Com. v. Blake

Decision Date16 July 2009
Docket NumberSJC-10232.
Citation909 N.E.2d 532,454 Mass. 267
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Eric Tennen, Boston, for Committee for Public Counsel Services, amicus curiae, submitted a brief.



Following a jury-waived trial in the Superior Court, the defendant was adjudicated to be a sexually dangerous person. See G.L. c. 123A, §§ 12-14. In an unpublished memorandum and order issued pursuant to its rule 1:28, the Appeals Court affirmed the judgment, Commonwealth v. Blake, 71 Mass.App.Ct. 1115, 883 N.E.2d 342 (2008), and we granted further appellate review. We affirm the judgment of the Superior Court.

The defendant raises two claims before us: first, he argues that the evidence was insufficient to support the judge's finding that he is a sexually dangerous person; second, he maintains that the judge's keeping the matter under advisement for more than thirteen months— from the conclusion of the trial on February 27, 2004, until the judge rendered his decision on April 4, 2005—violated his constitutionally protected right to due process. The court unanimously agrees that there was sufficient evidence to support the adjudication and, therefore, rejects the defendant's first claim. With respect to the alleged due process violation, five Justices agree that there was no such violation. As reflected in the opinions that follow, three Justices are of the view that the defendant has not shown legally cognizable prejudice as a result of the thirteen-month advisement period; two Justices are of the view that, notwithstanding significant prejudice attributable to the delay, the delay and resulting prejudice did not rise to the level of a constitutional violation; and two Justices are of the view that the delay was both prejudicial and a violation of due process, but conclude that, in the circumstances of this case, the violation does not require dismissal of the petition or a new trial.

The court unanimously disapproves of the lengthy delay that occurred in this case. We require that future jury-waived trials pursuant to G.L. c. 123A, § 14, be promptly resolved and, toward that end, hold that for such jury-waived trials begun after the date of this opinion, the judge must, absent extraordinary circumstances, render a decision within thirty days of the end of the trial.

Judgment affirmed.

IRELAND, J. (concurring, with whom Spina and Cowin, JJ., join).

Background. The facts underlying this appeal are not in dispute. The defendant is a sex offender who was convicted in 1995 after entering guilty pleas to two indictments, one charging rape of a child under sixteen years of age and the other charging indecent assault and battery on a child under fourteen years of age. He was sentenced to two and one-half years to be served in a house of correction and, thereafter, to a suspended sentence of from three to five years in the State prison, and five years' probation. On August 31, 1998, the defendant was found to have violated the conditions of his probation and was ordered to serve the three- to five-year sentence originally imposed.

On October 31, 2002, shortly before his scheduled release, the Commonwealth filed a petition, pursuant to G.L. c. 123A, § 12, to have the defendant civilly committed as a sexually dangerous person. A judge in the Superior Court ordered the defendant temporarily committed to the Massachusetts Treatment Center (treatment center). See G.L. c. 123A, § 12 (e). On January 17, 2003, after a hearing pursuant to G.L. c. 123A, § 13, a second judge concluded that there was probable cause to believe that the defendant was a sexually dangerous person and ordered him held at the treatment center for a period not exceeding sixty days for the purpose of examination and diagnosis by two designated qualified examiners. See G.L. c. 123A, § 13 (a). The Commonwealth petitioned for trial, and on March 13, 2003, a third judge allowed the Commonwealth's motion that the defendant remain committed to the treatment center for the duration of the trial and pending disposition of its petition. See G.L. c. 123A, § 14 (a), (e).

