Andrews, In re

• Citation: 334 N.E.2d 15,368 Mass. 468
• Parties: In re Floyd J. ANDREWS, Jr., Petitioner.
• Decision Date: 13 August 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 15

334 N.E.2d 15

368 Mass. 468

In re Floyd J. ANDREWS, Jr., Petitioner.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 7, 1975.

Decided Aug. 13, 1975.

Gordon A. Martin, Jr., Boston, for petitioner.

Dennis J. LaCroix, Asst. Atty. Gen., for respondent.

Before TAURO, C.J., and QUIRICO, BRAUCHER, HENNESSEY and KAPLAN, JJ.

QUIRICO, Justice.

This is a petition for a writ of habeas corpus originally filed with the clerk of this court for Suffolk County and reserved and reported to the full court by a single justice, without decision, on the petition and a stipulation of facts. The petitioner seeks his release from the treatment center at the Massachusetts Correctional Institution at Bridgewater (Bridgewater) to which he has been committed by order of a Superior Court judge, acting under G.L. c. 123A, § 6, for an indeterminate period of from one day to life as a sexually dangerous person (SDP). G.L. c. 123A, § 1. We review the background of this case.

On October 23, 1964, the petitioner pleaded guilty in the Suffolk Superior Court to indictments charging him with indecent assault and battery on a child under fourteen, G.L. c. 265, § 13B, and with assault and battery, G.L. c. 265, § 13A. After hearing testimony from the arresting officer about the incidents and after listening to recommendations from the assistant district attorney and defense counsel as to sentencing, the judge sentenced the petitioner to four to five years at the Massachusetts Correctional Institution at Walpole (Walpole) on the indictment charging indecent assault and battery on a child under fourteen and to two and one-half years at the Suffolk County house of correction on the indictment charging assault and battery. The sentences were to run consecutively.

On February 11, 1965, the petitioner was transferred from Walpole to the Massachusetts Correctional Institution at Norfolk (Norfolk). On November 16, 1965, the acting superintendent of Norfolk moved for and obtained an order under G.L. c. 123A, § 6, that the petitioner be committed to the treatment center at Bridgewater for a sixty-day period of observation and diagnosis to determine whether he was an SDP. The resulting psychiatric report indicated that he was an SDP. On February 23, 1967, a hearing was conducted in the Superior Court on a petition filed by the district attorney that the petitioner be committed to the treatment center for an indeterminate period as an SDP. After the hearing, the judge found the petitioner to be an SDP and granted the district attorney's petition.

More than two years after his indeterminate commitment to the treatment center, the petitioner filed a petition for a writ of error, alleging that his guilty pleas to the criminal indictments were made without his knowing all the ramifications of such pleas, in particular, that he might be committed under G.L. c. 123A as an SDP. In the writ of error proceeding, the eptitioner alleged that the circumstances of his pleas did not satisfy the knowing waiver requirement of Boykin v. Alabama, 395 U.S. 238, 243--244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A single justice of this court affirmed the judgments, being unconvinced that the guilty pleas were made without knowledge of the possible c. 123A consequences, and concluding that Boykin v. Alabama was inapplicable to the petitioner's case because that decision postdated the petitioner's pleas and is not retroactive. We overruled the petitioner's exceptions to the single justice's actions in ANDREWS V. COMMONWEALTH, --- MASS. ---, 282 N.E.2D 376 (1972)^A. In August, 1973, the petitioner filed the petition commencing the present proceeding, which was reserved and reported by the single justice when the parties perfected the record by filing the stipulation of facts in October, 1974.

The stipulation of facts suggests that four questions are presented in this case. The first two questions together ask, in effect, whether the admission at the indeterminate commitment hearing of evidence relating to the petitioner's prior convictions of two sex offenses (see G.L. c. 123A, §§ 3, 4) violated the rule of COMMONWEALTH V. BLADSA, --- MASS. ---, 288 N.E.2D 813 (1972)^B. As explained below, we find no Bladsa-type violation in this case. The other two questions together ask, in effect whether the petitioner's Federal and State constitutional rights to due process and equal protection are violated by the denial to SDPs of adequate procedural safeguards. The petitioner particularly objects to the denial to SDPs committed under G.L. c. 123A, § 6, of certain safeguards granted mentally ill persons committed under various provisions of G.L. c. 123. As explained in the latter part of this opinion, we find constitutional infirmity in the currently operative procedures relative to the commitment and indeterminately continued detention of SDPs. We accordingly conclude that the procedural rights accorded those prisoners subjected to c. 123A must be upgraded in specified respects.

