MARCUS DEAMICIS

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-533

MARCUS DEAMICIS, petitioner.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2006, a Superior Court judge found that the petitioner

was a sexually dangerous person (SDP), and he was civilly

committed to the Massachusetts Treatment Center. In 2018, he

filed a petition for examination and discharge under G. L.

c. 123A, § 9, but a jury found that he remained an SDP. The

petitioner appeals, arguing that the trial judge erred by

rejecting the petitioner's proposed jury instructions, allowing

the use of the Static-99R risk labels, refusing to exclude

hearsay evidence of unproven sexual components of two of his

criminal offenses, and allowing the Commonwealth to make an

improper analogy in its closing argument. We affirm.

Background. The petitioner has been convicted of several

criminal offenses in the past, some of which have been sexual in

nature. In 1974, the petitioner was charged with two counts of

assault and battery by means of a dangerous weapon and one count

of assault with intent to rape, stemming from an incident
involving two teenage girls. The petitioner approached the

girls and repeatedly struck them with a baseball bat. One of

the girls alleged that the petitioner attempted to pull off her

shorts and ripped them in the process. The incident ended when

one of the girls ran off and screamed for help, and the

petitioner fled. The assault with intent to rape charge was nol

prossed and the petitioner was convicted of the two counts of

assault and battery by means of a dangerous weapon. The

petitioner denied any sexual intent during this offense.

At another point in 1974, the petitioner was charged with

and pleaded guilty to assault and battery by means of a

dangerous weapon after he repeatedly struck a woman in the head

with a lead pipe. When the woman screamed, the petitioner fled.

In 1981, the petitioner was charged with indecent assault

and battery and open and gross lewdness. These charges stemmed

from an incident in which the petitioner drove up to several

teenagers and spoke to one of them while masturbating. He then

got out of his car, forced that teenage girl to the ground, and

rubbed his hands on her legs. One of the other teenagers

screamed and ran away, at which point the petitioner fled. The

petitioner was convicted of both charges, but he denied there

being any sexual intent during this incident, despite admitting

that he had been masturbating.

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In 1986, the petitioner committed the governing offenses

during two separate incidents. As a result of the first

incident, the petitioner was charged with and convicted of

aggravated rape and armed robbery, and charges of assault and

battery by means of a dangerous weapon, kidnapping, and indecent

assault and battery were placed on file. During this incident,

the petitioner grabbed a woman, forced her to remove her

clothing, repeatedly inserted his hand into her vagina and

rectum, punched her multiple times, held a metal weapon to her

neck, and stole money from her. While the petitioner was using

his hand to penetrate the woman, he asked her if she liked what

he was doing, and, according to the woman, seemed pleased when

she said she did not like it. He also seemed pleased when he

removed his hand and saw that there was blood on it.

The second governing incident led to the petitioner being

charged with and convicted of unarmed robbery and assault with

intent to commit rape, and charges of kidnapping and indecent

assault and battery were placed on file. The petitioner had

grabbed another woman, ripped off her necklace, tore her shirt,

and touched her breasts. When a car drove by and its headlights

shone on the victim, the petitioner let her go and left.

As a result of his convictions for the governing offenses,

the petitioner was sentenced to fifteen to twenty years of

imprisonment, to be served concurrently. Prior to the

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petitioner's release from incarceration, the Commonwealth filed

a petition to commit him as an SDP. The petitioner was

adjudicated sexually dangerous in 2006 and has remained

committed since that time.

In 2018, the petitioner filed a petition for examination

and discharge, pursuant to G. L. c. 123A, § 9. At the 2023

trial, three expert psychologists testified for the

Commonwealth: one designated forensic psychologist who serves

as a member of the community access board (CAB), and two

qualified examiners (QEs) who had reviewed the petitioner's

record and interviewed him prior to trial. All three of the

Commonwealth's psychologists agreed that the petitioner suffered

from sexual sadism disorder at a level that meets the statutory

definition of a mental abnormality under G. L. c. 123A, § 1.

The Commonwealth's psychologists also agreed that the petitioner

suffered from a personality disorder within the meaning of the

statute, although one expert labeled it antisocial personality

disorder and the other two labeled it other specified

personality disorder with antisocial traits. These diagnoses

were based on the petitioner's history of offenses, the level of

violence used in his offenses, the sexual nature of some of the

offenses, and his history of misconduct during his incarceration

and commitment.

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The Commonwealth's psychologists also noted that the

petitioner has not been consistent in his treatment and has made

only limited progress, as he is often defensive, has denied that

his offenses were sexual in nature, and has demonstrated a lack

of motivation in treatment. All three of the Commonwealth's

experts found that the petitioner possessed risk factors that

placed him at an elevated risk of reoffending if released, and

opined that he remained an SDP.

The petitioner presented two witnesses, both licensed

psychologists, who testified on his behalf. The jury returned a

verdict that the petitioner remained an SDP.

