Commonwealth v. Corbett
| Citation | 101 Mass.App.Ct. 355,191 N.E.3d 336 |
| Decision Date | 08 July 2022 |
| Docket Number | 21-P-646 |
| Parties | COMMONWEALTH v. Richard M. CORBETT. |
| Court | Appeals Court of Massachusetts |
Adriana Contartese, for the defendant.
Hallie White Speight, Assistant District Attorney, for the Commonwealth.
Present: Green, C.J., Englander, & Grant, JJ.
After a jury trial, the defendant was convicted of "knowingly ... fail[ing]" to register as a sex offender (second offense). G. L. c. 6, § 178H (a ) (2). On appeal, the defendant's principal contention is that the judge improperly excluded expert testimony proposed by the defendant, to the effect that he had "mental disorders" that caused him to be unable to remember to register. The judge concluded that the proposed expert testimony was irrelevant to the crime; before this court, the Commonwealth argues that all the Commonwealth need prove is that the defendant had "actual notice" of his registration obligation, and that the defendant's memory (or lack thereof) is not material.
For the reasons that follow, we disagree. The crime requires that the defendant "knowingly ... fail[ ]" to register, and this court has said that to act "knowingly" at least requires "a perception of the facts requisite to make up the crime" (quotation and citation omitted). Commonwealth v. Fondakowski, 62 Mass. App. Ct. 939, 940, 821 N.E.2d 481 (2005). Here, the defendant's proffered expert testimony about his mental state was relevant to whether the "knowingly" element had been met. As the evidence was relevant, and its exclusion was not harmless, we vacate the conviction.
Background. In 2010, when the defendant was twenty-one years old, he was convicted of a crime and was subsequently ordered to register as a level three sex offender. Although during the following period the defendant registered at least some of the time, in May of 2015 he was convicted for failing to register and sentenced to six months in a house of correction. Thereafter, on December 9, 2016, the defendant went to the Natick Police Department to register.1 The defendant told police officers that he was then homeless, and living under a bridge in Natick. The police provided the defendant with a registration form that described his ongoing registration requirements, which the defendant signed. A police officer printed a receipt for the defendant that stated that sex offenders who are homeless are required to reregister every thirty days. The officer also wrote the defendant's next registration date on the form: January 8, 2017.
The defendant did not return to reregister in Natick on January 8, 2017. The following week, a police officer sent the defendant multiple e-mail messages, asking him to come in and register. The defendant never reported for registration. In June 2017, a grand jury indicted the defendant for failing to register as a sex offender, second offense, and setting the date of the offense as "on or about" January 17, 2017.
In preparing his defense, the defendant filed a motion for "funds for psychologist (diminished capacity)," which the judge granted. In November of 2018, eight months prior to trial, the defendant filed a "motion in limine to admit expert testimony on defendant's mental state," together with a six-page report from Dr. Eric Brown, entitled "Psychological Evaluation." The motion argued that Dr. Brown's opinion as to the defendant's mental state was relevant because "knowingly" was an essential element of the charged crime. The Commonwealth responded with a competing "motion to exclude irrelevant testimony of defense expert."
The expert report opined on the defendant's mental state. The report stated that the defendant "struggle[d] with significant mental disorders that adversely impact upon his daily functioning." While the report did not cite a clearly identifiable disease affecting the defendant's memory, such as Alzheimer's disease
, it stated that the defendant had been diagnosed in September 2016 with attention deficit hyperactivity disorder, bipolar disorder II, posttraumatic stress disorder, borderline personality disorder, and substance use disorder. It also noted that the defendant's "significant medical problems include a history of ... deficits in memory." It concluded with an opinion regarding why the defendant failed to register:
In July of 2019, the judge granted the Commonwealth's motion to exclude Dr. Brown's testimony. The judge reasoned, in substance, that the proposed evidence was not relevant: the expert's "conclusions ... would not negate defendant's knowledge of his obligation to register, support a defense of impossibility, or establish a defense of lack of criminal responsibility." The judge also stated that the defendant had not provided notice of a mental health defense as required by Mass. R. Crim. P. 14 (b) (2), as appearing in 463 Mass. 1501 (2012).2
Trial was in July of 2019. The defendant moved for a required finding of not guilty at the close of the Commonwealth's case, and renewed his motion to admit his expert's testimony. The judge denied both motions. The jury found the defendant guilty, and this appeal followed.
