Commonwealth v. Bruno

• Decision Date: 02 May 2000
• Citation: 735 NE 2d 1222,432 Mass. 489
• Parties: COMMONWEALTH v. LAWRENCE A. BRUNO. COMMONWEALTH v. CARLOS L. DAVILA. COMMONWEALTH v. JAMES D. WILSON (and a consolidated case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 489

735 NE 2d 1222

COMMONWEALTH v. LAWRENCE A. BRUNO.

COMMONWEALTH v. CARLOS L. DAVILA.

COMMONWEALTH v. JAMES D. WILSON (and a consolidated case).

Supreme Judicial Court of Massachusetts, Plymouth, Middlesex.

May 2, 2000.

September 29, 2000.

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

Gail M. McKenna, Kimberly M. Diaz, & Margaret A. Peterson, Assistant District Attorneys (Sean Gordon, Assistant District Attorney, with them) for the Commonwealth.

Nona E. Walker, Committee for Public Counsel Services (Anne E. Gowen & Stan Goldman, Committee for Public Counsel Services, with her) for the defendants.

The following submitted briefs for amici curiae:

John Reinstein, Mark J. Gillis, Stan Goldman, Gary Rothberger, & Peter Costanza for the American Civil Liberties Union of Massachusetts & others.

Thomas F. Reilly, Attorney General, Joseph T. Thai, & Pamela L. Hunt, Assistant Attorneys General, for the Attorney General & others.

SPINA, J.

In these cases, we decide whether the provisions of G. L. c. 123A, as amended through St. 1999, c. 74, §§ 3-8,¹ that provide for the civil commitment of sexually dangerous persons, apply to persons such as the three defendants, whose convictions of sexual offenses predate September 10, 1999, the effective date of St. 1999, c. 74. On September 10, 1999, each of the defendants was serving his respective sentence on the sexual offense of which he was previously convicted, and was scheduled to be released from prison shortly thereafter.² On the day before their scheduled releases, the Commonwealth filed petitions in the Superior Court seeking each defendant's commitment as a sexually dangerous person.³ After being temporarily committed, each of the defendants moved to dismiss the petition filed against him. The defendants argued that the 1999 version of c. 123A violated various State constitutional provisions, or that the definition of sexually dangerous persons in c. 123A, § 1, did not apply to persons who had not been convicted of a sexual offense on or after the effective date of the 1999 amendments. The judge in each case did not decide the constitutional claims, but rather concluded that the defendant could not be subjected to potential commitment under c. 123A because his prior conviction of a sexual offense predated the effective date of the 1999 amendments, and on that basis, allowed the motion to dismiss.⁴ The Commonwealth appealed from each order of dismissal. Pending our determination of these cases, Davila and Wilson have remained committed. We conclude that civil commitment proceedings under c. 123A were properly initiated against the defendants, whose convictions for sexual offenses predate the effective date of the 1999 amendments. We reject the defendants' constitutional claims that c. 123A violates their rights to be protected from ex post facto lawmaking, as well as their due process rights.

We also consider whether Bruno's due process rights were violated by the Commonwealth's recent attempt to have him committed, where he previously had been evaluated by two psychiatrists who opined that he was not a sexually dangerous person under an earlier version of c. 123A. We conclude that, where Bruno had not been adjudged not sexually dangerous, and where the Commonwealth's recent commitment petition was not predicated solely on the grounds on which the prior commitment petition was based, the Commonwealth did not violate Bruno's due process rights by recently filing a petition to commit Bruno as a sexually dangerous person.

Last, we consider the propriety of an order committing Wilson to the treatment center for examination and diagnosis for a period not to exceed sixty days. This order was entered by the judge before he allowed Wilson's motion to dismiss. The judge, after hearing, committed Wilson because he found probable cause existed that Wilson was a sexually dangerous person. The judge then reported his order as well as six questions of law to the Appeals Court pursuant to Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996), and G. L. c. 231, § 111.⁵ A single justice of this court, pursuant to G. L. c. 211, § 4A, transferred the report, together with the Commonwealth's appeal from the order allowing Wilson's motion to dismiss, from the Appeals Court to this court.⁶ We affirm the order of commitment and address the reported questions.

