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-612

JAMES WRIGHT, petitioner.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2007 a Superior Court jury found that the petitioner was 

a sexually dangerous person, and he was civilly committed to the 

Massachusetts Treatment Center. Ten years later he filed a 

petition for examination and discharge under G. L. c. 123A, § 9, 

but he was again civilly committed after another jury found that 

he remained a sexually dangerous person. The petitioner

appeals, arguing that the trial judge abused his discretion by

admitting irrelevant and unfairly prejudicial evidence and that 

his trial counsel was ineffective. We affirm.

Background. The petitioner began sexually offending 

against children when he was sixteen years old, often grooming 

his victims with promises of money or job opportunities. In 

1985 he was adjudicated delinquent of rape of a child after he 

lured an eleven year old boy into the woods and sexually 

assaulted him. In 1988 the petitioner was charged with

additional sexual assaults against a twelve year old boy. While 
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those charges were dismissed, the petitioner later admitted that 

he had fondled the boy and performed oral sex on him.

In 1992 the petitioner pleaded guilty to assault by means 

of a dangerous weapon and threatening to commit a crime after he 

pulled a knife on a fourteen year old boy who had refused to

remove his clothes to be photographed. In 1994, a few months 

after his release from incarceration, the petitioner tried to 

lure two boys, aged ten and eleven, to a bus station. After the 

police arrested the petitioner and executed a search warrant, 

they recovered several items from the bags that the petitioner

had with him at the bus station, including, as relevant to this 

appeal, two books titled "Driven to Kill" and "Killer Clown." 

Police also recovered photographs of clothed children, fifteen 

pairs of boys' underwear, pornographic videotapes, a "Garfield"

writing pad, and an "All Star Dad" shirt. The petitioner 

pleaded guilty to attempted kidnapping as a result of this 

incident.

The petitioner was released on probation in 1999, but he 

was reincarcerated a few months later after he was "picked up

. . . for following a 10-year-old boy." Prior to the 

petitioner's release in 2001, the Commonwealth petitioned to 

commit him as a sexually dangerous person. An order of 

temporary commitment issued, but the petition was eventually
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dismissed. In 2002 the petitioner was released from his

temporary commitment.

A few months later, the petitioner befriended a seventeen

year old boy and proceeded to groom him over the next several 

weeks before sexually assaulting him. The boy awoke to the 

petitioner kissing his neck and face, sucking his nipple, and 

grabbing and rubbing his buttocks. When the boy jumped up and 

asked what he was doing, the petitioner became angry, screaming 

in the boy's face. Based on this incident, the petitioner was 

convicted of indecent assault and battery on a person fourteen 

years of age or older and received a committed sentence. Before 

his release the Commonwealth petitioned again to commit him as a 

sexually dangerous person. After an order of temporary 

commitment issued, the petitioner was adjudicated sexually 

dangerous in March 2007 and has remained committed since that 

date.

Discussion. 1. Evidentiary challenge. Prior to trial the 

petitioner moved in limine to preclude the Commonwealth "from 

mentioning, in either questioning or testimony," the "Driven to 

Kill" and "Killer Clown" books recovered in connection with the 

1994 attempted kidnapping. At the hearing on the motion, the 

petitioner's counsel argued that the titles were inflammatory 

and invited the jury to speculate about the content of the 

books. But when the judge asked whether the books would be 
4

probative "towards a determination of the [petitioner's] 

dangerousness" if they were "about serial killers who lure and 

kill children," counsel responded, "If the Commonwealth can make 

that showing, I think they are entitled to it." The 

Commonwealth then pointed out at a subsequent hearing that a 

2019 comprehensive evaluation contained an acknowledgment by the 

petitioner that one of the books was about John Wayne Gacy.1 In 

response the petitioner's counsel stated, "[I]t's admissible" 

and "I feel like I'm defeated on that." Stating that he agreed, 

the judge denied the petitioner's motion.

Despite the concessions he made before the judge, the 

petitioner argues on appeal that the judge abused his discretion 

by admitting evidence about the books, which the petitioner now 

says was not relevant to the question of dangerousness and was

more prejudicial than probative. Because the petitioner did not 

preserve the issue at trial,2 we review to determine whether any 

error created a substantial risk of a miscarriage of justice. 

See R.B., petitioner, 479 Mass. 712, 717-718 (2018).

1 Specifically, the comprehensive evaluation states that the 

petitioner "understood" that the book "Killer Clown" was "about 

John Wayne Gacy (who sodomized, tortured, and killed 33 young 

men and boys)."