I. The Hearsay Issue.

In Commonwealth v. McGruder, 348 Mass. 712, 205 N.E.2d 726 (1965), cert. den. 383 U.S. 972, 86 S.Ct. 1277, 16 L.Ed.2d 312 (1966), reh. den. 384 U.S. 947, 86 S.Ct. 1466, 16 L.Ed.2d 545 (1966), we examined the provision in G.L. c. 123A, § 5, that it 'shall be competent to introduce evidence (in a commitment proceeding) of the person's past criminal and psychiatric record and any other evidence that tends to indicate that he is a sexually dangerous person. Any psychiatric report filed under this chapter shall be admissible in evidence in such proceeding.' We related this provision to the provision in § 4 that the examining psychiatrists should have access to the court and probation records of the examinee and that '(t)he probation record shall contain a history . . . (of) such person's previous offences and previous psychiatric examinations and such other information as may be helpful to assist such psychiatrists in making their diagnosis.' We concluded that these provisions supported the hearing judge's overruling of objections made to the admission of the oral testimony of two examining psychiatrists who based their determination of the defendant's sexual dangerousness in large part on information contained in records of the Department of Correction. We recognized that these provisions were 'a very radical departure' from ordinary evidentiary rules, but held that 'the Legislature has made its policy clear in this regard.' Id. at 715, 205 N.E.2d at 728. We pointed out that '(i)f the opinions of the examining psychiatrists are based on incorrect information it would be open to a defendant . . . to refute it.' Id. at 716, 205 N.E.2d at 728.

In COMMONWEALTH V. BLADSA, --- MASS. ---, 288 N.E.2D 813 (1972)^C, we set rather narrow limits on the extent of the McGruder holding, but did not overrule it. In Bladsa, we held that it was reversible error to allow the examining psychiatrists to testify 'in detail as to many sex offences committed by the defendant involving young boys, all of which information they had obtained from police reports and 'the official police version. " Ibid. We said: 'The evidence of sexual misbehavior was obviously hearsay, and since it was not made admissible under the statutes it ought not to have been received. Our particular concern here is not with the statutory provisions for the supplying of information and records to psychiatrists, but with the admissibility in evidence of that information and those records. . . . We conclude that the only evidence which is rendered admissible by the terms of G.L. c. 123A, §§ 4, 5 and 6, is that described in § 5, viz: past criminal and psychiatric records of the defendant, and any psychiatric report filed under c. 123A.' Id. at ---, ^d 288 N.E.2d at 814. The admissibility of other evidence in c. 123A proceedings is thus governed by the customary rules pertaining thereto. ID. AT ---, . 2, 288 N.E.2D 813.^E The McGruder case was distinguished on the ground that it permitted only that police and other reports might be supplied to the examining psychiatrists, not that such reports could thereafter be themselves introduced in evidence, either directly or by repetition by expert witnesses. Id. at ---, ^f 288 N.E.2d 813.

In the present case, the petitioner apparently asserts that the Bladsa holding, or the implications of that holding, rendered improper the admission in evidence, at the hearing which resulted in his indeterminate commitment, of (1) the records of the convictions for indecent assault and battery and assault and battery, sentences for which the petitioner was then serving, (2) the record of the conviction of the petitioner in 1948 in Texas on a charge of rape, (3) the testimony of the examining psychiatrists, who based their opinions of the petitioner's sexual dangerousness in part on the fact that the petitioner had been convicted of the offenses noted in (1) and (2) above and in part on the circumstances of the Massachusetts convictions as described in police and other reports, as well as in part on interviews with and observations of the petitioner, and (4) the testimony of a police officer regarding the circumstances of the Massachusetts crimes.

As to (1) and (2), the records of convictions of rape, assault and battery, and indecent assault and battery on a child under fourteen, the petitioner argues that they should have been excluded because 'the fair determination of sexual dangerousness is . . . (severely) prejudiced by the presentation of evidence of past criminal convictions.' The short answer here is that § 5 provides that at a commitment hearing 'it shall be competent to introduce evidence of the person's past criminal . . . record.' Nothing in the Bladsa decision suggests that this provision is invalid. Indeed, it is difficult to conceive of evidence which is more probative of sexual dangerousness and more surrounded with assurances of accuracy than records of convictions of...