Soe v. Sex Offender Registry Bd.
Decision Date | 11 September 2013 |
Docket Number | SJC–11290. |
Citation | 466 Mass. 381,995 N.E.2d 73 |
Parties | John SOE, Sex Offender Registry Board No. 252997 v. SEX OFFENDER REGISTRY BOARD. |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Ethan C. Stiles, Pembroke, for the plaintiff.
William H. Burke for the defendant.
Brandon L. Campbell, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
The plaintiff appeals from the decision of a Superior Court judge affirming his classification as a level three sex offender by the Sex Offender Registry Board (board). The plaintiff is a “sex offender” as defined in G.L. c. 6, § 178C, as a result of his convictions on June 17, 2009, of indecent assault and battery on a person over fourteen, in violation of G.L. c. 265, § 13H, and therefore he is subject to classification by the board. At the time of his classification hearing, the plaintiff was awaiting trial on charges that he had repeatedly sexually assaulted his young stepdaughter. The police reports setting forth the stepdaughter's allegations and the consequent police investigation were admitted in evidence at the classification hearing. On appeal, the plaintiff contends that the board committed an error of law and abused its discretion in denying his motion to continue the classification hearing until his pending criminal case was “resolved” without balancing “the plaintiff's due process interest in preparing his defense” in the criminal case “against [the board's] interest in protecting the public.” Alternatively, the plaintiff argues that because the hearing examiner relied on the untried allegations of sexual assault in classifying him as a level three sex offender, “public policy demands reconsideration” of his classification where he was later found not guilty of the sexual offenses at his criminal trial.
We recognize that a sex offender who has been convicted of one or more sex offenses but who is awaiting trial on separate sexual offense charges is confronted with a difficult dilemma where a classification hearing is held before the criminal trial and the board's attorney intends to offer evidence of the alleged sexual incidents: the sex offender can offer evidence of his innocence and potentially reveal his defense strategy at the criminal trial, or he can decide not to present evidence of his innocence and forgo the opportunity to persuade the hearing examiner that he did not commit the alleged sexual incidents. We hold that where a sex offender moves to continue his classification hearing until his pending sexual offense charges are adjudicated, the board should examine the particular circumstances and determine whether the public safety interest in obtaining a prompt final classification of the sex offender outweighs the sex offender's interest in being able vigorously to challenge the untried allegations at the hearing without potentially compromising his criminal trial strategy, and the public interest in diminishing the risk of an inaccurate classification. We conclude that the board did not abuse its discretion in balancing these interests in this case.
We also hold that the board has the inherent authority, in its discretion, to reconsider a classification decision where the board determines that the classification may have rested on perjured or otherwise erroneous or inaccurate evidence, regardless of whether the sex offender is eligible to move for reclassification on the ground that his degree of dangerousness has diminished over time under 803 Code Mass. Regs. § 1.37C(2) (2004). We recognize that one such circumstance that may trigger the board's exercise of this inherent authority is the revelation at a subsequent criminal trial that untried sexual offense allegations relied on by the hearing examiner were proven to be false or baseless. But we also recognize that an acquittal on such charges demonstrates only that the Commonwealth failed to prove the defendant guilty beyond a reasonable doubt, and is insufficient alone to show that the allegations were false or baseless. Where the plaintiff has not yet requested the board to reconsider his classification level pursuant to this inherent authority, we express no opinion regarding the merits of such a request. Therefore, we affirm the board's classification of the plaintiff as a level three sex offender.1
Background. According to a police report, on July 7, 2008, the plaintiff's eleven year old stepdaughter described to a child interview specialist of the Sexual Assault Investigation Network (SAIN) that the plaintiff had engaged in sexual conduct with her on numerous occasions since she was four years old. On August 28, 2008, based on these alleged instances of sexual misconduct, the plaintiff was arraigned in District Court on charges of rape of a child under sixteen with force, in violation of G.L. c. 265, § 22A; assault of a child with intent to commit rape, in violation of G.L. c. 265, § 24B; indecent assault and battery on a child under fourteen, in violation of G.L. c. 265, § 13B; and open and gross lewdness, in violation of G.L. c. 272, § 16. The plaintiff was subsequently indicted on these charges in Superior Court on January 13, 2009, and the District Court charges were dismissed.
