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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
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Commonwealth
v. Dube,
Present: Doerfer, McHugh, & Mills, JJ.
Petitions filed in the Superior Court Department on
Motions to dismiss were heard by Patrick F. Brady, J.
Sharon L. Sullivan-Puccini, Assistant District
Attorney, for the Commonwealth.
James L. Sultan (Catherine J. Hinton with him) for Donald Dube.
Michael Lyons for Rubin Sepulveda.
MCHUGH, J.
Donald Dube and Rubin Sepulveda, the defendants
in these cases, were convicted and imprisoned for the sexual offenses described
below. As the time for their discharge neared, the
The facts underlying the commitment petitions
are as follows.[1] Donald Dube was sentenced to concurrent terms of from
not less than twelve and not more than twenty years in State prison on November
13, 1991, following his conviction on two counts of forcible rape of a child
and two counts of indecent assault and battery on a child under fourteen.[2]
The crimes occurred during a two-year period beginning in 1982 and ending in
1984. The victims were two young girls, one of whom was fourteen in 1984 and
the other of whom was twelve. Both girls had been adopted by one of Dube's
friends.
At the time he committed the crimes, Dube was a
While in prison, Dube steadfastly refused to admit that he had committed the
offenses and refused to take part in sexual offender counseling and treatment.
Nevertheless, his course of incarceration was entirely incident free.
Consequently, on
On December 20, 2001, the district attorney
responded to the Board's notice by filing a petition to commit Dube to the
Center pursuant to G. L. c. 123 A, § 12(e). In his petition, the district
attorney noted that he had engaged a "qualified examiner," see G. L.
c. 123A, § 1, to examine Dube and that the examiner had concluded that Dube was
not sexually dangerous. The district attorney's petition also stated that Dube
had engaged the services of a psychologist who had likewise concluded that he
was not sexually dangerous. The district attorney made no suggestion that he
intended to seek the advice or opinion of any other qualified examiner or to
procure an opinion that Dube was sexually dangerous from some other source.
Instead, his petition stated "that [Dube] is in fact a sexually dangerous
person and . . . the Commonwealth does not need the opinion of an expert
on this issue."
In response to the petition, Dube filed a motion to dismiss on grounds that the
petition disclosed on its face the Commonwealth's inability to establish
"probable cause [to believe] that the [defendant was] a sexually dangerous
person." G. L. c. 123A, § 2(c).[4] A hearing quickly ensued, the
motion to dismiss was allowed, and a judgment of dismissal thereafter entered.
The course of proceedings in the second case,
involving Rubin Sepulveda, took a different route to a similar destination.
Sepulveda was sentenced on
On
§ 13(a).
During his ensuing commitment, Sepulveda was
examined by two qualified examiners who then filed with the court reports in
which they opined that he was not sexually dangerous. The Commonwealth's
examiner, who had based his original opinions solely on analysis of records
pertaining to Sepulveda's case, then interviewed Sepulveda. Following the
interview, the examiner changed his opinion and joined the two other qualified
examiners in concluding that Sepulveda was not sexually dangerous.[8]
At that point, Sepulveda filed a motion to
dismiss the petition or for summary judgment.[9] He attached to that
motion reports of two additional psychologists who, after examining him,
concluded that he was not sexually dangerous, raising to five the number of
examiners who held that undisputed opinion. After a hearing, a Superior Court
judge allowed the motion on grounds that, without expert testimony, the
Commonwealth could not meet its burden of proof at trial. The record contains
no suggestion that the district attorney proffered at the hearing a new expert with
a different opinion or suggested that new expert information regarding
Sepulveda's sexual dangerousness would be forthcoming at trial.
That is the record upon which the Commonwealth prosecutes these appeals. In
urging reversal, the Commonwealth first claims that no expert testimony is
required to prove sexual dangerousness at trial, and thus, that dismissal of
the petitions at a preliminary stage for want of such testimony or evidence was
improper. Two years ago, the
c. 123A. In the course of its exploration, the
court made plain that a district attorney is not permitted to file a petition
for commitment as a sexually dangerous person based solely on the fact that a
person has been convicted of a sexual offense.
Because the statutory definition of
"sexually dangerous" focuses on whether an individual suffers from a
"mental abnormality or personality disorder" and on a predictive
judgment about the likelihood that the individual will cause future harm, G. L.
c. 123A, § 1,[10] the court also held that the requisite showing
required the Commonwealth to proffer expert testimony both to support an order
of temporary commitment pending a probable cause hearing, id. at 511; see G. L.
c. 123A, § 12(e), and to support a finding of probable cause. Commonwealth v.
