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16-P-1710 Appeals Court

COMMONWEALTH vs. ALFRED P. FUSI.

No. 16-P-1710. February 1, 2017.

Sex Offender. Practice, Civil, Sex offender. Evidence, Sex 

offender, Expert opinion. Probable Cause.

After a hearing at which expert witnesses engaged by the 

Commonwealth and the defendant offered conflicting opinions 

concerning the defendant's sexual dangerousness, a judge of the 

Superior Court concluded that the Commonwealth had not 

established probable cause to believe the defendant is sexually 

dangerous, dismissed the Commonwealth's petition seeking his 

commitment as a sexually dangerous person pursuant to G. L. 

c. 123A, § 12, and ordered him released from custody.1

 Though 

the judge applied the correct legal standard to the 

determination of probable cause, his conclusion that the 

evidence did not establish probable cause was in error, and 

therefore we reverse.

At a probable cause hearing conducted pursuant to G. L. 

c. 123A, § 12(c), the judge is to conduct "a two-part inquiry, 

one quantitative and the other qualitative. 'The judge must be 

satisfied, first, that the Commonwealth's admissible evidence, 

if believed, satisfie[s] all of the elements of proof necessary 

to prove the Commonwealth's case. Second, she must be satisfied 

that the evidence on each of the elements is not so incredible, 

insubstantial, or otherwise of such a quality that no reasonable 

person could rely on it to conclude that the Commonwealth had 

1 A single justice of this court allowed the Commonwealth's 

motion for a stay of the release order pending appeal, and 

directed that the appeal proceed on an expedited basis.

 
2

met its burden of proof.'" Commonwealth v. Reese, 438 Mass. 

519, 524 (2003), quoting from Commonwealth v. Blanchette, 54 

Mass. App. Ct. 165, 175 (2002). At issue in this appeal is 

whether the Commonwealth's evidence satisfied the second, 

qualitative, prong of the Blanchette test.2

The defendant was convicted of two rapes of young women, 

both strangers, that he committed in 1980 and 1981, when he was 

nineteen and twenty years of age, respectively. The second of 

the two rapes occurred while he was released on bail awaiting 

his trial for the first. In addition to those convictions, the 

defendant was charged with open and gross lewdness in 1981, and 

indecent exposure in 1982, while both rape charges were pending.3 

While incarcerated, he was disciplined on several occasions, 

including for an incident in 1996 in which he drew five drawings 

of a female correction officer including some portraying her in 

the nude; two of the drawings were described as "quite 

explicit," and notes written on the backs of two of the drawings 

included such statements as, "It would of came [sic] out way 

better if you would pose for me!" and "Your [sic] in my 

thoughts." Following the imposition of discipline for that 

infraction, the defendant sent a letter to the prison 

superintendent suggesting that he (the defendant) was led to 

draw the nude pictures of the correction officer by her 

flirtatious and suggestive conduct toward him.4

 Both the 

Commonwealth's and the defendant's experts assigned to him a 

score of "five," in the "moderate to high range," on the STATIC99R model for assessing risk of sexual recidivism. While 

incarcerated, the defendant participated in sex offender 

treatment, but suspended his participation at the point at which 

he would have been required to acknowledge his offenses, citing 

a pending appeal. However, he did not resume participation 

after his appeal concluded, and he continued in his interview 

with the Commonwealth's expert to deny his involvement in either 

of the two rapes of which he was convicted. The Commonwealth's 

2 The parties agree that the judge correctly concluded that 

the evidence satisfied the quantitative prong.

3 The charge of open and gross lewdness was disposed by 

nolle prosequi, and the charge of indecent exposure was 

dismissed. The police reports regarding both incidents were 

admitted in evidence at the hearing, and the defendant asserts 

no claim on appeal that their admission was error.

4 As the judge observed, however, the defendant's last 

disciplinary violation occurred in 2006. 

 
3

expert opined that the defendant shows features of narcissism 

and antisocial personality, and ultimately opined that he meets 

the criteria for "other specified personality disorder." The 

expert further opined that the defendant's personality disorder 

would impair his capacity for impulse control, including sexual 

impulses.

