Doe v. Sex Offender Registry Bd.

• Decision Date: 20 July 2021
• Docket Number: SJC-12908
• Citation: 488 Mass. 15,170 N.E.3d 1143
• Parties: John DOE, Sex Offender Registry Board No. 339940 v. SEX OFFENDER REGISTRY BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

488 Mass. 15

170 N.E.3d 1143

John DOE, Sex Offender Registry Board No. 339940

v.SEX OFFENDER REGISTRY BOARD.

SJC-12908

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 4, 2021.

Decided July 20, 2021.

Elizabeth Doherty, for the plaintiff.

Nicole M. Nixon, for the defendant.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

BUDD, C.J.

The plaintiff, John Doe, appeals from the judgment of the Superior Court affirming the decision of the Sex Offender Registry Board (board) to classify him as a level three sex offender. The plaintiff challenges the constitutionality of provisions in the sex offender registration law, G. L. c. 6, §§ 178C - 178Q, that require a person convicted of kidnapping a child to register as a sex offender, as applied in the circumstances of his case. The plaintiff also contests the admission of hearsay evidence at his classification hearing; the denial of his motion for funds to engage an expert; and the sufficiency of the evidence to support his level three classification. We conclude that the sex offender registration law is not unconstitutional as applied to the plaintiff. Further, we conclude that there was no error in the hearing officer's reliance on hearsay evidence and denial of the plaintiff's motion for expert funds, and that the board's decision to classify the plaintiff as a level three sex offender was supported by substantial evidence and was not arbitrary, capricious, or an abuse of discretion. We therefore affirm the judgment.

Background. 1. Facts. We summarize the facts from the administrative record, reserving some details for later discussion. At the time of the primary incident at issue in this case, the plaintiff was in a relationship with a woman who lived in the same apartment complex as a ten year old girl (victim). On April 27, 2010, the plaintiff left his girlfriend's apartment after a disagreement. As the plaintiff walked through the apartment complex, he encountered the victim in a stairwell while she was walking to her grandmother's apartment. The two had never spoken, but the victim recognized the plaintiff. The plaintiff suddenly blocked the victim from the exit door she was trying to use and punched her in the face, knocking her backward and causing severe bleeding from her nose and mouth. The plaintiff continued to punch the victim in the back of her head while she was on her knees. He covered her mouth to prevent her from screaming and said, "If you don't shut up, I will break your neck." The plaintiff then dragged the victim down the stairwell. At some point, the plaintiff removed his shirt to wipe the victim's blood off her face. As the plaintiff continued to drag the victim down the steps, they approached the lobby of the apartment complex, at which time the victim was able to break free and reach a security guard.

The plaintiff subsequently was arrested, and he later pleaded guilty to kidnapping a child, G. L. c. 265, § 26 ; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ) ; and other crimes.¹ During his plea hearing, the plaintiff acknowledged that his guilty plea to the charge of kidnapping of a child would require him to register as a sex offender with the board. He was sentenced to from six to eight years in prison on the charge of kidnapping of a child with a subsequent five-year probationary period on the charge of assault and battery by means of a dangerous weapon.²

2. Statutory and regulatory framework. The sex offender registration law, G. L. c. 6, §§ 178C - 178Q, imposes registration requirements on persons convicted of certain enumerated offenses, including kidnapping of a child under G. L. c. 265, § 26. See G. L. c. 6, § 178C (defining "sex offender," "sex offense," and "sex offense involving a child"); Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 196, 102 N.E.3d 409 (2018) ( Noe No. 5340 ). After the offender has been convicted, the agency that has custody of or supervision over the offender "shall transmit to the board said sex offender's registration data." G. L. c. 6, § 178E (a ) - (b ). The board is then tasked with deciding whether the offender should have a duty to register and, if so, determining the offender's classification level, taking into account certain statutory factors, the board's guidelines, and any materials submitted by the offender. See G. L. c. 6, §§ 178K (1) - (3), 178L (1) (a ) ; 803 Code Mass. Regs. §§ 1.04 - 1.07, 1.33 (2016) ; Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender Registry Bd., 483 Mass. 131, 133-134, 130 N.E.3d 778 (2019) ( Doe No. 23656 ); Commonwealth v. Hammond, 477 Mass. 499, 509-510, 78 N.E.3d 1128 (2017).