On October 9, 2008, while released on bail pending trial on these charges, the plaintiff sexually assaulted his friend's sixteen year old daughter (victim) on four occasions while he was a guest at her father's house, each assault occurring between twenty and thirty minutes apart. First, while in the kitchen, the plaintiff told the victim, “You have a nice butt,” and then pressed his groin against her three times. Second, approximately twenty-five minutes later, the plaintiff entered the victim's bedroom and rubbed his hand on her hip and buttocks over a blanket covering her. Third, twenty minutes later, he again entered the victim's bedroom and said, “Shouldn't you be wearing less clothing?” He then placed his hand into her pajama top and underneath her bra, touched her breast, and said, “Will you scream if I do that?” Finally, twenty minutes later, the plaintiff returned to the victim's bedroom and again rubbed her hips and buttocks.
The plaintiff was charged in District Court with four counts of indecent assault and battery on a person over fourteen, in violation of G.L. c. 265, § 13H, and he pleaded guilty to these charges on June 17, 2009, while still awaiting trial for the alleged crimes against his stepdaughter. He was sentenced to concurrent two-year “split” terms in the house of correction, with nine months to serve, which were deemed served, and the balance suspended with probation until June 16, 2011.2
As a result of these convictions, on October 27, 2009, the board notified the plaintiff of his duty to register as a sex offender, and of its preliminary classification of him as a level three sex offender. The plaintiff then requested an administrativereview of the board's classification decision pursuant to G.L. c. 6, § 178L.
Before the scheduled hearing date of March 29, 2010, the plaintiff filed a motion to continue the final classification hearing until the pending criminal case regarding his stepdaughter's allegations was “resolved.” 3 In his motion, the plaintiff asserted that, if he were to have his final classification hearing before his criminal trial, he would be “highly prejudiced” because he would “be unable to testify on his own behalf at the hearing,” lest he subject himself “to being questioned about the pending charges on cross examination,” and he “must remain silent as to the defense he [would] pursue at trial and the lines of attack on the credibility of the complainant and other witnesses” in order to “not deprive himself a full and fair trial on the indictments.” The plaintiff claimed that these constraints would “prevent him from fully confronting the allegations contained in the police reports” regarding these untried allegations and would therefore deprive him of “the ability to fully confront the evidence being used against him [in] the classification proceeding.”
The board denied the motion to continue the classification hearing, noting that there was “no requirement that the [b]oard wait until disposition of the [plaintiff's] current pending charges to conduct a hearing,” and finding that, in view of the plaintiff's preliminary classification as a level three sex offender, “a continuance in this matter [might] create a potential risk to public safety.”
Among the evidence offered by the board at the hearing on March 29, 2010, was a police report summarizing the stepdaughter's SAIN interview, which alleged that the plaintiff on multiple occasions had sexually assaulted his stepdaughter over a period of at least six years beginning when she was four years old, and that the plaintiff would look at “girls” on the computer “who were showing their butt crack.” The board also offered in evidence a police report regarding a search of the hard drive of the computer in the plaintiff's home that revealed “adult pornography” located in the “dad” user folder.4 Althoughthe plaintiff was given an opportunity to testify and present evidence at the classification hearing, the plaintiff's attorney, in his opening statement, told the hearing examiner that the plaintiff's criminal trial counsel was “very carefully” guarding the plaintiff's rights under the Fifth Amendment to the United States Constitution and that the plaintiff was “not able to testify” at the hearing or “to present evidence in his own defense.”
In a decision issued on April 14, 2010, the hearing examiner found that the plaintiff “present[ed] a high risk to re-offend and [a] high degree of dangerousness,” and ordered the plaintiff to register as a level three sex offender. The hearing examiner noted that she was “[m]indful that [the plaintiff] ha[d] not been convicted of...
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