Opinion
09-P-410
02-22-2012
EUGENE RECTOR, petitioner.
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 petitioner, Eugene Rector, has been committed to the Massachusetts Treatment Center as a sexually dangerous person (SDP) for many years, pursuant to G. L. c. 123A. Although he does not expressly contend in this appeal that he is not currently sexually dangerous within the meaning of the statute, he argues that delays of nearly five and one-half years between the filing of his petition for release and a decision on the merits violated his rights to due process and a speedy trial and therefore compel his release. While a petitioner is entitled to timely consideration of his petition for release under G. L. c. 123A, § 9, Rector caused or acquiesced in most of the delays in this case and suffered no prejudice. His due process and speedy trial rights therefore were not violated, and so we affirm.
Background. Rector is an admitted pedophile who has stated, 'I love having sex with children.' He also reported engaging in sexual activity with younger children when he was as young as nine years old. He has described engaging in inappropriate sexual behavior with children as young as three years old throughout his teenage years, and admits having raped a seventeen year old acquaintance when he was nineteen. In 1982, when he was twenty-one years old, Rector sexually assaulted a six year old girl on two occasions. He pleaded guilty to two counts of rape of a child and two counts of indecent assault and battery for those incidents. In 1986, while on parole for the prior offenses and soon after his release from prison, he raped a thirteen year old girl in front of two boys, aged seven and twelve. Following this incident, he pleaded guilty to rape of a child and was committed as an SDP for one day to life. Rector had previously had his petitions for release heard three times, in 1991, 1993, and 1998, and each time he was found to remain sexually dangerous.
On January 3, 2001, Rector withdrew two prior petitions for release that had been scheduled for trial in December, 2000, and January, 2001. On January 23, 2001, he filed a new petition for release pursuant to G. L. c. 123A, § 9. Along with his petition, he filed a motion for a speedy hearing and several other motions, including a motion for appointment of counsel and a motion for funds for an independent psychiatric examination. Counsel was appointed for him a few weeks later. No further action was taken on the petition until October 29, 2001, when Rector sought the withdrawal of his counsel and appointment of new counsel. New counsel was appointed for him on December 11, 2001.
On April 23, 2002, Rector filed a second petition for release, substantially identical to the first, that was accompanied by the same set of motions. This petition was later consolidated with the January, 2001, petition. No activity on either petition took place until March 15, 2003, when both were set for a trial date in December, 2003.
In November, 2003, Rector moved to continue the trial 'in order to obtain a second independent evaluation,' and then again moved for the appointment of new counsel. The trial was continued after a hearing, at which the record suggests the judge found that Rector had waived his speedy hearing rights by declining to proceed to trial. In January, 2004, a March, 2004, trial date was set, but this too was continued due to the unavailability of Rector's new counsel. Following an unexplained lull of several months, in December, 2004, a trial date in May, 2005, was set. On March 21, 2005, Rector's counsel moved to withdraw based on Rector's representations that his family was retaining private counsel. While no private counsel entered an appearance in this matter, appointed counsel halted his trial preparation for a time.
On April 16, 2005, Rector again moved to continue the trial on the basis that his appointed counsel no longer had enough time to retain new experts, obtain reports from them, and comply with discovery obligations in advance of trial. After a hearing on May 2, 2005, a judge denied Rector a continuance, but agreed to keep the evidence open until June, 2005, to allow him time to obtain and present additional evidence. After multiple days of trial starting on May 20, 2005, a death in the family of the Commonwealth's counsel necessitated a delay of a few weeks. Despite the Commonwealth's and the court's attempts to schedule a new trial date, the judge was ill for two months and Rector's attorney was unavailable for two months.
A date of December 28, 2005, was set for the resumption of trial, but this did not occur, possibly because Rector's counsel appeared in the wrong courtroom. Even though the Commonwealth's counsel was participating in other jury trials in January and February, 2006, the trial resumed on February 17, 2006, and concluded on February 22, 2006. The parties filed proposed findings of fact and rulings of law on March 17, 2006, by agreement, and a memorandum and order finding Rector still sexually dangerous issued on July 28, 2006.
The judge traveled from Middlesex to Suffolk County on several consecutive trial days to hear evidence in this matter while the Commonwealth's counsel awaited a jury verdict in another trial.
Rector also made a pro se posttrial filing on April 20, 2006, purportedly pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981). The judge did not reference this filing in her decision, and it is unclear whether it contributed to the lag between the posttrial filings and the decision on the merits.
