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Commonwealth v. G.F.

Supreme Judicial Court of Massachusetts, Suffolk

March 20, 2018

COMMONWEALTH
v.
G.F.

          Heard: November 9, 2017.

         Civil action commenced in the Superior Court Department on December 24, 2010. A motion to modify the temporary order of confinement and for an order of custody conditions, filed on October 17, 2016, was heard by Douglas H. Wilkins, J., and questions of law were reported by him to the Appeals Court. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 24, 2016.

         The case was heard by Gaziano, J., and the matter was reported by him to the Appeals Court. After consolidation in the Appeals Court, the Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Joseph M. Kenneally (Michael F. Farrington also present) for G.F.

          John P. Zanini, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

          GAZIANO, J.

         This case concerns G. L. c. 123A, the statute governing civil commitment of sexually dangerous persons (SDP). Prior to civilly committing an individual under this statute, the Commonwealth must obtain a unanimous jury verdict finding that the individual is sexually dangerous.[1] G. L. c. 123A, § 14 (d). Subject to certain exceptions, the trial to determine sexual dangerousness must be held within sixty days after the Commonwealth files a petition for trial. G. L. c. 123A, § 14 (a.) . During this time, the individual is to be temporarily confined. See G. L. c. 123A, § 14 (e); Commonwealth v. Pariseau, 466 Mass. 805, 808 (2014).

         In this case, the Commonwealth filed a petition seeking to commit the petitioner as an SDP in December, 2010. Following years of delay and three mistrials, the petitioner remains confined without a finding that he is sexually dangerous. He contends that substantive due process and the SDP statute require dismissal of the Commonwealth's petition. A judge of the Superior Court concluded that continued confinement violated the petitioner's substantive due process rights, ordered his release, and then stayed that order and reported a number of questions.

         We conclude that the SDP statute permits a fourth trial in the circumstances of this case. While due process would impose a limit on the number of retrials that may take place under the SDP statute, that limit has not been reached here. The petitioner's nearly seven-year confinement without a finding of sexual dangerousness, however, does violate his substantive due process rights as provided by the Fifth and Fourteenth Amendments of the United States Constitution and the Massachusetts Declaration of Rights. Accordingly, he must be afforded the opportunity to seek supervised release prior to his fourth trial.

         1. Background.

         We summarize the uncontested facts from the record, discussed in part in two different Superior Court judges' decisions on the petitioner's motions for release from confinement. See Chin v. Merriot, 470 Mass. 527, 529 (2015).

         a. Offenses.

         The petitioner has pleaded guilty to sexual offenses on four separate occasions. In 1980, he pleaded guilty in the California Superior Court to lewd and lascivious conduct upon a child. On multiple occasions, he had sexually molested a friend's thirteen and eleven year old daughters.

         In 1982, while he was on probation for these offenses, the petitioner sexually molested the thirteen year old daughter of a friend, at knife point, in the friend's apartment. He pleaded guilty in the California Superior Court to lewd and lascivious conduct upon a child by force with the use of a deadly weapon.

         In 1992, the petitioner also agreed to sufficient facts in the Massachusetts District Court to support convictions of, among others, open and gross lewdness and assault with a dangerous weapon. In October, 1993, the petitioner pleaded guilty in the Superior Court to charges of three counts of rape of a child; three counts of kidnapping; two counts of assault and battery; one count of mayhem, assault and battery by means of a dangerous weapon, and one count of making threats. The petitioner repeatedly had raped his girl friend's six year old daughter while she was bound and gagged. According to the child's statements, he threated to kill her mother if the child said anything. The child reported that, on one occasion, her four year old sister entered the room, and the petitioner forced both girls to perform fellatio upon him. He also forced his girl friend to do so until she had an asthma attack. The petitioner was sentenced to concurrent terms of from fifteen to twenty years on each of the rape charges, and concurrent terms of from five to ten years on each of the charges of kidnapping and mayhem.

         b. Proceedings prior to the three mistrials.

