L.L. v. Commonwealth

• Decision Date: 05 December 2014
• Docket Number: SJC–11721.
• Citation: 20 N.E.3d 930,470 Mass. 169
• Parties: L.L., a juvenile v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

470 Mass. 169

20 N.E.3d 930

L.L., a juvenile

v.COMMONWEALTH.

SJC–11721.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Sept. 3, 2014.

Decided Dec. 5, 2014.

Beth L. Eisenberg, Committee for Public Counsel Services (Susan Oker, Committee for Public Counsel Services, with her) for the juvenile.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Eric Tennen, Boston, for Children's Law Center of Massachusetts & others, amici curiae, submitted a brief.

Present: GANTS, C.J., SPINA, BOTSFORD, CORDY, & HINES, JJ.

Opinion

BOTSFORD, J.

After admitting to sufficient facts before a Juvenile Court judge with respect to two counts of indecent assault and battery on a person fourteen or older, the juvenile filed a motion seeking relief from the obligation to register as a sex offender pursuant to G.L. c. 6, § 178E (f ) (§ 178E [f ] ). After a hearing, the judge denied the motion, thereby requiring the juvenile to register with the Sex Offender Registry Board (board). We consider here the juvenile's petition for relief pursuant to G.L. c. 211, § 3. The principal issue he raises concerns the standard by which a Juvenile Court judge determines the risk of reoffense on the part of a juvenile under § 178E (f ), an issue that this court considered in Commonwealth v. Ronald R., 450 Mass. 262, 267–268, 877 N.E.2d 918 (2007). We seek to provide additional guidance concerning that standard in this opinion. We affirm the order denying the juvenile's motion for relief from registration.

Background.¹ On the afternoon of May 9, 2013, the juvenile, who was then sixteen years old, approached an adult woman from behind as she was walking her dog in Lynn and pulled down the sweatpants she was wearing to her thighs. The juvenile then made a vulgar comment about the victim's private parts, grabbed his own genitals, and ran away. The woman described her assailant to the Lynn police.

Eight days later, on the afternoon of May 17, 2013, a different woman was walking four children home from school in Lynn when she felt the juvenile touch her buttocks and pull her pants to the ground. The woman called the police and provided a description of her assailant, and soon thereafter, a Lynn police officer observed the juvenile, who fit this description, on a different street from where the incident had occurred. Lynn police patrol units then stopped the juvenile. At a showup identification

procedure soon thereafter, the second woman identified the juvenile as the person who had pulled her pants down. The juvenile was placed under arrest and taken to the Lynn police station.

After having the opportunity to speak with his mother, the juvenile agreed to speak with the police. He admitted that he had pulled down the second woman's pants and, when the police mentioned the first woman to the juvenile, he admitted that he had pulled down her pants as well.² Discussing the second incident, the juvenile explained that he had bought and smoked some marijuana that morning (May 17), and then, while walking, he “just went up to [the second woman] and pulled down her pants.” The juvenile did not give a reason for pulling down the second woman's pants, saying only that he “just felt the excitement.” The juvenile also did not give a reason for targeting the first woman.

On May 20, 2013, two complaints issued from the Essex County Division of the Juvenile Court Department charging the juvenile with two counts of indecent assault and battery on a person fourteen years of age or older and one count of disorderly conduct. On January 21, 2014, at a hearing before a Juvenile Court judge, the juvenile admitted to sufficient facts with regard to each charge and entered a plea that the judge accepted.³ Between this hearing and the final disposition of the case, the juvenile filed a motion for relief from the obligation to register with the board, and an evidentiary hearing on the motion was held on February 27, 2014.⁴

At that hearing, the juvenile sought to establish that he did not “pose a risk of reoffending or a danger to the public,” and therefore should be relieved of the obligation to register. G.L. c. 6, § 178E (f ).