Speedy hearing. An individual committed indefinitely as an SDP is entitled to a speedy hearing under the statute and as a matter of due process. See G. L. c. 123A, § 9, as appearing in St. 1993, c. 489, § 7, ('The petitioner shall have a right to a speedy hearing . . .'). Cf. Commonwealth v. Blake, 454 Mass. 267, 268 (2009); id. at 277-281 (Ireland, J., concurring); id. at 284-286 (Marshall, C.J., concurring). However, while a committed individual may bring a petition once every twelve months, the statute does not set a deadline by which the petition must be decided. See Trimmer, petitioner, 375 Mass. 588, 590 (1978).
While the Commonwealth has an obligation to make efforts to have a petition for release heard in a timely fashion, it does not have sole responsibility for bringing the petition to a conclusion. '[T]he court ultimately sets trial dates and is responsible for seeing that they are met.' Commonwealth v. Sanchez, 74 Mass. App. Ct. 31, 34 (2009). As in criminal cases, the petitioner 'shares the obligation to take active steps to move his case through the system.' Commonwealth v. Lynch, 70 Mass. App. Ct. 22, 27 (2007), citing Barry v. Commonwealth, 390 Mass. 285, 296-297 (1983). When a petitioner causes or acquiesces in delays, he cannot claim that he has suffered prejudice therefrom. See Commonwealth v. DeBella, 442 Mass. 683, 690-691 (2004).
Throughout the pendency of the instant petitions, Rector did not advance his case and sought numerous continuances and postponements. Although there was a long delay between the filing of Rector's January, 2001, petition and his first trial date, it is clear that Rector was not prepared to proceed during this time period. Rector's only action during that time was to demand new counsel, thereby effectively slowing the course of the petition for his own benefit. See Lynch, supra at 26-27 & n.3. When the trial date approached, Rector was not ready to proceed and therefore acquiesced in the failure to hold a trial to that point. See DeBella, supra at 690 (no prejudice where 'counsel was not prepared to go to trial').
After missing his first trial date, Rector again prolonged the proceedings by having a third attorney appointed, and this attorney was unavailable on the next trial date set for Rector's case. Although this continuance was followed by another delay of perhaps as much as fourteen months before the next trial date, Rector took no action to assert his rights to a speedy hearing, instead stalling any progress with an unsuccessful attempt to change attorneys yet again. By May, 2005, Rector had once more acquiesced in the process by seeking to continue his trial. Subsequent delays up to the conclusion of trial were either unavoidable or due primarily to the unavailability of Rector's attorney. At most two months' worth can be fairly attributed to the Commonwealth, and those periods were reasonable in light of Rector's halting approach towards his petitions.
The delay of three to five months between the conclusion of trial and the judge's decision on the merits is also disappointing, but does not in and of itself entitle Rector to any relief. See Blake, 454 Mass. at 268; id. at 280 (Ireland, J., concurring); id. at 281-282 (Gants, J., concurring).
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Apart from the fact that Rector brought about and/or acquiesced in most of the delays in this case, he suffered no prejudice attributable to them. While Rector could have gone forward without any expert testimony of his own, see Wyatt, petitioner, 428 Mass. 347, 360 (1998), and cases cited, he continued the proceedings for years because he was not able to find experts to give favorable reports. He did not obtain Dr. Kriegman's report, which did not conclude definitively that Rector was or was not sexually dangerous, until December, 2005, and trial resumed within days of Dr. Prentky's report finding him not sexually dangerous. Rector therefore benefited from the passage of time. See Lynch, 70 Mass. App. Ct. at 26-27. Moreover, Rector's petition was ultimately unsuccessful on the merits, and he has identified no way in which his case was impaired by the delays. See id. at 27, quoting from Commonwealth v. Lanigan, 419 Mass. 15, 20 (1994) ('The prejudice that is relevant is the impairment of the defendant's case by reason of the delay'). In the absence of prejudice, Rector is not entitled to the relief he seeks. Cf. Blake, 454 Mass. at 277 (Ireland, J., concurring). Cf. id. at 281-282 (Gants, J., concurring) (even significant adverse consequences did not justify release where delays 'did not affect the fairness of [the petitioner's] trial, his procedural rights at trial, or the judge's findings of fact and conclusions of law').
Judgment affirmed.
Order denying motion to vacate judgment affirmed.
By the Court (Kafker, Mills & Fecteau, JJ.),