         Shortly before the petitioner's sentences were to end, the Commonwealth retained as a qualifying examiner Dr. Carol Feldman to evaluate him. In December, 2010, Feldman determined that the petitioner suffers from pedophilia, a mental abnormality as defined in the SDP statute, as well as antisocial personality disorder, resulting in an inability to control his sexual impulses. Feldman analyzed multiple risk factors, including the petitioner's prior sexual offenses, his prior inability to abide by the rules of his probation, and his termination from sex offender treatment in 2007 after slapping another resident. She also utilized an actuarial tool that assesses the risk of recidivism. She concluded that "if [the petitioner] were released at this time, both his Mental Abnormality and Personality Disorder make it highly likely that he would recidivate sexually, " and opined that he met the criteria for sexual dangerousness as defined by G. L. c. 123A, § l.[2]

         In December, 2010, the Commonwealth filed a petition pursuant to G. L. c. 123A, § 12 (b), alleging that the petitioner is still sexually dangerous. The Committee for Public Counsel Services assigned the petitioner an attorney, whom the petitioner asked to file a motion to dismiss the SDP petition as untimely.[3] In January, 2011, the Commonwealth moved to commit the petitioner to the Massachusetts Treatment Center (treatment center) pending a determination of probable cause pursuant to G. L. c. 123A, § 12 (e) . A Superior Court judge allowed the unopposed motion. That month, the petitioner asked his attorney to withdraw as counsel because the attorney had not filed a motion to dismiss the SDP petition as the petitioner had requested and because, one month into their attorney-client relationship, the two had yet to meet. The attorney did not withdraw at that time, and no formal filings were made requesting his withdrawal.

         In February, 2011, the petitioner waived his right to a hearing and stipulated that there was probable cause to believe that he was sexually dangerous. See G. L. c. 123A, § 12 (c). A Superior Court judge accordingly found probable cause that the petitioner was sexually dangerous, and ordered him committed to the treatment center for a sixty-day period of evaluation, pursuant to G. L. c. 123A, § 13 (a.) . While at the treatment center, the petitioner was evaluated by two qualified examiners, as required under G. L. c. 123A, § 13 (a.) . In March, 2011, the qualified examiners filed written reports in the Superior Court, concluding that the petitioner was sexually dangerous.

         On March 21, 2011, the Commonwealth filed a petition for trial pursuant to G. L. c. 123A, § 14 (a.) .[4] The trial was scheduled for June, 2011. In April, 2011, the petitioner corresponded with his attorney about retaining experts to assess him, in addition to the qualified examiners that the Commonwealth would present at trial. The attorney suggested two experts; the petitioner agreed to one and not the other. That same month, the petitioner told the attorney that he was not ready to set a trial date, even if this meant waiving his "time limits." The petitioner explained that he needed time to "counter[] the [S]tate [qualified examiner] reports" and to ensure that his experts had sufficient time to interview him. He then once again asked his attorney to withdraw, and this time filed a motion requesting that the attorney be dismissed as counsel. The petitioner also filed a pro se motion to dismiss the SDP petition as untimely.

         In June, 2011, a Superior Court judge allowed the petitioner's motion to dismiss his counsel, canceled the trial scheduled for that month, and set a status date in July, 2011. Later that month, the Commonwealth moved to continue the status date for another ten days, so that the assistant district attorney could attend to a family matter. The judge set a new hearing date for early August. At the August hearing, a new attorney appeared for the petitioner.

