5 Mass. App. Ct. 711 | Mass. App. Ct. | 1977
The defendant has appealed (by permission) from an order entered in the Superior Court that he be committed to the treatment center at the Massachusetts Correctional Institution at Bridgewater (see G. L. c. 123A, § 2) for examination and diagnosis in accordance with the provisions of the first paragraph of G. L. c. 123A, § 6, as most recently amended by St. 1974, c. 324, §§ 2 and 3.
On December 4, 1975, the superintendent of Concord filed a motion in the Superior Court in Bristol County that the defendant be committed to the center at Bridge-water for a period not exceeding sixty days for the purpose of examination and diagnosis pursuant to the first paragraph of the aforementioned § 6. That motion was accompanied by (a) the signed report of a psychiatrist appointed by the Commissioner of Mental Health (Commissioner) that he (the psychiatrist) had examined the defendant at
The defendant appears (from the docket) to have been notified of the filing and import of the superintendent’s motion. The defendant appeared by counsel and moved for an evidentiary hearing on the superintendent’s motion and to “dismiss” that motion. An evidentiary hearing was conducted on February 27,1976, at which the defendant called and cross examined the psychiatrist whose report had accompanied the superintendent’s motion and also testified in his own behalf. The cross examination and testimony were directed largely toward discrediting the psychiatrist by illuminating factual errors which the defendant claimed were to be found in various portions of the psychiatrist’s report.
It will be helpful at the outset, before addressing ourselves to the particular arguments advanced by the defendant,
The Commonwealth need not offer any evidence, and the judge need make no finding, on the question whether the prisoner is in fact a SDP (see Lamb, petitioner, 368 Mass. 491, 493-494, 500 [1975]), such as would be required at the hearing on a petition for an indeterminate commitment brought under the fourth and sixth paragraphs of § 6 or at the hearing of a petition brought under the
With all the foregoing in mind we proceed to a consideration of the particular arguments advanced by the defendant. The transcript of the hearing on the present motion is susceptible to the interpretation that the defendant has not been convicted of any form of sexual assault on a child under the age of sixteen (such as would appear from the aforedescribed summary), in the sense that on his appeal from a District Court conviction he was allowed to plead guilty in the Superior Court to the lesser offence of assault and battery. The defendant moves from that point to an argument that the superintendent at Concord had no rational basis for triggering SDP proceedings because the defendant has never been convicted of any form of sex offence and because there is no evidence that the defendant has been guilty of any sexual misconduct while in prison. The defendant attempts to brush aside the observation (if not the holding) in Commonwealth v. Peterson, 348 Mass. 702, 704 (1965), cert. denied, 384 U. S. 909 (1966), that § 6 contains no requirement that a defendant “have been previously convicted of a sex offence or have been found guilty of sexual misbehavior in prison.” Putting to one side any question as to whether the defendant may have been convicted of a sex offence on a young girl, the superintendent could rationally have concluded from the State police information available to him (supra note 2) that the defendant had (at the very least) intended to rape the woman he had strangled. Once that conclusion was drawn, the superintendent had a rational basis
The only remaining argument not already considered is that there is no basis for a temporary commitment under the first paragraph of § 6 because the present record contains no admissible evidence of sexual misbehavior by the defendant which would provide a point of departure for proceedings for an indeterminate commitment under the fourth and sixth paragraphs of § 6. Stripped of its trappings, the argument is that the police allegations of sexual misconduct found in the aforementioned summary would be inadmissible at the evidentiary hearing on any petition which might subsequently be filed under the fourth paragraph of § 4 (see Commonwealth v. Bladsa, 362 Mass. 539, 540-541 [1972]; Commonwealth v. Lamb, 1 Mass. App. Ct. 530, 532-533 [1973], S.C. 365 Mass. 265 [1974], 372 Mass. 17 [1977]; Thompson, petitioner, supra at 284), and that those allegations constitute “an essential condition precedent to a final determination of sexual dangerousness which [can] not be supplied by examination and observation during [a] temporary commitment.”
The argument appears to overlook the scope of permissible future proceedings. First, the two or more psychiatrists who will be appointed to examine and diagnose the defendant at the center (G. L. c. 123A, § § 4 and 6 [third par.]) are permitted to take the police allegations of sexual misconduct into consideration in arriving at their respective opinions as to whether the defendant is a SDP, even though the hearsay rule would prevent the psychiatrists from testifying to the contents of those allegations at any subsequent hearing on the question of indeterminate commitment. Andrews, petitioner, 368 Mass. at 475-476. Second, in formulating their opinions the psychiatrists will not be confined to a consideration of those allegations and what they may be able to learn from interviewing the defendant. See Commonwealth v. Lamb, 372 Mass. at 22; Commonwealth v. Childs, 372 Mass. at 29. Finally, we note that the argument is premature; it overlooks the possibility that at any hearing on the question of indeterminate commitment the Commonwealth may be able to prove the
The order allowing the motion for preliminary commitment is affirmed.
So ordered.
“[1] If a prisoner under sentence in any jail, house of correction or prison, or in the custody of the department of youth services, appears to the sheriff, keeper, master, superintendent or commissioner
“The officers ... accompanied ... [Geary] to the location of the incident and found the nude body of a female. The body was nude except for ripped remains of a blue jersey under the upper torso. She was lying on her back with knees raised and spread, arms flat on the ground and raised above her head. There were three long thin bruise marks on her right bicep and bruises on her neck. Clothing and personal belongings were found at the scene, varied distances from the body.... On 9-18-72 an autopsy was performed and cause of death was found to be manual strangulation.
The defendant testified that he had seen and studied the institutional records concerning his case which were available at Concord. There was nothing to suggest that the defendant or his counsel had been or would be deprived of a reasonable opportunity to correct any
As will be seen, none of those arguments is constitutional in nature.
In the ensuing general discussion the word “superintendent” is intended to include the “sheriff, keeper, master,... commissioner of youth services ... [and] the district attorney” who are also referred to in the first sentence of the first paragraph of § 6.