Opinion
13-P-1562
01-09-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 22240 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from his classification as a level three sex offender by the sex offender registry board (board), asserting error in the denial of funds to retain an expert, improper application by the board of its own regulatory factors and error in the admission in evidence of a petition for his civil commitment as a sexually dangerous person (SDP).
Procedural background. The classification hearing here on appeal was conducted after a remand ordered by a judge of the Superior Court who determined that the hearing examiner had previously erroneously denied a request for expert funds on the basis that the board's case did not include expert testimony. See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770-776 (2008) (Doe, No. 89230). On remand the hearing examiner again denied expert funds, reasoning that the facts the plaintiff wished to prove, even if accepted in their entirety, would not avail his case.
Factual background. The plaintiff's history of sexual offenses is not disputed: On June 6, 1983, the plaintiff raped a twenty three year old female stranger. The victim was walking home on Brighton Avenue in Boston. The plaintiff pulled up to her in his car and asked for directions. He got out of his car with a map and asked her to point out the directions. He then pulled out a knife, placed it to her throat and forced her into the back seat of his car where he vaginally raped her.
The facts of this aggravated rape were gleaned from the "Petition for Commitment of Sexually Dangerous Person" that was filed against the plaintiff by the district attorney for the Suffolk district in 2008.
On March 20, 1990, the plaintiff raped a twenty three year old female stranger. The victim had left a Boston club and found herself with the plaintiff in a rear stairwell of an apartment building located at 270 Babcock Street. The plaintiff pulled her upstairs and into an apartment. He put her on a pull-out sofa bed where he vaginally raped her and performed cunnilingus. He tried to put his penis in her mouth and when she refused he again vaginally raped her.
On April 5, 1990, the plaintiff raped a twenty-one year old female stranger. The victim was in the same Boston club as the second victim described above. She was approached by the plaintiff who told her that the friend that she had gone out with was waiting for her and that he would take her to the friend. She followed him to an apartment at 270 Babcock Street. As she entered the apartment she realized her friend was not there. She attempted to leave but was forced by the plaintiff into a darkened room and pushed down on a pull-out couch. The plaintiff forced the victim to engage in both vaginal and oral intercourse.
We refer to additional facts as they may be relevant to our consideration of the issues.
Discussion. Expert funds request. The plaintiff's claim of error in the denial of funds for the presentation of expert testimony is based on a proffer that he suffers from bipolar disorder characterized by hypersexuality and aggravated by sleep apnea. He proffered an expert who would testify that since his offenses he has been taking medication for his bipolar disorder and that, consequently, his likelihood to reoffend is substantially diminished. While Doe is correct that this proffer invokes the factors from 803 Code Mass. Regs. § 1.40 (2004), Doe, No. 89230, supra, the argument is unavailing because the board was willing to assume the credibility of the evidence, proffered through the testimony of the plaintiff's treating psychologist, in considering his classification. In the context of the significant number of other aggravating factors, see note 6, infra, the plaintiff derived the benefit he would have enjoyed from producing an expert. Thus, under "the individual circumstances of the case" the board cannot be said to have abused its discretion in determining that funds for expert testimony were unnecessary. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 624 (2010).
The plaintiff's treating psychologist testified pro bono to this effect. The hearing examiner accepted the testimony that treatment protocols, when followed, would alleviate the defendant's hypersexuality and sleep apnea. She found, however that the witness had "very little experience with sex offenders," and that he was not a qualified expert "for purposes of this classification hearing." Accordingly, she did not credit his ultimate conclusion that treatment of the defendant's bi-polar disorder would result in a low likelihood of reoffense. In denying the plaintiff's request for funds for an expert to testify to that effect, she determined that, even were the defendant to replace the witness with a qualified expert to testify to a low likelihood of reoffense, it would be unavailing considering the presence of many of the other statutorily recognized factors, including the use of a weapon during the offense.
The ultimate issue of likelihood of reoffense is the province of the hearing examiner, Doe, Sex Offender Registry Board No. 68549 v. Sex Offender Registry Board, 470 Mass. 102, 111-112 (2014); the plaintiff claims prejudice from his inability to present an expert to testify to that ultimate issue despite the fact that the underlying testimony of his psychologist was, in fact, admitted in evidence through testimony by the plaintiff's treating psychologist and accepted as credible, as discussed, supra note 2.
This does not negate the fact that it would also not have been an abuse of discretion, and would have been a far better practice in these circumstances, to allow the plaintiff's request.
The plaintiff moved for expert funds both before the hearing and at the close of evidence. The hearing examiner fully considered the motion both times.
