Commonwealth v. Reese

• Citation: 781 NE 2d 1225,438 Mass. 519
• Parties: COMMONWEALTH v. CHRISTOPHER J. REESE.
• Decision Date: 23 January 2003
• Court: United States State Supreme Judicial Court of Massachusetts

438 Mass. 519

781 NE 2d 1225

COMMONWEALTH v. CHRISTOPHER J. REESE.

Supreme Judicial Court of Massachusetts, Plymouth.

October 8, 2002.

January 23, 2003.

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

Robert C. Thompson, Assistant District Attorney, for the Commonwealth. David H. Erickson, for the defendant, submitted a brief.

Martha Coakley, District Attorney, & Lillian Cheng, Assistant District Attorney, for the District Attorney for the Middlesex District, amicus curiae, submitted a brief.

CORDY, J.

The Commonwealth appeals from a Superior Court judge's finding of no probable cause to believe that Christopher J. Reese was a sexually dangerous person as defined in G. L. c. 123A, § 1. The judge based his finding of no probable cause on subsidiary findings that the testimony of the Commonwealth's expert that Reese (1) was a pedophile; (2) suffered from a "personality disorder"; and (3) was likely to commit additional sexual offenses if not confined to a secure facility, was not credible. Therefore, he concluded that the Commonwealth had not met its burden of establishing that "a reasonable trier of fact could find the defendant beyond a reasonable doubt to be a sexually dangerous person based on . . . credible evidence." We conclude that the judge misapplied the applicable standard of proof to the evidence adduced at the probable cause proceeding, relied on hearsay evidence improperly admitted in evidence over the Commonwealth's objection, and misinterpreted the requirement that the defendant be "likely" to engage in sexual offenses if not confined to a secure facility. Consequently, we vacate the judge's finding of no probable cause and remand the matter to the Superior Court for a new hearing.

1. Background. On June 24, 1998, Reese pleaded guilty to two counts of indecent assault and battery on a child and one count of assault with intent to rape a child. The gravamen of these offenses was a series of sexual assaults on an eight year old boy and a ten year old girl occurring during the six-week period from June 15, 1997, to July 31, 1997, while Reese lived in the home of one of the victims and babysat for the other. Reese was approximately thirty years old at the time of the offenses and had been homeless prior to being invited to live with the family of the male victim. He was arrested on August 1, 1997, and remained incarcerated until his plea of guilty. He was sentenced to a total of four years in a house of correction to be followed by five years of probation, with special conditions including sex offender treatment, alcohol and drug treatment for an apparently life-long substance abuse problem, and no contact with either the victim or other minors under the age of sixteen. On February 14, 2001, while Reese was serving his sentence, the Commonwealth filed a petition in the Superior Court that Reese be civilly committed as a sexually dangerous person pursuant to G. L. c. 123A, § 12 (a)¹ The Commonwealth secured Reese's temporary detention pending a probable cause hearing, which was held on March 26 and 28, 2001.² On April 5, 2001, the hearing judge found no probable cause to believe that Reese was a sexually dangerous person as defined in G. L. c. 123A, § 1. Because Reese had completed his term of imprisonment as of that date, and was being held in custody solely on the basis of the Commonwealth's petition for civil commitment, the judge ordered Reese's immediate release from custody, subject to the terms of his conditional probation. The release order was not stayed and the Commonwealth appealed. We granted its application for direct appellate review.

2. Discussion.

a. The probable cause standard. Following a petition by the Commonwealth to commit a person as sexually dangerous pursuant to G. L. c. 123A, § 12 (b), a judge is required to hold a hearing to 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). At the § 12 (c) hearing, the subject of the petition has the right to be represented by counsel, to present evidence, and to cross-examine the Commonwealth's witnesses. G. L. c. 123A, § 12 (d). If probable cause is found, the person is committed to the treatment center for sixty days during which time he is to be examined by two "qualified examiners,"³ who must file with the court a written report of their examination, diagnosis, and recommendation no later than fifteen days prior to the expiration of the sixty-day period. G. L. c. 123A, § 13 (a). Following the filing of this report, the district attorney has fourteen days within which to petition the court for a trial on the question whether the person is sexually dangerous. G. L. c. 123A, § 14 (a). If a petition for trial is filed, the trial must be held within sixty days, absent a continuance for good cause or in the interests of justice. Id. The reports of the qualified examiners are admissible at trial. G. L. c. 123A, § 14 (c).

