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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Boyer 58 Mass,
Present: Mason,
Kantrowitz, & Doerfer, JJ.
The case was
heard by Richard F. Connon, J.
Deborah Beard
Bader for the defendant.
Julia K. Holler, Assistant District Attorney, for the Commonwealth.
KANTROWITZ, J.
On
On
Boyer appeals, alleging the judge erred by
applying the
incorrect statutory definition of sexually
dangerous person and erred by admitting unlimited, substantive hearsay. He also
alleges that the civil commitment violates due process principles.[6]
General Laws c. 123A. The definition of a
sexually dangerous person is divided into three separate prongs. The
Commonwealth is obligated to prove beyond a reasonable doubt that only one
prong applies to a defendant. A sexually dangerous person is one who has been
(i) "convicted of or adjudicated as a
delinquent juvenile or youthful offender by reason of a sexual offense and who
suffers from a mental abnormality or personality disorder which makes the
person likely to engage in sexual offenses if not confined to a secure
facility;" or
(ii) "charged with a sexual offense and
was determined to be incompetent to stand trial and who suffers from a mental
abnormality or personality disorder which makes such person likely to engage in
sexual offenses if not confined to a secure facility; or"
(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." G. L. c. 123A,
§ 1, inserted by
The trial judge, in writing his findings,
believed that the probable cause determination, made pursuant to § 12(c),
qualified as a prior adjudication of sexually dangerous, and applied the third
prong. This was error, as the Commonwealth concedes. The determination that
probable cause exists, made pursuant to §
12(c), is not an adjudication that he is a sexually dangerous person. Rather,
it is the first step of a multi-step process that includes, as stated above,
the finding of probable cause, temporary commitment to a treatment center,
psychological examinations and trial. G. L. c. 123A, §§ 12-14.
Boyer argues that since the improper standard
was used (the third prong), automatic reversal is mandated. Conversely, the
Commonwealth asserts that, although the judge utilized the wrong standard,
there was undisputed evidence presented at trial that met the correct standard
(the first prong) and therefore the determination that the defendant was a
sexually dangerous person was correct as a matter of law.
The position of the Commonwealth has some validity. It is clear upon reading
the transcript that the Commonwealth indeed focused upon, presented evidence
and argued the proper standard, that a "sexually dangerous person is one
who has been . . . convicted of . . . a sexual offense and who suffers from a mental
abnormality or personality disorder which makes the person likely to engage in
sexual offenses . . . ." G. L. c. 123A, § 1. It is uncontested that
the defendant (1) had a prior conviction for a sexual offense; and (2) suffers
from a mental abnormality or personality disorder.[7]
The road now, however, turns bumpy.[8]
The first prong asks whether that "mental defect or personality disorder .
. . makes the person likely to engage in sexual offenses if not confined to a
secure facility?" The judge found Boyer's behavior repetitive and
compulsive in accordance with defining a sexually dangerous person under the
third prong. However, in doing so, the judge also found Boyer's risk of
re-offending "moderate."[9] Additionally, it is unclear what
impact the judge's erroneous belief of a prior finding of sexually dangerous
had upon his ultimate decision. What is clear is that the judge placed emphasis
on evidence that was improperly admitted, an issue that we now address.
Hearsay. The judge in his findings gave special weight to a statement contained
in a parole report indicating that Boyer asked his girlfriend's two year old
daughter, as she was sitting on his lap, if she "was horny."[10]
The Commonwealth asserts that the evidence was admissible under G. L. c. 123A,
§ 14(c).[11]
The use of hearsay evidence is guided, in part,
by § 14(c). That section lists a litany of classic hearsay evidence, e.g.,
probation records, police reports, psychiatric reports, etc., which "shall
be admissible." While parole reports are not listed specifically, they fit
comfortably within the catch-all phrase found at the end of the statute --
"and any other evidence tending to show that such person is or is not a
sexually dangerous person . . . ."
While § 14(c) trumps a hearsay objection to the admission of the report, still
remaining is the issue of hearsay within the report. Traditional rules of
evidence apply. When there is hearsay within hearsay it is commonly referred to
as totem pole hearsay. "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
If there is not an exception for each
statement, the hearsay is not admissible substantively, so long as an objection
is lodged.[12] However, it may be admissible if used for an
alternative purpose, i.e., by an expert in forming his opinion. See G. L. c.
123A, § 13(b)[13]; Commonwealth v. Markvart, 437
In Commonwealth v. Markvart, the Supreme Judicial Court was confronted
with the issue whether hearsay contained in police reports and witness
statements from a nol prossed complaint was admissible at trial pursuant to G.
L. c. 123A, § 14(c), either directly or through expert opinion. The court
held "that G. L. c. 123A, § 14(c), does not render police reports and
witness statements from nol prossed cases admissible at trial. They may be
provided to a qualified examiner, and a qualified examiner may rely on them as
the basis for an expert opinion, consistent with the requirements and
limitations of Department of Youth Servs. v. A Juvenile, [398
Department of Youth Servs. v. A Juvenile counsels that an expert is permitted
"to base an opinion on facts or data not in evidence if the facts or data
are independently admissible and are a permissible basis for an expert to
consider in formulating an opinion."
