445 Mass. 143 | Mass. | 2005
Lead Opinion
In 1974, James McHoul, Jr. (petitioner), was committed to the Massachusetts Treatment Center (treatment center) as a “sexually dangerous person,” pursuant to G. L. c. 123A, §§ 1 et seq., as appearing in St. 1958, c. 646, § 1. See Commonwealth v. McHoul, 372 Mass. 11 (1977). See also McHoul v. Commonwealth, 10 Mass. App. Ct. 878 (1980). On October 2, 2000, he filed a petition for examination and discharge. G. L. c. 123A, § 9. After a trial at which the petitioner did not testify, the jury returned a verdict that the petitioner remained a sexually dangerous person. The petitioner now challenges various evidentiary rulings, including the admission of evidence containing “totem pole” (or “layered”) hearsay; certain jury instructians, including an instruction that potential future injury to adult victims is not limited to physical injury; the sufficiency of the evidence; and the validity of his initial commitment. We transferred the case here on our own motion, and now affirm.
1. Facts. The jury could have found the following facts. The petitioner, bom in 1943, has a lengthy history of sexual violence and aggression. While an adolescent, he once fondled his mother and attempted to engage her sexually. In 1959, he was sent to the Judge Baker Guidance Clinic for groping and attempting to kiss a nineteen year old woman. When he was seventeen years old and working as a messenger delivering telegrams, he sexually assaulted a woman in her home. He was acquitted of the resulting charge but later admitted committing the offense.
At age nineteen years, the petitioner broke into several apartments looking for women to assault sexually. In one case, he entered an unlocked apartment occupied by two young women, hid in a closet until one woman left, then sexually assaulted the other at knife point. He subsequently was charged with assault
In 1966, while undergoing a psychiatric evaluation at Boston State Hospital as required under the terms of his supervised probation, the petitioner left the hospital grounds in violation of his probation, entered a randomly selected apartment, assaulted a woman lying on her bed, and choked her until she was unconscious, fleeing only when he heard the woman’s mother in the apartment. As a result of this incident, he was convicted of assault with intent to commit rape, and breaking and entering a dwelling with intent to commit rape. He was sentenced to from twenty-five years to thirty years in prison. In 1974, a judge in the Superior Court adjudicated the petitioner to be a sexually dangerous person and committed him to the treatment center for a term of from one day to life.
The petitioner’s long-standing medical problems include “a mild arrested hydrocephalus with a question of associated brain damage and psychosis.” He has a history of mental illness dating from the 1960’s, with repeated diagnoses of schizophrenia, schizoid personality disorder, and sociopathic disorder. Although he has been placed on various psychotropic medications, the petitioner continues to exhibit signs of major mental illness that, together with his intermittent refusal to take his prescribed medications, has complicated his progress in sex offender treatment. His fantasies about raping women, including female staff at the treatment center, persist, as does his sexual misconduct or inappropriate behavior toward other inmates and his female therapists. The petitioner has acknowledged that one reason he has not actually assaulted any women at the treatment center is because “they would lock my silly butt upstairs, jack me up on psychotropic medication.” He has admitted that he would act out on his aggressions toward women if he thought he could get away with it.
The petitioner presents a number of risk factors that, taken together, are associated with a very high risk of reoffending. These include: (1) a large number of prior sex offenses, (2) sex offenses against strangers, (3) commission of a sex offense at a relatively young age, (4) deviant sexual arousal and sex
2. Discussion, a. Hearsay. The petitioner argues that the judge erroneously admitted in evidence two classes of inadmissible hearsay. First, he argues that the experts should not have been permitted to testify to the jury about out-of-court statements the petitioner made to others and observations of the petitioner’s conduct made by others on which the experts based their opinions. Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). However, those statements and observations were reflected in various records and reports that were admitted in evidence, thus making it permissible for the expert witnesses to reference that evidence in their own expert testimony. See Commonwealth v. Markvart, 437 Mass. 331, 338 (2002); Commonwealth v. Jaime, 433 Mass. 575, 577-578 (2001).