The first question we address is the standard to be applied by the judge to the evidence at the § 12 (c) hearing. In Commonwealth v. Bruno, 432 Mass. 489, 510 (2000), we noted that "[t]he § 12 (c) ... hearing is more like [a] bind-over hearing, with its formal requirements and adversary nature" than an ex parte grand jury proceeding.⁴ Consequently, we concluded that the "directed verdict" standard appropriate to a bind-over hearing was "appropriate to this type of proceeding," not the "probable cause to arrest" standard applicable to a grand jury proceeding. Id. The "directed verdict" standard used in a bind-over hearing, as articulated in Myers v. Commonwealth, 363 Mass. 843, 850 (1973), is "whether there is enough credible evidence to send the case to the jury."⁵Id. "What this unavoidably entails for the hearing judge is that she make some assessment of the credibility of the evidence that is presented when making the determination as to whether sufficient evidence has been presented to warrant further proceedings." Commonwealth v. Blanchette, 54 Mass. App. Ct. 165, 173 (2002). This, however, "is an exercise requiring a very deft touch and considerable restraint on the part of the judge," id., recognizing that credibility determinations are to be left to the ultimate trier of fact except in cases "in which a witness's testimony is so weak or contradicted by sufficiently clear facts that the judge should have the power to dismiss the case." Myers v. Commonwealth, supra at 853 n.12.

While the bind-over hearing may be the analogue to the § 12 (c) hearing, it is not its twin. Although they share a similar primary function, to screen out nonmeritorious criminal cases and petitions for commitment, the consequences of a probable cause finding in each context are different. If probable cause is found in a bind-over hearing, the criminal charges proceed to trial and the individual is held for trial on terms of release or in lieu of bail. If probable cause is found in a § 12 (c) hearing, the individual is transferred from his place of incarceration to the treatment center for expert examination and evaluation. Depending on the outcome of that examination, the district attorney may or may not petition the court for a trial on the merits, but must do so within fourteen days of the filing of the examination report with the court.

Perhaps the most important difference between the bind-over and § 12 (c) proceedings is the quality of the evidence available to the judge. Unlike at a bind-over hearing, where the Commonwealth is presumably in a position to present at least its most important evidence of guilt (evidence that it will again present at the criminal trial), the necessary and critical expert evidence of sexual dangerousness that will be offered at a trial on a petition for commitment under G. L. c. 123A is largely unavailable at the time of the § 12 (c) hearing. That evidence will be the product of the § 13 (a) examination that occurs only after a finding of probable cause is made at the § 12 (c) hearing.⁶ Consequently, the hearing judge, in assessing the credibility of expert witnesses who will not yet have access to the most important sources of information in the case at the time they are called to testify, must act with even more restraint than a judge assessing the credibility of Commonwealth witnesses in the context of a bind-over hearing.

Considering the function of the § 12 (c) hearing and the constraints on the evidence that will be available at the time it is to occur, as well as the substantial public safety and liberty interests at stake, we approve the formulation adopted by the Appeals Court in Commonwealth v. Blanchette, supra at 175, regarding the implementation of the "directed verdict" standard in the context of the § 12 (c) hearing. Specifically, the decision-making process ought to consist of a two-part inquiry, one quantitative and the other qualitative. "The judge must be satisfied, first, that the Commonwealth's admissible evidence, if believed, satisfie[s] all of the elements of proof necessary to prove the Commonwealth's case. Second, she must be satisfied 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." Id. In conducting the second part of this assessment, the judge is to determine whether the evidence presented is of suitable quality to allow the action to proceed further along a course that was legislatively designed next to include a full expert examination of the subject. Id.

Applying this standard to the judge's findings in this case requires vacating his finding of no probable cause. For example, the judge found the testimony of the Commonwealth's expert, Dr. William B. Land (whose credentials as an expert witness were not challenged by the defendant), that Reese suffered from the mental...