422 Mass. 147 | Mass. | 1996
The Commonwealth appeals from a Superior Court judge’s determination that the petitioner, Michael C. Hill, is no longer a sexually dangerous person (SDP). We
I
During the early morning hours of September 4, 1979, Hill, armed with a knife, broke into the house of a former girl friend’s sister. He put a pillow case over her face, undressed her, fondled and raped her, having threatened her children if she resisted. In 1980 the petitioner pied guilty to rape, armed assault in a dwelling, and assault by means of a dangerous weapon. He was sentenced to a prison term of from ten to fifteen years for the armed assault in a dwelling, which has since expired. The assault by means of a dangerous weapon was filed by order of the court. With respect to the rape conviction the Superior Court held a G. L. c. 123A, § 5 (1988 ed.) hearing, determined the petitioner to be an SDP, and committed him to the treatment center of the sexually dangerous (treatment center) for one day to life. In 1987 and 1990 the petitioner filed petitions for release pursuant to G. L. c. 123A, § 9 (1988 ed.). The appeals were consolidated and heard during a two-day period in May of 1995 (section nine hearing).
The Superior Court judge found the following facts at the section nine hearing. For the first seven years at the treatment center, the petitioner participated in the treatment program. Then, in 1987 and for the next six years, he “refused every form of therapy offered at the Treatment Center.” In August, 1994, he became “minimally involved” in therapy once again.
At the hearing, the Commonwealth presented two qualified examiners,
The Commonwealth also presented Dr. Uri Amit, the chair of the restrictive integration review board/community access board (review board),
The petitioner offered his own expert, Dr. Ronald Stewart. Dr. Stewart interviewed the petitioner, received a letter from him, and reviewed the relevant treatment center’s documents. Dr. Stewart opined that the petitioner was no longer an SDP. The hearing judge declined to consider Dr. Stewart’s testimony, finding that Dr. Stewart had little or no experience in SDP evaluations and that, even if he were to rule Dr. Stewart was qualified, his testimony was neither credible nor persuasive.
The hearing judge held that the Commonwealth had not carried the burden of establishing that the petitioner is currently an SDP beyond a reasonable doubt. Relying primarily on Page v. Commonwealth, 13 Mass. App. Ct. 384 (1982), the judge cited the absence of evidence of recent sexual misconduct as the basis for his determination. Although each of the Commonwealth’s witnesses found the petitioner to be an SDP at present, the judge discounted these findings because, “given the paucity of present-day information, each witness had substantial difficulty in describing a clinical basis for linking present day behavior to past sexual misconduct.” The Commonwealth then moved for reconsideration, and it was denied. It then filed an appeal under G. L. c. 231, § 113 (1994 ed.), from both the denial of the motion for reconsideration and
II
A
The Commonwealth asserts a right to appeal under G. L. c. 231, § 113 (1994 ed.). Section 113 states that “[a] party aggrieved by a final judgment of the superior court . . . may appeal therefrom.” We specifically left open the issue of the Commonwealth’s right to appeal a G. L. c. 123A determination in Swanson, petitioner, 403 Mass. 1004 (1988).
The petitioner’s challenge proceeds from the premise that because the Legislature and the courts have required significant procedural protection in a c. 123A proceeding, see, e.g., G. L. c. 123A, § 5 (1986 ed.) (notice and right to counsel); Commonwealth v. Travis, 372 Mass. 238, 246-251 (1977) (imposing procedural safeguards); Andrews, petitioner, 368 Mass. 468 (1975) (requiring proof of dangerousness beyond a reasonable doubt); Gomes v. Gaughan, 471 F.2d 794, 799-800 (1st Cir. 1973) (imposing procedural safeguards), the prohibi
In Barboza, supra at 111-113, we considered whether G. L. c. 123A proceedings were punitive in nature with respect to the right to a trial by jury. We held that they were not.
“ ‘General Laws c. 123A is a comprehensive legislative program designed to identify and treat sexually dangerous persons. The statute was enacted “with the dual aims of protecting the public against future antisocial behavior by the offender, and of doing all that can be done to rehabilitate him.” Commonwealth v. Rodriguez, [376 Mass. 632, 646 (1978)].’ Commonwealth v. Knowlton, [378 Mass. 479, 483 (1979)]. ‘The statute . . . does not intend punishment and does not in terms impose it, and nothing therein justifies punitive treatment or confinement under any prison conditions, except such as are reasonably required for security. . . . Indeed, implicit in the statute and its purpose is the obligation to provide an environment conducive to a cure or an alleviation of the dangerous trait’ (citations omitted). Commonwealth v. Major, 354 Mass. 666, 668 (1968), cert.*154 denied, 393 U.S. 1109 (1969). ‘Both the Massachusetts court and legislature have made considerable effort to differentiate between the treatment of the sexually dangerous, on the one hand, and the penalizing of criminals on the other.’ Gomes v. Gaughan, 471 F.2d 794, 800 (1st Cir. 1973).”
Barboza, supra at 111-112. See Allen, supra (holding that the Fifth Amendment right against self-incrimination does not apply in commitment proceedings for the sexually dangerous because the proceedings are not punitive); Sheridan, petitioner, 412 Mass. 599, 604 (1992) (“primary objective of c. 123A . . . is to care for, treat, and, it is hoped, rehabilitate the sexually dangerous person, while . . . protecting society”). Our analysis in Barboza, supra, of the nature of a c. 123A proceeding is equally applicable to the issue of double jeopardy.
