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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. Reese, 438
Present:
Petition for civil commitment filed in the Superior
Court Department on
A hearing on the issue of probable cause to classify the defendant as sexually
dangerous was had before Ralph D. Gants, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Robert C. Thompson, Assistant District Attorney, for the Commonwealth.
David H. Erickson, for the defendant, submitted a brief.
Martha Coakley, District Attorney
& Lillian Cheng, Assistant District Attorney, amicus curiae,
submitted a brief.
CORDY, J.
The Commonwealth appeals from a Superior Court
judge's finding of no probable cause to believe that Christopher J. Reese was a
sexually dangerous person as defined in G. L. c. 123A, § 1. The
judge based his finding of no probable cause on subsidiary findings that the
testimony of the Commonwealth's expert that Reese (1) was a pedophile; (2)
suffered from a "personality disorder"; and (3) was likely to commit
additional sexual offenses if not confined to a secure facility, was not
credible. Therefore, he concluded that the Commonwealth had not met its burden
of establishing that "a reasonable trier of fact
could find the defendant beyond a reasonable doubt to be a sexually dangerous
person based on . . . credible evidence." We conclude that the judge
misapplied the applicable standard of proof to the evidence adduced at the
probable cause proceeding, relied on hearsay evidence
improperly admitted in evidence over the Commonwealth's objection, and
misinterpreted the requirement that the defendant be "likely" to
engage in sexual offenses if not confined to a secure facility. Consequently,
we vacate the judge's finding of no probable cause and remand the matter to the
Superior Court for a new hearing.
1. Background. On
On February 14, 2001, while Reese was serving his sentence, the Commonwealth
filed a petition in the Superior Court that Reese be civilly committed as a
sexually dangerous person pursuant to G. L. c. 123A, § 12 (a).[1] The
Commonwealth secured Reese's temporary detention pending a probable cause
hearing, which was held on March 26 and 28, 2001.[2] On April 5, 2001,
the hearing judge found no probable cause to believe that Reese was a sexually
dangerous person as defined in G. L. c. 123A, § 1. Because Reese had completed
his term of imprisonment as of that date, and was being held in custody solely
on the basis of the Commonwealth's petition for civil commitment, the judge
ordered Reese's immediate release from custody, subject to the terms of his
conditional probation. The release order was not stayed and the Commonwealth
appealed. We granted its application for direct appellate review.
2. Discussion.
a. The probable cause standard. Following a petition by the Commonwealth to
commit a person as sexually dangerous pursuant to G. L. c. 123A,
§ 12 (b), a judge is required to hold a hearing to 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). At
the § 12 (c) hearing, the subject of the petition has the right to be
represented by counsel, to present evidence, and to cross-examine the Commonwealth's
witnesses. G. L. c. 123A, § 12 (d). If probable cause is found,
the person is committed to the treatment center for sixty days during which
time he is to be examined by two "qualified examiners,"[3] who
must file with the court a written report of their examination, diagnosis, and
recommendation no later than fifteen days prior to the expiration of the
sixty-day period. G. L. c. 123A, § 13 (a). Following the filing
of this report, the district attorney has fourteen days within which to
petition the court for a trial on the question whether the person is sexually
dangerous. G. L. c. 123A, § 14 (a). If a petition for trial
is filed, the trial must be held within sixty days, absent a continuance for
good cause or in the interests of justice.
The first question we address is the standard to be applied by the judge to the
evidence at the § 12 (c) hearing. In Commonwealth v. Bruno, 432 Mass. 489,
510 (2000), we noted that "[t]he § 12 (c) . . . hearing is more like
[a] bind-over hearing, with its formal requirements and adversary nature"
than an ex parte grand jury proceeding.[4]
Consequently, we concluded that the "directed verdict" standard
appropriate to a bind-over hearing was "appropriate to this type of
proceeding," not the "probable cause to arrest" standard
applicable to a grand jury proceeding.
While the bind-over hearing may be the analogue to the § 12 (c)
hearing, it is not its twin. Although they share a similar primary function, to
screen out nonmeritorious criminal cases and petitions
for commitment, the consequences of a probable cause finding in each context
are different. If probable cause is found in a bind-over hearing, the criminal
charges proceed to trial and the individual is held for trial on terms of
release or in lieu of bail. If probable cause is found in a § 12 (c)
hearing, the individual is transferred from his place of incarceration to the
treatment center for expert examination and evaluation. Depending on the
outcome of that examination, the district attorney may or may not petition the
court for a trial on the merits, but must do so within fourteen days of the
filing of the examination report with the court.
