Com. v. Barboza

• Decision Date: 05 August 1982
• Parties: COMMONWEALTH v. Stanley A. BARBOZA, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1064

438 N.E.2d 1064

387 Mass. 105

COMMONWEALTH v. Stanley A. BARBOZA, Jr.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 7, 1982.

Decided Aug. 5, 1982.

John P. Courtney, Newton, for respondent.

Michael J. Traft, Asst. Dist. Atty. (Paul J. McCallum, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LIACOS, Justice.

On December 11, 1978, the respondent pleaded guilty to an indictment charging assault with intent to rape. On January 23, 1979, he was sentenced to one year in the Plymouth house of correction. On motion of the Commonwealth, on April 12, 1979, the respondent was committed to the treatment center at the Massachusetts Correctional Institution, Bridgewater (treatment center), for a period not to exceed sixty days in order to determine if he was a "sexually dangerous person" (SDP). See G.L. c. 123A, §§ 1 & 6. Based on a psychiatric report, the Commonwealth filed a motion in the Superior Court seeking to have the respondent committed to the treatment center. The respondent moved for an independent psychiatric examination. After a second psychiatric report was filed on June 10, 1980, the Commonwealth filed another petition for commitment pursuant to G.L. c. 123A, § 6. After a two-day hearing, the judge found, beyond a reasonable doubt, that the respondent was an SDP. At a further hearing on October 16, 1980, the judge ordered the respondent committed to the treatment center at Bridgewater for a minimum of one day and a maximum of life. The respondent claimed an appeal. We transferred the appeal here on our own motion and we now affirm.

The facts adduced at the respondent's two-day commitment hearing are as follows. The Commonwealth introduced in evidence the transcript of the respondent's December 11, 1978, guilty plea of assault with intent to rape and called as witnesses the two psychiatrists who had examined the respondent pursuant to the petition for commitment. Dr. Moore, a psychiatrist who twice interviewed the respondent, testified that, in his opinion, the respondent was an SDP. Over objection by defense counsel, Dr. Moore related the basis of his opinion by recounting sexual incidents which had been described to him by the respondent during the course of his interviews. ¹

Dr. Moore concluded that, because the respondent had a history of sexual misbehavior which was gradually becoming more aggressive, the respondent was unable or unwilling to control his sexual impulses, and there was a likelihood of repetition of similar events in the future.

The second psychiatrist, Dr. Levy, had also interviewed the respondent twice and concluded that he was an SDP. Dr. Levy based his opinion on details of sexual incidents described to him by the respondent. The incidents were the same as those described to Dr. Moore. See note 1, supra. Dr. Levy concluded that the respondent's sexual thoughts or fantasies had actually developed into aggressive actions against women, and that the respondent felt it necessary to begin to act on what he was feeling.

The respondent presented testimony by a staff psychologist from the treatment center who testified that the respondent had not proved to be any difficulty for others at the treatment center.

The respondent alleges numerous errors. The respondent contends that the judge erred in (1) admitting in evidence statements made by the respondent during the psychiatric examination pursuant to G.L. c. 123A; (2) failing to strike the opinions of both psychiatrists because they were premised on factors beyond the psychiatrists' expertise; and (3) finding the respondent to be an SDP despite insufficient admissible evidence to warrant that finding. The respondent also contends that the order of commitment should be vacated because he was denied the fundamental constitutional safeguards of (1) trial by jury, (2) Miranda warnings, (3) protection against double jeopardy, and (4) due process.

1. Evidentiary issues. The respondent argues that G.L. c. 233, § 20B, the patient psychotherapist evidentiary privilege, bars the admission in evidence of all the respondent's statements made during the psychiatric examinations. ² After the psychiatrists testified that they had informed the respondent that their conversations were not confidential and could be used against him in a proceeding to determine whether he was an SDP, the judge determined that the respondent made an intelligent and voluntary waiver and agreed to speak with the psychiatrists. The judge characterized the respondent's statements as "admissions" and allowed their admission in evidence to explain the basis of the psychiatric conclusion that the respondent was an SDP. There was no error.