Sufficiency. The plaintiff asserts that, pursuant to 803 Code Mass. Regs. § 1.40, the record in this case does not support a level three classification. He points to the fact that his offenses were committed between the ages of twenty-four and thirty-one years, with the most recent incident occurring in 1990. He further asserts that he is now stable, consistently taking medication for his bipolar disorder, has completed phase III of the sex offender treatment, has devised his own relapse prevention plan, and has "invested time in many spiritual programs." Accordingly he characterizes the evidence as demonstrating that he has gained control over his previous hypersexuality, but that, notwithstanding these mitigating factors, the hearing examiner erroneously applied other, aggravating, factors. We do not agree.
The hearing examiner identified twelve aggravating factors. These factors are supported by the record and reflect the exercise of discretionary ability vested in the examiner. In addition, the fact that treatment protocols, properly observed, would reduce hypersexuality, is largely unavailing in this case because the record also demonstrates that the plaintiff relapsed following his discharge, consumed alcohol, and engaged in tumultuous behavior. Thus the hearing examiner found, with support in the evidence, that "it is too soon to conclude that [the plaintiff] is not at risk of further substance abuse relapse."
The findings, in relevant part, were: Factor 2 -- repetitive and compulsive behavior: the plaintiff engaged in "repetitive" and "compulsive" behavior as evidenced by his raping three victims on separate occasions. Factor 7 -- stranger victim: the plaintiff raped three women whom he did not know. Factor 8 -- use of a weapon in commission of sex offense: the plaintiff used a knife to make the first victim compliant with his sexual assault. Factor 9(a) -- length of time in the community offense free: the plaintiff had been in the community less than two years prior to the remanded board hearing. Factor 9(c)(1) -- sex offenses in public places: the plaintiff raped the first victim in his car, which was parked on a heavily trafficked street. Factor 9(c)(3) -- multiple sexual assaults during a single offending episode: the plaintiff committed two aggravated rapes against the second victim during a single episode and forced the third victim to perform both vaginal and oral sex. Factor 9(c)(7) -- level of physical contact: the plaintiff's multiple penetrations against the second victim constituted a high level of physical contact during the sex offense. Factor 9 (c)(9) -- multiple victims: the plaintiff raped three women. Factor 9(c)(12) -- sexually violent offenses: the plaintiff was convicted of four counts of aggravated rape. Factor 16 -- substance abuse: the evidence established that the plaintiff has a history of substance abuse and that his sex offenses were the result of excessive drinking. Factor 17 -- sex offender treatment while incarcerated: the plaintiff, during his most recent incarceration, refused to participate in the final phase of the Massachusetts Sex Offender Treatment Program. Factor 19 -- adjustment to incarceration: the plaintiff had numerous disciplinary reports during his most recent incarceration.
Accepting as credible the expert testimony proffered by the plaintiff in his request for funds, this record nevertheless contains substantial evidence supporting the board's determination. For example, and as the hearing examiner noted, "I do not find that [hypersexuality] fully accounts for the more planned criminal aspects of [the plaintiff's] acts, including the use of deception and, in one instance, a weapon." The plaintiff's argument may properly be characterized as a disagreement over the weight accorded the evidence. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011) (Doe, No. 10800). Admission of SDP report. The plaintiff asserts reversible error in the examiner's reliance on the petition to have him civilly committed as a sexually dangerous person filed by the district attorney in 2008. He claims that the hearing examiner's consideration of the report violated the judge's order remanding the case to the board after the initial hearing. We disagree.
The judge found error in the admission of the petition because the hearing examiner relied on an expert report contained therein that opined that the plaintiff was sexually dangerous, without any testimony at the hearing from the expert. On remand the hearing examiner admitted the petition for the limited purpose of relying on other evidence contained therein, ruling that it contained the kind of evidence on which reasonable person could rely in the conduct of serious affairs. 803 Code Mass. Regs. § 1.19(1) (2002). The hearing examiner specifically stated that she would not rely on the expert report disallowed by the judge. We must credit that statement. Doe, Sex Offender Registry Bd. No. 22351 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 904, 906 (2012). The remaining portions of the report are the type of evidence contemplated by 803 Code Mass. Regs. § 1.19(1) and were properly relied on by the examiner. Moreover, the evidence contained in the sexually dangerous person petition was cumulative of other evidence and corroborated by the defendant in an affidavit he submitted to the examiner. Even if the examiner improperly relied on the petition, there was other evidence in the record sufficient to support the examiner's findings. Doe, No. 10800, supra at 639.
Judgment affirmed.
By the Court (Grainger, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: January 9, 2015.