Com. v. Walsh

• Decision Date: 20 July 1978
• Citation: 376 Mass. 53,378 N.E.2d 1378
• Parties: , 96 A.L.R.3d 831 COMMONWEALTH v. Merrill E. WALSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1378

378 N.E.2d 1378

376 Mass. 53, 96 A.L.R.3d 831

COMMONWEALTH v. Merrill E. WALSH.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 9, 1978.

Decided July 20, 1978.

Susan J. Baronoff, Boston, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS and LIACOS, JJ.

LIACOS, Justice.

This is an appeal from a decision of a Superior Court judge committing the defendant to the treatment center at the Massachusetts Correctional Institution at Bridgewater (treatment center) for an indeterminate period of from one day to life, as a sexually dangerous person, under G.L. c. 123A. We hold that the case should be remanded to the Superior Court for further proceedings consistent with this opinion.

On February 14, 1963, the defendant pleaded guilty to murder in the second degree and received a sentence of life imprisonment to be served at the Massachusetts Correctional Institution at Walpole. At a later date he was transferred to the Massachusetts Correctional Institution at Norfolk (Norfolk).

Approximately ten years later, on the motion of the superintendent of Norfolk, the defendant was committed after a hearing to the treatment center for a sixty-day period of observation and diagnosis to determine whether he was a sexually dangerous person.¹ On January 23, 1974, the judge allowed a motion to extend the time for observational commitment and the defendant was remanded to the treatment center for an additional thirty days. Following the filing of a psychiatric report, on May 3, 1974, the Commonwealth filed a petition to commit the defendant to the treatment center for from one day to life. After several continuances and an unexplained lapse of time between August, 1974, and June, 1975, on June 20, 1975, and again on November 25, 1975, counsel jointly moved for and obtained an order to have the defendant reexamined by the Commonwealth's psychiatrists.

Finally, on December 2-3, 1976, a hearing was held in the Superior Court on the Commonwealth's 1974 petition to commit the defendant. Subsequent to this hearing, the judge entered an order, accompanied by findings and rulings, that the defendant be committed as a sexually dangerous person to the treatment center for an indeterminate period of from one day to life. The defendant appealed, and we transferred the case from the Appeals Court on our own motion.

1. Before turning to the evidence in this case, we emphasize that "the Commonwealth must prove its case beyond a reasonable doubt in order to obtain an order granting a petition that a person be adjudicated (a sexually dangerous person) and committed as such or that he continue to be held in custody whenever his petition for release is heard." Andrews, petitioner, 368 Mass. 468, 489, 334 N.E.2d 15, 27 (1975). Accord, Superintendent of Worcester State Hosp. v. Hagberg, --- Mass. ---^a 372 N.E.2d 242 (1978) (commitment for mental illness). The Commonwealth must carry this burden with respect to each of the elements contained in G.L. c. 123A, § 1, which comprises the definition of a sexually dangerous person. Commonwealth v. McHoul, --- Mass. ---, ---^b 360 N.E.2d 316 (1977).

Despite our prior decisions, the Commonwealth contends that the reasonable doubt standard of proof should not apply to cases where the defendant, as here, already faces a term of life imprisonment prior to the initiation of commitment proceedings. ² The Commonwealth argues that once a defendant is sentenced to life imprisonment, an order of commitment for treatment as a sexually dangerous person should be considered no different from an administrative transfer to any of the correctional institutions in the Commonwealth. See Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). We are not persuaded. Unlike a transfer between prisons, commitment as a sexually dangerous person follows an independent fact-finding proceeding. See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). The courts and the Legislature by providing a hearing and numerous procedural safeguards for the commitment of sexually dangerous persons (see Andrews, petitioner, supra, 368 Mass. at 482-483, 334 N.E.2d 15) recognize the "serious consequences" of an adjudication that a person is sexually dangerous. See Commonwealth v. Travis, --- Mass. ---, ---^c 361 N.E.2d 394 (1977). See also Matthews v. Hardy, 137 U.S.App.D.C. 39, 43, 420 F.2d 607, 611 (1969), cert. denied, 397 U.S. 1010, 90 S.Ct. 1231, 25 L.Ed.2d 423 (1970). In this case, the defendant no longer would be considered for parole based on his record in prison and the crime for which he was convicted, but would have to seek parole under the terms of G.L. c. 123A, § 9, where he may or may not be as successful in obtaining release. To minimize the consequences of erroneous factual determinations at such hearings, this court required the reasonable doubt standard in Andrews, petitioner, supra. We decline to retreat from our holding in that case and to apply a double standard which more severely burdens prisoners already serving life terms. Even assuming that the Constitution does not require in this case the same stringent standard of proof as used in all other sexually dangerous person proceedings, the choice of the standard of proof has traditionally been an issue for the judiciary to resolve. Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 284, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966).

