Commonwealth v. Hunt

• Decision Date: 16 July 2012
• Docket Number: SJC–11004.
• Citation: 971 N.E.2d 768,462 Mass. 807
• Parties: COMMONWEALTH v. Roy L. HUNT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 807

971 N.E.2d 768

COMMONWEALTH

v.Roy L. HUNT.

SJC–11004.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 8, 2012.

Submitted July 16, 2012.

Brandon L. Campbell for the defendant.

Christine M. Kiggen, Assistant District Attorney, for the Commonwealth.

Michael F. Farrington, pro se, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

GANTS, J.

A Superior Court jury found the defendant to be a sexually dangerous person (SDP) as defined in G.L. c. 123A, § 1, and he was ordered committed to the Massachusetts Treatment Center (treatment center) for an indeterminate period of from one day to life. On appeal, he claims that the trial judge erred in (1) denying his motion in limine to exclude any reference to his failure to participate in sex offender treatment programs made available to him by the Department of Correction (department); (2) excusing a prospective juror for cause who expressed his belief that no medical expert could conclusively demonstrate whether the defendant is going to commit another sexual offense; (3) admitting evidence that the defendant feared for his safety in prison because of rumors that he had sexually assaulted another inmate; and (4) instructing the jury regarding the elements of mental abnormality and the likelihood of engaging in sexual offenses, and in describing proof beyond a reasonable doubt. The defendant also claims that the prosecutor made improper and inflammatory remarks in closing argument that created a substantial risk of a miscarriage of justice. We conclude that there were errors in the admission of evidence and in the judge's instructions of law that, when considered together with the improprieties in the prosecutor's closing argument, require reversal and a new trial.¹

Background. On December 3, 1990, the defendant pleaded guilty to three indictments charging rape of a child and an unrelated indictment charging unarmed burglary, and he was sentenced to from eight to fifteen years in State prison on each of the indictments, to be served concurrently. At the plea hearing, the defendant admitted that he had been the live-in boy friend of the victim's mother for many years. When the victim was approximately seven years old, he began fondling her chest, and when she was approximately ten years old he raped her once or twice each week. The rape indictments to which he pleaded guilty occurred when the victim was between the ages of twelve and fourteen, the last occurring shortly after she had moved out of her mother's home.

On June 4, 2004, the Commonwealth filed a petition under G.L. c. 123A, § 12, seeking civil commitment of the defendant as an SDP. On June 17, a judge in the Superior Court temporarily committed the defendant to the treatment center pursuant to G.L. c. 123A, § 12 ( e ). After a hearing on September 18, 2007, a judge found probable cause to support the petition. At trial, the Commonwealth offered the testimony of two qualified examiners, and a third designated forensic psychologist, each of whom opined that the defendant is appropriately diagnosed with pedophilia, has a mental abnormality as defined in G.L. c. 123A, § 1, and is likely to commit further sexual offenses if not confined.

The defendant offered the testimony of three licensed psychologists, each of whom agreed that the defendant met or may meet the criteria for a diagnosis of pedophilia under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.2000), but opined that the defendant is not likely sexually to reoffend. Two of the defense experts opined that the defendant did not have a mental abnormality as defined in the statute; one opined that he did. On June 3, 2008, a jury found the defendant to be an SDP. The defendant appealed, and the Appeals Court affirmed the judgment. Commonwealth v. Hunt, 79 Mass.App.Ct. 344, 945 N.E.2d 995 (2011). ² We granted the defendant's application for further appellate review.

