neither error nor a substantial risk of a

miscarriage of justice. "When reviewing jury instructions, we

evaluate the instruction[s] as a whole, looking for the

interpretation a reasonable juror would place on the judge's

words" (quotations and citation omitted). Commonwealth v.

Odgren, 483 Mass. 41, 46 (2019). The instructions here, viewed

in their totality, accurately conveyed to the jury that they

could choose to discredit the experts' opinions for any reason.

Contrary to the defendant's characterization, the challenged

instruction did not "compel[]" the jury to believe the experts'

opinions if they found the underlying facts to be true. Rather,

the instruction stated that the jury should disbelieve the

experts' opinions if they found the underlying facts not to be

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true. The instruction also stated that the jury should evaluate

an expert's credibility "in the same way as [they] would for any

other witness," considering factors such as "how they act on the

witness stand" and whether they were "frank or evasive in

answering questions."

In addition, later in the charge, the judge instructed the

jury as follows:

"We had two witnesses who testified about their opinions as
to whether [the defendant] is sexually dangerous. It's up
to you to decide whether you believe these opinions. You
may disregard any of these opinions, if you decide the
opinion is based on facts or assumptions that are not true,
if the opinion is based on conjecture or guesswork, if the
witness did not have sufficient training or experience, or
if for some other reason you conclude that the opinion is
not credible. Or you may choose to rely on any or either
of the opinions if you find that they are credible."

This instruction was preceded by lengthy instructions regarding

the elements that the Commonwealth had the burden to prove.

During those instructions the judge repeatedly told the jury

that they could not find the defendant to be a sexually

dangerous person unless they found at least one of the qualified

examiners to be "credible," which they could decide based on

"all the evidence presented during the trial." Where the judge

then immediately instructed that the jury could disregard an

expert's opinion if they found it was based on facts that were

not true "or if for some other reason [they] conclude[d] that

the opinion [was] not credible," reasonable jurors would not

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have understood the earlier challenged instruction to be

limiting their consideration of the experts' opinions to the

truth of the underlying facts. See Odgren, 483 Mass. at 46.

Rather, the instructions as a whole conveyed that the jury were

free to discredit the experts' opinions for any reason. Thus,

there was neither error nor a substantial risk of a miscarriage

of justice.

2. Closing argument. The defendant argues that the

prosecutor appealed to the jurors' emotions by stating that the

defendant "committed despicable, horrible things to three

innocent victims." While this comment was better left unsaid,

it was unobjected to and did not give rise to a substantial risk

of a miscarriage of justice. See Commonwealth v. Cuffee, 492

Mass. 25, 32 (2023). Immediately following the comment, the

prosecutor stated that the defendant "has been punished for

committing those offenses," that "he has served his sentence for

those offenses," and that "that's not the point of this

proceeding." The gravity of the underlying crimes (which would

have been evident to the jury) was not a theme of the closing,

and the judge instructed that the verdict "must not be based on

sympathy or emotion." We presume that the jury followed this

instruction and that they had "a certain measure of

sophistication in sorting out excessive claims on both sides."

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Cuffee, supra at 34, quoting Commonwealth v. Wilson, 427 Mass.

336, 350 (1998). Furthermore, the absence of an objection "is

some indication that the tone [and] manner . . . of the now

challenged aspects of the prosecutor's argument were not

unfairly prejudicial." Commonwealth v. Beland, 436 Mass. 273,

289 (2002), quoting Commonwealth v. Sanchez, 405 Mass. 369, 375

(1989). In these circumstances we discern no substantial risk

of a miscarriage of justice.

The defendant further argues that the prosecutor

mischaracterized the evidence when he stated, "And as you heard,

I believe from Dr. Belle, that while [the defendant] was in jail

he still fantasized about those sexual interests and those

fantasies that he had involving the children that he molested."

This statement, which was unobjected to, was inaccurate in the

sense that Dr. Belle did not testify that the defendant

fantasized about all of his victims while incarcerated. Dr.

Belle did testify, however, that the defendant "last had a

sexual thought of [Mary] when he was incarcerated." The

misstatement in the closing, using the plural "children" instead

of the singular to argue that the defendant continued to have

sexual thoughts of a prepubescent minor while incarcerated, did

not create a substantial risk of a miscarriage of justice. See

Cuffee, 492 Mass. at 32.

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The defendant's last challenge to the closing argument

concerns the prosecutor's comparison of the defendant's 4.6

percent risk of reoffense to a 4.6 percent risk of "a tornado or

a blizzard or some other looming disaster." The defendant

argues that this was an improper appeal to the jurors' emotions.

While this objection was preserved, we discern no error. In

assessing a person's risk of reoffense, the jury must "determine

what is 'likely' . . . by analyzing a number of factors,

including the seriousness of the threatened harm." Commonwealth

v. Boucher, 438 Mass. 274, 276 (2002). The jury here were

instructed in accordance with this principle, and the defendant

does not claim any error in the instruction. It was thus proper

for the prosecutor to urge the jury to consider the seriousness

of the threatened harm in reaching their verdict.

3. Ineffective assistance. Finally, the defendant argues

that his trial counsel was ineffective for failing to impeach

Dr. Belle's testimony that the defendant "last had a sexual

thought of [Mary] when he was incarcerated." The defendant

claims that this testimony is contradicted by Dr. Belle's own

written report, which states that the defendant "reported not

having a sexual thought of [Mary] since he was incarcerated,"

and that it was manifestly unreasonable for trial counsel not to

impeach Dr. Belle with the report. We are unable to resolve

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this claim, however, because the defendant did not move for a

new trial and "the factual basis of the claim" does not

"appear[] indisputably on the trial record." Commonwealth v.

Zinser, 446 Mass. 807, 811 (2006), quoting Commonwealth v.

Adamides, 37 Mass. App. Ct. 339, 344 (1994).

Generally, "[f]ailure to impeach a witness does not,

standing alone, amount to ineffective assistance." Commonwealth

v. Jenkins, 458 Mass. 791, 805 (2011). But there is a more

basic problem here, which is that the record does not establish

that the statement in the report was impeachment evidence. The

defendant reads "since he was incarcerated" to mean "since he

was locked up, not since he was released," but, as the

Commonwealth argues, it could be read to mean "subsequent to"

his incarceration. The Commonwealth's reading is supported by

the statement earlier in Dr. Belle's report that the defendant

"reported that his last sexual thought of a child was when he

was in jail." Read in this way, the report is consistent with

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Dr. Belle's testimony that the defendant "last had a sexual

thought of [Mary] when he was incarcerated." Further factual

development is therefore necessary to resolve the defendant's

claim.

Judgment affirmed.

By the Court (Henry, Shin &
Brennan, JJ.2),

Clerk

Entered: April 30, 2025.

2 The panelists are listed in order of seniority.

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