Opinion
No. 11–P–2041.
2013-12-13
John DOE, Sex Offender Registry Board No. 13665 v. SEX OFFENDER REGISTRY BOARD.
By the Court (KAFKER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the decision of the Sex Offender Registry Board (board) to classify Doe as a level three sex offender, and from the denial of his motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). Doe raises four arguments on appeal: (1) the timing of the final classification hearing was unreasonable, or arbitrary or capricious; (2) the denial of expert funds was improper; (3) unreliable hearsay was improperly admitted, and (4) the consideration of Doe's admissions when applying the regulatory factors was improper.
Discussion. 1. Timing of final classification hearing. Doe argues the timing of his final classification hearing was unreasonable, or arbitrary or capricious, because he did not have a proximate release date. At the time of Doe's final classification hearing, Doe had been civilly committed as a sexually dangerous person (SDP) for four years, his release date was unknown, and he was not on the G.L. c. 123A, § 9, trial list. The board can conduct a final classification hearing while an individual is civilly committed as an SDP. See Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 904, 904–905 (2012). This court has clarified that for an incarcerated individual the evidentiary hearing must be “held at a reasonable time prior to release.” Doe, Sex Offender Registry Bd. No. 6904 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 67, 75 (2012). See id. at 76–78 (holding classification hearing four years prior to release was unreasonable absent an administrative justification). However, determining a release date for an SDP to guide the timing of the classification hearing is difficult. See Doe, Sex Offender Registry Bd. No. 22351, supra at 905 (“The fact that an SDP theoretically could be released at any time provides more reason to go forward with the classification process now, not less”).
Here, conducting a final classification hearing four years into Doe's civil commitment was reasonable. At the time of the hearing the board did not know when Doe would be released. There is no requirement that the board wait to conduct the classification hearing until the SDP petitions for a hearing pursuant to G.L. c. 123A, § 9.
As a result, the board did not act arbitrarily or capriciously, or unreasonably, in scheduling Doe's classification hearing.
There may be limits to when it is reasonable to conduct a hearing for a civilly committed SDP but since this hearing was conducted four years into the commitment, we decline to comment on what those limits may be. Cf. Doe, Sex Offender Registry Bd. No. 196490 v. Sex Offender Registry Bd., 82 Mass.App.Ct. 1116 (2012) (rule 1:28 decision remanding the timing issue to the board when the classification hearing was initially held during incarceration on the index crimes but prior to the start of civil commitment that immediately followed the term of incarceration). Furthermore, determining the most appropriate timing of this type of hearing for a civilly committed SDP is more appropriately a question to be answered by the Legislature.
2. Expert funds. Doe argues it was an error to deny his request for expert funds. Granting funds for an expert is a discretionary determination for the board. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 774 (2008); Doe, Sex Offender Registry Bd. No. 27914 v. Sex Offender Registry Bd., 81 Mass.App.Ct. 610, 617–618 (2012) (noting a plaintiff must establish the denial was arbitrary, capricious, or an abuse of discretion to prevail on appeal). In order to obtain funds, the burden is on the sex offender to “identify or articulate the condition or circumstance particular to him that requires a particular type of expert.” Id. at 617 (holding burden was not met by claiming to need an expert to provide a “better understanding of his deficits, and to challenge or place in a more favorable context certain police reports used at the hearing”). See Doe, Sex Offender Registry Bd. No. 89230, supra at 775.
Here, we do not reach the question whether Doe's motion was sufficient to meet his burden of explaining why he needed the funds,
because the denial was not an abuse of discretion, arbitrary, or capricious. The hearing examiner provided two reasons for denying the request for expert funds. First, Doe's case did not implicate any of the factors that are likely to require expert testimony.
Doe asserts that he needed funds to engage an expert to explain his propensity to lie due to “some psychological or psychiatric condition.”
See ibid. (explaining that “factors 1, 13, and 15 [under 803 Code Mass. Regs. § 1.40] ... appear to us to concern issues for which expert evidence presented ... may be most relevant and material”). Second, the hearing examiner found the request “disingenuous” because the potential psychological condition had not been raised in any prior proceedings where the statements were used or at any other time. This was a rational basis for denying the motion and was not an abuse of discretion.
The hearing examiner also did not analyze any of these three factors in his decision concerning Doe's classification.
3. Hearsay evidence. During the hearing, the board introduced several reports that mention other sexual misconduct for which Doe was never charged or convicted. According to Doe's affidavit and qualified examiner Dr. Kiley's report of October, 2000, which was not entered into the record, Doe admitted these incidents occurred prior to the classification hearing.
