Opinion
12-P-1127
02-18-2014
FREDDIE LEE DRAYTON v. COMMONWEALTH.
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
After a two-day trial on Freddie Lee Drayton's G. L. c. 123A, § 9, petition for discharge from civil commitment, a jury found that Drayton remains a sexually dangerous person (SDP). He now appeals, arguing that he does not meet the statutory criteria for commitment and that his continued confinement violates his constitutional right to equal protection. We affirm.
Background. In March, 1973, Drayton killed two elderly women by setting them afire after breaking into their homes. The first victim was seventy-seven years old and a stranger to Drayton; he beat and kicked her before setting her clothes on fire. The second victim was eighty-eight years old and also a stranger; he beat her, sexually assaulted her, and then doused her with paint thinner before setting her on fire. On April 1, 1977, Drayton pleaded guilty to two counts of manslaughter and was sentenced to the Massachusetts Correctional Institution (MCI) at Walpole for eighteen to twenty years on each count, the sentences to run concurrently. He was committed to the Massachusetts Treatment Center (treatment center) as a sexually dangerous person in June, 1980, pursuant to G. L. c. 123A, § 6. On February 22, 2008, Drayton filed a G. L. c. 123A, § 9, petition for release. At trial, two psychologists, Angela Johnson and Michael Henry, testified for the Commonwealth as court-appointed qualified examiners mandated by G. L. c. 123A, § 14; each opined that Drayton presents with a personality disorder, remains sexually dangerous in accordance with the statutory standard, and likely would reoffend if not confined to a secure facility. As part of their individual evaluations, Drs. Johnson and Henry each interviewed Drayton and reviewed various treatment center records. Katrin Weir also testified on behalf of the Community Access Board (CAB) ; the CAB unanimously opined that Drayton remains a sexually dangerous person 'who requires continued confinement and treatment in a secure setting.'
Apparently, there have been other § 9 petitions. See Drayton v. Commonwealth, 450 Mass. 1021, 1021-1022 (2008) ('On several occasions he has petitioned unsuccessfully for release pursuant to G. L. c. 123A, § 9. See, e.g.,Drayton, petitioner, 26 Mass. App. Ct. 1107 [1988]).' In that case, the Supreme Judicial Court upheld the decision of a single justice denying Drayton's petition for a writ of habeas corpus.
Dr. Johnson's qualified examiner report, dated December 1, 2010, and Dr. Henry's qualified examiner report, dated November 23, 2010, were admitted in evidence at trial. Dr. Johnson reviewed Drayton's medical history, history of sex offender treatment, group notes, annual treatment reviews and treatment plans, documentation by the treatment team, and annual Community Access Board reports. Dr. Henry reviewed Drayton's Department of Correction records, medical records, and treatment records.
The CAB is comprised of five members appointed by the Commissioner of Correction; two psychologists from an outside agency, and three psychologists employed by the Department of Corrections. G. L. c. 123A, § 1. The function of the CAB is to conduct annual reviews of individuals residing in the treatment center and opine as to the current status of those previously committed as sexually dangerous and to consider placement in a community access program upon changed status. G. L. c. 123A, § 6A.
The CAB annual review dated October 12, 2010, was admitted in evidence at trial.
Drayton did not call any witnesses at trial, nor did he testify. At the close of evidence, Drayton's initial and renewed motions for required finding were denied. On January 25, 2011, after short deliberation, the jury returned a verdict that Drayton is 'a sexually dangerous person today.' He timely appealed.
Although the CAB invited Drayton to provide materials and participate in an interview as part of the evaluation process, he declined to do so.
Discussion. Drayton now argues that his original 1980 commitment as an SDP was unconstitutional because he never was 'convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense,' thereby failing to meet the statutory definition of a sexually dangerous person. This argument fails because a 'discharge petition under G. L. c. 123A, § 9, is not the appropriate means to challenge the validity of the original commitment. See Davis, petitioner, 383 Mass. 645, 649-650 (1981). 'The sole issue at the § 9 hearing is whether the petitioner, having been committed, remains sexually dangerous. [Ibid.]' McHoul, peitioner, 445 Mass. 143, 158 (2005).
