Opinion
No. 12–P–615.
2013-07-15
COMMONWEALTH v. Richard J. LAMOTHE.
By the Court (BERRY, KATZMANN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant, a level three sex offender, was convicted of knowingly failing to provide notice of a change of address, in violation of G.L. c. 6, § 178H( a )(1). On appeal, the defendant argues that the Commonwealth failed to establish the “knowledge” element of the offense because certain forms provided by the Sex Offender Registry Board (board) were unclear as to the defendant's registration requirements. We conclude that one of the Commonwealth's two theories of proof lacked sufficient evidentiary support. For the reasons that follow, we reverse.
1. Background. On June 14, 2010, the defendant arrived at the Weymouth police department to register his then current Weymouth address with the board. Soon thereafter, the board mailed to the defendant a written form confirming the defendant's compliance with the statutory registration requirements. This form also advised the defendant that he was required, “when possible,” to notify the police department in person ten days prior to any future change in residence. At trial, Detective Rainford of the Weymouth police department testified that, despite the “when possible” language in the above-mentioned form, he orally notified the defendant, both on June 14 and June 22, 2010, that the defendant was required to provide notice to the Weymouth police department, in person, ten days prior to any change in residence. See G.L. c. 6, §§ 178E( h ) & 178F 1/2.
On July 1, 2010, the board sent a letter reminding the defendant of his registration requirements. The letter stated, among other things, that “you must notify, in writing, the [board] and/or the Police Department (level 2 and 3 offenders) in the city or town in which you reside not less than 10 days prior to any change in residence ....“ The letter contained no indication that a change of address would trigger an obligation to report to the police department in person.
On July 19, 2010, the defendant notified the board by mail that he had relocated to an address in Quincy.
The board responded with a letter, mailed to the Quincy address, advising the defendant that his change-of-address notification could not be processed because he was required, as a level three sex offender, to report in person to the Quincy police department. The notice did not provide a specific timeline for reporting but stated only that “[t]his should be done as soon as possible.” The defendant never reported to either the Weymouth or the Quincy police departments in person. He was consequently arrested on August 13, 2010.
The new Quincy address was a homeless shelter.
2. Discussion. At trial, the Commonwealth advanced two theories of proof as to how the defendant violated the registration requirements for level three sex offenders. The first theory was that the defendant knowingly failed to report to the Weymouth police department, in person, ten days prior to changing his address, as is required by G.L. c. 6, §§ 178E( h ) & 178F 1/2. The second theory was that the defendant knowingly failed to report, in person, to the Quincy police department after arriving at the new Quincy address, as is required by G.L. c. 6, § 178F 1/2. We conclude that the trial evidence failed to establish a knowing violation under the Commonwealth's first theory.
Our analysis is controlled in all material respects by Commonwealth v. Kateley, 461 Mass. 575 (2012) ( Kateley ), a case in which a level two sex offender was convicted of failing to register a secondary address. In Kateley, the Supreme Judicial Court reversed the defendant's conviction, determining that the Commonwealth did not prove beyond a reasonable doubt that the defendant knowingly failed to register because several written notices provided to the defendant were inconsistent in describing his reporting obligations. Id. at 583.
The notice received by the defendant in this case was fraught with similar inconsistencies. Despite Detective Rainford's testimony that he orally advised the defendant of his reporting obligations, the written notice from the board confused the issue. As noted, the board's July 1, 2010, letter stated that the defendant was required to provide notice to the board “and/or” the police department ten days prior to a change of residence. The letter also stated that the notice need only be written, as opposed to in-person notice. As such, the letter did not state that the defendant had a specific obligation to register his change of address, in person, at the Weymouth police department.
Significantly, the misleading language in this July 1, 2010, letter is identical to one of the phrases at issue in Kateley. In Kateley, the court specifically advised the board to revise the form containing this particular language to “clearly and accurately” reflect an offender's duty. Ibid. Under the circumstances, we conclude that the Commonwealth failed to establish that the defendant's violation, as to the first theory of proof, was knowingly committed. In addition, we note that the trial judge was presented with evidence that the defendant has an I.Q. of 70. Such evidence of the defendant's below average intelligence may have compounded the deficiencies in the board's written notice.
The Commonwealth's second theory of proof—that the defendant knowingly failed to register in Quincy within five days of the receipt of the July 1, 2010, letter—survives scrutiny under Commonwealth v. Latimore, 378 Mass. 671, 677–678 (1979). The July 1, 2010, letter clearly instructs, in bold print, that “[f]ailure to report to the police department within five (5) calendar days of the receipt of this letter will result in prosecution” and that the defendant must appear at the local police department in the city or town where he lives during the month of his birth (his month of birth is July). Although the board's next letter stated only that the defendant should report to the police department “as soon as possible,” we think that the two letters, taken together, adequately apprised the defendant of his duty.
We note that the Supreme Judicial Court's recent decision in Commonwealth v. Loring, 463 Mass. 1012 (2012) ( Loring ), states that a defendant's duty to register in person at the police station in response to the board's verification form arises only in “the year after the year in which the offender obtained an address in a particular municipality requiring registration at ‘the local police department.’ “ However, Loring, supra at 1013, also specifically states that this rule applies only “[a]bsent a change of address.” Thus, where the defendant here had changed his address immediately prior to receiving the verification letter, we conclude that the Loring “subsequent year” interpretation does not apply.
Nevertheless, because one of the Commonwealth's theories lacked sufficient evidentiary support, and because the judge did not specify the theory upon which he based his general verdict, we are constrained to reverse the defendant's conviction. “Since a general verdict was returned, the evidence must be sufficient as to all of the theories on which the case was submitted to the factfinder to avoid a retrial.” Commonwealth v. Manzelli, 68 Mass.App.Ct. 691, 695 n. 8 (2007). See Commonwealth v. Kickery, 31 Mass.App.Ct. 720, 724 (1991 (overruled on other grounds, 438 Mass. 486, 496 n. 12 [2003] ), quoting from Yates v. United States, 354 U.S. 298, 312 (1957) (“[T]he proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected”).
Judgment reversed.
Verdict set aside.