Commonwealth v. Given

• Decision Date: 02 February 2004
• Citation: 441 Mass. 741,808 NE 2d 788
• Parties: COMMONWEALTH v. EDWARD GIVEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

441 Mass. 741

808 NE 2d 788

COMMONWEALTH v.EDWARD GIVEN.

Supreme Judicial Court of Massachusetts, Worcester.

February 2, 2004.

May 20, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

David Hirsch,Committee for Public Counsel Services, for the defendant.

John J. Conte,District Attorney, & Ellyn H. Lazar-Moore,Assistant District Attorney, for the Commonwealth, submitted a brief.

CORDY, J.

At the commitment trial of a person accused of being sexually dangerous, the Commonwealth is entitled to introduce in evidence "police reports relating to such person's prior sexual offenses."G. L. c. 123A, § 14 (c).We have previously held that "offenses," as used in § 14 (c), means convictions or adjudications, so that the Commonwealth may not introduce reports of nol prossed allegations of sexual assault.Commonwealth v. Markvart,437 Mass. 331, 336(2002).In this case, we must decide whether a police report concerning a prior sexual offense to which a defendant has pleaded guilty is admissible without redaction, when the same report also contains statements about an uncharged contemporaneous sexual assault.We conclude that it is.

1.Background.In November, 2000, the Commonwealth commenced proceedings under G. L. c. 123A, §§ 12-16, to commit Edward Given as a sexually dangerous person.After a finding of probable cause, the matter was tried before a jury in the Superior Court.

At trial, the Commonwealth introduced evidence that Given had been convicted in 1984 of indecent assault and battery on a child under fourteen years, and that he had pleaded guilty in 1991 to two indictments charging rape of a child, five indictments charging indecent assault and battery on a child under fourteen years, and two indictments charging indecent assault and battery on a mentally retarded person.¹Several of the charges to which Given pleaded guilty stemmed from a series of acts on a single day in 1990.One of Given's victims on that day, whom we shall call Francine, was the twelve year old mentally retarded niece of one of Given's friends.At trial, over Given's objection, the Commonwealth introduced an unredacted police report detailing Francine's allegations.²According to the report, Given agreed to take Francine to the Roll-On America roller skating rink in Lancaster, but stopped at a house on the way and molested her.After they reached the rink, Given sexually assaulted her again in his locked motor vehicle.Francine reported that a six year old boy was also in the locked vehicle at the time of the assault, and that Given also attempted to molest him.³Given was never charged with the alleged assault on the six year old boy.At the conclusion of the trial, the jury rendered a special verdict finding that Given was a sexually dangerous person, and the trial judge ordered him committed to the treatment center for an indefinite period, from one day to life.Given appealed, and the Appeals Court reversed the judgment and set aside the jury's special verdict, reasoning that the portion of the police report concerning the alleged assault on the six year old boy was inadmissible under § 14 (c), because it did not relate to a prior sexual offense of which Given had been convicted.Commonwealth v. Given,59 Mass. App. Ct. 390, 394(2003).We granted the Commonwealth's application for further appellate review.We find no error in the judge's decision to allow introduction of the unredacted police report and therefore affirm the judgment.

2. Discussion. a. Scope of admissible reports under § 14 (c).We first consider whether the police report was admissible under G. L. c. 123A, § 14 (c).Hearsay that is inadmissible under the rules of evidence is inadmissible in a proceeding under G. L. c. 123A, unless the evidence is made admissible by statute.Commonwealth v. Markvart, supra at 335;Commonwealth v. Rodriguez,376 Mass. 632, 638 & n.10(1978).Section 14 (c) enumerates several categories of specifically admissible evidence:

"Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person's prior sexual offenses, incident reports arising out of such person's incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial"(emphases added).

Although we have termed this set of exceptions " `a very radical departure' from ordinary evidentiary rules,"we have nonetheless acknowledged that the Legislature has expressed a clear policy preference in favor of admitting such evidence in G. L. c. 123A proceedings.Andrews, petitioner,368 Mass. 468, 473(1975), quotingCommonwealth v. McGruder,348 Mass. 712, 715(1965), cert. denied, 383 U.S. 972(1966).The report admitted in evidence in this case is plainly a police report, and both parties concede that the Commonwealth provided the report to Given in advance of trial.