Bruno, 432
"first, that the Commonwealth's admissible
evidence, if believed, satisfie[s] all of the elements of proof necessary to
prove the Commonwealth's case [and s]econd, . . . 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 met its burden of proof."
Commonwealth v. Reese, 438
To be sure, both Bruno and Reese focused on the
kind and quality of evidence required at pretrial proceedings, not at trials.
Bruno, therefore, does not squarely hold that production of expert testimony is
necessary to satisfy the Commonwealth's burden of proving sexual dangerousness
at a full trial on the merits. Nevertheless, the conclusion that it must do so
is inescapable. If a finding of sexual dangerousness requires exploration of
mental or personality disorders and predictions about future behavior, if
expert testimony is required for a finding of probable cause to commit a person
to the Center, and if the statutory purpose for commitment is "examination
and diagnosis under the supervision of two qualified examiners," i.e.,
board certified psychiatrists or licensed psychologists, see G. L. c. 123A, §§
1, 13(a), then it is scarcely possible that the need for expert testimony does
not persist through trial. Indeed, the entire statutory scheme creates the
mechanism for gathering the facts and conducting the analysis integral to that
testimony.
No doubt sensing that Bruno creates a momentum
that carries the requirement for expert testimony through trial, the
Commonwealth pursues its claim that dismissal in these cases was improper not
by asking us to confine Bruno to preliminaries -- a confinement that, in any
event, would be of little utility in Dube's case -- but by asking us to
overrule it.[11] It tells us that the Supreme Judicial Court
"offered no support for [its] assertion" that expert testimony was
required to prove sexual dangerousness,[12] and that the requirement was
"a mere policy decision . . . very dangerous to public safety." It
analogizes proof of sexual dangerousness to proof of criminal responsibility,
ignoring in the process the court's rejection of that analogy on grounds that
proof of the latter, unlike proof of the former, is aided by the presumption of
sanity. Bruno, 432
"As Jesus recognized, '[y]e shall know
them by their fruits. Do men gather grapes of thorns, or figs of thistles? Even
so every good tree bringeth forth good fruit; but a corrupt tree bringeth forth
evil fruit.' St. Matthew, 7:16-20. The defendant's actions and admissions are
the 'fruits' by which the jury will know him."[[14]]
In the brief it filed here, the Commonwealth,
abandoning the New Testament, supported the same proposition by quoting poet
and songwriter Bob Dylan's observation that "you don't need a weatherman
to know which way the wind blows."[15]
Totally missing from all this -- indeed,
totally missing from any of the papers the Commonwealth filed in either of
these cases -- is any authority for this court's power to overrule a decision
of the Supreme Judicial Court or to decline to follow the holding of that
court's opinions. When pressed on the point during oral argument, the
Commonwealth asserted that this court's power to do so rested not on precedent
but on "common sense and logic."[16]
Common sense is not the label that leaps
immediately to mind upon hearing that argument. On the contrary, we held
fourteen years ago that "[t]he Commonwealth's argument that this court
should overrule the
We recognize that Mass.R.A.P. 11, providing for direct appellate review,
contains an option, not a command, even when, as here, the result a party
advocates cannot be achieved without alteration of a rule the
The Commonwealth's second argument makes no
more sense than its first. In essence, the Commonwealth argues that it may
fulfill the Bruno requirement for producing expert testimony by offering at
trial the opinion of an expert witness who disagrees with the conclusion it
seeks to have the fact-finder reach.[17] Understandably, the
Commonwealth provides no support for that proposition either. Indeed, when
asked at oral argument whether it was aware of any case in any common-law
jurisdiction in the world that would support its argument, the Commonwealth
responded "no, but maybe this is the case."
It is not. The requirement for expert testimony
to prove matters generally unfamiliar to those without particularized learning
originates in the common-law principle that "where the tribunal is faced
with a fact-finding problem, we confide ourselves to a rational process[.]"
Hughes, Evidence § 281, at 333 (1961). Adherence to a rational
process typically requires not only expert testimony regarding general
principles with which lay-people are unfamiliar, but also testimony regarding
"inferences from highly technical or specialized facts which the
fact-finder . . . would not be competent to draw." Hughes, supra at
§ 702.6. See McCormick, Evidence § 13, at 58 (5th ed. 1999)
(assistance requires the expert to draw inferences from the facts "which a
jury could not draw at all or as reliably"). As the Supreme Court of the
United States put it in Addington v. Texas, 441 U.S. 418, 429 (1979):
"[w]hether the individual is mentally ill
and dangerous to either himself or others and is in need of confined therapy
turns on the meaning of the facts which must be interpreted by expert
psychiatrists and psychologists" (emphasis in original).