We cannot ascertain, as we do not have the
parole report, the source of the hearsay. If it were an identifiable
individual, the statement would appear to be independently admissible through
the appropriate witness (e.g., the child's mother or whoever heard the
comment).
In sum, that hearsay contained in a report may be used for one purpose -- here,
as a basis for the expert's opinion -- does not necessarily mean that it may be
used for all substantive purposes by a factfinder who has to make a finding
beyond a reasonable doubt.
Conclusion. "With respect to the weighing
and crediting of testimony admitted at trial, we will not substitute our
judgment for that of the trier of fact. We do, however, scrutinize without
deference the propriety of the legal criteria employed by the trial judge and
the manner in which those criteria were applied to the facts."
Commonwealth v. Boucher, 438
So ordered.
FOOTNOTES:
[1] "The
half of all incarcerations of convicted male offenders . . . . It was a
legal term of art that involved, even for serious felonies, the imposition of
an apparently long sentence on an individual deemed capable of rehabilitation .
. . to the State 'reformatory' at M.C.I., Concord, with parole eligibility
arising after a small fraction . . . of the stated sentence pursuant to parole
board policies and regulations." Commonwealth v. Thurston,
[2] "When the
district attorney . . . determines that the prisoner . . . is likely to be a
sexually dangerous person as defined in section 1, the district attorney . . .
may file a petition alleging that the prisoner . . . is a sexually dangerous
person and stating sufficient facts to support such allegation. . . ."
G. L. c. 123A, § 12(b).
"Upon the filing of a petition under this section, the court in which
the petition was filed shall determine whether probable cause exists to believe
that the person named in the petition is a sexually dangerous person." G.
L. c. 123A, § 12(c).
[3] Once probable cause is found that the person
named in the petition is a sexually dangerous person, that person is committed
to a treatment center for not more than sixty days. G. L. c. 123A,
§ 13(a). At the treatment center, the person is then examined and
diagnosed under the supervision of two qualified examiners. G. L. c. 123A,
§ 13(a).
[4] Within fourteen days of the filing of the report,
the Commonwealth must petition the court for a trial. G. L. c. 123A, § 14.
[5] "If after the trial, the [fact finder] finds
unanimously and beyond a reasonable doubt that the person named in the petition
is a sexually dangerous person, such person shall be committed to the treatment
center . . . for an indeterminate period of a minimum of one day and a maximum
of such person's natural life until discharged pursuant to the provisions of
section 9." G. L. c. 123A, § 14(d), inserted by
[6] Here, we simply note that neither party included
the trial exhibits as part of the record appendix. The only documents we
received, besides the transcripts, were the docket sheets for this petition and
the memorandum of decision from the superior court.
[7] Dr. Murphy, one of the Commonwealth's experts,
diagnosed Boyer with pedophilia and antisocial personality disorder. The expert
testifying for Boyer, Dr. Kiley, agreed on cross-examination that Boyer falls
within the definition of antisocial personality disorder and pedophilia and
that he suffers from a mental abnormality or disorder. A third expert, Dr.
Silverman, also testified on behalf of the Commonwealth. However, his testimony
was discounted in its entirety "because of his failure to conduct a
personal examination of the defendant."
[8] The Commonwealth's reliance, in part, in its
brief, upon Dr. Silverman's testimony, is improper as the evidence was struck.
[9] The standard to be employed is noted in
Commonwealth v. Boucher, 438 Mass. 274 (2002). See infra.
[10] The judge wrote: "The past sexual
misconduct although confined to convictions arising out of several acts against
three of his nephews has been determined to be repetitive or compulsive sexual
misconduct especially when considering the non-charged offense or the statement
to a two year old girl who sat upon the defendant's lap and was asked by the defendant
whether or not she was 'horny'" (emphasis added).
[11] "Juvenile and adult court probation
records, psychiatric and psychological records and reports of the person named
in the petition, including the report of any qualified examiner, as defined in
section 1, and filed under this chapter, police reports relating to such
person's prior sexual offenses, incident reports arising out of such person's
incarceration or custody, oral or written statements prepared for and to be
offered at the trial by the victims of the person who is the subject of the
petition and any other evidence tending to show that such person is or is not a
sexually dangerous person shall be admissible at the trial if such written
information has been provided to opposing counsel reasonably in advance of
trial." G. L. c. 123, § 14(c), inserted by
[12] "It is well established that hearsay
evidence admitted without objection may be considered by the [fact finder] and
may be given any probative value it possesses." Commonwealth v. Stewart,
398
[13] "The court shall supply to the qualified
examiners copies of any juvenile and adult court records which shall contain,
if available, a history of previous juvenile and adult offenses, previous
psychiatric and psychological examinations and such other information as may be
pertinent or helpful to the examiners in making the diagnosis and
recommendation. The district attorney or the attorney general shall provide a
narrative or police reports for each sexual offense conviction or adjudication
as well as any psychiatric, psychological, medical or social worker records of
the person named in the petition . . . ." G. L. c. 123A, § 13(b),
inserted by St. 1999, c. 74, § 8.
[14] If there had been testimony from a witness that
he or she heard the defendant make the contested statement to the two year old
girl, the judge would have been free to use it substantively and could give it
whatever weight he deemed appropriate.
[15] Given the issues addressed and the passage of
time, the judge, in his discretion, may reopen the case, including, if he so
desires, reopening the evidence.