Second, the petitioner contends that certain of the records and reports at issue should not have been admitted in evidence because they contained totem pole hearsay. In particular, he objected to and challenges on appeal the introduction of “group notes” and annual treatment reports of the treatment center (which contained the petitioner’s descriptions of sexual assaults for which he had not been convicted and his descriptions of his feelings toward the victims of his sexual assaults), and “observation and behavior reports” concerning his actions at the treatment center. See Commonwealth v. Markvart, supra at 335 (“hearsay not otherwise admissible under the rules of evidence is inadmissible at the trial of a sexually dangerous person petition unless specifically made admissible by statute”). There was no error, as these reports are among those made admissible by statute, notwithstanding that they contain hearsay.
The sexually dangerous person statute provides that specifically identified documents and reports “shall be admissible” at trial of a petition for examination and discharge from the treatment center. G. L. c. 123A, §§ 6A, 9. Under § 9, either side
Absent these statutory provisions, such documents would ordinarily be excluded as inadmissible hearsay. However, the Legislature has the power to prescribe rules of evidence superseding any contrary common-law rule. See Beeler v. Downey, 387 Mass. 609, 614-615 (1982), quoting Holmes v. Hunt, 122 Mass. 505, 516-517 (1877). We have long recognized that the admissibility of the various records and reports in sexually dangerous person proceedings represents “ ‘a very radical departure’ from ordinary evidentiary rules,” Andrews, petitioner, 368 Mass. 468, 473 (1975), quoting Commonwealth v. McGruder, 348 Mass. 712, 715 (1965), cert. denied, 383 U.S. 972 (1966); but we have repeatedly applied the evidentiary rules prescribed by the Legislature for such proceedings. See Com
His contention — that courts must subject the contents of each document to an analysis for totem pole hearsay, with the statutory provision of admissibility curing only the hearsay problem of admitting the evidence in the form of a written report — has been rejected implicitly in our prior cases.
Adoption of the petitioner’s interpretation of these statutory
The redaction exercise pressed on us by the petitioner would eliminate vast amounts of the information contained in the reports that the statute makes admissible, and would often leave a report so riddled with holes and gaps as to be useless. When the Legislature identified the specific records and reports that were to be admissible in sexually dangerous person proceedings, it did so with full knowledge that they routinely contain information derived from hearsay sources. Having made such records and reports “admissible,” the Legislature did not intend that the documents be reduced to isolated shreds of partial information that would result from the application of hearsay rules to each individual entry in the documents.
Indeed, with regard to proceedings under § 14, one of the obvious purposes in making evidence such as police reports concerning prior sexual offenses admissible is so that the witnesses who supplied the information that led to the defendant’s conviction or plea do not have to be called back to court, years later at the conclusion of his sentence, to reiterate the details as to how the sexual offense was perpetrated. Or, in proceedings under § 9, where (as here) the petitioner has a long history at the treatment center, the use of records and reports reflecting that history avoids the need to summon treatment center personnel (who may no longer be available) to court to testify concerning the course of the petitioner’s treatment and behavior at the center. If, however, those reports were required to be reduced to only those entries constituting the report maker’s own observations and the petitioner’s own admissions (the only hearsay
Despite containing hearsay, the specific types of records and reports that are made admissible by statute have a considerable degree of reliability for these purposes. Psychiatric records and treatment records are a form of medical records, which have long been viewed as reliable and are routinely admitted in evidence in other types of cases. See G. L. c. 233, § 79G. Police reports of prior sexual offenses are allowed in evidence, but only where the defendant was convicted of the offense, with the conviction thus providing some corroboration of at least the gist
The petitioner’s proposed interpretation — that reports made admissible by statute are only admissible to the extent that they do not themselves contain hearsay — has been rejected elsewhere. The Supreme Court of California, addressing a statutory provision making various documents admissible in the equivalent of our sexually dangerous person proceedings, held that the Legislature’s determination to allow the admission of documents of a type that commonly contain hearsay “necessarily endorsed the use of multiple-level-hearsay statements that do not otherwise fall within a hearsay exception.” People v. Otto, 26 Cal. 4th 200, 208 (2001). To do otherwise, the court noted,
The same concerns are applicable here, and our statute allowing the admission of records and reports that, by their nature, often include the gathering of information from a variety of hearsay sources signifies the Legislature’s determination that such hearsay should be admitted in sexually dangerous person proceedings. When the Legislature identified, with considerable precision, the specific reports and records that were to be admissible in sexually dangerous person proceedings, it did not intend that only snippets of those reports and records could be introduced. Judges conducting trials under either § 9 or § 14 need not scrutinize each report and record being offered under the statute’s evidentiary provisions and strike out every hearsay statement contained therein. That exercise, if performed, would make mincemeat of the documents that the Legislature deemed admissible. We therefore find no error in the admission of the records and reports pertaining to the petitioner, as they were properly admitted pursuant to §§ 6A and 9.
