Com. v. Proctor

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: 403 Mass. 146,526 N.E.2d 765
• Parties: COMMONWEALTH v. Llewellyn PROCTOR.
• Decision Date: 03 August 1988

Page 765

526 N.E.2d 765 403 Mass. 146 COMMONWEALTH
v.
Llewellyn PROCTOR. Supreme Judicial Court of Massachusetts,
Middlesex. Argued May 3, 1988.
Decided Aug. 3, 1988.

Page 766

Richard Zorza, Committee for Public Counsel Services, Boston, for respondent.

Ellen M. Caulo, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The respondent was found guilty, after a District Court jury-waived trial, of indecent assault and battery on a person who had attained the age of fourteen. G.L. c. 265, § 13H (1986 ed.). The respondent was sentenced to two years in the Middlesex County house of correction with one year suspended. Subsequently, the superintendent of that facility petitioned the Superior Court to have the respondent committed to the treatment center at the Massachusetts Correctional Institution at Bridgewater (M.C.I. Bridgewater) for an evaluation [403 Mass. 147] period not to exceed sixty days, for a preliminary determination whether the respondent was a sexually dangerous person (SDP). Following that evaluation period, the Commonwealth petitioned to have the respondent committed to the treatment center for a period of from one day to life confinement as an SDP. A hearing was held and the respondent was adjudged an SDP and committed to the treatment center. G.L. c. 123A, § 6 (1986 ed.). We transferred the respondent's appeal on our own motion.

The respondent challenges the admission at his SDP hearing of three prior convictions in the State of Maine. The convictions involved incidents of sexual misconduct with minors. The respondent contends that, in the absence of a showing that he was represented by or had waived counsel in the proceedings leading to the prior convictions, the convictions should not have been placed in evidence at the subsequent c. 123A proceedings. The Commonwealth argues that the prior convictions explicitly are admissible under c. 123A, § 5; that because c. 123A is civil and nonpunitive rather than criminal in nature, uncounseled prior convictions need not be excluded; and that admission of the prior convictions was harmless error at most. We reject the Commonwealth's arguments, and determine that the respondent is entitled to a new c. 123A hearing.

"The use of a conviction of crime, resulting in a jail sentence, to impeach the credibility of a criminal defendant is clear

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error of constitutional dimension unless the Commonwealth establishes that he had or waived counsel." Commonwealth v. Cook, 371 Mass. 832, 833, 359 N.E.2d 949 (1977). Nor can those convictions be used in determining the length of a convicted defendant's sentence. Commonwealth v. Barrett, 3 Mass.App.Ct. 8, 9-10, 322 N.E.2d 89 (1975), discussing Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The reason for these rules is that, because convictions obtained in the absence of counsel for the defense are unreliable, use of prior convictions against a defendant violates due process principles absent a showing that the defendant was represented by or had waived counsel. Commonwealth v. Barrett, supra 3 Mass.App.Ct. at [403 Mass. 148] 10, 322 N.E.2d 89. Because this rule places constitutional limitations on the use of prior convictions, the language of c. 123A, § 5, stating that a person's prior criminal records are admissible in SDP proceedings is not, despite the Commonwealth's contention to the contrary, controlling.

The Commonwealth does not argue...