The board may find that the offender has no duty to register, where it determines that the circumstances of the offense in conjunction with the offender's criminal history do not indicate a risk of reoffense or a danger to the public. See G. L. c. 6, § 178K (2) (d ) ; 803 Code Mass. Regs. § 1.29 (2016). Significantly, however, such relief is not available to certain classes of offenders, including those who already have not been registered for at least ten years and have been convicted of a sex offense involving a child. See G. L. c. 6, § 178K (2) (d ) ; 803 Code Mass. Regs. § 1.29 (4) ; Hammond, 477 Mass. at 510, 78 N.E.3d 1128.

Sex offenders who are determined to have a duty to register are classified into three "levels of notification" to government authorities and the public depending on their risk of reoffense, the degree of dangerousness they pose to the public, and whether a public safety interest is served by public access to information pertaining to the offender. See G. L. c. 6, § 178K (2) ; 803 Code Mass. Regs. § 1.03 (2016) ; Doe, Sex Offender Registry Bd. No. 3177 v. Sex Offender Registry Bd., 486 Mass. 749, 754, 162 N.E.3d 35 (2021) ( Doe No. 3177 ).

Upon notification of the board's recommended classification level, sex offenders may accept it, in which case the recommended classification level becomes final, or they may reject it and request a de novo evidentiary hearing before a hearing examiner to challenge their duty to register and classification level.³ See G. L. c. 6, § 178L (1) ; 803 Code Mass. Regs. §§ 1.04, 1.08, 1.17 (2016) ; Noe No. 5340, 480 Mass. at 197, 102 N.E.3d 409. The hearing examiner's decision is subject to review and modification by the board, and offenders may then seek judicial review of that final decision in the Superior Court. See G. L. c. 6, § 178M ; G. L. c. 30A, § 14 ; 803 Code Mass. Regs. §§ 1.21, 1.24 (2016) ; Doe No. 23656, 483 Mass. at 134, 130 N.E.3d 778.

3. Board proceedings. On March 3, 2014, the board notified the plaintiff of his duty to register as a level three sex offender, the highest classification level. The plaintiff challenged the board's recommendation, and on May 9, 2017, a hearing examiner held an evidentiary classification hearing. Prior to the hearing, the plaintiff moved for expert funds in order to retain an expert witness to testify to the effect of the plaintiff's mental condition on his current level of dangerousness and risk of reoffense. The hearing examiner denied the motion, citing the plaintiff's failure to produce enough evidence to show a connection between his alleged generalized anxiety disorder

and its impact on his continued dangerousness or risk.

The plaintiff also moved to exclude evidence of a past charge of aggravated rape of a child and other related offenses, for which he was ultimately found not guilty after a jury trial. This evidence included a police report, which stated that the eight year old daughter (rape complainant) of the plaintiff's then girlfriend had told police and victim advocates that the plaintiff sexually assaulted her. The rape complainant claimed that, on four consecutive nights, the plaintiff came into her room and licked her vagina and buttocks, which the plaintiff told her would help her stop wetting the bed. The hearing examiner denied the plaintiff's motion to exclude this evidence, and upon finding the rape complainant's statement to be detailed and reliable, the hearing examiner considered it in assessing the plaintiff's level of dangerousness and risk of reoffense.

At the close of the plaintiff's hearing, the hearing examiner determined, by clear and convincing evidence, that the plaintiff was dangerous and posed a high risk of reoffense. The board subsequently required the plaintiff to register as a level three sex offender.

The plaintiff then filed a complaint requesting judicial review of the board's decision pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. A Superior Court judge affirmed the board's decision, finding it to be supported both by the law and by the evidence. The plaintiff timely appealed, and we granted his application for direct appellate review.

Discussion. 1. Constitutionality of G. L. c. 6, §§ 178C et seq., as applied. The plaintiff first argues that by requiring him to register as a sex offender, pursuant to G. L. c. 6, §§ 178C and 178K, the board violated his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights, because his index offense had no sexual component and allegedly did not involve any sexual conduct or purpose.

As a threshold matter, we reject the board's contention that the plaintiff did not use the proper procedural avenue to present this constitutional challenge and thus that the issue is not properly before this court. The board cites Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 947 N.E.2d 9 (2011) ( Doe. No. 10800 ), where we held that the board lacked the authority to consider an offender's facial challenge to the constitutionality of the board's classification regulations, and consequently concluded that the constitutional issue in the offender's appeal from the board's decision pursuant to G. L. c....