2. Applying the reasonable doubt standard, we conclude that, contrary to the defendant's claim, the evidence would warrant a finding that the defendant was sexually dangerous within the meaning of G.L. c. 123A, § 1.

General Laws c. 123A, § 1, as appearing in St.1958, c. 646, § 1, defines a sexually dangerous person 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 behavior and either violence, or aggression by an adult against a victim under the age of sixteen years, and who as a result is likely to attack or otherwise inflict injury on the objects of his uncontrolled or uncontrollable desires."

Since there was no evidence in this case of repetitive behavior or aggression by the defendant against a person under the age of sixteen, the defendant could not be adjudged a sexually dangerous person without proof of sexual misconduct of a compulsive and violent nature and a likelihood that injury will be inflicted. See Peterson, petitioner, 354 Mass. 110, 117, 236 N.E.2d 82 (1968); Commonwealth v. Jarvis, 2 Mass.App. 8, 10, 307 N.E.2d 844 (1974).

At the hearing on the Commonwealth's petition to commit the defendant, the Commonwealth offered the testimony of two psychiatrists and a therapist at the treatment center that the defendant was a sexually dangerous person, the report of an autopsy performed on the victim of the crime to which the defendant pleaded guilty of murder in the second degree in 1962, and two photographs of the murder victim. The defendant contends that this evidence was insufficient to support the judge's finding that the 1962 murder was compulsive. It is true that the judge came to the conclusion that the defendant was a sexually dangerous person based partly on the one conviction for murder. The defendant argues this to be error because the conviction of murder was the sole crime with sexual connotations of which the defendant had been convicted. Thus, the defendant claims there was no evidence of either repetitive or compulsive behavior; rather, only evidence of violence. The manner in which the crime was committed, however, may be sufficient to warrant an inference of compulsion. "(A) single act of sexual misconduct may be so bizarre and irrational as to permit the inference by a trier of fact that it was uncontrollable, and thus provide the basis for a determination that it was compulsive behavior." Commonwealth v. Jarvis, supra at 12, 307 N.E.2d at 847.

The evidence here, as explained by the Commonwealth's psychiatrists who had examined the defendant, could be viewed as sufficient to support the judge's finding of compulsive behavior. There is no dispute that the defendant, while drunk, murdered a woman in a laundromat. The decedent suffered multiple injuries. The sexual component of the crime was evidenced by the discovery in the victim's pelvic cavity of a soft drink bottle which had been forced through the vagina.

Although neither psychiatrist expressly characterized the defendant's offense as compulsive, this inference could be drawn from the nature of the crime and the psychiatric testimony that the defendant's alcoholism led him to lose control when intoxicated, to suffer "blackouts," and to perform such violent, impulsive acts. It is not necessary that the expert witnesses testify in the precise words of the statute. Commonwealth v. Dagle,345 Mass. 539, 543, 188 N.E.2d 450, cert. denied, 375 U.S. 863, 84 S.Ct. 131, 11 L.Ed.2d 89 (1963). It is true that the defense psychiatrist did not believe that the offense was compulsive, but psychiatric unanimity is not required in these proceedings. See Commonwealth v. Lamb,--- Mass. ---, ---^d 360 N.E.2d 307 (1977).

The defendant also argues that the fourteen-year old murder furnished insufficient evidence that the defendant "is likely to attack or otherwise inflict injury on the objects of his uncontrolled or uncontrollable desires." This is the most difficult statutory element to prove as it involves a prediction of future conduct based on a finding of past sexual misconduct. See Sarzen v. Gaughan, 489 F.2d 1076, 1084 (1st Cir. 1973). Evidence of past misconduct alone is thus inadequate to support a finding of sexual dangerousness, Commonwealth v. Major, 354 Mass. 666, 668, 241 N.E.2d 822 (1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 921, 21 L.Ed.2d 806 (1969). However, G.L. c. 123A, § 6, does not require that evidence of...