A three-day jury-waived trial took place on February 11, 12, and 27, 2004. The trial judge was the same judge who had presided at the defendant's probable cause hearing. The Commonwealth presented the following evidence. The defendant was thirty years of age at the time of the trial. The convictions underlying the petition were based on offenses that occurred when he was seventeen and nineteen years of age. His female victims were five and four years of age. Although the defendant pleaded guilty to a single indecent assault and battery charge regarding the five year old victim, he later admitted that he had sexually abused her multiple times over a period of eighteen to twenty-four months. (The defendant initially was indicted, in 1991, on two counts of rape of a child for his conduct in relation to this victim, but the indictment was nol prossed due to the Commonwealth's uncertainty as to the defendant's age at the time of the offenses.) The defendant pleaded guilty to raping his four year old victim,1 an offense that occurred approximately twenty months after the defendant's initial indictment for rape in 1991.2

The Commonwealth presented the expert testimony of two forensic psychologists, Drs. Barbara Quinones and Katrin Rouse-Weir. Dr. Quinones (also a clinical psychologist) served as one of the two qualified examiners in the case. Dr. Rouse-Weir had testified for the Commonwealth at the defendant's probable cause hearing but had not personally interviewed the defendant.3 The witnesses each testified to her opinion that, based on diagnostic criteria contained in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV), the defendant suffers from a mental abnormality, pedophilia, which makes him likely to reoffend if not confined to a secure facility. Dr. Quinones further testified to her opinion that the defendant suffers from an antisocial personality disorder, as defined in the DSM-IV, that also makes him likely to reoffend.

Testifying for the defense were three expert witnesses: Dr. Michael J. Murphy (who was the second qualified examiner in the case); Dr. Eric L. Brown; and Dr. Leonard A. Bard. Each of the defense experts had interviewed the defendant, and each testified to his opinion that the defendant does not suffer from an antisocial personality disorder and that he is not a pedophile. The defendant's primary trial strategy was to attack the sufficiency of the Commonwealth's evidence. After hearing closing arguments, the judge announced that he would take the matter under advisement.

The trial ended on February 27, 2004. On June 9, when no decision had been rendered in the case, counsel for the defendant filed a motion that judgment be entered. No action was taken on the motion. On January 14, 2005, the clerk of the Superior Court in Franklin County received a letter written by the defendant. In the letter, the defendant sought advice as to what action he could take to "compel the judge to render a decision without upsetting him." In response, an employee in the clerk's office returned the letter to the defendant with instructions that any correspondence regarding his case should be directed to the Administrative Office of the Trial Court. The judge filed findings, rulings, and order on April 4, 2005, and judgment allowing the Commonwealth's petition was entered on April 8, 2005.

Discussion. 1. I first address the defendant's claim that the Commonwealth's evidence was insufficient to support the judge's determination that he is a sexually dangerous person. I review the evidence under the applicable standard: "whether, after viewing the evidence (and all permissible inferences) in the light most favorable to the Commonwealth, any rational trier of fact could have found, beyond a reasonable doubt, the essential elements of sexual dangerousness, as defined by G.L. c. 123A, § 1." Commonwealth v. Boyer, 61 Mass.App.Ct. 582, 589, 812 N.E.2d 1235 (2004). See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The statutory elements are (1) a conviction of a sexual offense; (2) the existence of a mental abnormality or personality disorder; and (3) whether the mental abnormality or personality disorder makes the person likely to engage in sexual offenses if not confined to a secure facility. See G.L. c. 123A, § 1.4 The court has clarified that something is "likely," for purposes of the statute, if it is "reasonably to be expected in the context of the particular facts and circumstances at hand," and "[i]n assessing the risk of reoffending, it is for the fact finder to determine what is `likely.'" Commonwealth v. Boucher, 438 Mass. 274, 276, 780 N.E.2d 47 (2002). "Weighing and crediting the testimony of witnesses during proceedings under G.L. c. 123A `are for the trier of fact, and we will not substitute our judgment for that of the trier of fact.'" Commonwealth v. Sargent, 449 Mass. 576, 583, 870 N.E.2d 602 (2007), quoting Commonwealth v. Bradway, 62 Mass.App.Ct. 280, 291, 816 N.E.2d 152 (2004).

The judge's written memorandum of decision demonstrates a careful review and analysis of the evidence. He had before him five reports documenting the findings of five expert witnesses, including two from the qualified examiners (who presented differing opinions on whether the defendant is sexually dangerous), as well as police reports and the defendant's juvenile records, probation record, and Department of Correction record. The judge heard...

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