Discussion. 1. Sufficiency of the evidence. The crime of failing to register as a sex offender appears in G. L. c. 6, § 178H (a ), which states: "A sex offender required to register pursuant to this chapter who knowingly: (i) fails to register ... shall be punished."
The elements of the crime are (1) that the defendant is a sex offender, (2) required to register, who (3) knowingly (4) fails to register. See G. L. c. 6, § 178H (a ). Here it is not contested that the defendant is a sex offender and that he failed to register. As an initial matter, however, the defendant challenges the sufficiency of the Commonwealth's evidence that he was required to register in Massachusetts, arguing that the Commonwealth failed to prove that he resided in Massachusetts as of the date of offense alleged in the indictment.3
Applying the familiar test of Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), there was sufficient evidence that the defendant resided in Massachusetts on the date in question. "[T]he term ‘residence’ means both presence in a jurisdiction and an intention to remain there for some indefinite period of time." Commonwealth v. Paul, 96 Mass. App. Ct. 263, 270, 132 N.E.3d 544 (2019). Here, the defendant had registered in several Massachusetts towns during the years prior to January of 2017. He registered in Natick thirty days prior to his failure to register. From this evidence the jury could reasonably infer that the defendant continued to reside in Massachusetts when he failed to register.
2. The "knowingly" element and evidence of mental state. The remaining issue before us is the evidentiary issue related to the "knowingly" element. The defendant attempted to adduce evidence that his memory was so impaired that he could not meet his registration obligation; the Commonwealth counters that such evidence is simply not relevant to the crime, as all that matters is that the defendant had actual notice of his obligation.
To answer the relevance question we must first determine what the Commonwealth needed to show to meet the "knowingly" element. That is a question of statutory construction, and as always we begin with the language of the statute. See Commonwealth v. Pfeiffer, 482 Mass. 110, 115, 121 N.E.3d 1130, cert. denied, ––– U.S. ––––, 140 S. Ct. 498, 205 L.Ed.2d 322 (2019) ().
The statute requires that the defendant "knowingly ... fail[ed]" to register. G. L. c. 6, § 178H (a ). The requirement that an act be done "knowingly" is not uncommon in criminal statutes, but its meaning is not easily defined. Most crimes, of course, require that the defendant had a particular state of mind, or mens rea. See Liparota v. United States, 471 U.S. 419, 425-426, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (). The concepts of specific and general intent, and statutory language such as "willfully" and "maliciously," have been much discussed. See Pfeiffer, 482 Mass. at 115, 121 N.E.3d 1130 (). The concept of "knowingly," however, does not slot comfortably into those concepts. Here, we do not read the statute at issue to require a specific intent -- that is, we do not read it to require proof that the defendant specifically intended the consequence that he not register.4 Nevertheless, the word "knowingly," coupled with the word "fail," indicates that the defendant must have a consciousness of his actions at the time of the crime; put differently, it is not enough to prove merely that the defendant failed to register, as the statutory language requires something more -- that the failure was "knowing." And indeed, the notion that the defendant must have an awareness of his actions is found in the formulation we employed in Fondakowski -- the defendant must have "a perception of the facts requisite to make up the crime." Fondakowski, 62 Mass. App. Ct. at 940, 821 N.E.2d 481, quoting Commonwealth v. Altenhaus, 317 Mass. 270, 273, 57 N.E.2d 921 (1944). See Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 12, 865 N.E.2d 1158 (2007) (...
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