2 Although the petitioner stated during trial that he was 

"renew[ing] [his] objection to . . . the book titles," he did 

not specify the grounds for his objection. The issue is 

therefore unpreserved. See Commonwealth v. Moreno, 102 Mass. 

App. Ct. 321, 324 n.5 (2023). 
5

Assuming, without deciding, that there was error, we 

conclude that it did not create a substantial risk of a 

miscarriage of justice. A single witness, a qualified examiner,

referred to the books in his testimony, in response to a 

question about the items that the police recovered after

executing the search warrant in 1994. The entirety of that 

testimony was as follows: "And there were two books as it 

related to killers. One was called 'Killer Clown,' that was 

about John Wayne Gacy. And then there was another book, titled 

'Driven to Kill,' that was supposed to be about Pam Smart." The

remaining five mentions of the books were similarly brief and 

buried in the written reports, which comprised almost four 

hundred pages of exhibits. We note that the petitioner did not

move to redact these references from the reports.

Compared to the fleeting nature of the references to the 

books, the Commonwealth offered overwhelming evidence, 

summarized above, that the petitioner committed repetitive acts

of sexual misconduct against boys, despite his frequent arrests

and incarceration. The Commonwealth also offered evidence that 

the petitioner was resistant to sex offender treatment and 

incurred disciplinary reports while incarcerated, including for 

writing letters to boys and to schools, "apparently seek[ing]

[to] gain information about schools and children." Multiple 

expert witnesses offered by the Commonwealth, including the two 
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qualified examiners, opined that the petitioner's sexual 

misconduct was compulsive and that he was likely to reoffend. 

The Commonwealth's closing argument focused on this evidence and 

did not mention the books.

Given the strength of the Commonwealth's case, and its 

limited use of the contested evidence, we do not "have a serious 

doubt that the result of the trial might have been different had 

the [alleged] error not been made." Commonwealth v. Azar, 435 

Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005), quoting 

Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). Accordingly, 

there was no substantial risk of a miscarriage of justice. See 

R.B., petitioner, 479 Mass. at 719 (admission of psychological 

report did not create substantial risk of miscarriage of justice 

where "the report did not figure prominently in the testimony or 

report of either qualified examiner" and "all three experts 

testified that the petitioner remains sexually dangerous, based 

on his history of sexual offenses and his mental health 

diagnoses, as well as his lack of progress in treatment programs 

and his disciplinary record while incarcerated"). We add that 

we would reach the same result even were we to apply the 

prejudicial error standard applicable to preserved errors. See 

Commonwealth v. Cruz, 445 Mass. 589, 591 (2005), quoting

Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) ("An error 
7

is not prejudicial if it 'did not influence the jury, or had but 

very slight effect'").

2. Ineffective assistance. The petitioner raises his

allegations of ineffective assistance of counsel on direct 

appeal rather than through "the preferred method" of a motion 

for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810 

(2006). An ineffective assistance claim "made on the trial 

record alone is the weakest form of such a challenge because it 

is bereft of any explanation by trial counsel for his actions

and suggestive of strategy contrived by a defendant viewing the 

case with hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 

210 n.5 (2002). We can resolve such a claim only in exceptional 

circumstances when the ineffectiveness "appears indisputably on 

the trial record" (citation omitted). Zinser, supra at 811.

That is not the case here. While the petitioner claims 

that his trial counsel was ineffective on several grounds,3 we 

cannot determine on the record before us whether the alleged 

errors resulted from counsel's strategic decisions and, if so, 

whether those decisions were "manifestly unreasonable" and 

3 Specifically, the petitioner argues that trial counsel erred by

failing to (1) address misleading testimony elicited from the 

Commonwealth's expert witnesses, (2) introduce evidence that 

would have benefited the petitioner, (3) object to questions by 

the Commonwealth that improperly shifted the burden of proof, 

and (4) request a limiting instruction regarding the 

petitioner's criminal record.
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likely deprived the petitioner of a "substantial ground of 

defense." Commonwealth v. Hudson, 446 Mass. 709, 716, 726

(2006). Thus, on this record, the petitioner has failed to meet 

his burden of demonstrating that trial counsel was ineffective. 

See Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 551-552

(2006).

Judgment affirmed.

By the Court (Wolohojian, 

Neyman & Shin, JJ.4),

Assistant Clerk

Entered: January 31, 2024.

4 The panelists are listed in order of seniority.