Commonwealth v. Dube, 02-P-334 & 02-P-457.

• Citation: 59 Mass. App. Ct. 476,796 NE 2d 859
• Decision Date: 03 October 2003
• Docket Number: No. 02-P-334 & 02-P-457.,02-P-334 & 02-P-457.
• Parties: COMMONWEALTH v. DONALD DUBE. COMMONWEALTH v. RUBIN SEPULVEDA.
• Court: Appeals Court of Massachusetts

59 Mass. App. Ct. 476

796 NE 2d 859

COMMONWEALTH v. DONALD DUBE.

COMMONWEALTH v. RUBIN SEPULVEDA.

Nos. 02-P-334 & 02-P-457.

Appeals Court of Massachusetts, Bristol.

March 18, 2003.

October 3, 2003.

Present: DOERFER, McHUGH, & MILLS, JJ.

Sharon L. Sullivan-Puccini, Assistant District Attorney, for the Commonwealth.

James L. Sultan (Catherine J. Hinton with him) for Donald Dube.

Michael Lyons for Rubin Sepulveda.

McHUGH, J.

Donald Dube and Rubin Sepulveda, the defendants in these cases, were convicted and imprisoned for the sexual offenses described below. As the time for their discharge neared, the Bristol County district attorney filed petitions to commit them to the Nemansket Correctional Center (Center) as sexually dangerous persons. See G. L. c. 123A, §§ 2, 12(b). Both petitions were dismissed at preliminary stages because the Commonwealth's expert, joined by every other psychiatric expert who had opined on their status, concluded that they were not sexually dangerous. From those dismissals, the Commonwealth appeals. It urges, first, that we decline to follow the recent Supreme Judicial Court decision in Commonwealth v. Bruno, 432 Mass. 489 (2000), which held that proof of sexual dangerousness requires expert testimony, and, second, that any requirement for expert testimony may be satisfied by producing and cross-examining an expert who has formed an opinion that the defendants are not sexually dangerous. The Commonwealth's position is wholly without merit and we affirm the judgments of dismissal.

The facts underlying the commitment petitions are as follows.¹ Donald Dube was sentenced to concurrent terms of from not less than twelve and not more than twenty years in State prison on November 13, 1991, following his conviction on two counts of forcible rape of a child and two counts of indecent assault and battery on a child under fourteen.² The crimes occurred during a two-year period beginning in 1982 and ending in 1984. The victims were two young girls, one of whom was fourteen in 1984 and the other of whom was twelve. Both girls had been adopted by one of Dube's friends.

At the time he committed the crimes, Dube was a Swansea police officer. He was aided in committing the offenses by his wife, also a Swansea police officer. The crimes involved oral, vaginal and anal intercourse, fellatio, and cunnilingus, often while pornographic movies served as a backdrop.³

While in prison, Dube steadfastly refused to admit that he had committed the offenses and refused to take part in sexual offender counseling and treatment. Nevertheless, his course of incarceration was entirely incident free. Consequently, on May 22, 2001, the parole board voted to release him on parole and, pursuant to G. L. c. 123A, § 12(a), notified the Bristol County district attorney of its intention to do so.

On December 20, 2001, the district attorney responded to the Board's notice by filing a petition to commit Dube to the Center pursuant to G. L. c. 123A, § 12(e). In his petition, the district attorney noted that he had engaged a "qualified examiner," see G. L. c. 123A, § 1, to examine Dube and that the examiner had concluded that Dube was not sexually dangerous. The district attorney's petition also stated that Dube had engaged the services of a psychologist who had likewise concluded that he was not sexually dangerous. The district attorney made no suggestion that he intended to seek the advice or opinion of any other qualified examiner or to procure an opinion that Dube was sexually dangerous from some other source. Instead, his petition stated "that Dube is in fact a sexually dangerous person and. . . the Commonwealth does not need the opinion of an expert on this issue."

In response to the petition, Dube filed a motion to dismiss on grounds that the petition disclosed on its face the Commonwealth's inability to establish "probable cause to believe that the defendant was a sexually dangerous person." G. L. c. 123A, § 12(c).⁴ A hearing quickly ensued, the motion to dismiss was allowed, and a judgment of dismissal thereafter entered.