We first provide an overview of the statute. On September 10, 1999, the Legislature enacted emergency legislation, St. 1999, c. 74, §§ 3-8, amending c. 123A by providing for the one day to life commitment of a person adjudged a "sexually dangerous person."⁷ Prior to these amendments, for a period of almost ten years, no new "sexually dangerous person" classifications and no new commitments were permitted. See St. 1990, c. 150, § 304 (repealing G. L. c. 123A, §§ 3-6, and 7).⁸ The 1999 amendments established a new definition of a sexually dangerous person, see G. L. c. 123A, § 1, and five new sections, see G. L. c. 123A, §§ 12-16, concerning the procedures for adjudicating persons as sexually dangerous.

As amended through St. 1999, c. 74, § 6, a "sexually dangerous person" is defined in G. L. c. 123A, § 1, as:

"any person who has been (i) convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility; (ii) charged with a sexual offense and was determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or (iii) previously adjudicated as [sexually dangerous] by a court of the commonwealth and 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 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires."

Statute 1999, c. 74, § 4, inserted definitions for the terms "[m]ental abnormality" and "[p]ersonality disorder." A "[m]ental abnormality" is defined as "a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." G. L. c. 123A, § 1. A "[p]ersonality disorder" is defined as "a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses." Id. The definition of the term "sexual offense" identifies various specifically enumerated crimes, including, undisputedly, the crimes of which the defendants were convicted. Id. See note 2, supra.

The new commitment procedures, as applied to persons such as the defendants who have been convicted of a sexual offense, require "[a]ny agency with jurisdiction" over such persons, or custodial agency, to "notify in writing the district attorney of the county where the offense occurred and the attorney general six months prior to the release of such person." G. L. c. 123A, § 12 (a). If the district attorney or Attorney General then "determines that the prisoner ... is likely to be a sexually dangerous person as defined in section 1 [of c. 123A]," either "may file a petition alleging that the prisoner ... is a sexually dangerous person and stating sufficient facts to support such allegations in the superior court." Id. at § 12 (b).

"Upon the filing of a petition," the court must "determine whether probable cause exists to believe that the person named in the petition is a sexually dangerous person." G. L. c. 123A, § 12 (c). Such person is entitled to notice and a hearing, together with the right to be represented by counsel, to present evidence, to cross-examine witnesses, and to view and copy all petitions and reports in the court's file. Id. at § 12 (c), (d). If the person is scheduled to be released "prior to the court's probable cause determination, the court, upon a sufficient showing based on the evidence before the court at that time, may temporarily commit such person ... pending disposition of the petition." Id. at § 12 (e). The person may move for relief from such commitment. Id.

If the court finds probable cause to believe that the person is sexually dangerous, he may be committed "for a period not exceeding [sixty] days for the purpose of examination and diagnosis under the supervision of two qualified examiners." G. L. c. 123A, § 13 (a). No later than fifteen days before the expiration of the sixty-day examination period, the qualified examiners must "file with the court a written report of the examination and diagnosis and their recommendation of the [person's] disposition." Id. The person may retain his own expert, and if indigent, "the court shall provide for such qualified examiner." Id. at § 13 (d).

Within fourteen days of the filing of the qualified examiners' reports, the district attorney or Attorney General "may petition the court for a trial ... to determine whether [the] person is a sexually dangerous person." G. L. c. 123A, § 14 (a). Trial must commence within sixty days from the date that the petition is filed unless good cause is shown or the interests of justice so require. Id. To prepare for trial, the person is entitled to the assistance of counsel and may retain "experts or professional persons to perform an examination on his behalf" and to examine "all relevant medical and psychological records" concerning the person. Id. at § 14 (b). If the person is indigent, the State shall provide him with counsel and experts. Id. If the...