Com. v. Sargent

Decision Date24 July 2007
Docket NumberSJC-09802.
Citation449 Mass. 576,870 N.E.2d 602
PartiesCOMMONWEALTH v. Randy SARGENT.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Richard J. Fallon, West Acton, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

The defendant challenges his commitment as a "sexually dangerous person" pursuant to G.L. c. 123A, asserting that he was interviewed by a qualified examiner1 in violation of his right to counsel. The defendant also argues that the judge's findings that he was a sexually dangerous person constituted clear error, that the Commonwealth did not timely file the petition for trial, and that he received ineffective assistance of counsel. We transferred the case from the Appeals Court on our own motion. Because we hold that there is no right to counsel at an interview with a qualified examiner under G.L. c. 123A and find no error in the defendant's other claims, we affirm the order of the Superior Court.2

Background. The facts underlying this appeal are not in dispute. On April 7, 1993, the defendant pleaded guilty to two counts of rape of a child and one count of indecent assault and battery on a child under the age of fourteen years. He was sentenced to three concurrent terms of from six to ten years in State prison.

On January 18, 2002, the Commonwealth filed a petition, pursuant to G.L. c. 123A, § 12(b ), to commit the defendant as a sexually dangerous person. A judge in the Superior Court found sufficient cause that the defendant was sexually dangerous, and issued an order for his temporary commitment to the Massachusetts Treatment Center (treatment center) pursuant to G.L. c. 123A, § 12(e ). On July 3, 2002, after a hearing, a different judge in the Superior Court found probable cause to believe that the defendant was a sexually dangerous person and ordered him committed to the treatment center for examination and diagnosis by two qualified examiners. See G.L. c. 123A, § 13(a ).

After the defendant was committed to the treatment center, his counsel informed the Commonwealth and the treatment center that he wished to be present at all examinations of the defendant. One qualified examiner interviewed the defendant on August 2, 2002, with the defendant's counsel present.

On August 7, 2002, a second qualified examiner, Barbara Quinones, appeared at the treatment center to interview the defendant. The defendant's counsel was not present. Quinones knew that counsel had asked to be present during any interview. She attempted to contact counsel, but was unable to reach him because he was on vacation. Quinones informed the defendant that he could have his lawyer present if he wished, proceed without his lawyer, or decline the interview. She told him that even if he declined the interview, she would prepare and file her report. The defendant agreed to go forward with the interview without his attorney present.

Quinones also administered warnings on the limits of confidentiality prior to examining the defendant, stating that (1) she was a qualified examiner appointed by the Commonwealth to conduct an evaluation whether the defendant met the criteria of a sexually dangerous person; (2) she would be preparing a report based on the interview; (3) the information the defendant provided would be included in the report and possibly in oral testimony to the court; (4) the content of the interview would not be kept confidential; and (5) the defendant did not have to answer the questions, did not need to participate in the interview at all, and could end the interview at any time. See Commonwealth v. Lamb, 365 Mass. 265, 269-270, 311 N.E.2d 47 (1974). She also asked the defendant to repeat the warning in his own words, which he did.

Both qualified examiners timely filed written reports that concluded that the defendant was a sexually dangerous person as defined by G.L. c. 123A, § 1. The Commonwealth filed a petition for trial on August 15, 2002.

A jury-waived trial took place in October, 2003. At the conclusion of the trial, the judge issued oral findings of fact and rulings of law, concluding that the Commonwealth had proved beyond a reasonable doubt that the defendant was a sexually dangerous person.

Discussion. 1. Right to counsel. Prior to trial, the defendant filed a motion to exclude Quinones's report and testimony based on a claimed violation of his right to counsel. The motion was granted, and the Commonwealth sought relief under G.L. c. 231, § 118. A single justice of the Appeals Court vacated the order.

At trial, Quinones testified about her interview with the defendant and her written report was admitted in evidence. The defendant claims that her testimony and report should have been excluded because she interviewed him in violation of his right to assistance of counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. There is no merit to this argument.

