Petition of Gagnon

• Decision Date: 13 January 1994
• Citation: 625 N.E.2d 555,416 Mass. 775
• Parties: Petition of Scott A. GAGNON, Petitioner.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 555

625 N.E.2d 555

416 Mass. 775

Petition of Scott A. GAGNON, Petitioner.

Supreme Judicial Court of Massachusetts Essex.

Argued Nov. 3, 1993.

Decided Jan. 13, 1994.

Nona E. Walker, Committee for Public Counsel Services, Boston, for petitioner.

Kristin C. Guyot, Asst. Atty. Gen., for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

The petitioner, Scott A. Gagnon, adjudged a sexually dangerous person in 1980, and committed to the treatment center at the Massachusetts Correctional Institution at Bridgewater (center) for an indeterminate period of from one day to life, filed a petition for discharge pursuant to G.L. c. 123A, § 9 (1988 ed.). ¹ At the evidentiary hearing held on his petition, the petitioner claimed to be entitled, on constitutional grounds, to decision by a jury whether he continued to be a sexually dangerous person. A judge in the Superior Court rejected this claim and denied the petition. The judge found that the Commonwealth had proved beyond a reasonable doubt that the petitioner remained a sexually dangerous person. The petitioner filed a timely appeal in which he raised for the first time the claim that, in view of the repeal in 1990 of the commitment provisions of G.L. c. 123A, ² his continued commitment under that statute violated Federal and State constitutional guarantees of due process and equal protection. We granted the petitioner's application for direct appellate review. We decline to exercise our discretion to consider constitutional claims not raised or addressed below and conclude that the denial of the petition should be affirmed.

The judge found the following facts. The petitioner was convicted in the Superior Court of four counts of rape and one count of assault with intent to commit rape. He was sentenced to serve from twenty to thirty years at the Massachusetts Correctional Institution at Cedar Junction. Pursuant to G.L. c. 123A, § 6, he was found on April 4, 1980, to be a sexually dangerous person, as defined by G.L. c. 123A, § 1 (1992 ed.), and he was committed to the center. The petitioner also admitted to approximately twenty additional rapes of women. He was never charged with the commission of any of these crimes. Two qualified examiners testified at the hearing that, at the time the petition was filed, the petitioner remained a sexually dangerous person. ³ See G.L. c. 123A, § 1.

The examiners noted in particular the petitioner's desire for dominance over women, as well as his extraordinary anger against them; the violent sexual fantasies that he continued to have; and his lack of empathy for his victims. There was evidence before the judge, in the form of testimony and written reports from both examiners, that the petitioner recently had begun to benefit from his treatment at the center. The examiners also agreed, however, that the petitioner was not receiving certain kinds of treatment from which, in their opinion, he could benefit. It is not argued that the Commonwealth failed to prove that the petitioner remained a sexually dangerous person. The evidence was more than sufficient to warrant the judge's findings that the Commonwealth had proved beyond a reasonable doubt that the petitioner was a sexually dangerous person.

1. As has been mentioned, at the hearing, the petitioner filed a motion for a jury trial on the issue whether he remained a sexually dangerous person. The basis for the motion was his assertion that he was not receiving adequate treatment for the psychological, as well as other, problems that had led to his initial commitment to the treatment center. According to the petitioner, without adequate treatment, his condition would not improve. In the absence of such treatment, it is argued, his continued commitment to the center has become criminal or penal in nature and, therefore, he is entitled under the Federal and State Constitutions to a trial by jury.

As the petitioner concedes, this court has already decided that a person is not entitled to a jury trial as a matter of Federal or State constitutional right in a proceeding under G.L. c. 123A, because "[b]alancing the interests affected ... [t]he procedural requirements of G.L. c. 123A provide ample protection of the individual's due process rights." See Commonwealth v. Barboza, 387 Mass. 105, 111-113, 438 N.E.2d 1064, cert. denied, 459 U.S. 1020, 103 S.Ct. 385, 74 L.Ed.2d 516 (1982). There was no basis at the hearing of what was a straightforward § 9 petition for the judge to consider a departure from the Barboza decision. The judge also properly declined to make findings on the adequacy of the petitioner's treatment. "Proceedings under G.L. c. 123A, § 9, are to determine the single issue whether or not the petitioner is a sexually dangerous person, as defined by G.L. c. 123A, § 1 ... In order to simplify and expedite hearings under G.L. c. 123A, § 9, such hearings should be restricted to the sole issue for which they were intended." Davis, petitioner, 383 Mass. 645 649-650, 421 N.E.2d 441 (1981). See Thompson, petitioner, 394 Mass. 502, 504, 476 N.E.2d 216 (1985). Another more appropriate proceeding exists for mounting a challenge to the constitutional sufficiency of the procedure resulting in his commitment when the person committed claims, based on an alleged absence of beneficial treatment, that he is being held in a penal rather than a remedial setting. ⁴ See G.L. c. 248 (1992 ed.). See also Averett, petitioner, 404 Mass. 28, 30, 533 N.E.2d 1023 (1989); Davis, petitioner, supra 383 Mass. at 650, 421 N.E.2d 441.

2. On appeal, the petitioner argues for the first time that with the Legislature's repeal of §§ 3-6, and 7 of G.L. c. 123A, see note 2, supra, his continued commitment to the center violates Federal and State constitutional principles of due process ⁵ and equal protection. ⁶ For the reasons explained in part 1 of this opinion, a § 9 petition is not an appropriate proceeding for raising these issues. The petitioner's position does not warrant departure from the general rule. If the petitioner was entitled to discharge from the center, he would be required to serve the balance of his twenty to thirty year sentence at the Massachusetts Correctional Institution at Cedar Junction. See G.L. c. 123A, § 9. See also Langton v. Johnston, 928 F.2d 1206, 1210 & n. 4 (1st Cir.1991). His right to freedom from incarceration is not at stake, and he appears to be receiving treatment at the center which is of benefit to him. See note 4, supra.

Of special significance is the fact that the constitutional arguments made by this petitioner to this court were not raised in the Superior Court. On occasion, we have exercised our discretion to consider important questions of public concern raised for the first time on appeal. See Commonwealth v. Arment, 412 Mass. 55, 57, 587 N.E.2d 223 (1992); Filippone v. Mayor of Newton, 392 Mass. 622, 627 n. 8, 467 N.E.2d 182 (1984). Generally, however, we shall not address issues raised for the first time on appeal, if the record accompanying them is lacking, as is the case here, in providing a basis for their intelligent resolution. See Commissioner of Correction v. McCabe, 410 Mass. 847, 850 n. 7, 576 N.E.2d 654 (1991); Commonwealth v. Davis, 407 Mass. 47, 52, 551 N.E.2d 39 (1990). The constitutional questions sought to be raised by the petitioner are not set forth in the context of an appropriate trial court adjudicatory proceeding. In the absence of such, the questions, at this point, may be better considered by the Legislature as it...