b. Instruction on nonphysical injury. Conformably with the statutory definition of “sexually dangerous person” applicable to a § 9 hearing,
The petitioner contends that the likelihood of nonphysical injury may be considered in a § 9 proceeding only where the potential future victims would be children. In support, he points to the language of G. L. c. 123A, § 1, which requires that the petitioner’s “general lack of power to control his sexual impulses” be evidenced by “repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years” (emphasis added). While “aggression” may include “psychological, mental or emotional” injury against a potential child victim, the petitioner avers, “violence” connotes physical injury. He further points to the fact that the sexually dangerous person cases that have relied on a potential for nonphysical injury have involved children. See Commonwealth v. Dagle, 345 Mass. 539, 543, cert. denied, 375 U.S. 863 (1963); Commonwealth v. Denham, 8 Mass. App. Ct. 724, 731 (1979).
We are unpersuaded. “Where a statutory term is undefined, it must be understood in accordance with its generally accepted plain meaning.” Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). The term “injury” has not been defined in the statute, but the word is hardly opaque. Webster’s Third New Int’l Dictionary 1164 (1993) defines “injury” in its most common sense to mean “an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm: wrong.” The definition of “injury” is not limited to physical harm. While the Legislature may have required evidence of different types of past sexual misconduct with respect to adults and children to establish a person’s lack of power to control his sexual impulses, it made no statutory distinction between classes of injuries likely to be inflicted on future potential victims if the
c. Instruction on compulsive sexual misconduct. The judge instructed the jury that the Commonwealth had the burden of proving “beyond a reasonable doubt that [the petitioner] remains sexually dangerous today.” Quoting directly from G. L. c. 123A, § 1, the judge defined a “sexually dangerous person,” for purposes of a § 9 hearing, as “any person . . . previously adjudicated as such by a court of the commonwealth and 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 . . . violence against any victim . . . and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.” Over the petitioner’s objection, the judge then instructed that “[a]n act of sexual misconduct may be compulsive if the act is impulsive or is committed because the actor lacks the power to control his sexual impulses” (emphasis added).
The petitioner claims that the judge’s instruction erroneously
“[A] charge is to be considered as a whole to determine whether it is legally correct, rather than tested by fragments which may be open to just criticism.” Gilchrist v. Boston Elevated Ry., 272 Mass. 346, 353 (1930). This principle applies to criminal and civil cases alike. Commonwealth v. Pinnick, 354 Mass. 13, 15 (1968). The judge twice quoted the statutory definition of “sexually dangerous person” as it applies to § 9 hearings. She stressed three more times that the Commonwealth must prove beyond a reasonable doubt that if the petitioner were discharged, he would be likely to attack or inflict injury on a potential victim “because of his uncontrolled or uncontrollable desires.” On a fourth occasion she instructed that the Commonwealth must prove that the petitioner is likely to attack or injure a potential victim because he “continues to lack the power to control his sexual impulses.” The instruction as a whole adequately apprised the jury of what was meant by the term “compulsive sexual misconduct.” See Commonwealth v. Westerman, 414 Mass. 688, 702 (1993); Commonwealth v. Lykus, 406 Mass. 135, 144 (1989). In the mind of a reasonable juror, the single reference to “impulsive” misconduct could not overpower the accurate and complete jury instruction as to the elements of sexual dangerousness.
d. Other instructions. The petitioner raises other challenges to the jury instructions. He contends that the judge erred by (1) failing to instruct the jury that the Commonwealth must prove that the lack of power to control sexual impulses is the result of
He also argues that the jury were erroneously instructed that they need not return a unanimous verdict, and that a verdict could be returned based on the determination by eleven of the thirteen jurors. At trial, the parties agreed that all thirteen jurors would deliberate, and the petitioner raised no objection to the judge’s instruction concerning a less than unanimous verdict. See Sheridan, petitioner, 422 Mass. 776, 777, 779-781 (1996) (discharge proceedings under prior version of § 9 could be decided by verdict of five-sixths of jurors [G. L. c. 234, § 34A]). The issue is waived.
e. Other issues. The petitioner argues that the evidence was insufficient to warrant his continued commitment. Where, as here, “a jury trial is demanded, the matter shall proceed according to the practice of trial in civil cases in the superior court.” G. L. c. 123A, § 9. The means to test the sufficiency of the evidence at a civil jury trial is by motion for directed verdict, and not, for the first time, on appeal. See Mass. R. Civ. R 50 (a), 365 Mass. 814 (1974). Because the petitioner did not move for a directed verdict, the issue is waived.