The course of proceedings in the second case, involving Rubin Sepulveda, took a different route to a similar destination. Sepulveda was sentenced on November 27, 1990, to a term of from not less than eight and not more than twelve years for rape of a child and had received a concurrent sentence of from not less than eight and not more than ten years for indecent assault and battery on a child under fourteen. The victim was Sepulveda's eleven year old stepdaughter whom he had molested over a two-year period. The testimony at trial revealed oral, vaginal and anal intercourse, fellatio, and cunnilingus. Sepulveda admitted fondling the victim's breast and vaginal areas over her clothing but denied the other charges. There was some suggestion in the police reports that Sepulveda had fondled the breast and vaginal areas of the victim's younger sisters, ages five and six, over their clothing, but no charges to that effect were ever pressed.⁵

On June 9, 2000, the Department of Correction notified the Bristol County district attorney that Sepulveda's anticipated release date was December 26, 2000.⁶ Again, the district attorney responded with a petition for Sepulveda's commitment as a sexually dangerous person. This time, however, the Commonwealth supported its petition with a qualified examiner's report opining that Sepulveda was sexually dangerous.⁷ The qualified examiner was the same person who had rendered the negative opinion in Dube's case. At a subsequent hearing, a judge of the Superior Court found probable cause to believe that Sepulveda was sexually dangerous and ordered him committed to the Center for examination and diagnoses pursuant to G. L. c. 123A, § 13(a).

During his ensuing commitment, Sepulveda was examined by two qualified examiners who then filed with the court reports in which they opined that he was not sexually dangerous. The Commonwealth's examiner, who had based his original opinions solely on analysis of records pertaining to Sepulveda's case, then interviewed Sepulveda. Following the interview, the examiner changed his opinion and joined the two other qualified examiners in concluding that Sepulveda was not sexually dangerous.⁸

At that point, Sepulveda filed a motion to dismiss the petition or for summary judgment.⁹ He attached to that motion reports of two additional psychologists who, after examining him, concluded that he was not sexually dangerous, raising to five the number of examiners who held that undisputed opinion. After a hearing, a Superior Court judge allowed the motion on grounds that, without expert testimony, the Commonwealth could not meet its burden of proof at trial. The record contains no suggestion that the district attorney proffered at the hearing a new expert with a different opinion or suggested that new expert information regarding Sepulveda's sexual dangerousness would be forthcoming at trial.

That is the record upon which the Commonwealth prosecutes these appeals. In urging reversal, the Commonwealth first claims that no expert testimony is required to prove sexual dangerousness at trial and, thus, that dismissal of the petitions at a preliminary stage for want of such testimony or evidence was improper. Two years ago, the Supreme Judicial Court decided Commonwealth v. Bruno, 432 Mass. 489 (2000). There, the court explored in some detail many of the provisions of G. L. c. 123A. In the course of its exploration, the court made plain that a district attorney is not permitted to file a petition for commitment as a sexually dangerous person based solely on the fact that a person has been convicted of a sexual offense. Id. at 503. Instead, said the court, the statute required the district attorney to "make a `sufficient showing' based on `evidence before the court,' that the person named in the petition is sexually dangerous." Ibid. For that reason, the court said, the commitment petition had to be based on facts sufficient to support the ultimate determination and could not rest on mere averments. Ibid.

Because the statutory definition of "sexually dangerous" focuses on whether an individual suffers from a "mental abnormality or personality disorder" and on a predictive judgment about the likelihood that the individual will cause future harm, G. L. c. 123A, § 1,¹⁰ the court also held that the requisite showing required the Commonwealth to proffer expert testimony both to support an order of temporary commitment pending a probable cause hearing, id. at 511, and to support a finding of probable cause, Commonwealth v. Bruno, 432 Mass. at 513. See G. L. c. 123A, § 12(c), (e). Underscoring that requirement, the court, about a year later, held that a finding of probable cause required, overall, judicial satisfaction

"first, that the Commonwealth's admissible evidence, if believed, satisfies all of the elements of proof necessary to prove the Commonwealth's case and second, . . . that the evidence on each of the elements is not so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof."

Commonwealth v. Reese, 438 Mass. 519, 524 (2003), quoting from Commonwealth v. Blanchette, 54 Mass. App. Ct. 165, 175 (2002).

To be sure, both Bruno and Reese focused on the kind and quality of evidence required at pretrial proceedings, not at trials. Bruno, therefore, does not squarely hold that production of expert testimony is necessary to satisfy the Commonwealth's burden of proving sexual dangerousness at a full trial on the merits. Nevertheless, the conclusion that it must do so is inescapable. If a finding of sexual dangerousness requires exploration of mental or personality disorders and predictions about future behavior, if expert testimony is required for a finding of probable cause to commit a person to the Center, and if the statutory purpose for...