Hill, In re

Decision Date23 February 1996
Citation661 N.E.2d 1285,422 Mass. 147
PartiesIn re Michael C. HILL, petitioner.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

A motion for stay of release filed in the Appeals Court was heard by J. Harold Flannery, J.

The Supreme Judicial Court granted an application for direct appellate review.

Pamela L. Hunt, Assistant Attorney General, for Com.

Joan C. Stanley, Boston, for plaintiff.


FRIED, Justice.

The Commonwealth appeals from the Superior Court's determination that the petitioner, Michael C. Hill, is no longer a sexually dangerous person (SDP). We must determine whether the Commonwealth has a right to appeal from this determination, and, if it does, whether the Superior Court's decision was erroneous.


During the early morning hours of September 4, 1979, Hill, armed with a knife, broke into the house of a former girl friend's sister. He put a pillow case over her face, undressed her, fondled and raped her, having threatened her children if she resisted. In 1980 the petitioner pled guilty to rape, armed assault in a dwelling, and assault by means of a dangerous weapon. He was sentenced to a prison term of from ten to fifteen years for the armed assault in a dwelling, which has since expired. The assault by means of a dangerous weapon was filed by order of the court. With respect to the rape conviction the Superior Court held a G.L. c. 123A, § 5 (1988 ed.) hearing, determined the petitioner to be an SDP, and committed him to the treatment center of the sexually dangerous (treatment center) for one day to life. In 1987 and 1990 the petitioner filed petitions for release pursuant to G.L. c. 123A, § 9 (1988 ed.). The appeals were consolidated and heard during a two-day period in May of 1995 (section nine hearing).

The Superior Court judge found the following facts at the section nine hearing. For the first seven years at the treatment center, the petitioner participated in the treatment program. Then, in 1987 and for the next six years, he "refused every form of therapy offered at the Treatment Center." In August, 1994, he became "minimally involved" in therapy once again.

At the hearing, the Commonwealth presented two qualified examiners, 1 Doctors Kiley and Greif, and their reports. Kiley and Grief had both attempted to interview and examine the petitioner for the purpose of evaluating him with regard to his status as an SDP, but the petitioner had refused to speak to either of them. Both doctors then reviewed the petitioner's treatment center records and concluded that the petitioner remained an SDP as defined by statute. Although Dr. Kiley found that the petitioner had made some progress while he was participating in therapy, 2 he recognized that the petitioner had failed to meet certain treatment "milestones" due to his refusal to participate in the therapy from 1987 to 1994. In his testimony Dr. Greif characterized Hill's sexually dangerous conduct as repetitive and compulsive. He based this opinion on the petitioner's past conduct and social history. 3 The Superior Court judge noted, however, that there was "no current information available to Dr. Greif on which to base these findings."

The Commonwealth also presented Dr. Uri Amit, the chair of the restrictive integration review board/community access board (review board), 4 to speak on behalf of the review board and to explain its report. 5 The Legislature established the board to review annually the progress of each person adjudicated an SDP, to determine whether each person is able to participate in a program designed to integrate him into society, and to evaluate each person's status as an SDP. See G.L. c. 123A, § 8 (1986 ed.); G.L. c. 123A, § 6A (1994 ed.). By statute, the reports generated by the review board are admissible in a section nine hearing. Id. The petitioner refused to be interviewed by the board. Nonetheless, Dr. Amit testified that the board had also determined that the petitioner remained an SDP. The board found that the petitioner's conduct tended to be repetitive and that the petitioner had made negligible progress in therapy due to his failure to participate in recent years.

The petitioner offered his own expert, Dr. Ronald Stewart. Dr. Stewart interviewed the petitioner, received a letter from him, and reviewed the relevant treatment center's documents. Dr. Stewart opined that the petitioner was no longer an SDP. The hearing judge declined to consider Dr. Stewart's testimony, finding that Dr. Stewart had little or no experience in SDP evaluations and that, even if he were to rule Dr. Stewart was qualified, his testimony was neither credible nor persuasive.