He offered the report and testimony of his expert witness, Dr. Barbara Quiñones, a forensic psychologist. Quiñones testified to having administered a “guided clinical instrument” called the Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR), a test that she described as “strongly validated” by substantial research as an appropriate risk assessment tool for juvenile sex offenders.⁵ According to Quiñones, the ERASOR enumerates twenty-five factors that have been “consistently shown to be associated with risk of re-offense,” and in administering the test to the juvenile, she scored each factor as “present, not present, [or] partially present.” She found that in the juvenile's case, four of the twenty-five risk factors were present,⁶ twenty risk factors were not present, no risk factors were partially present, and the presence of one factor was “unknown.” Based on her evaluation of the juvenile, which included a lengthy interview with him, a discussion with the juvenile's mother, the administration of the ERASOR test, and other evaluative processes, Quiñones saw no sign of deviant sexual behavior in the juvenile, in part because in her opinion such a diagnosis requires a finding of six months of deviant behavior—a period of time far longer than that involved in the juvenile's case. She also stated that in her opinion, based on research she described, the juvenile's lack of insight into why he committed the two offenses was not indicative of a higher risk of reoffense. Based on her evaluation, Quiñones concluded that the juvenile's “risk to reoffend sexually is low,” adding that, in forensic psychology, “there is no category of no risk,” and that “[o]nce someone has committed a sexual offense, the lowest category would be low.” She opined that the juvenile's risk of reoffense was so low that he should not be required to register as a sex offender.

At a hearing in April, 2014, the judge denied the juvenile's motion for relief from registration and proceeded to set out oral findings and reasons. She described in some detail the facts of the two assaults on the two women, and stated that she found Quiñones's testimony “thoughtful,” but did not credit the expert's

opinion about the juvenile's lack of sexual deviance. The judge also rejected Quiñones's ultimate conclusion that the juvenile posed a low risk of reoffense, “based primarily on the facts and the circumstances” of the offenses, which the judge characterized as “egregious.” She stated that this “was a broad daylight sexual assault on two strangers in our community with no apparent measure of restraint” or “any understanding of why he committed these offenses.” The judge determined that the juvenile posed a risk of reoffense and would be required to register with the board.⁷

The juvenile thereafter filed in the county court his petition pursuant to G.L. c. 211, § 3, seeking relief with respect to the order denying him relief from the obligation to register as a sex offender. The single justice stayed the judge's order requiring registration and reserved and reported the matter to the full court.

Discussion. 1. Juvenile's petition for relief under G.L. c. 211, § 3. As a threshold matter, the Commonwealth contends that there is no issue properly before the full court for review, because the juvenile, in the Commonwealth's view, has abandoned the claim he raised in his petition for relief under G.L. c. 211, § 3, that he filed in the county court. The argument fails. Although this court has deemed an argument waived where it was not raised either before the trial judge or in a G.L. c. 211, § 3, petition for relief, see Paquette v. Commonwealth, 440 Mass. 121, 124 n. 3, 795 N.E.2d 521 (2003), cert. denied, 540 U.S. 1150, 124 S.Ct. 1153, 157 L.Ed.2d 1044 (2004), that is not the case here. The juvenile previously has raised the substance of the claims he presents to this court, either in the Juvenile Court or before the single justice. In any event, the single justice has reserved and reported the case to this court, and it is properly before us. See Burke v. Commonwealth, 373 Mass. 157, 159, 365 N.E.2d 811 (1977). Cf. Commonwealth v. Goodwin, 458 Mass. 11, 14–15, 933 N.E.2d 925 (2010).⁸

2. Standard for obtaining relief from registration. Under the sex offender registration act, G.L. c. 6, §§ 178C –178P (act), sex offenders, whether adults who have been convicted of a “sex offense” within the scope of the act or juveniles adjudicated as a youthful offender or delinquent on account of committing a qualifying sex offense, are required to register as sex offenders with the board, unless relieved of doing so under one of three statutory exemptions—of which § 178E (f ) is one. See Ronald R., 450 Mass. at 264, 877 N.E.2d 918 (“there is a presumption that sex offenders must register” under act). Section 178E (f ) provides in relevant part:

“In the case of a sex offender who has been convicted of a sex offense or adjudicated as a youthful offender or as a delinquent juvenile by reason of a sex offense, on or after December 12, 1999, and who has not been sentenced to immediate confinement, the court shall, within [fourteen] days of sentencing, determine whether the circumstances of the offense in conjunction with the offender's criminal history indicate that the sex offender does not pose a risk of reoffense or a danger to the public. If the court so determines, the court shall relieve such sex offender of the obligation to register under [§§ ] 178C to 178P, inclusive.”⁹

The juvenile claims that due process requires a judge, in determining under § 178E (f ) whether a juvenile should be relieved from the obligation to register as a sex offender based on his or her “risk of reoffense,” to assess the probability of such risk according to an articulated standard that itself is based on...