Commitment to the treatment center and the treatment an SDP receives there is intended to provide an SDP with an opportunity to overcome his “general lack of power to control his sexual impulses” so that he can successfully reenter society. It does not serve as an additional punishment or deterrent measure. In fact, the statute provides an avenue for persons to request commitment to the treatment center. G. L. c. 123A, § 6A. Perhaps most significantly, G. L. c. 123A, § 9, permits an SDP to petition for release every year, and at each hearing the Commonwealth must prove beyond a reasonable doubt that the person is still sexually dangerous. See Andrews, petitioner, supra at 478-488. See also Travis, supra at 248 (holding that person may be recommitted only if it is established that he continues to be sexually dangerous). Thus, unlike a criminal prisoner, the SDP is continuously evaluated to determine if treatment is necessary, and, if not, the petitioner will be released from the treatment center, either to serve out his sentence in a correctional institution or to return to society if his sentence has expired.
The petitioner argues that, quite apart from the specific protection of double jeopardy, his rights as embodied in the concept of substantive due process prevent the Commonwealth from appealing the hearing judge’s finding that he
. The Commonwealth argues that the Superior Court judge committed an error of law in concluding that the petitioner was no longer an SDP, because the judge required the Commonwealth to provide current psychiatric information about the petitioner’s status. The Commonwealth bears the burden of establishing beyond a reasonable doubt that the petitioner continues to be an SDP at the time of the section nine hearing. See Andrews, petitioner, supra at 484-486; Page, supra at 386-387. An SDP is “any person whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of sixteen years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled of uncontrollable desires.” G. L. c. 123A, § 1 (1994 ed.) Weighing and crediting the testimony are for the trier of fact, and we will not substitute our judgment for that of the trier of fact. Commonwealth v. Walsh, 316 Mass. 53, 58 (1978). Nevertheless, we will scrutinize the propriety of the legal criteria employed by the hearing judge and the manner in which those criteria are applied to the facts.
The hearing judge, relying on Page, supra, required the Commonwealth’s experts to present a “clinical basis for linking present behavior to past sexual conduct.” The circumstances in Page, however, were different. In Page, the hearing judge gave no indication that the petitioner was anything but forthcoming in his examinations; yet the Commonwealth’s experts were unable to muster any evidence that the petitioner was still an SDP. In fact, the experts in Page testified that in their opinion the petitioner was no longer sexually dangerous, and yet the hearing judge found the petitioner to be an SDP. An Appeals Court justice reversed the determination of the Superior Court judge, reasoning that the hearing judge overlooked the fundamental principles of a section nine determination, particularly that the petitioner must be found sexually dangerous at the time of the hearing. Id. at 387.
In the case at bar, the experts and the reviewing board concluded that the petitioner continued to be sexually dangerous as defined by the statute. The experts and board drew
Accordingly, we remand the case for a reevaluation of the evidence, and continue the stay of petitioner’s release pending the outcome of such further proceedings.
So ordered.
“Qualified examiner” is defined in G. L. c. 123A, § 1 (1994 ed.).
Dr. Kiley stated that the petitioner’s progress was evidenced by his: (1) admitting to committing the governing offense; (2) admitting that other offenses were sexually motivated; and (3) showing a willingness to share secrets.
As a basis for this determination, Dr. Greif considered the petitioner’s governing offense, criminal history (including charges of lewd and lascivious behavior and attempted breaking and entering where the petitioner reported that he intended to rape the person in the dwelling), personal history (including rape fantasies), and the petitioner’s progress since commitment.
In 1993, the Legislature enacted a statute that created the community access board (CAB) and expressly repealed the statute that created the restrictive integration review board (RIRB). See St. 1993, c. 489, §§ 1-8. The effect of this action was to shift control of this review board and the treatment center from the Department of Mental Health (DMH) to the Department of Correction. Compare St. 1985, c. 752, § 1, codified as G. L. c. 123A, § 8, with G. L. c. 123A, §§ 1 & 6A. The petitioner’s section nine hearing occurred after the Legislature had repealed the statute that created the RIRB, but before the new statute creating the CAB had been fully implemented due to the existence of a Federal consent decree that required that primary responsibility for the treatment center be exercised by the DMH. See Langton v. Johnston, 928 F.2d 1206, 1227-1228 (1st Cir. 1991). Modification of the consent decree had not occurred at the time of Hill’s hearing, thus the DMH still controlled the treatment center and the review board.
Prior to the evidentiary hearing, the petitioner sought to exclude the testimony of the chair of the restrictive integration review board (RIRB)/ community access board (CAB), and his reports as unauthorized by law because, by statute, the board no longer existed, and its successor had not become authorized by law. See note four above. The Superior Court judge denied this request. The petitioner challenges this decision on appeal. Although the petitioner did not take a cross appeal from the Superior Court judgment, because we remand this case we note our agreement with the
There is no distinction between the initial section five hearing and the periodic review hearing pursuant to section nine.
In Commonwealth v. Barboza, 387 Mass. 105, 115, cert. denied, 459 U.S. 1020 (1982), we held that an initial c. 123A hearing did not place a petitioner at risk of double jeopardy because the “issues before the court and the evidence presented were entirely different in the two proceedings.” See also Commonwealth v. Dagel, 345 Mass. 539, 541, cert. denied, 375 U.S. 863 (1963). In contrast, the petitioner here argues that an appeal from a section nine hearing may subject him to a second prosecution for the same offense.
Procedural due process is not an issue in this appeal. The petitioner has been afforded all the procedural due process that the statute and this court have required.