The hearing judge held that the Commonwealth had not carried the burden of establishing that the petitioner is currently an SDP beyond a reasonable doubt. Relying primarily on Page v. Commonwealth, 13 Mass.App.Ct. 384, 433 N.E.2d 466 (1982), the judge cited the absence of evidence of recent sexual misconduct as the basis for his determination. Although each of the Commonwealth's witnesses found the petitioner to be an SDP at present, the judge discounted these findings because, "given the paucity of present-day information, each witness had substantial difficulty in describing a clinical basis for linking present day behavior to past sexual misconduct." The Commonwealth then moved for reconsideration, and it was denied. It then filed an appeal under G.L. c. 231, § 113 (1994 ed.), from both the denial of the motion for reconsideration and the underlying order and obtained a stay of release from a single justice of the Appeals Court. The petitioner sought review of the stay by a single justice of this court. The single justice declined to vacate the stay, and this court granted direct appellate review. We now reverse the judgment of the Superior Court and remand the case to that court for further proceedings. Pending the outcome of such proceedings the order of the single justice of the Appeals Court staying the petitioner's release remains in effect.


The Commonwealth asserts a right to appeal under G.L. c. 231, § 113 (1994 ed.). Section 113 states that "[a] party aggrieved by a final judgment of the superior court ... may appeal therefrom." We specifically left open the issue of the Commonwealth's right to appeal a G.L. c. 123A determination in Swanson, petitioner, 403 Mass. 1004, 528 N.E.2d 875 (1988). 6 In that opinion we referred to the prohibition against double jeopardy and due process concerns as possibly restricting the Commonwealth's right to appeal a G.L. c. 123A determination. Id. The petitioner now challenges the Commonwealth's right to appeal on those grounds. 7

The petitioner's challenge proceeds from the premise that because the Legislature and the courts have required significant procedural protection in a c. 123A proceeding, see, e.g., G.L. c. 123A, § 5 (1986 ed.) (notice and right to counsel); Commonwealth v. Travis, 372 Mass. 238, 246-251, 361 N.E.2d 394 (1977) (imposing procedural safeguards); Andrews, petitioner, 368 Mass. 468, 334 N.E.2d 15 (1975) (requiring proof of dangerousness beyond a reasonable doubt); Gomes v. Gaughan, 471 F.2d 794, 799-800 (1st Cir.1973) (imposing procedural safeguards), the prohibition against double jeopardy, as an aspect of due process, also applies. But that conclusion does not follow. How much and what process is due is a function of the gravity of the consequences that government decision making may visit on those subject to it, and not of any rubric under which that decision may fall. See Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976). A government may deprive a person of his liberty, and this calls for procedures that offer considerable assurance against erroneous decisions and the fullest opportunity to challenge what government seeks to do. Id. at 339-349, 96 S.Ct. at 904-910. See also Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Such safeguards satisfy not only the heightened need for accuracy when so much is at stake, but also the related but distinct need to assure a person subject to government power that he has not been a mere passive object of an inquiry, however thorough, but an equal participant whose voice has fully been heard. These concerns are fully respected in 123A hearings where the Commonwealth bears the burden of proof beyond a reasonable doubt, and the subject has the right to the assistance of counsel and ample rights of confrontation. But the prohibition against double jeopardy, like the privilege against self-incrimination, the right to indictment by a grand jury, and trial by a petit jury, is not a necessary means for assuring either this accuracy or participation. Rather, these protections are historically based safeguards against the misuse of government power in the particular context of proceedings leading to specifically criminal sanctions. See Allen v. Illinois, 478 U.S. 364, 375, 106 S.Ct. 2988, 2995, 92 L.Ed.2d 296 (1986) (discussing role of the privilege against self-incrimination); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (discussing role of jury); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884) (discussing role of grand jury); United States v. Hogan, 712 F.2d 757 (2d Cir.1983) (same). See also Commonwealth v. Barboza, 387 Mass. 105, 113, 438 N.E.2d 1064, cert. denied, 459 U.S. 1020, 103 S.Ct. 385, 74 L.Ed.2d 516 (1982) (discussing role of double jeopardy). Both our decisions and those of the Supreme Court of the United States have consistently recognized that these historical safeguards do not apply except where criminal punishment may be imposed, even if the consequence for the subject of the proceeding may be as, or more severe, than some criminal sanctions. See, e.g., Slochower v. Board of Higher Educ. of New York City, 350...

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