Doe v. Sex Offender Registry Bd.

• Decision Date: 28 September 2007
• Docket Number: No. 05-P-211.,05-P-211.
• Parties: John DOE, Sex Offender Registry Board No. 10304 v. SEX OFFENDER REGISTRY BOARD.
• Court: Appeals Court of Massachusetts

873 N.E.2d 1194

70 Mass. App. Ct. 309

John DOE, Sex Offender Registry Board No. 10304 v. SEX OFFENDER REGISTRY BOARD.

No. 05-P-211.

Appeals Court of Massachusetts, Suffolk.

Argued February 16, 2007.

Decided September 28, 2007.

Edward W. Wayland, Boston, for the plaintiff.

William A. Looney (Daniel A. Less, Special Assistant Attorney General, with him) for the defendant.

Present: KANTROWITZ, ARMSTRONG, & DOERFER, JJ.¹

ARMSTRONG, J.

The petitioner appeals from a decision of a Superior Court judge affirming the Sex Offender Registry Board's (board's) classification of him as a level three sex offender. The petitioner's argument is limited solely to the following determination by the judge:

"Upon careful reading, however, it does not appear that the hearing officer found, or assumed, that the 1991 offense was a forcible rape. The conclusion that Doe `sexually assaulted a stranger child victim, raping her multiple times over a two-hour period,' is a technically correct (if vivid) description of a conviction on two counts of statutory rape, where the offender had known the victim for less than 24 hours. See 83 [Code of Mass. Regs. § ]1.40(3)(c)."

The petitioner asserts that this determination by the judge, and the findings of the hearing officer regarding the sexual assault are error because the only evidence of a forcible rape was the statement of the victim contained in the Massachusetts Bay Transportation Authority (MBTA) police report, and in the Department of Correction (department) records of the petitioner. Because the evidence of the statements is hearsay, the petitioner argues that there was not substantial evidence to classify him as a level three sex offender. Our reading of the hearing officer's decision confirms that he credited the victim's statement when he found that the petitioner committed a forcible rape (G.L. c. 265, § 22A), despite having pleaded guilty to statutory rape (G.L. c. 265, § 23). This reading is underscored in the hearing officer's discussion of the petitioner's refusal to participate in sex offender therapy. Specifically, he faults the petitioner for having "consistently denied that he forced the victim to have sexual intercourse."

The police report at issue, summarized in the department's record, stated that the victim and two other girls had traveled from Randolph into Boston together and in the train station became casually acquainted with the petitioner, who was then twenty years old. After spending some hours in Boston they returned to the station to catch a train home and again encountered and talked with the petitioner, who held the victim back while the others boarded the train. As the door closed, the petitioner yelled to the others to get off at the next stop. He then forced the victim to go up to the street and into a car with two other males in it. They drove about fifteen minutes to a house. The victim and the petitioner entered the house and went to a bedroom, where the petitioner closed the door, stripped her clothing off, forced her onto the bed, and had penile-vaginal intercourse with her over her objections. The petitioner's story, to which he testified at the hearing, was that the victim went with him voluntarily, that the acts of intercourse were voluntary, that he walked her to a bus when she was ready to leave, that she gave him a ring to remember her by, that they planned to get together again, but that when he called her she "sounded strange" and told him not to call again.

The petitioner's argument in the Superior Court was that in order to classify him as a level three offender, the hearing examiner had to base his findings of forcible rape on totem pole hearsay, namely, the department's rendition of the facts of the index crime, derived from the original MBTA police report, which was also contained in the department's record but was too illegible to read. The Superior Court judge agreed that if the hearing examiner's decision were based on second and third level hearsay, reversal would be required for want of substantial evidence.² In the judge's view, the only credible evidence in the record as to the facts of the index crime was (1) the convictions themselves, which were of statutory (i.e., non-forcible) rape of a child (two counts); and (2) the petitioner's testimony, which was of consensual sex with a female claiming to be seventeen. Hence, the significance of the judge's statement, quoted in the opening paragraphs, whereby he affirmed the decision of the hearing examiner. The judge's thorough review of the hearing officer's report and the record before him, however, was crucial to his decision to affirm the board's classification.

An appeal from a classification decision by the board is pursuant to G.L. c. 30A, § 14, and is confined to the administrative record. See G.L. c. 6, § 178M. In reviewing the record we must determine whether the decision of the board is supported by substantial evidence. See Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750, 764, 857 N.E.2d 473 (2006).

The issue presented by this appeal is whether the hearing examiner erred in crediting the statement attributed to the victim where the statement was presented to him through a partially illegible police report and the department's records. Our conclusion is that he did not err when he relied on the report as substantive evidence in support of the level three classification. The documents that related the victim's story bore the requisite indicia of reliability to be...