Opinion
No. 15–P–569.
11-04-2016
COMMONWEALTH v. Daniel D. ALMEIDA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a bench trial in 2010, the defendant was found to be a sexually dangerous person under G.L. c. 123A and was committed to the Massachusetts Treatment Center. This court affirmed that determination in Commonwealth v. Almeida, 83 Mass.App.Ct. 451 (2013), and the defendant sought further appellate review. The Supreme Judicial Court vacated the judgment, Commonwealth v. Almeida, 467 Mass. 1015 (2014), and remanded the case to the Superior Court for application of the standard announced in Commonwealth v. Suave, 460 Mass. 582 (2011), which was decided after the trial in this case. On remand, the judge offered to take additional evidence should either party wish. Neither party did, and the case was resubmitted on the same evidence. After application of the Suave test, the judge again found the defendant to be a sexually dangerous person. We affirm.
On the same day the Supreme Judicial Court decided Almeida, it also decided two other cases applying Suave. In Commonwealth v. Fay, 467 Mass. 574 (2014), applying the Suave test, the court affirmed the civil commitment of a person who had committed only noncontact offenses, even though he was likely to commit only noncontact offenses in the future, where the court concluded that he “will instill in his victims a reasonable apprehension of being subjected to a contact sex crime.” Id. at 581, quoting from Suave, 460 Mass. at 588. In Commonwealth v. Walker, 467 Mass. 1017 (2014), the court vacated the judgment and remanded the case for further findings.
“In order to find the defendant is a ‘sexually dangerous person,’ the Commonwealth must prove three things: (1) the defendant has been convicted of a ‘[s]exual offense,’ as defined in G.L. c. 123A, § 1 ; (2) he suffers from a ‘[m]ental abnormality’ or ‘[p]ersonality disorder,’ as those terms are defined in § 1 ; and (3) as a result of such mental abnormality or personality disorder, the defendant is ‘likely to engage in sexual offenses if not confined to a secure facility.’ G.L. c. 123A, § 1 (definition of ‘[s]exually dangerous person’). The Commonwealth's burden of proof is proof beyond a reasonable doubt. See G.L. c. 123A, § 14(d).” Suave, 460 Mass. at 584 n. 3.
The defendant questions the judge's finding on remand of “mental abnormality,” and more specifically “[t]he legal aspect of this element, whether the defendant's disorder makes him ‘a menace to the health and safety of other persons.’ “ Id. at 587, quoting from G.L. c. 123A, § 1. “The term ‘menace,’ ... connotes a person whose conduct will objectively put his victim in fear of bodily harm by reason of a battery and, specifically, a contact sex crime.” Id. at 588. Because the defendant does not contend that the judge employed an incorrect legal standard but rather only challenges the judge's application of it, we review for abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n. 27 (2014).
At oral argument, the defendant contended that the Suave test requires a judge to impute to a victim knowledge of the defendant's past criminal and sexual conduct when considering the objectively reasonable fear of his victim. We see nothing in Suave or its progeny to support this idea. Instead, as applied by the Supreme Judicial Court in Suave, Fay, and Walker, the test involves an assessment of the victim's objectively reasonable reaction to the defendant's conduct vis à vis the victim.
The defendant's assertion that, as a matter of law, he cannot be a “menace” within the meaning of the statute because the evidence showed that he had committed only noncontact sexual offenses in the past, and the experts opined that he would commit only noncontact sexual offenses in the future, has been rejected in Commonwealth v.. Fay, 467 Mass. 574 (2014). See id. at 581 (“We now hold that a defendant may be determined to be a ‘menace’ where he is likely to commit only noncontact sexual offenses”). Instead, the test is fact-specific and each case will differ. Here, as in Fay, the defendant's past offenses include “either luring behavior, approaching behavior, or both [,]” id. at 582, fitting the case comfortably into Suave's explicit examples of menacing behavior. See Suave, 460 Mass. at 588. The defendant's index offense involved his breaking into the victim's home, removing her infant child from her crib, causing the baby to cry out in distress, and thus enticing the victim to step naked out of the shower, where she was naturally alarmed to find the defendant standing in the bathroom. The judge, therefore, did not abuse his discretion in declaring the defendant a sexually dangerous person.
Finally, the defendant's argument that, as a general proposition, the civil commitment of persons (such as himself) who have not been shown to be likely to commit contact sex offenses in the future violates their (and his) right to substantive due process under the United States Constitution, was rejected in Commonwealth v. Fay, 467 Mass. at 585–586. Instead, the constitutional analysis rests on whether “(1) ‘the confinement takes place pursuant to proper procedures and evidentiary standards,’ (2) there is a finding of ‘dangerousness either to one's self or to others,’ and (3) proof of dangerousness is ‘coupled ... with the proof of some additional factor, such as a ‘mental illness' or ‘mental abnormality.’ “ Kansas v. Crane, 534 U.S. 407, 409–410 (2002), quoting from Kansas v. Hendricks, 521 U.S. 346, 357–358 (1997). As in Fay, “[t]he defendant does not appear to challenge the first and third prongs of the Hendricks test.... [H]is argument centers on whether his right to substantive due process is violated where his commitment is based on the likelihood that he will commit only noncontact offenses in the future.” Fay, 467 Mass. at 585. As a general proposition, there is no absolute substantive due process impediment to civil commitment in such circumstances where the Commonwealth has proved beyond a reasonable doubt that the defendant's conduct “would place [the victims] in reasonable apprehension of being the victim of a contact sexual offense.” Id. at 585–586. Such conduct would clearly be “dangerous to [the victims'] health, safety, and well-being [,]” and “[p]rotecting [the victims] from exposure to such conduct ... falls well within constitutional boundaries.” Id. at 586. We recognize that Fay dealt specifically with a defendant who committed sexual offenses against children. But we do not read that case to be confined solely to cases involving victims who are children. See id. at 585 (“[W]e do not need to define the outer contours of what either the Federal or Massachusetts Constitution would permit”). Here, the judge could properly find that the defendant's conduct would place his victims in reasonable fear of being subject to a contact sex offense, thus making the defendant a danger to his future victims' health, safety, and well-being. The statute is, therefore, constitutional as applied to the defendant.