The petitioner also challenges the predicate for his continued commitment by claiming that there were errors (of various forms) in his original commitment. A discharge petition under
Judgment affirmed.
We acknowledge the amicus brief filed by the district attorney for the Norfolk district.
Both § 9 and § 14 (c) contain a catchall provision allowing the admission of “any other evidence” tending to show whether the person is a sexually dangerous person. We have declined to read those catchall provisions in a way that would eliminate all rules of evidence for purposes of sexually dangerous person proceedings. See Commonwealth v. Bladsa, 362 Mass. 539, 541 (1972). However, in that case, the court expressly recognized that the specific documentary items identified and made admissible by statute remained admissible. Id. at 540-541.
Many of the statements to which the petitioner objected were his own, and, as such, admissible under the general rules of evidence as admissions of a party opponent through the testimony of a person who witnessed them. See Commonwealth v. Marshall, 434 Mass. 358, 365 (2001). Here, witnesses to the petitioner’s various statements authored reports reflecting those statements, with the reports themselves made admissible by statute. Thus, even if we were to scrutinize the reports for and require redaction of any totem pole hearsay contained therein, that analysis would not result in the exclusion of the petitioner’s own admissions.
The only precedent to the contrary is Commonwealth v. Boyer, 58 Mass. App. Ct. 662, 666-667 (2003). There, the judge at a jury-waived trial had admitted in evidence a parole report (which is not a form of report specifically approved for admission by the statute), and it apparently contained hearsay. However, the record before the Appeals Court did not include a copy of that
We dealt with a separate and distinct issue pertaining to the introduction of the qualified examiner’s report in Commonwealth v. Markvart, 437 Mass. 331, 338-339 (2002). Although the statute makes the qualified examiner’s report admissible (see G. L. c. 123A, §§ 9 and 14 [c]), we noted that the qualified examiner’s report functioned as the equivalent of an expert witness’s direct testimony. Id. at 338. Just as an expert witness cannot testify on direct examination concerning facts not in evidence, we held that the qualified examiner’s report could not be used as a vehicle for putting before the jury any facts that were not in evidence. Id. at 338-339, citing Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986), and Commonwealth v. Jaime, 433 Mass. 575, 577-578 (2001). To do otherwise would allow the parties to supply a qualified examiner with all sorts of evidence and use the qualified examiner’s report to get that evidence before the jury without having to introduce the evidence itself. The Markvart case does not concern the hearsay rule, or the application of layered hearsay principles to the documents and records that G. L. c. 123A makes admissible. It concerns the use of an expert’s report containing facts not in evidence.
The concern expressed by Justice Spina in his concurring opinion — that it would somehow be “incongruous” to allow totem pole hearsay to be admitted through someone’s report but not allow the person to testify to that totem pole hearsay, post at 159, misses the point. The point is that the report writers will not have to testify at all, as the information they recorded, much closer in time to the relevant events, can be admitted through their reports.
For example, there is no hearsay exception that would allow a party to introduce his own prior statements in the various reports and records; if offered by the petitioner, his own statements would not be the admission of a party opponent. A § 9 petitioner or § 14 defendant could not introduce any records or reports unless his statements were redacted therefrom or offered solely for some nonhearsay purpose.
Or, as another example, an inmate whose disciplinary history includes involvement in some altercation may wish, much later at his § 14 trial, to introduce the incident report (admissible under § 14 [c]) indicating that his involvement was minimal, that he was seeking to protect the original victim, or that the incident had no sexual component whatsoever. Witness statements reflected in the incident report would not qualify for any exception to the hearsay rule and would have to be struck from the report. While the defendant could testify to his version of what transpired (a version that might be given little weight due to its self-serving appearance), he would not be able to introduce an incident report reflecting the fact that all participants and witnesses corroborated his version.