Discussion. 1. Admission of evidence of the defendant's refusal to participate in sex offender treatment programs. While in prison serving his sentence and in the treatment center awaiting trial on the SDP petition, the defendant was offered the opportunity to participate in sex offender treatment programs provided by the department if he agreed in writing to the conditions of such treatment. In 1994, he was offered treatment that included “a period of self-guided treatment, assessment and education, followed by group therapy utilizing the Relapse Prevention Model” conducted by a “sex offender therapist.” As a condition of such treatment, he was required to sign an agreement giving his sex offender therapist “permission to share information concerning [his] progress in treatment and other pertinent evaluative information” with the department and the parole board. He declined to sign the agreement. In 2003, he was again offered comparable treatment if he executed an agreement that, among other conditions, gave his sex offender therapist “permission to share information concerning [his] progress in treatment and other pertinent evaluative information” with the department, parole board, and the probation department, the district attorney, and “any other law enforcement agencies.” He again declined. In June, 2004, after he was temporarily committed to the treatment center, he was offered unspecified treatment if he agreed in writing that nothing he said or disclosed in treatment or in discussions with his therapist would be confidential and that such information may be reviewed by qualified examiners and other evaluators to determine whether he was an SDP. He again declined.

Before trial, the defendant moved in limine to bar any reference to the defendant's failure to participate in the sex offender treatment programs, claiming that admission of this evidence would violate his rights under the First and Fifth Amendments to the United States Constitution,as applied to the States through the due process clause of the Fourteenth Amendment to the United States Constitution, and under the Massachusetts Declaration of Rights.³ The judge denied the motion and overruled the defendant's objections when the evidence was offered at trial. The essence of his argument is that sex offender treatment programs require participants to admit and discuss their prior sexual offenses, including uncharged sexual offenses, based on the premise that such admissions are a necessary step in the rehabilitation of sex offenders. See Ainsworth v. Risley, 244 F.3d 209, 215 (1st Cir.2001), vacated sub nom. Ainsworth v. Stanley, 536 U.S. 953, 122 S.Ct. 2652, 153 L.Ed.2d 829, aff'd on reh'g, 317 F.3d 1 (1st Cir.2002), cert. denied, 538 U.S. 999, 123 S.Ct. 1908, 155 L.Ed.2d 825 (2003) (“The program's requirement that participants admit to their crimes is widely believed to be a necessary prerequisite to successful treatment”); Shevlin, “[B]etween the Devil and the Deep Blue Sea”: A Look at the Fifth Amendment Implications of Probation Programs for Sex Offenders Requiring Mandatory Admissions of Guilt, 88 Ky. L.J. 485, 485 (1999–2000).⁴

Where, as here, a sex offender is required to waive the confidentiality of statements made in treatment to a sex offender therapist in order to obtain treatment, the sex offender is faced with a problematic choice. If he agrees to waive confidentiality and seek treatment, all that he admits during treatment, including past sexual offenses, may be used against him, whether to prosecute him for offenses that have yet to be adjudicated, to deny him early release on parole, or to show that he is an SDP who must be civilly committed to prevent future sexual offenses. If he avoids incriminating himself by refusing to waive confidentiality, he is denied any sex offender treatment, and his refusal to enter treatment may be admitted in evidence and used by the qualified examiners and the Commonwealth's expert witnesses, as it was here, to support their opinion that he is an SDP.

The defendant contends that the admission in evidence of his refusal of treatment violates his privilege against compelled self-incrimination under the Fifth and Fourteenth Amendments and art. 12 of the Massachusetts Declaration of Rights because the admission of such evidence constitutes a penalty to compel testimony that has not been immunized. We are not persuaded by the defendant's constitutional claim.

The prohibition against self-incrimination “not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973). “A defendant does not lose this protection by reason of his conviction of a crime.” Minnesota v. Murphy, supra. Even if a defendant is imprisoned when he makes incriminating statements, “if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted.” Id.

The United States Supreme Court has recognized that an incriminating statement need not be ordered by a court to be “compelled”: a statement may be deemed “compelled” where the penalties for the defendant refusing to incriminate himself are so severe that they are “capable of coercing incriminating testimony.” McKune v. Lile, 536 U.S. 24, 49, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (O'Connor, J., concurring in the judgment) ( McKune ). See Minnesota v. Murphy, supra at 434, 104 S.Ct. 1136, quoting Lefkowitz v. Cunningham, 431 U.S. 801, 806, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977) (surveying cases in which Court found compulsion where State sought to...