Doe argues that the references to his prior admissions, that he engaged in various acts of sexual misconduct with children, are unreliable hearsay. The board can admit and rely on hearsay evidence that “bear[s] indicia of reliability.” Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011). See Doe, Sex Offender Registry Bd. No. 89230, supra at 778. Here, the admissions were introduced into the record through reports that referenced a report by Dr. Kiley, records from Hillcrest Educational Centers, and a psychologist evaluation conducted in 1998. If it were not for the totem pole reporting of the statements, these statements would not be hearsay and would be admissible in court. See Commonwealth v. Mendes, 441 Mass. 459, 467 (2004) (“It was not hearsay, but a statement the defendant made ... and admissible as the statement of a party opponent”). The statements are also against Doe's penal interest, which might also make them admissible in court under a hearsay exception, if it were not for the totem pole nature of the evidence. See Commonwealth v.. Weichell, 446 Mass. 785, 802–803 (2006). The statements at issue here are the type of out-of-court statements that have enough indicia of reliability to be admitted in this administrative hearing .
Doe does not contend that the statements were not made, but instead that they were false when he made them: “I told various people at the [Department of Social Services], Plymouth police, the Baird Center, the Hillcrest Educational Center and various Qualified Examiners that I sexually acted out with various persons other than the Victim.... I believe that I suffer from a psychological need to attract attention to myself because of my tumultuous childhood and that, in doing so, I falsely confessed to inappropriate sexual behavior with persons other than the victim that never happened.”
There was no error in admitting these statements.
Doe was capable of making the declarant of the statements, himself, available to explain the statements.
4. Consideration of self-reported incidents of sexual misconduct while applying regulatory factors. Doe argues it was an abuse of discretion and error of law to consider his self-reported acts of sexual misconduct under the regulatory factors of 803 Code Mass. Regs. § 1.40(2), (9) (2002). There was no error in considering the admissions under factor 2 because that factor does not require the incidents to have resulted in convictions. See Doe, Sex Offender Registry Bd. No. 89230, 452 Mass. at 777–778 (conduct underlying a continuance without a finding can be considered under § 1.40[2] to find the behavior “repetitive and compulsive”). See also Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 765 (2006). There was error, however, in considering the self-reported incidents of sexual misconduct under factor 9, which is conceded by the board.
More specifically, the error occurred in the hearing examiner's analysis of § 1.40(9)(c)(2), (c)(9), and (c)(11).
Title 803 Code Mass. Regs. § 1.40(9) specifically refers to the offender's criminal history and defines a “new offense” under § 1.40(9)(a) “as a conviction or adjudication for any sex offense, or, a conviction or adjudication for any offense that results in the offender serving a period of confinement that exceeds 60 days.” Here, these self-reported incidents did not result in a conviction, and so were improperly considered under this factor.
This error was harmless, however, because the board's classification of Doe as a level three sex offender was still supported by substantial evidence without using the considerations described in the above three subparts to § 1.40(9). Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a conclusion.” See Doe, Sex Offender Registry No. 10800, supra at 632, quoting from G.L. c. 30A, § 1(6). Here, the error occurred in one of the additional factors that the Legislature suggests should be considered but, significantly, is not designated as one of the six factors indicative of a high risk of reoffense. See G.L. c. 6, § 178K(1)( a ), ( b ). The hearing examiner's decision is still supported by his finding that three of the six legislatively designated high-risk factors applied to Doe.
Cf. Doe, Sex Offender Registry Bd. No. 10216 v. Sex Offender Registry Bd., 447 Mass. 779, 788 (2006) (noting presence of three of the six high risk factors support the hearing examiner's level three classification of the plaintiff). In addition, the hearing officer found several additional factors to be present aside from those we have determined could not be considered. These factors included problematic recent behavior,
Specifically, the hearing examiner found the following high risk factors: (1) Doe is an adult offender with a child victim (803 Code Mass. Regs. § 1.40[3] ); (2) Doe was adjudicated as an SDP (§ 1.40[5] ); and (3) Doe manifests repetitive and compulsive behavior (§ 1.40[2] ). The self-reported incidents of sexual misconduct were properly considered under the repetitive and compulsive behavior risk factor. However, even without that information, the hearing examiner could have found this factor was present based upon the two separate incidents with the victim in the indexing offense. See 803 Code Mass. Regs. § 1.40(2) (“[C]ertain offenders manifest their compulsive behavior by engaging in a continuing course of sexual misconduct involving separate incidents with either the same victim or others”). See also Doe, Sex Offender Registry Bd. 6904, 82 Mass.App.Ct. at 79–80 (two incidents of sexual misconduct supported finding of repetitive and compulsive behavior).
no access to the community for nine years, termination from sex offender treatment, having an extrafamilial victim, having an extravulnerable victim, and uncertain personal circumstances. This was substantial evidence.
The problematic recent behavior included reports that Doe discussed with another inmate an interest in “juvenile females, specifically how they lured and seduced their victims” and possessed in his room photographs of another inmate's great niece at age five and eight.
Judgment affirmed.
Order denying motion under Mass.R.Civ.P. 60(b) affirmed.