Given the reliability of the categories of documents made admissible by the statute, the intimation in the concurring opinion that their admission might violate due process is unwarranted. Post at 159-160.
In this context, the information contained in the records and reports is used by qualified examiners and experts in forming their opinions as to the sex offender’s mental condition and likelihood of reoffense. Indeed, the statute provides that these same records and reports are to be provided to the qualified examiners. See G. L. c. 123A, § 9 (qualified examiner to be provided “all records of the person being examined”); § 13 (b) (qualified examiner to be provided with respondent’s juvenile and adult court records, psychiatric and psychological records, police reports pertaining to prior sexual offenses, and incident reports during incarceration). By making those same records and reports admissible at trial, the Legislature made clear that the jury could see at least that portion of what the expert had used in forming an opinion.
GeneraI Laws c. 123A, § 1, defines “[s]exually dangerous person,” for purposes of a § 9 hearing, as “any person who has been . . . (iii) previously adjudicated as such by a court of the commonwealth and 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 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires.”
The petitioner relies on the New Oxford American Dictionary (2001), which defines “compulsive” as “resulting from or relating to an irresistible urge, esp. one that is against one’s conscious wishes: compulsive eating.” “Impulsive” is defined as “acting or done without forethought.”
The petitioner also failed to raise the sufficiency of the evidence in a motion for a new trial under Mass. R. Civ. R 59 (a), 365 Mass. 827 (1974). See Cassamasse v. J.G. Lamotte & Son, 391 Mass. 315, 320 (1984).
Concurrence Opinion
(concurring in part and dissenting in part, with whom Cowin, J., joins). I agree that the judgment that McHoul remains a sexually dangerous person should be affirmed, but I disagree with that portion of the court’s opinion that approves the use of so-called “totem pole” hearsay contained in reports made admissible by G. L. c. 123A, § 9. The hearsay in this case essentially involves statements made by McHoul. To the extent that his statements were made directly to persons who prepared reports that are admissible under the statute, those reports were properly admitted. To the extent McHoul’s statements are quoted in reports admissible under the statute but prepared by persons who did not witness McHoul’s statements, his statements should have been redacted from those reports. However, because Mc-Houl did not properly preserve the error, it is waived. The question of totem pole hearsay could have been resolved easily if the Commonwealth had offered in evidence copies of the admissible reports that contained McHoul’s statements, or if the experts quoting from such reports had attached copies of the admissible reports to their own and incorporated them by reference.
“Generally, evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule.” Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987), citing Bouchie v. Murray, 376 Mass. 524, 527-531 (1978). Our appellate courts have applied this principle to the reports made admissible by statute in sexually
The insertion by the Legislature of the last phrase (“and any other evidence that tends to indicate that he is a sexually dangerous person”) among the types of evidence that may be considered at a § 9 hearing supports the conclusion that totem pole hearsay analysis is applicable to reports made admissible by statute. See St. 1993, c. 489, § 7. This court has held that that phrase did not authorize the admission of otherwise inadmissible evidence. See Commonwealth v. Bladsa, 362 Mass. 539, 541-542 (1972), citing G. L. c. 123A, § 5, as appearing in St. 1958, c. 646, § 1. It would be internally incongruous for the statute to preclude the admission of totem pole hearsay when offered through a witness, but allow the same evidence to be admitted through the report of the same witness. The statute resolves many of the potential objections to totem pole hearsay, provided the proponent of the evidence follows the path prescribed by the statute.
“[Because] these proceedings may result in the commitment of the [petitioner] to an institution,” due process principles are implicated. Id. at 541. See Specht v. Patterson, 386 U.S. 605 (1967); Commonwealth v. Bruno, 432 Mass. 489, 502 (2000), quoting Commonwealth v. Travis, 372 Mass. 238, 250 (1977). In probation revocation proceedings, for example, which, as here, are not part of a criminal prosecution, see Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), probationers are entitled to certain due process protections including “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 786, quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972). A petitioner under G. L. c. 123A, § 9, is entitled to at least the same due process protections. See Commonwealth v. Travis, supra; Andrews, petitioner, 368 Mass. 468, 488 (1975).
For these reasons, I respectfully disagree with my colleagues on the question of layered hearsay within reports made admissible by G. L. c. 123A, § 9.
