Opinion
14-P-632
07-30-2015
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 218619 v. SEX OFFENDER REGISTRY BOARD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Sex Offender Registry Board (SORB) preliminarily classified the plaintiff as a level three (high risk) sex offender pursuant to G. L. c. 6, § 178K(2)(c). The plaintiff timely challenged the recommendation and requested an administrative review. After a de novo hearing, the hearing examiner finally classified him as a level three sex offender. The plaintiff then filed a complaint for judicial review, and a judge of the Superior Court affirmed the board's classification decision. The plaintiff now appeals.
In 2008, the plaintiff was convicted of three counts of indecent assault and battery against his thirteen year old niece, stemming from incidents occurring between late 2003 and early 2004. In addition to those offenses, in 1988, the then- fourteen year old plaintiff was charged with the sexual assault of a five year old girl.
Prior to the proceeding before the hearing examiner, both parties attempted without success to obtain the police report pertaining to the 1988 allegation. At the hearing, plaintiff's counsel objected to any reliance on the 1988 incident. The hearing examiner overruled the plaintiff's motion and asked counsel for SORB to try to obtain the police report relating to the 1988 incident, allowing the plaintiff one week to respond, should the report be admitted. Counsel did obtain the police report and it was subsequently admitted in evidence.
The plaintiff's first contention is that the hearing examiner's sua sponte request raises an issue about her impartiality. We disagree. The hearing examiner had no way of knowing precisely what was contained in the police report, and she had regulatory authority to request that the record be supplemented. See 803 Code Mass. Regs. § 1.21(2)(c) (2002) ("The powers of the Hearing Examiner shall include . . . request[ing] that Parties produce additional evidence"). In these circumstances, we see no error in the hearing examiner's request.
The plaintiff argues he experienced a double standard, because the hearing examiner failed to request additional information from the plaintiff regarding his participation in sex offender treatment. Although the plaintiff submitted some documents suggesting he had participated in such treatment, their import was equivocal, and the hearing examiner's conclusion by a preponderance of the evidence that he had not participated in said treatment was not in error.
Again, at least where the hearing examiner did not know what the police report would contain, her request for it does not show a lack of evenhandedness. To the extent, if any, that the plaintiff means to argue that it was simply unfair to allow in the additional evidence of the police report without allowing additional evidence of completion of sex offender treatment, he has not presented any evidence that such documentation exists. Consequently, even if the admission were error, and again, we conclude that it was not, he has not demonstrated prejudice therefrom.
The plaintiff argues next that the 1988 police report should not have been admitted in evidence because it contained contradictory, unreliable, second-level hearsay. We see no abuse of discretion in admission of the police report, which contains admissions by the plaintiff that corroborate the allegations made by the five year old victim. The fact that the plaintiff was ultimately found incompetent to stand trial on the offense alleged in 1988 does not, without more, alter this analysis.
Given these conclusions, we conclude that there was substantial evidence supporting the classification of the plaintiff as a level three sex offender. We see no error either in the hearing examiner's use of aggravating factors based on the 1988 sexual allegations, nor in her use of mitigating evidence in determining which aggravating factors applied.
Finally, we see no abuse of discretion in the hearing examiner's allowing in evidence the police report, notwithstanding the fact that it contains hearsay.
Judgment affirmed.
By the Court (Grainger, Rubin & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 30, 2015.