Com. v. Proctor

• Decision Date: 03 August 1988
• Parties: COMMONWEALTH v. Llewellyn PROCTOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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.

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 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 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 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 that it made a sufficient showing that the respondent was represented by or had waived counsel in the Maine proceedings. Instead, the Commonwealth argues that because c. 123A is civil and nonpunitive rather than criminal in nature, Andrews, petitioner, 368 Mass. 468, 487, 334 N.E.2d 15 (1975), and cases cited, the prohibition on uncounseled prior convictions should not apply. This is not persuasive. "[W]hether 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....' The respondent's right at issue here is the 'potential deprivation of liberty' which we once described as 'massive.' " (Citations omitted.) Commonwealth v. Barboza, 387 Mass. 105, 111, 438 N.E.2d 1064, cert. denied, 459 U.S. 1020, 103 S.Ct. 385, 74 L.Ed.2d 516 (1982).

While "[n]ot all the due process procedures applicable in a criminal prosecution for Federal constitutional purposes apply to a c. 123A proceeding," Barboza, supra at 112, 438 N.E.2d 1064, ¹ we conclude that it is a violation of due process rights to introduce prior convictions in evidence in a c. 123A proceeding without a showing regarding the respondent's representation by counsel in the prior proceedings. In c. 123A proceedings the central issue is whether the respondent is an SDP. Chapter 123A defines an SDP as "any person whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of sixteen years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires" (emphasis added). G.L. c. 123A, § 1.

If admissible, prior convictions can be used in c. 123A proceedings not merely to impeach a respondent's credibility as a witness (G.L. c. 233, § 21 [1986 ed.] ), but also, if relevant, to prove the respondent's "repetitive or compulsive sexual misconduct." See c. 123A, § 5 (1986 ed.). In light of the unreliability of uncounseled convictions, and the central role that prior convictions of crimes involving sexual misconduct might play in an SDP determination, the admission of prior convictions in c. 123A proceedings would violate due process principles in the absence of a showing that a respondent's constitutional right to counsel was protected. The admission of uncounseled convictions in c. 123A proceedings would present a substantial risk that the respondent would be erroneously deprived of liberty and improperly stigmatized by being adjudged an SDP. See Thompson v....