In his written memorandum of decision, the judge 

principally relied on the relatively modest number of 

disciplinary violations committed by the defendant during the 

term of his incarceration, and the absence of any since 2006, to 

reject the Commonwealth's expert's diagnosis that the defendant

exhibits antisocial or narcissistic personality traits. In so 

doing, the judge, in our view, conducted his own personal 

assessment of the expert's credibility, "based on his own 

opinion of the proper application of the [DSM-V], and the 

significance of [the expert's] testimony and the [DSM-V]." 

Reese, 438 Mass. at 526. In order to conclude that no 

reasonable person could rely on the expert's opinion, the judge 

necessarily rejected the expert's expressed concern over the 

defendant's failure to complete sex offender treatment, 

including his continuing failure to accept responsibility for 

the offenses that resulted in his incarceration, and his 

persistence in assigning blame for his inappropriate and 

sexualized drawings of the female correction officer to his 

belief that she was flirting with him in an effort to establish 

a romantic relationship.

As explained in Reese, supra at 523-524, the task of a

judge at a § 12(c) hearing is analogous to that of a judge at a 

bind-over hearing. However, as the Supreme Judicial Court 

observed in that case, the analogy is not perfect. Id. at 523. 

In particular, the judge at a § 12(c) hearing must assess the 

evidence without the benefit of the most critical evidence of 

sexual dangerousness to be offered at any eventual trial: the 

examination conducted pursuant to G. L. c. 123A, § 13(a), by a 

qualified examiner.5 "Consequently, the hearing judge, in 

5 Qualified examiners, appointed by a judge following a 

determination of probable cause, "are central to the statutory 

scheme designed to evaluate the likelihood of a sex offender to 

reoffend." Johnstone, petitioner, 453 Mass. 544, 551 (2009), 

quoting from Commonwealth v. Bradway, 62 Mass. App. Ct. 280, 

283-284 (2004). So central is the qualified examiner role that 

the Commonwealth cannot meet its burden at a trial on sexual 

dangerousness unless a qualified examiner opines that the 

defendant is sexually dangerous, even if another expert opines 

 
4

assessing the credibility of expert witnesses who will not yet 

have access to the most important sources of information in the 

case at the time they are called to testify, must act with even 

more restraint than a judge assessing the credibility of 

Commonwealth witnesses in the context of a bind-over hearing." 

Reese, supra at 524. Though the Commonwealth's evidence is not 

free from weakness, and though the defendant's counsel ably 

illustrated those weaknesses through cross-examination of the 

expert at the probable cause hearing and in argument on appeal 

in this court, viewed as a whole the Commonwealth's evidence "is 

not so incredible, insubstantial, or otherwise of such a quality 

that no reasonable person could rely on it to conclude that the 

Commonwealth had met its burden of proof." Ibid., quoting from 

Blanchette, 54 Mass. App. Ct. at 175.

The order dismissing the Commonwealth's petition is 

reversed, and the matter is remanded for entry of an order 

finding probable cause, and for such further proceedings on the 

petition as may be appropriate under c. 123A.6

So ordered.

Kenneth E. Steinfield, Assistant District Attorney, for the 

Commonwealth.

Eric Tennen for the defendant.

to that effect. Id. at 551-552. In addition, though the 

opinion of a qualified examiner must be credible in order to 

support a verdict of sexual dangerousness, the question of 

credibility ordinarily is for the jury. See Green, petitioner, 

475 Mass. 624, 630-631 (2016).

6 As the defendant's counsel acknowledged at oral argument, 

because our assessment is whether the evidence satisfies the 

standard established in Reese, our conclusion is one of law. In 

addition, unlike the circumstances in Reese and Blanchette, 

where the judge did not apply the correct legal standard, or in 

Commonwealth v. Blanchette, 60 Mass. App. Ct. 924, 925 n.5

(2004), where significant time had passed since the probable 

cause hearing subject to that appeal, there is no reason in the 

present case for further hearing on the question of probable 

cause.