The report is also one "relating to [Given's] prior sexual offenses," as we have construed the term "offenses" in Commonwealth v. Markvart, supra at 336.An accepted guilty plea is a judicial finding of guilt, entered after a judge is satisfied that, among other things, there is a factual basis for the underlying charge.Mass. R. Crim. P. 12 (c)(5)(A), 378 Mass. 866(1979).Consequently, a charge to which a defendant pleads guilty is an "offense" for purposes of G. L. c. 123A, § 14 (c).In this case, Francine's allegations that Given sexually assaulted her in his automobile at the roller skating rink gave rise to indictments to which Given pleaded guilty.⁴The police report that memorializes Francine's description of what occurred is therefore admissible under § 14 (c) as a "police report relating to [Given's] prior sexual offenses."

The more difficult issue is whether the portion of the report describing Francine's statement that Given molested a six year old boy should have been redacted.The language of § 14 (c) makes clear that the Legislature did not intend to limit the scope of information admissible under § 14 (c) to the mere fact of conviction or even the facts presented at a plea colloquy; rather, other information in police reports — including any statements describing the defendant's conduct and the circumstances attendant to the offense — is also admissible.The fact that that information could have, but did not, result in additional criminal charges is irrelevant to its admissibility under § 14 (c).⁵

Francine's statement refers to the six year old boy twice, and, in both instances, the references appear as part of her description of her own abuse.According to Francine, the boy was in the automobile while Given sexually assaulted her, and Given "did the same thing to the little boy."She and the boy were allegedly molested at the same time, in the same way, by the same person.This statement is unambiguously "relat[ed] to" the circumstances of her abuse in Given's automobile.Because Given pleaded guilty to charges stemming from this abuse, the police report, including Francine's statement about what occurred, related to an offense and was admissible at Given's trial.⁶

b. Due process.Having determined that the police report was admissible without redaction under § 14 (c), we must evaluate whether its admission violates the due process provisions of the Massachusetts or the Federal Constitution.⁷,⁸

Given argues that the admission of Francine's statement (as contained in the police report) without an independent finding that it was reliable violated his right to due process."While commitment proceedings under c. 123A are civil proceedings, the potential deprivation of liberty to those persons subjected to these proceedings `mandates that due process protections apply.'"Commonwealth v. Bruno,432 Mass. 489, 502(2000), quotingCommonwealth v. Travis,372 Mass. 238, 250(1977).However, even in proceedings that may result in a deprivation of liberty, "the due process clause does not place a per se prohibition on the use of hearsay evidence."Commonwealth v. Durling,407 Mass. 108, 115(1990)(probation revocation hearing).To determine whether the use of hearsay evidence in a civil commitment case violates due process, we need look no further than to its reliability.⁹Seeid. at 117.See alsoCommonwealth v. Negron, ante 685, 690(2004).

"Evidence which would be admissible under standard evidentiary rules is presumptively reliable."Commonwealth v. Durling, supra at 118.However, as we have stated, the admission of hearsay contained in police reports under § 14 (c) is "`a very radical departure' from ordinary evidentiary rules."Andrews, petitioner, supra,quotingCommonwealth v. McGruder, supra.This statutory departure is justified, however, where the proffered report relates to an offense of which the defendant has been convicted.The fact of conviction is a powerful independent indicator of the reliability of the statements describing the offense on which the conviction rests.In this case, while the fact that Francine, a child suffering from mental retardation, made her statement to police shortly after the traumatic experience of two sexual assaults might cast some doubt on its reliability, Given pleaded guilty to these very assaults.

Insofar as Francine's statement concerning the six year old boy was part of her detailed description of the circumstances of Given's sexual assaults on her, its reliability is similarly bolstered by Given's plea.This is so even though his plea may not have contained an admission to any of the...