Perhaps the most important difference between the bind-over and § 12 (c)
proceedings is the quality of the evidence available to the judge. Unlike at a
bind-over hearing, where the Commonwealth is presumably in a position to
present at least its most important evidence of guilt (evidence that it will
again present at the criminal trial), the necessary and critical expert
evidence of sexual dangerousness that will be offered at a trial on a petition
for commitment under G. L. c. 123A is largely unavailable at the time
of the § 12 (c) hearing. That evidence will be the product of the
§ 13 (a) examination that occurs only after a finding of probable cause is
made at the § 12 (c) hearing.[6] Consequently, the hearing judge,
in assessing the credibility of expert witnesses who will not yet have access
to the most important sources of information in the case at the time they are
called to testify, must act with even more restraint than a judge assessing the
credibility of Commonwealth witnesses in the context of a bind-over hearing.
Considering the function of the § 12 (c) hearing and the constraints
on the evidence that will be available at the time it is to occur, as well as
the substantial public safety and liberty interests at stake, we approve the
formulation adopted by the Appeals Court in Commonwealth v. Blanchette,
supra at 175, regarding the implementation of the "directed verdict"
standard in the context of the § 12 (c) hearing. Specifically, the
decision-making process ought to consist of a two-part inquiry, one
quantitative and the other qualitative. "The judge must be satisfied,
first, that the Commonwealth's admissible evidence, if believed, satisfie[s] all of the elements of proof necessary to prove
the Commonwealth's case. Second, she must be satisfied 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."
Applying this standard to the judge's findings in this case requires vacating
his finding of no probable cause. For example, the judge found the testimony of
the Commonwealth's expert, Dr. William B. Land (whose credentials as an expert
witness were not challenged by the defendant), that Reese suffered from the
mental abnormality of pedophilia, not to be credible because the evidence on
which that opinion relied did not meet one of the "features" of the
diagnosis set forth in the Diagnostic and Statistical Manual of Mental
Disorders (rev. 4th ed. 2000), by the American Psychiatric Association
(commonly referred to as DSM-IV).[7] Specifically, the judge concluded
that: because one of the diagnostic criteria of pedophilia set forth in the
DSM-IV is, inter alia, sexually arousing fantasies,
sexual urges, or behaviors involving sexual activities with a prepubescent
child over a period of at least six months; and because the expert only had
evidence of such sexual activity occurring during the six-week period before
Reese was arrested, the diagnosis of pedophilia was "so incredible that no
reasonable factfinder could accept it." In
reaching this conclusion, the judge rejected Dr. Land's explanation that the
DSM-IV is only a diagnostic tool that does not always completely and accurately
describe every clinical situation encountered in the field, and is to be used
in conjunction with the expert's clinical experience with similar patients and
behaviors. He also rejected Dr. Land's opinion that six weeks of the admitted
sexual misbehavior, when combined with the presence of other criteria
indicative of pedophilia, was an adequate basis from which a diagnosis of
pedophilia could be made.[8]
In ruling that the expert's testimony was "incredible," the judge
couched his findings in terms of any reasonable fact finder, that is, he
concluded that "no reasonable factfinder could
accept [Dr. Land's diagnosis that Reese was a pedophile]." It is, however,
apparent from the record that the ruling is an expression of the judge's
personal conclusion regarding the expert's credibility, based on his own
opinion of the proper application of the DSM-IV, and the significance of the
differences between Dr. Land's testimony and the DSM-IV text. This was error.
The testimony of the expert is not "so incredible, insubstantial, or
otherwise of such a quality that no reasonable person could rely on it."
Commonwealth v. Blanchette, supra at 175.[9]
b. Likelihood of committing additional sexual offenses. In addition to finding
that the Commonwealth had failed to satisfy its burden of establishing probable
cause to believe that Reese suffered from either a mental abnormality or a
personality disorder, the judge also concluded that it had not adequately
established that Reese was "likely to engage in sexual offenses if not
confined to a secure facility." The judge based this conclusion both on
his assessment of the credibility of Dr. Land's testimony that Reese would
"likely" commit such an offense, and on his legal conclusion that
"likely to engage in sexual offenses" means that "there is a
substantial likelihood, at least more likely than not, that the respondent will
commit a new sexual offense within the immediate future, understood generally
to be within the next five years but with a longer time horizon if the
anticipated harm is extremely serious."
The judge's rejection of Dr. Land's testimony that Reese was likely to commit
sexual offenses, and his formulation of the meaning of the statutory
requirement that a person be "likely to engage in sexual offenses"
were, in turn, based largely on his conclusion that articles authored by Dr. R.
