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07/20/78 COMMONWEALTH v. MERRILL E. WALSH

July 20, 1978

COMMONWEALTH
v.
MERRILL E. WALSH



Middlesex. Petition for commitment filed in the Superior Court on May 3, 1974. The case was heard by Travers, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Sex Offender. Practice, Civil, Sex offender. Evidence, Sexual misbehavior, Sex offender.

The opinion of the court was delivered by: Liacos

In order to have a defendant adjudicated a sexually dangerous person under G. L. c. 123A, it was incumbent upon the Commonwealth to prove its case beyond a reasonable doubt even though the defendant was serving a term of life imprisonment prior to the initiation of commitment proceedings. [55-56]

In a proceeding under G. L. c. 123A, evidence that the defendant had committed an offense fourteen years earlier, which could be found to be of a compulsive, sexual nature, together with the testimony of two psychiatrists who had examined the defendant, was sufficient to warrant a finding beyond a reasonable doubt that the defendant was sexually dangerous as defined in c. 123A, § 1. [56-60]

Where it appeared in a proceeding under G. L. c. 123A, in which the defendant's alcoholism was a significant factor on which the Judge relied in finding the defendant's misconduct was compulsive, that the Judge, by implying that the defendant had to present convincing proof that his alcoholism was under control, may have improperly shifted the burden of proof to the defendant, the case was remanded to permit the Judge to reconsider or clarify his findings or to receive further evidence if necessary. [60-61]

This is an appeal from a decision of a Superior Court Judge committing the defendant to the treatment center at the Massachusetts Correctional Institution at Bridgewater (treatment center) for an indeterminate period of from one day to life, as a sexually dangerous person, under G. L. c. 123A. We hold that the case should be remanded to the Superior Court for further proceedings consistent with this opinion.

On February 14, 1963, the defendant pleaded guilty to murder in the second degree and received a sentence of life imprisonment to be served at the Massachusetts Correctional Institution at Walpole. At a later date he was transferred to the Massachusetts Correctional Institution at Norfolk (Norfolk).

Approximately ten years later, on the motion of the superintendent of Norfolk, the defendant was committed after a hearing to the treatment center for a sixty-day period of observation and diagnosis to determine whether he was a sexually dangerous person. *fn1 On January 23, 1974, the Judge allowed a motion to extend the time for observational commitment and the defendant was remanded to the treatment center for an additional thirty days. Following the filing of a psychiatric report, on May 3, 1974, the Commonwealth filed a petition to commit the defendant to the treatment center for from one day to life. After several continuances and an unexplained lapse of time between August, 1974, and June, 1975, on June 20, 1975, and again on November 25, 1975, counsel jointly moved for and obtained an order to have the defendant reexamined by the Commonwealth's psychiatrists.

Finally, on December 2-3, 1976, a hearing was held in the Superior Court on the Commonwealth's 1974 petition to commit the defendant. Subsequent to this hearing, the Judge entered an order, accompanied by findings and rulings, that the defendant be committed as a sexually dangerous person to the treatment center for an indeterminate period of from one day to life. The defendant appealed, and we transferred the case from the Appeals Court on our own motion.

1. Before turning to the evidence in this case, we emphasize that "the Commonwealth must prove its case beyond a reasonable doubt in order to obtain an order granting a petition that a person be adjudicated [a sexually dangerous person] and committed as such or that he continue to be held in custody whenever his petition for release is heard." Andrews, petitioner, 368 Mass. 468, 489 (1975). Accord, Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) (commitment for mental illness). The Commonwealth must carry this burden with respect to each of the elements contained in G. L. c. 123A, § 1, which comprises the definition of a sexually dangerous person. Commonwealth v. McHoul, 372 Mass. 11, 13 (1977).

Despite our prior decisions, the Commonwealth contends that the reasonable doubt standard of proof should not apply to cases where the defendant, as here, already faces a term of life imprisonment prior to the initiation of commitment proceedings. *fn2 The Commonwealth argues that once a defendant is sentenced to life imprisonment, an order of commitment for treatment as a sexually dangerous person should be considered no different from an administrative transfer to any of the correctional institutions in the Commonwealth. See Meachum v. Fano, 427 U.S. 215 (1976). We are not persuaded. Unlike a transfer between prisons, commitment as a sexually dangerous person follows an independent fact-finding proceeding. See Specht v. Patterson, 386 U.S. 605 (1967). The courts and the Legislature by providing a hearing and numerous procedural safeguards for the commitment of sexually dangerous persons (see Andrews, petitioner, supra at 482-483) recognize the "serious consequences" of an adjudication that a person is sexually dangerous. See Commonwealth v. Travis, 372 Mass. 238, 246 (1977). See also Matthews v. Hardy, 420 F.2d 607, 611 (D.C. Cir. 1969), cert. denied, 397 U.S. 1010 (1970). In this case, the defendant no longer would be considered for parole based on his record in prison and the crime for which he was convicted, but would have to seek parole under the terms of G. L. c. 123A, § 9, where he may or may not be as successful in obtaining release. To minimize the consequences of erroneous factual determinations at such hearings, this court required the reasonable doubt standard in Andrews, petitioner, supra. We decline to retreat from our holding in that case and to apply a double standard which more severely burdens prisoners already serving life terms. Even assuming that the Constitution does not require in this case the same stringent standard of proof as used in all other sexually dangerous person proceedings, the choice of the standard of proof has traditionally been an issue for the judiciary to resolve. Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 284 (1966).

2. Applying the reasonable doubt standard, we conclude that, contrary to the defendant's claim, the evidence would warrant a finding that the defendant was sexually dangerous ...


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