Discussion. The petitioner preserved all but one of his

claims of error, which we review for prejudicial error. See

Green, petitioner, 475 Mass. 624, 629 (2016). He did not

preserve his claim related to closing argument, so we review to

determine whether any error created a substantial risk of a

miscarriage of justice. R.B., petitioner, 479 Mass. 712, 717-

718 (2018).

1. Jury instructions. The petitioner argues that the

trial judge's rejection of his proposed jury instructions was

reversible error. We disagree.

The trial judge instructed the jury that the Commonwealth

was not required to prove recent sexual misconduct in order to

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show that the petitioner remained an SDP. The petitioner

requested two related instructions:

"You have heard that the Commonwealth is not required to
prove recent sexual behavior. At the same time, you may
consider the absence of such conduct in reaching your
verdict in this matter."

"On the other hand, you may consider whether circumstances
have intervened, such as treatment, age, or some other
factor, so that [the petitioner} does not today suffer from
the psychological forces, conditions, problems, or root
causes that led him to commit those earlier acts of sexual
misconduct."

The judge refused to give both instructions. The petitioner

asserts that, without the proposed instructions, the jury could

have relied solely on the petitioner's past crimes to find that

he was currently an SDP.

Even the petitioner concedes that the judge's instructions

regarding recent sexual misconduct were supported by case law.

See Hill, petitioner, 422 Mass. 147, 157, cert. denied, 519 U.S.

867 (1996). Although the petitioner is correct that it would

have been proper for the jury to consider the petitioner's

advanced age (he was seventy-one years old at the time of trial)

and the length of time since his last sexual offense, the judge

did not instruct the jury that they could not consider these

factors. Additionally, the trial judge specifically instructed

the jury that "past misconduct, by itself, is not enough to

establish a present likelihood of future misconduct."

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Therefore, the judge did not err in rejecting the petitioner's

proposed jury instructions.

2. Static-99R risk labels. The petitioner challenges the

use of the Static-99R risk labels, and claims that the judge

erred in allowing their use. We conclude that even if there was

error, it was not prejudicial.

The Static-99R is an actuarial measure of sexual offense

recidivism that includes static factors relevant to an

offender's risk of reoffense. The Commonwealth's QEs both gave

the petitioner an overall Static-99R score of six, which has a

risk label of "well above average."

In Commonwealth v. George, the Supreme Judicial Court held

that the previous Static-99R risk labels of "moderate-high" and

"high" should not have been admitted. 477 Mass. 331, 339, 341

(2017). However, the Static-99R risk labels have since been

changed, and the Supreme Judicial Court has not ruled on the

admissibility of these new labels. See id. at 340 n.8. Despite

holding that the admission of the previous Static-99R risk

labels was error, George held that the error was not

prejudicial, as "expert testimony regarding the defendant's

Static-99R risk category was appropriately limited," and "it was

presented as only one of the many factors in the SDP calculus."

Id. at 341.

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We need not decide whether the admission of the new Static-

99R risk labels was error because, as in George, we conclude

that any error was not prejudicial. The Commonwealth's experts

considered, and the jury heard evidence of, many risk factors,

both static and dynamic. Indeed, one of the QEs even

acknowledged in her report that, because the "Static-99R does

not address all relevant risk factors for sex offenders, . . . a

prudent evaluator will always consider other external factors,

such as dynamic or changeable risk factors, that may influence

risk in either direction." Here, as in George, the

Commonwealth's experts "included in the sexual dangerousness

calculus the defendant's family history, educational and work

background, incarceration records, treatment history, and

release plans. Given the limited nature of the use of the

Static-99R," we conclude that any error was not prejudicial.

George, supra.

3. Sexual component of offenses. The petitioner also

argues that the trial judge erred in refusing to exclude

evidence that two of his prior offenses had a sexual component

when that component had not been admitted or proven. Even

assuming this was error, we conclude that it was not

prejudicial.

Under G. L. c. 123A, § 14 (c), certain hearsay evidence of

past sexual offenses is admissible in an SDP trial, but some is

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not. A police report detailing alleged sexual offenses with

which the Commonwealth had charged the petitioner and later nol

prossed has been held inadmissible under § 14 (c). Commonwealth

v. Mackie, 100 Mass. App. Ct. 78, 86 (2021), citing Commonwealth

v. Markvart, 437 Mass. 331, 336 (2002). But, where the sexual

nature of nonsexual offenses to which a defendant pleaded guilty

was proved, admitted, or established, the police reports

pertaining to those offenses may come in. See Mackie, supra, at

88.

The petitioner challenges the admission of police reports

detailing the alleged sexual nature of these two 1974 offenses,

and the QE's treatment of them as "sexual offenses." As a

result of one of the incidents, the petitioner was charged with

assault with intent to rape, but that charge was nol prossed,

and the petitioner was convicted only of the two counts of

assault and battery by means of a dangerous weapon. The nol

prossed assault with intent to rape charge and the details of

the incident were admitted in evidence in the experts' reports.