Karl Hanson on sexual recidivism and studies of sexual recidivism were more
reliable than Dr. Land's testimony and more legally authoritative. These
articles were offered in evidence by Reese's counsel at the judge's urging
during the § 12 (c) hearing.[10]
Their admission was objected to by the Commonwealth and was error. The articles
were never established as reliable or authoritative, contain nothing but
inadmissible hearsay, and do not satisfy any of the exceptions to the hearsay
rule. They do not fall within the "learned treatises" exception as
set forth in Proposed Mass. R. Evid. 803 (18),
because that rule only allows statements in treatises or periodicals that have
been established as reliable authorities to be read into evidence on
cross-examination of an expert, and does not permit their admission as
exhibits. Brusard v. O'Toole, 429
Finally, as to the meaning of the term "likely," the judge did not
have the benefit of our recent decision in Commonwealth v. Boucher, ante 274
(2003), interpreting that term as it is used in G. L. c. 123A. The
meaning that we have ascribed to it does not include the requirement that the
Commonwealth prove that the respondent is "more likely than not" to
commit additional sexual offenses if not confined.
3. Conclusion.
For the foregoing reasons, we vacate the finding of no probable cause and
remand the case for a new probable cause hearing.
So ordered.
FOOTNOTES:
[1] In relevant part, a sexually dangerous person is
defined in G. L. c. 123A, § 1, as any person "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 if not confined to a secure facility."
[2] The Commonwealth's petition was filed
approximately six weeks before Reese was to be released from his sentence of
incarceration. As that date drew near, the Commonwealth successfully sought to
have him detained pending the outcome of the probable cause hearing pursuant to
G. L. c. 123A, § 12 (e).
[3] A "[q]ualified
examiner" is defined in G. L. c. 123A, § 1, as: "a
physician who is licensed pursuant to section two of chapter one hundred and
twelve who is either certified in psychiatry by the American Board of
Psychiatry and Neurology or eligible to be so certified, or a psychologist who
is licensed pursuant to sections one hundred and eighteen to one hundred and
twenty-nine, inclusive, of chapter one hundred and twelve; provided, however,
that the examiner has had two years of experience with diagnosis or treatment
of sexually aggressive offenders and is designated by the commissioner of
correction. A 'qualified examiner' need not be an employee of the department of
correction or of any facility or institution of the department."
[4] A bind-over hearing is held pursuant to G. L. c.
218, § 30: "[The District Court] shall commit or bind over for trial
in the superior court persons brought before them who appear to be guilty of
crimes not within their final jurisdiction, and may so commit or bind over
persons brought before them who appear to be guilty of crimes within their
final jurisdiction." Bind-over hearings are subject to the procedural
requirements of G. L. c. 276, § 38: "The court or justice before whom a
person is taken upon a charge of crime shall, as soon as may be, examine on oath
the complainant and the witnesses for the prosecution, in the presence of the
defendant, relative to any material matter connected with such charge. After
the testimony to support the prosecution, the witnesses for the prisoner, if
any, shall be examined on oath, and he may be assisted by counsel in such
examination and in the cross examination of the witnesses in support of the
prosecution."
[5] As has been noted in decisions since Myers v.
Commonwealth, 363 Mass. 843 (1973), the bind-over directed verdict standard
requires some assessment of credibility. Credibility generally plays no role in
the analogous, but not identical, directed verdict decision at trial where the
evidence is to be viewed in the light most favorable to the nonmoving party.
See, e.g., Commonwealth v. Blanchette,
[6] Once a finding of probable cause has been made
and qualified examiners appointed, G. L. c. 123A, § 13 (b), requires
that the examiners be provided with a wealth of important materials to assist
them in their examination and diagnosis: "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 in the district attorney's or the attorney
general's possession. The agency with jurisdiction over the person named in the
petition shall provide such examiners with copies of any incident reports
arising out of the person's incarceration or custody."
[7] The Diagnostic and Statistical Manual of Mental Disorders
(rev. 4th ed. 2000) was not admitted in evidence, and the questions regarding
it came principally from the judge.
[8] The expert did not note that whether Reese had
had sexual fantasies about children before June 15, 1997, or acted out on those
fantasies, might not be known until a full examination and evaluation of Reese
had taken place, and, further, that there was no reason to believe that the
behavior would not have continued past July 31, 1997, if it had not been
interrupted by his arrest. The fact that aberrant behavior is abbreviated by
law enforcement before it has run its full course can hardly be said to affect
the underlying mental condition causing it.
[9] The same analysis could be made with regard to
the judge's assessment of Dr. Land's credibility regarding his expert opinion
that Reese also suffered from an antisocial personality disorder. We need not
address this, however, because either diagnosis is adequate to satisfy the
definitional requirements of a sexually dangerous person in G. L.
c. 123A, § 1.
[10] The articles are: Hanson, What Do We Know About
Sex Offender Risk Assessment?, 4 Psychol.,
Pub. Pol'y and L. 50-72; Hanson, Predictors of Sexual
Offender Recidivism: A Meta-Analysis (User Report No. 96-04)