In a rational process, one cannot prove a case
by producing opinions directly contradicting the conclusion one seeks to have
the fact-finder reach. Disbelief of such opinions simply furnishes no
"basis for a finding the other way." Commonwealth v. Haggerty, 400
The single, unresolved question these cases present -- a question the
Commonwealth's briefs do not address -- thus becomes whether dismissal of a
petition is appropriate when a defendant establishes to a certainty, as the
defendants did here, that the Commonwealth will be unable to produce the expert
testimony it must produce either to show the existence of probable cause under
G. L. c. 123A, § 12(c), or to carry its burden of proof at trial. The
provisions of G. L. c. 123A do not contain explicit directions regarding what
happens to a petition under those circumstances.
Lack of express direction notwithstanding, we
believe that dismissal of the petition is appropriate under both circumstances.[18]
By setting up a statutory scheme first involving temporary detention until
probable cause can be determined, then proceeding to detention after a finding
of probable cause until examinations are completed and then proceeding to
detention, supported by a compilation of the examination reports, until
completion of trial, all with specified time limits, see G. L. c. 123A, §§
12(e), 13(a), 14(a), the Legislature conditioned a petition's progress on the
Commonwealth's ability to provide, with increasing degrees of rigor, evidence
that the defendant is sexually dangerous. Implicit in the statutory plan for
ordered progress is that dismissal of the petition is the appropriate remedy
when the Commonwealth's evidence, extant or reasonably anticipated, is
demonstrably insufficient to allow it to proceed to the succeeding step. Cf.
Commonwealth v. Kennedy, 435 Mass. 527 (2001) (dismissal after a finding of
probable cause was appropriate where the Commonwealth failed to produce reports
of qualified examiners within the statutory deadline); Commonwealth v. Reese,
438 Mass. at 525 (probable cause inquiry enables the judge "to determine
whether the evidence . . . is of suitable quality to allow the action to
proceed further").
In Dube's case, the evidence was insufficient to support a finding of probable
cause, for the Commonwealth neither had nor professed an ability to obtain the
opinion of any expert that Dube was sexually dangerous. In Sepulveda's case,
although the Commonwealth initially obtained the opinion of a qualified
examiner that Sepulveda was sexually dangerous, that opinion was withdrawn
when, after further examination, the examiner reached precisely the opposite
opinion, joining in the process the other four examiners, and the Commonwealth
offered no suggestion that it would be able to produce the required opinion at
trial.[19] Consequently, both actions were properly dismissed.
Judgments affirmed.
FOOTNOTES:
[1] Because both of these cases were dismissed at the
preliminary stages, we draw upon both civil and criminal procedure and look at
the facts in the light most favorable to the Commonwealth.
[2] On the indecent assault and battery charges, Dube
received concurrent sentences of from not less than seven and not more than ten
years imprisonment, to be served concurrently with the sentences on the rape
charges.
[3] Dube's conviction was affirmed on appeal, see
Commonwealth v. Dube,
[4] Specifically, the defendant's motion alleged that
the Commonwealth would be unable to carry the burden necessary "to commit
the defendant," i.e., the burden required either to commit him temporarily
under c. 123A, § 12(e), pending a probable cause hearing in accordance with §
12(c), or to commit him for examination pursuant to § 13(a) following a finding
of probable cause. The Commonwealth's burden under § 12(e) may not be as heavy
as the burden under § 12(c), see Commonwealth v. Bruno, 432 Mass. 489, 511
(2000); Commonwealth v. Reese, 438 Mass. 519, 524-525 (2003), and, because the
§ 12(e) determination simply deals with whether the defendant will be in
custody or at liberty until conclusion of the § 12(c) hearing, we treat the
defendant's motion as asserting that the Commonwealth would not be able to
establish probable cause under § 12(c).
[5] On appeal, Sepulveda's conviction was affirmed.
[6] Like Dube, Sepulveda denied that he had committed
the offenses and declined to participate in sex offender counseling while in
prison. Unlike Dube, however, Sepulveda incurred a total of eight prison disciplinary
reports, growing out of three separate incidents.
[7] The Superior Court record contained only a single
page letter from the examiner setting out his conclusions. The Commonwealth has
moved, without opposition, to expand the record on appeal to include the full
text of the examiner's underlying report. We allow that motion and have
examined the report in its entirety.
[8] The record contains no report to that effect.
Nevertheless, both in the Superior Court and here, the Commonwealth agreed that,
after interviewing Sepulveda, its examiner formed the opinion that he was not
sexually dangerous.
[9] Summary judgment is a creature of the
Massachusetts Rules of Civil Procedure, which are inapplicable to proceedings
under G. L. c. 123A. See Mass.R.Civ.P. 81(a)(1)(8).