The Sixth Amendment and art. 12 provide a right to counsel at every "critical stage" of the criminal process. Commonwealth v. Woods, 427 Mass. 169, 174, 693 N.E.2d 123 (1998). We need not address whether the Sixth Amendment right to counsel applies to every aspect of the proceedings under G.L. c. 123A,3 because even if it does, here, as in criminal proceedings, only the decision to undergo a psychiatric evaluation,4 and not the interview itself, is a critical stage.5 See Commonwealth v. Trapp, 423 Mass. 356 359, 668 N.E.2d 327, cert. denied, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996). Cf. Commonwealth v. Woods, supra (postconviction probationary evaluation not critical stage entitling defendant to protection under Sixth Amendment or art. 12).

Even though a psychiatric interview is not considered a critical stage in criminal proceedings, the defendant argues that the evaluation of the qualified examiner should be considered a critical stage in proceedings under G.L. c. 123A because "[e]ven more so than in the criminal responsibility context where it is the defendant who is voluntarily raising the mental health issue, in a civil commitment under G.L. c. 123A, it is the Commonwealth [that] raises the issue." We disagree. The "critical stage" test is whether the accused finds himself "confronted, just as at trial, by the procedural system, or by his expert adversary, or by both." United States v. Byers, 740 F.2d 1104, 1117-1118 (D.C.Cir.1984), quoting United States v. Ash, 413 U.S. 300, 310, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). See Commonwealth v. Trapp, supra (adopting holding in Byers case). In order to constitute a critical stage, the accused must require assistance in "coping with legal problems or assistance in meeting his adversary," and the Sixth Amendment does not apply where there is no possibility "that the accused might be misled by his lack of familiarity with the law or overpowered by his professional adversary." United States v. Byers, supra at 1118, quoting United States v. Ash, supra at 313, 317, 93 S.Ct. 2568. In an interview with a qualified examiner under G.L. c. 123A, a committed person is "not confronted by the procedural system; he ha[s] no decisions in the nature of legal strategy or tactics to make." United States v. Byers, supra. A qualified examiner is not a representative of the Commonwealth requiring a defendant to "defend himself against [a] direct onslaught of the prosecutor." Id. See Commonwealth v. Connors, 447 Mass. 313, 314 n. 2, 850 N.E.2d 1038 (2006) ("The qualified examiners mentioned in G.L. c. 123A, § 13[a], are independent experts appointed by the court"); note 1, supra.6

In addition to claiming a constitutional right to counsel at his interview with a qualified examiner, the defendant asserts that he had a statutory right to counsel under G.L. c. 123A. We reject this argument. Although the plain language of G.L. c. 123A provides a right to counsel to individuals who the Commonwealth seeks to commit,7 it does not expressly provide for a right to counsel at the interviews with the qualified examiners. The provision governing the qualified examiners' evaluations specifies certain protections for this process, see G.L. c. 123A, § 13(c) ("All written documentation submitted to the two qualified examiners shall also be provided to counsel for the person named in the petition and to the district attorney and attorney general"), but does not provide for counsel to be present at the interviews with the qualified examiners. "We will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design." Commonwealth v. Poissant, 443 Mass. 558, 563, 823 N.E.2d 350 (2005), quoting Commonwealth v. Callahan, 440 Mass. 436, 443, 799 N.E.2d 113 (2003).

Moreover, the Legislature amended G.L. c. 123A in 1999, see St.1999, c. 74, after this court's decision in Commonwealth v. Trapp, supra, and the Legislature did not add a right to have counsel present at the interviews with the qualified examiners. Thus, there is no indication that the Legislature intended to provide committed persons the right to counsel at the interviews with the qualified examiners. See McCarty's Case, 445 Mass. 361, 366, 837 N.E.2d 669 (2005) (Legislature presumed to be aware of this court's decisions at time it amends statute); Commonwealth v. Callahan, supra at 440-441, 799 N.E.2d 113 (same).8

We turn now to the defendant's claim that he was denied the right to counsel when he was making the decision whether to undergo the examination by the qualified examiner. See Vuthy Seng v....

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