Drayton also argues that he cannot be classified now as a sexually dangerous person under the statute because he is an adult and thus not a candidate for commitment under the statutory definition as he reads it. In his view, the sexually dangerous person law applies only to juveniles and youthful offenders.
At the time of the 2011 petition hearing, a sexually dangerous person was defined as, among other things, 'any person who has been (i) convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility; . . . or (iii) previously adjudicated as such by a court of the commonwealth and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires' (emphasis supplied). G. L. c. 123A, § 1, inserted by St. 1999, c. 74, § 6.
In arguing that, as an adult, he does not fit the definition, Drayton simply parses the language of G. L. c. 123A, § 1, incorrectly. The first section of the statute defines a sexually dangerous person is someone who has been determined to have committed a sexual offense, whether by conviction as an adult or adjudication as a delinquent juvenile or designation as a youthful offender. In addition, for that section to apply, the person must be someone who 'suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility.' Drayton argues that, because the word 'adult' does not appear, he cannot ever have been considered a sexually dangerous person because he was an adult at the time that he first was determined to be a sexually dangerous person. In this, he is simply mistaken. The possibility that the individual was an adult is implied by the use of the word 'conviction' because juveniles are 'adjudicated' delinquent and youthful offenders are 'designated' as youthful offenders; neither is said to have been 'convicted' of a sexual offense.
Drayton was not convicted of a sexual offense. To the extent that he argues in this appeal that he may not, therefore, be adjudicated a sexually dangerous person, that argument fails because the Supreme Judicial Court expressly rejected it in Drayton v. Commonwealth, 450 Mass. at 1022 ('Drayton has identified no case law, nor are we aware of any holding that a charge or conviction of a prior sexual offense is constitutionally mandated as a prerequisite to the civil commitment of a person as a sexually dangerous person; the only relevant authority of which we are aware expressly rejects Drayton's position').
In this case, the Commonwealth proceeded, not under G. L. c. 123A, § 1(i), but under § 1(iii), arguing that Drayton, having been 'previously adjudicated' a sexually dangerous person, also was someone 'whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses.' The defendant argues that this section cannot be said to apply to him because, again, he was an adult at the time he was first found to be sexually dangerous and the word 'adjudicated' in § 1(iii) can only be read to apply to a juvenile. He cites no relevant authority for this strained reading and we reject it. Cf. McHoul, petitioner, 445 Mass. at 144-145, wherein the court, using the same definition as the present case, upheld the commitment of the sixty-two year old petitioner, first adjudicated sexually dangerous at the age of thirty-one.
Drayton also argues that his equal protection rights have been violated because persons who have been determined to have a 'mental abnormality' are treated differently under the statute than persons who are determined to have, as he does, a diagnosis of anti-social personality disorder. Because the claim was not raised below, we decline to consider it. See Gagnon, petitioner, 416 Mass. 775, 780 (1994) ('Generally . . . we shall not address issues raised for the first time on appeal, if the record accompanying them is lacking . . . in providing a basis for their intelligent resolution').
'In § 9 discharge proceedings, . . . the Commonwealth bears the burden of demonstrating that the petitioner seeking release remains a sexually dangerous person.' Miller, petitioner, 71 Mass. App. Ct. 625, 626 (2008). In this case, based upon all of the evidence, including the experts' unanimous opinions, supported by three separate evaluation reports, we are satisfied that there was ample evidence to support the jury's verdict that Drayton remains a sexually dangerous person. ,
To the extent that all of Drayton's arguments are not addressed explicitly, we have carefully considered each of them and find them to be without merit.
The Commonwealth's motion to strike is allowed with respect to documents included in Drayton's addendum that were not part of the record below. See Commonwealth v. Roland R., 448 Mass. 278, 279-280 n.2 (2007). The motion is otherwise denied.
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Judgment affirmed.
By the Court (Hanlon, Brown & Sullivan, JJ.),