[10] In pertinent part,
that statute provides:
"'[A s]exually dangerous person', [is] any person 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; (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."
[11] Although the Commonwealth asks us to overrule
Bruno, it did not seek direct appellate review of the trial court decisions
here at issue. See Mass.R.A.P. 11, as amended, 426 Mass. 1601 (1998). The
Commonwealth informed us at oral argument that internal discussions produced
its election to forgo an application for direct appellate review and instead to
pursue its appeal in this court.
[12] The Commonwealth's
basis for making that statement is simply unfathomable for, to the extent
"support" is not woven into the fabric of both the statute and the
opinion, it was set forth in the very passage the Commonwealth attacks. Here is
that passage:
"Whether a person suffers from a mental
abnormality or personality defect, as well as the predictive behavioral
question of the likelihood that a person suffering from such a condition will
commit a sexual offense, are matters beyond the range of ordinary experience
and require expert testimony. See Commonwealth v. Crawford, 429 Mass. 60, 67
(1999) (error to exclude expert testimony on posttraumatic stress disorder or
battered woman syndrome, as not within common experience of ordinary juror);
Commonwealth v. Kirkpatrick, 423 Mass. 436, 447-448[, cert. denied, 519 U.S.
1015 (1996)]) (expert testimony required to explain likelihood of transmission
of sexually transmissible disease from defendant to victim, being matter beyond
ken of ordinary juror)."
Bruno, 432 Mass. at 511.
[13] The Commonwealth also sets out a long list of
civil cases in which this court and the Supreme Judicial Court held that expert
testimony was not required to prove one thing or another without making any
effort to show the relationship between those cases and these. In the
aggregate, therefore, the list stands for the proposition that expert testimony
is not required to prove many things, a proposition with which no one can
quarrel but the untailored assertion of which provides no support for the position
the Commonwealth advocates.
[14] The docket does not reference the brief in
which that quotation appears. The brief, however, was included, without
objection, in the defendant's supplemental appendix.
[15] We note, without
comment, that Dylan made his now well-known observation in the following
context:
"Maggie comes fleet foot
Face full of black soot
Talkin' that the heat put
Plants in the bed but
The phone's tapped anyway
Maggie says that many say
They must bust in early May
Orders from the D.A.
Look out kid
Don't matter what you did
Walk on your tip toes
Don't try 'No Doz'
Better stay away from those
That carry around a fire hose
Keep a clean nose
Watch the plain clothes
You don't need a weather man
To know which way the wind blows."
Bob Dylan, Subterranean Homesick Blues (1965).
[16] The portion of the
oral argument in which the Commonwealth made that assertion was as follows:
Q. "Where in the history of Anglo-American
jurisprudence does the District Attorney find support for [the] proposition
[that this court has the power to disregard an opinion of the Supreme Judicial
squarely on point?]"
A. "He finds it in common sense and
logic."
Q. "To the disregard of settled ways of
adjudicating precedent that's been in Anglo-American jurisprudence since the
founding of this Republic, is that right?"
A. "Yes, your Honor."
[17] More specifically, the Commonwealth's brief
asserts that if it is required to produce expert testimony, that expert
testimony need not include an opinion that the defendant is sexually dangerous.
At oral argument, the Commonwealth expanded on that proposition by asserting
that the expert opinions it had proffered in these cases could satisfy its
obligation to produce expert testimony notwithstanding the fact that the experts
in both cases opined that the defendant was not sexually dangerous.
[18] A motion to
dismiss, like the motion the defendants made here, is an appropriate procedural
device for raising the issue. As noted, see note 9, supra, although these
proceedings are "civil" in nature, the Rules of Civil Procedure are
inapplicable. Nevertheless, "a judge has inherent power, not derived from
any rule, to dismiss a [civil] complaint on his or her own initiative."
National Grange Mut. Ins. Co. v. Walsh,
706, 716 (1991). The preclusive impact of allowing such a motion is not
before us and we express no opinion on that subject. See generally Commonwealth
v. Travis, 372 Mass. 238 (1977); In re Hill, 422
[19] In Sepulveda's case, the Commonwealth points to
the provision of G. L. c. 123A, § 14(c), stating that the Commonwealth may
introduce at trial "psychiatric and psychological records and reports of
the person named in the petition, including the report of any qualified
examiner" and suggests that § 14(c) allows it to proceed on the report the
qualified examiner produced for the probable cause hearing notwithstanding the
examiner's disavowal of that report upon further examination. Even if the
Commonwealth is correct on the question of admissibility, no reasonable person
could base a conclusion that Sepulveda was sexually dangerous on an opinion
withdrawn by its originator after his discovery that he had not taken into
account all of the facts. See generally Commonwealth v. Reese, 438