Doe v. Sex Offender Registry Bd.
| Decision Date | 05 December 2006 |
| Citation | 447 Mass. 779,857 N.E.2d 492 |
| Parties | John DOE, Sex Offender Registry Board No. 10216 v. SEX OFFENDER REGISTRY BOARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Brandon L. Campbell for the plaintiff.
Daniel A. Less, Special Assistant Attorney General, for the defendant.
Carlo A. Obligato, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.
In allowing the motion of the Sex Offender Registry Board (board) for judgment on the pleadings, a Superior Court judge affirmed the board's decision classifying the plaintiff as a level three sex offender. The plaintiff appealed, arguing that expert testimony is required in the classification process of an offender pursuant to G.L. c. 6, §§ 178K-178M, as appearing in St.1999, c. 74, § 2.1 The plaintiff further argues that the board's final classification is not supported by substantial evidence. We transferred the case to this court on our own motion. Because we determine that expert testimony is not required in the classification determination process, and that the board's decision was supported by substantial evidence, we affirm the judge's decision.2
Procedural and factual background. On August 20, 1998, the plaintiff pleaded guilty to three indictments charging rape of a child with force and ten indictments charging indecent assault and battery on a child under the age of fourteen years. The charges were based on the plaintiff's sexual misconduct toward his daughter, his niece, and two of their friends while they were visiting the residence of the plaintiff's girl friend. Although the hearing examiner makes no reference to the specific places within the residence where the sexual offenses occurred, the police report, which was part of the documentation accompanying the initial classification report, indicates that the plaintiff sexually assaulted the children in a bedroom and on the couch in the living room. The plaintiff was sentenced to from three years to three years and one day for the rape convictions and five years of probation on the indecent assault and battery convictions. While serving his sentence, the plaintiff received one disciplinary report for destruction of property and did not participate in sex offender therapy.
In April, 2000, the Commonwealth filed a petition pursuant to G.L. c. 123A, § 12, to have the plaintiff civilly committed as a sexually dangerous person (SDP). The plaintiff was evaluated by two psychologists, Dr. Robert Joss and Dr. Ira Silverman, who concluded that the plaintiff was not sexually dangerous despite their determinations that he suffered from pedophilia. Consequently, a Superior Court judge dismissed the Commonwealth's petition, and the plaintiff was released.
On his release, the plaintiff registered with the board, and the board, simultaneously, commenced the process to determine the plaintiff's recommended classification level. G.L. c. 6, § 178L(1). On September 23, 2002, the board notified the plaintiff of its recommendation that he be classified as a level three sex offender. The board's initial decision was based on the factors listed in 803 Code Mass. Regs. § 1.40 (2002).3 The plaintiff, in response, filed a request for an administrative hearing to challenge the board's preliminary determination. The plaintiff was afforded counsel based on indigence. G.L. c. 211D, § 2. A de novo hearing was conducted by a hearing examiner on November 21, 2002. G.L. c. 6, § 178L(1)(c).
In making his decision, the examiner heard testimony of Michael Pepe, senior criminal information analyst with the board, and the plaintiff. The examiner also considered documentary evidence consisting of the board's initial classification report; the plaintiff's treatment report and relapse prevention plan; his request for a hearing; and all correspondence between the board and the plaintiff, including the plaintiff's request for funds for an expert. The examiner denied the plaintiff's request for $1,500 to cover expert fees at the hearing. The examiner, relying on G.L. c. 6, § 178L(1)(c),4 denied the plaintiff's request because the board did not intend to introduce expert testimony or submit a report from its own expert witness prepared specifically for the hearing.