When a patient is warned that statements made to a psychiatrist are not privileged, § 20B(b) permits a judge to admit the patient's communications in evidence in a proceeding pursuant to G.L. c. 123A. See Commonwealth v. Lamb, 365 Mass. 265, 266-269, 311 N.E.2d 47 (1974). General Laws c. 233, § 20B(b), allows admission of the patient's communications "only on issues involving the patient's mental or emotional condition but not as a confession or admission of guilt." G.L. c. 233, § 20B(b), inserted by St.1968, c. 418. The judge, in the instant case, admitted the statements for purposes relating to the respondent's mental or emotional condition. The proceeding was one to determine whether the respondent was an SDP, and the judge admitted the psychiatrists' testimony of the respondent's communications for the purpose of learning the basis of the expert opinions. The evidence was helpful to the judge in evaluating the psychiatrists' testimony. ³ This was not a proceeding in which a defendant was on trial for criminal charges and thus cases such as Blaisdell v. Commonwealth, 372 Mass. 753, 364 N.E.2d 191 (1977), and Commonwealth v. O'Connor, 7 Mass.App. 314, 387 N.E.2d 190 (1979), are inapplicable. ⁴

Although we have not considered c. 123A proceedings to be criminal in nature, we have concluded that, because the liberty interests of a respondent are at stake, a respondent is "entitled to the benefit of the same stringent standard of proof as that required in criminal cases." Andrews, petitioner, 368 Mass. 468, 488, 334 N.E.2d 15 (1975). The respondent contends that there was insufficient evidence for the judge to have concluded beyond a reasonable doubt that the respondent was an SDP. Thus, our task on appellate review of an insufficient evidence claim is similar to the review of a denial of a motion for a required finding of not guilty. We "determine whether the record evidence could reasonably support a finding ... beyond a reasonable doubt" that the respondent is an SDP. Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979).

The testifying psychiatrists concluded, on the basis of the respondent's past, present, and possible future sexual misconduct, that the respondent was an SDP. The respondent did not present evidence to the contrary. The testimony revealed that the respondent was becoming more aggressive with the passage of time, and the seriousness of his sexual misconduct was escalating. Based in part upon the respondent's conviction of assault with intent to rape, Dr. Moore testified that the respondent was unable or unwilling to control his sexual impulses and that there was a likelihood that the respondent would injure someone in the future. Dr. Levy also testified that the respondent's original compulsive thoughts and fantasies had developed into aggressive actions against women and that there was a progressive increase in violence in these offenses. The respondent's history was described as voyeuristic and compulsive.

We think that the judge, on the basis of the above-recited testimony, could have concluded beyond a reasonable doubt that the respondent was an SDP within the meaning of G.L. c. 123A, § 1, and thus there was no error. Cf. Commonwealth v. Lamb, 372 Mass. 17, 24, 360 N.E.2d 307 (1977).

2. Constitutional issues. The respondent maintains that the Commonwealth's petition for commitment must nevertheless be denied because the proceedings under G.L. c. 123A did not provide him with the same constitutional protections that are accorded an accused in a criminal prosecution. The respondent argues that the rights applicable to criminal proceedings, such as a trial by jury, the protection afforded by Miranda warnings, and the right not to be placed twice in jeopardy, must be extended to c. 123A proceedings under Federal and State constitutional principles. The Commonwealth simply argues that proceedings under c. 123A are civil in nature and thus the rights of the criminal defendant are inapplicable.

We have previously held, and we reiterate the holding today, that whether c. 123A proceedings are labelled civil or criminal does not answer fully what procedural safeguards are required in such proceedings. "Rather, in deciding what safeguards are required, it is necessary to look at the nature of the right which the State seeks to circumscribe. The more precious the right, the greater the protection, whether the proceedings be labelled civil or criminal. See Commonwealth v. Travis, 372 Mass. 238, 246 (1977); Andrews, petitioner, [supra 368 Mass. at 487-488, 334 N.E.2d 15]. Accord, Doe v. Doe, 377 Mass. 272, 280-281 (1979)." Commonwealth v. Knowlton, 378 Mass. 479, 487, 392 N.E.2d 1021 (1979). See Commonwealth v. Rodriguez, 376 Mass. 632, 639 & n.11, 382 N.E.2d 725 (1978). The respondent's right at issue here is the "potential deprivation of liberty" which we once described as "massive." Commonwealth v. Travis, supra 372 Mass. at 249, 361 N.E.2d 394. See also Lessard v. Schmidt, 349 F.Supp. 1078, 1089 (E.D.Wis.1972) (discussing social stigma attached to persons involuntarily committed).

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