Com. v. Nieves

Citation446 Mass. 583,846 N.E.2d 379
Decision Date27 April 2006
CourtUnited States State Supreme Judicial Court of Massachusetts

Lillian Cheng, Assistant District Attorney (Kate Berrigan MacDougall, Assistant District Attorney, with her) for the Commonwealth.

Mark J. Gillis for the defendant.



Pursuant to G.L. c. 231. § 111, second par., and Mass. R. Civ. P. 64, as amended, 423 Mass. 1410 (1996), a judge in the Superior Court reported to the Appeals Court the correctness of her ruling denying the Commonwealth's motion for trial, as well as six questions pertaining to proceedings under the "sexually dangerous person" (SDP) commitment statute, G.L. c. 123A, §§ 12-14:1

"1. Does the Supreme Judicial Court's holding in Commonwealth v. Knowlton, 378 Mass. 479, 392 N.E.2d 1021 (1979)[,] [prescribing] substantive procedures and protections for incompetent respondents in SDP proceedings under the now repealed § 6 of c. 123A, apply to a proceeding under § 12 of c. 123A?

"2. If the answer to question [number one] is in the negative, then can a petition for indeterminate commitment under §§ 12 through 14 of c. 123A proceed as against an incompetent respondent?

"3. If the answer to question [number two] is in the affirmative, then who exercises or waives the substantive rights granted respondents in petitions for their commitment for a day to life under §§ 12 through 14 of c. 123A?

"4. Can a respondent who is incompetent to participate in the therapy provided under c. 123A be civilly committed to the care of the `[t]reatment [c]enter'[?]

"5. If the person named in a petition filed pursuant to the [s]exually [d]angerous [p]erson (SDP) [s]tatute, G.L. c. 123A, §§ 1-16, is incapable, by reason of incompetence, of affirmatively waiving a trial by jury, does G.L. c. 123A, § 14(a)[,] require that a trial on the petition be in front of a jury?

"6. Should the Trial Court appoint a[g]uardian [ad][l]item and utilize the `substituted judgment' standard to determine whether a respondent, who has been found incompetent for all purposes, should exercise or waive his substantive rights including whether he should testify on his own behalf at a trial on an SDP petition?"

We transferred the case to this court on our own motion and conclude that the interpretations of repealed sections of G.L. c. 123A do not apply to the materially different sections of the statute presently in effect; that due process is not offended by proceedings to commit an incompetent person, represented by an attorney, pursuant to c. 123A; that the judge may permit an incompetent person's attorney to invoke or waive various statutory rights, including the right to a jury trial; that restraint of a sexually dangerous person within the meaning of c. 123A does not offend the defendant's Federal due process rights even if treatment would be ineffective; that a guardian ad litem need not be appointed; and that the decision whether to seek commitment under G.L. c. 123 or c. 123A is reserved to the appropriate executive official. In order to continue the commitment of an incompetent person, if the Commonwealth believes that such person continues to be sexually dangerous, the Commonwealth must seek the appointment of a court-appointed attorney for the incompetent person before the expiration of the initial term of one year, and before the expiration of any subsequent term for which the Commonwealth seeks to continue the commitment. Such attorney may then exercise the rights of the incompetent person in regard to a proceeding.

1. The statute. Chapter 123A commitment is composed of "complex court proceedings," Commonwealth v. Torres, 441 Mass. 499, 507, 806 N.E.2d 895 n. 11 (2004), to which certain constitutional rights available to criminal defendants do not apply, see, e.g., Commonwealth v. Given, 441 Mass. 741, 746, 808 N.E.2d 788 n. 8, cert. denied, 543 U.S. 948, 125 S.Ct. 366, 160 L.Ed.2d 264 (2004). The statute is civil and remedial in character, although, to be committed, one must first have been adjudicated responsible for certain sexual offenses or misconduct. See Commonwealth v. Bruno, 432 Mass. 489, 500-502, 735 N.E.2d 1222 (2000). See also G.L. c. 123A, §§ 1, 14-15.