Additionally, both of the QEs referred to the incident in their

testimony as a "sexually motivated offense" or a "sexual

offense." While the petitioner admits that he physically

assaulted the victims and pulled one of the girls' shorts, which

he says he did in order to pull her down, he denies any sexual

intent.

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The other 1974 incident resulted in the petitioner being

charged and convicted of assault and battery by means of a

dangerous weapon after he hit a woman over the head with a pipe.

The CAB representative testified that she believed it was a

"sexually motivated offense," and the incident was listed in the

CAB report and in one of the QEs' reports under a header

discussing the petitioner's sexual offense history. The

petitioner denies that the incident was sexually motivated.

The sexual aspect of these crimes was neither proved nor

admitted. We will assume that it was also never established.

And we will assume it was error under Mackie to refer to one or

both of them as sexual offenses, because it increased the number

of sexual offenses the experts referred to.

Nonetheless, any error was not prejudicial. The 1974

offenses, even if not sexual, were violent and therefore proper

evidence supporting the petitioner's personality disorder

diagnosis. There was strong evidence of the petitioner engaging

in violent sexual offenses: one offense involved the petitioner

masturbating in his car (which he admitted) and pinning a

teenage girl to the ground, and the governing offenses involved

the petitioner inserting his hand into one woman's vagina and

rectum and touching another woman's breasts. Given the evidence

of the offenses not challenged by the petitioner, the

petitioner's misconduct during his commitment, and his treatment

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progress, any error in the admission of or reference to the two

1974 offenses as having a sexual aspect was not prejudicial.

4. Commonwealth's closing argument analogy. Finally, the

petitioner claims that an analogy made by the prosecutor during

his closing argument was improper. This is the only unpreserved

claim of error he presents. We agree that the analogy

constituted error, but do not find that it created a substantial

risk of a miscarriage of justice.

In order for a jury to find that a person remains an SDP,

they must find that the person "suffers from a mental

abnormality or personality disorder which makes the person

likely to engage in sexual offenses if not confined to a secure

facility." G. L. c. 123A, § 1. The term "likely," as used in

that definition, is not statutorily defined, but the Supreme

Judicial Court has held that "something is 'likely' if it is

reasonably to be expected in the context of the particular facts

and circumstances at hand" (citation omitted). Commonwealth v.

Boucher, 438 Mass. 274, 276 (2002). Several factors are

involved in the assessment of whether reoffense is "likely,"

including "the seriousness of the threatened harm, the relative

certainty of the anticipated harm, and the possibility of

successful intervention to prevent that harm." Id.

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Toward the end of the prosecutor's closing argument, as he

was discussing the petitioner's risk of reoffense, he made the

following analogy:

"Say there's a -- well, say the risk is 10 or 12 percent.
If there's a jar of cookies in front of you, and someone
tells you there's a 12 percent chance -- if you reach your
hand under those cookies -- that one of them is stale, the
anticipated harm is pretty low. So 12 percent, I think
everybody -- if it's their favorite cookie -- is going to
reach into that jar and grab their cookie because the
relative harm is so low that, even if it's 12 percent risk,
I'm still going to go in there because it's not that high a
risk.

"But what if they told you those cookies -- 12 percent of
those cookies were poison. Now, the anticipated harm is
incredibly high. Now, balance that against a 12 percent
chance of getting a poison cookie. It's no longer a stale
cookie. The anticipated harm is much higher. I don't
think anybody is going to reach in there with a 12 percent
risk because of the nature of the anticipated harm. And
when you balance those factors in the looking whether [the
petitioner] is likely to reoffend, consider that example."

Although the Supreme Judicial Court has held that the

seriousness of the harm is a factor in determining likelihood of

reoffense, see Boucher,438 Mass. at 276, the question before the

jury is whether the risk is "likely." See G. L. c. 123A, § 1.

The prosecutor's analogy to poison cookies, however, implies

that in the defendant's case, any amount of risk is too great a

risk. That is a misstatement of the law, and the prosecutor's

analogy was thus improper.

However, we do not find that this error created a

substantial risk of a miscarriage of justice. The judge

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instructed the jury twice that the closing arguments were not

evidence. The judge also instructed that the jury must follow

the instructions provided by the judge. "The jury are presumed

to follow the judge's instructions." Commonwealth v. Andrade,

468 Mass. 543, 549 (2014). Additionally, the evidence in this

case was strong. Consequently, we find that the erroneous

analogy used by the prosecutor did not create a substantial risk

of a miscarriage of justice.

Judgment affirmed.

By the Court (Rubin,
Englander & D'Angelo, JJ.1),

Clerk

Entered: July 1, 2024.

1 The panelists are listed in order of seniority.

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