The examiner utilized the factors and principles contained in 803 Code Mass. Regs. § 1.40, promulgated pursuant to G.L. c. 6, § 178K, to affirm the board's initial classification of the plaintiff. In his thirty-five page decision, the examiner first considered three of the six factors supporting a heightened risk of reoffense and public safety danger: mental abnormality; whether the offender's conduct is characterized by repetitive or compulsive behavior; and whether the offender was an adult who committed the offense on a child.5 G.L. c. 6, § 178K(1)(a)(i)-(iii). Because the plaintiff was diagnosed as suffering from pedophilia, the examiner concluded that the plaintiff had a mental abnormality. Additionally, because the plaintiff committed numerous sexual assaults over a two-year period against four "extra-vulnerable" victims ranging in age from two to ten years, the examiner concluded that the plaintiff demonstrated repetitive and compulsive behavior. The examiner also concluded that G.L. c. 6, § 178K(1)(a)(iii), applied because the plaintiff was an adult offender who sexually abused four "extra-vulnerable" children. The fact that the plaintiff had been released from prison into the community only eighteen months earlier gave rise to a heightened concern on the examiner's part regarding the plaintiff's potential risk to reoffend.6
The examiner also weighed the absence of criminal convictions prior to these offenses, the absence of subsequent arrests, and the plaintiff's maximum supervision probation through May, 2006. The examiner considered the plaintiff's favorable current home situation and compliance with all conditions of probation. The examiner also considered the plaintiff's refusal to participate in sex offender treatment while incarcerated at the Massachusetts Correctional Institution, at Concord,7 his current involvement in sex offender treatment, and reports diagnosing the plaintiff with pedophilia, a mental abnormality. Additionally, the examiner noted that the plaintiff's offenses, which were committed in the presence of other victims, occurred in a public place where detection was more likely, an indication of the plaintiff's lack of impulse control. The examiner afforded some deference to the reports of Dr. Silverman and Dr. Joss, prepared pursuant to the Commonwealth's petition to commit the plaintiff as a sexually dangerous person pursuant to G.L. c. 123A, § 12. Their reports diagnosed the plaintiff with pedophilia but stated that the plaintiff was unlikely to reoffend if he were involved in long-term treatment, presented a low risk, and did not satisfy the criteria of an SDP. The examiner concluded, however, that their determinations were based on the assumption that the plaintiff would be engaged in long-term therapy and did not reflect the fact that the plaintiff's current participation in therapy was only for eighteen months, portions of which were classified as "somewhat" satisfactory by his current therapist. Based on a preponderance of the evidence, the examiner affirmed the board's recommendation that the plaintiff register as a level three sex offender.
The plaintiff filed a request for judicial review on March 5, 2003, in the Superior Court, arguing that the examiner's decision was unsupported by substantial evidence, was based on errors of law and fact, violated the plaintiff's constitutional rights, and was arbitrary and capricious. The plaintiff simultaneously filed a motion for stay of registration and dissemination that was denied on March 17, 2003. A single justice of the Appeals Court denied the plaintiff's petition for relief. On September 20, 2004, in response to the parties' cross motions for judgment on the pleadings, the Superior Court judge upheld the examiner's decision classifying the plaintiff as a level three sex offender.
Discussion. 1. Expert testimony. The plaintiff claims that the judge erred in affirming the examiner's decision to classify him as a level three offender because the board lacked expert testimony or documentary evidence substantiating its determination that the plaintiff posed a high risk of reoffense and dangerousness. The plaintiff argues that "[s]ex offender recidivism predictions must be supported by expert evidence" because these type of predictions are "beyond the ken of the fact finder." The plaintiff claims that his position is supported by Commonwealth v. Bruno, 432 Mass. 489, 735 N.E.2d 1222 (2000), where this court held that expert testimony is required at a temporary SDP commitment hearing under G.L. c. 123A, § 12, to determine "[w]hether a person suffers from a mental abnormality or personality defect, as well as the predictive behavioral question of the likelihood that a person suffering from such a condition will commit a sexual offense...." Id. at 511, 735 N.E.2d 1222. The plaintiff further argues that expert testimony is required in a plethora of technical or scientific areas, including physiological and psychological indications of sexual abuse in children, the effects of posttraumatic stress disorder and battered woman syndrome, medical causation, and the admissibility of medical records. Thus, the plaintiff states, expert testimony is required in the classification process to assess an offender's risk level and is necessary to guide properly the examiner in weighing the factors specified in 803 Code Mass. Regs. § 1.40 and in reaching an objective, actuarial decision. We disagree.
General Laws c. 6, §§ 178C-178P, and G.L. c. 123A are substantially different. General Laws...
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