We sketch the commitment process, the particulars of which are set forth in earlier cases. See, e.g., Commonwealth v. Knapp, 441 Mass. 157, 159-165, 804 N.E.2d 885 (2004). The process begins six months prior to the release from a correctional facility of a person previously convicted of a qualifying sexual offense. G.L. c. 123A, §§ 1, 12. At that time, the agency with "jurisdiction of [the] person" notifies the Attorney General or the appropriate district attorney of the pending release. G.L. c. 123A, § 12(a). If that official determines that the prisoner "is likely to be a sexually dangerous person," the official may file a petition for commitment and obtain a determination from the Superior Court whether there is probable cause for the petition to proceed. G.L. c. 123A, § 12(b), (c).

The defendant has a right, among other things, to be represented by counsel. See G.L. c. 123A, §§ 12(d) (1), 13(c). If the defendant is indigent, counsel is appointed by the court. § 13(c). If a prisoner is scheduled for release prior to the hearing on probable cause, he or she may be committed until the hearing, which "should commence" within a statutorily appointed time. See § 12(c), (e); Commonwealth v. Bruno, supra at 513, 735 N.E.2d 1222. On a determination of probable cause, the defendant is temporarily committed for evaluation by qualified examiners. § 13. The Commonwealth must move for trial on its petition within a relatively short time. §§ 13, 14. Trial is by jury "unless affirmatively waived" by the defendant. § 14(a).2

To obtain a commitment of a sexually dangerous person, the Commonwealth must prove beyond a reasonable doubt that the defendant "suffers from a mental abnormality or personality disorder which makes [him] likely to engage in sexual offenses if not confined to a secure facility." G.L. c. 123A, § 1. If the finder of fact so concludes, a defendant is committed to the treatment center, see § 2, where he will be "held in the most appropriate level of security required to ensure protection of the public, correctional staff, himself and others," § 6A, "for an indeterminate period of a minimum of one day and a maximum of such person's natural life," § 14(d), until discharged pursuant to his petition or that of his parents, spouse, issue, next of kin, or friend, § 9. A petition for discharge may be filed annually, and either the Commonwealth or the person committed may demand trial by jury on the issue whether the defendant remains a sexually dangerous person. Id.

2. Facts. We recite the salient facts, which are derived from the stipulated record. See Mass. R.A.P. 8(d), 378 Mass. 932 (1979). In 1993, the defendant was convicted of violently raping a woman at the side of a public street. He served a sentence of three years, part of it in State hospitals.3 A hospital staff member noted that he had "delusions about a female forensic evaluator . . . and difficulty controlling his sexual impulses." The defendant was twice discovered under a female patient's bed, and on another occasion was kissing female patients.

In September, 1996, the defendant was released from custody, and approximately three days later, while still on probation, he violently dragged a motorist from her car and attempted to rape her. As a result of this incident, the defendant was convicted of assault with intent to rape, assault and battery by means of a dangerous weapon, and assault and battery. He was sentenced to from five years to five years and one day on the first two indictments. A guilty finding was placed on file on the third indictment. While serving this sentence, he was cited for fifty-one disciplinary violations such as fighting, being out of place, refusing orders, and assaulting and threatening correction officers.

In September, 2001, in anticipation of the defendant's release from custody, the Commonwealth filed a petition in the Superior Court for commitment of the defendant as a sexually dangerous person. The defendant waived his right to limit preliminary confinement to ten days. Two qualified examiners evaluated him, one of whom was selected by the defendant. Both concluded that the defendant was likely to commit additional sexual offenses if not confined to a secure facility, as provided in G.L. c. 123A, § 1, although only one found that he was an SDP. The other examiner was uncertain whether the defendant's dangerousness originated from a "mental abnormality or personality disorder," as required by § 1.

At a later hearing, counsel suggested to the hearing judge that the defendant lacked competency to stand trial under § 14. After a colloquy with the defendant, the judge declared him "incompetent to proceed on this day." A qualified examiner concluded that the defendant was "compromised in his ability to assist his attorney by his limited intellectual ability (mild retardation) particularly as it relates to his ability to follow testimony, retain what he has heard, and follow instructions from his attorney." The examiner noted that "there may be some fluctuations in the degree of [the defendant's] competence to stand trial that may require an on-the-spot assessment at the time of court hearings."

After several hearings, the hearing judge found probable cause to proceed to trial. Pursuant to § 13(a), two more examiners interviewed the defendant and concluded that he was an SDP within the meaning of c. 123A. After the passage of some time,4 the defendant was reexamined on motions of both the Commonwealth and the defense, with the same results.

The Commonwealth moved for trial pursuant to G.L. c. 123A, § 14. The reporting judge denied the...

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