Com. v. Bladsa

• Decision Date: 27 October 1972
• Citation: 288 N.E.2d 813,362 Mass. 539
• Parties: COMMONWEALTH v. Skender BLADSA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 813

288 N.E.2d 813

362 Mass. 539

COMMONWEALTH v. Skender BLADSA.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 3, 1972.

Decided Oct. 27, 1972.

Reuben Goodman, Boston, for defendant.

Thomas J. Munday, Jr., Asst. Dist. Atty., for the Commonwealth.

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

HENNESSEY, Justice.

The case before us is an outline bill of exceptions arising out of a petition pursuant to G.L. c. 123A, § 6, as amended, to commit the defendant as a sexually dangerous person. The defendant is presently serving a sentence imposed on January 23 1968, in the Massachusetts Correctional Institution at Walpole, for the offence of indecent assault and battery on a child under the age of fourteen years. The defendant's exceptions relate to certain of the judge's rulings on evidence, and to the order committing the defendant as a sexually dangerous person.

1. Two psychiatrists, who were introduced as witnesses by the Commonwealth, rendered opinions, over the objections and exceptions of the defendant, that the defendant was sexually dangerous. They also testified 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.' It was error to admit the evidence of the sex offences. Although there was other competent evidence tending to show that the defendant was sexually dangerous, in the opinion of a majority of the court we are not dealing here with harmless error, since in his findings the judge expressly based his decision and order, at least in part, on the inadmissible evidence.

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. Although this is a proceeding under G.L. c. 123A, § 6, we must look to the provisions concerning evidence as found in G.L. c. 123A, §§ 4 and 5. ¹ Section 4 provides that examining psychiatrists are to have access to court records and certain particularly described probation records, but does not address itself to the admissibility of evidence. On the other hand, § 5 provides that past criminal and psychiatric records of the defendant, and any psychiatric report filed under c. 123A, shall be admissible in evidence. The police reports and 'the official police version' here admitted do not come within these statutory provisions. We do not read the more general language of § 5, as appearing in St.1958, c. 646, § 1 ('it shall be competent to introduce . . . any other evidence that tends to indicate that he is a sexually dangerous person'), as authorizing the admission of otherwise inadmissible evidence. It would be inappropriate to conclude otherwise, since these proceedings may result in the commitment of the defendant to an institution.

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. ² The Commonwealth contends that our holdings in Commonwealth v. McGruder, 348 Mass. 712, 205 N.E.2d 726, are supportive of the judge's unlimited admission of the contested evidence in the instant case. We do not agree. The McGruder case decided that opinions of certain psychiatric witnesses were admissible in evidence. It did not decide whether the...