         In May, 2012, after no further proceedings had taken place, the assistant district attorney wrote to the petitioner's counsel, proposing to "get this case back on track." At the end of July, without hearing from the petitioner's counsel, the assistant district attorney moved for trial. At an August, 2012, hearing, a Superior Court judge allowed the Commonwealth's motion and the parties set a trial date for November, 2012. At a status hearing in September, the judge allowed a motion by the Commonwealth to continue the trial because one of the qualified examiners was scheduled to be on vacation during the time that the trial was scheduled. The trial was rescheduled for December. The Commonwealth opposed the petitioner's previously-filed pro se motion to dismiss. The Commonwealth also moved for an order to update the qualified examiner reports, which the court allowed.

         Later in September, the petitioner's counsel moved to dismiss the petition, arguing that the Commonwealth had failed to begin trial within sixty days of its petition, as required by G. L. c. 123A, § 14 (a.) . The following month, finding "sufficient circumstantial evidence" of compliance with G. L. c. 123A, § 14 (a.), the judge denied this motion. By December, the court received updated written reports from the qualified examiners and the petitioner's experts. In a motion and accompanying affidavit filed that month, the petitioner requested that the trial be postponed, because his attorney had not received recordings of his interviews with the qualified examiners. The petitioner also waived his statutory rights to a prompt trial. The judge allowed this motion to continue for "good cause, " and set trial for the week of February 4, 2013, the date that the petitioner had requested, in order to accommodate his experts.

         In January, 2013, the petitioner again moved to reschedule the trial, this time to February 25, 2013, "or a date agreeable to the court, " and again waived his rights to a prompt trial. For reasons that are not apparent from the record, the judge subsequently rescheduled the trial to April, 2013.[5]

         c. The three mistrials.

         The petitioner's first SDP trial took place in April, 2013, more than two years after the Commonwealth filed the SDP petition in March of 2011. The petitioner was then fifty-five years old.

         After four days of trial, the jury deliberated for two days, but were not able to reach a unanimous verdict. The judge declared a mistrial. In June, the Commonwealth moved to update the qualified examiner reports; the motion was allowed. In September, the parties moved jointly to reschedule a pretrial status hearing to October. When the petitioner's counsel had a medical emergency, the hearing was moved again, to one week later. Following the start of medical complications, however, the petitioner's counsel experienced "an unforeseen, unexpected and unanticipated incapacity to engage in the on-going preparation of [the petitioner's] opposition to [the SDP] petition for three months." A hearing scheduled for December, 2013, subsequently was canceled, and the petitioner requested that a January, 2014, hearing be postponed. Hearings scheduled for February, 2014, and March, 2014, also were not held. In February, 2014, the two qualified examiners filed updated reports with the court.

         In March, 2014, the petitioner moved unsuccessfully to continue his trial -- scheduled to begin that month before a different judge -- in a motion that again waived his statutory right to a prompt trial. The petitioner requested the postponement after one of his experts stated that he would be unable to testify effectively before the judge who would oversee the March trial due to "continuing confrontations" concerning the expert's requests for payment. That motion was denied the same month. The judge also denied motions for a directed verdict, mistrial, and dismissal of the SDP petition.

         The petitioner's second trial took place over approximately two weeks in March, 2014. The petitioner filed another motion for a directed verdict, which was denied. At the end of the trial, the judge declared a mistrial because the jury were once again unable to reach a verdict. In April, 2014, the judge held a trial assignment conference.

         In May, the petitioner requested to continue the third trial, which was scheduled for the end of that month, to September, in order to provide him time to interview new witnesses and to consult with an expert. A different Superior Court judge allowed the motion, but ordered the parties to return in June for a hearing on a trial date. In September, the petitioner's counsel was hospitalized and underwent major surgery. A trial that had been scheduled for December was canceled.

         In March, 2015, updated qualified examiner reports were filed with the Superior Court, and the Commonwealth petitioned for a trial within sixty days. The trial was scheduled for June. The petitioner filed a motion to dismiss. He argued that because G. L. c. 123A, § 14 (d), provides only that a unanimous jury finding of sexual dangerousness requires commitment to the treatment center, in the event that a jury failed to reach unanimity, the Commonwealth's petition would have to be dismissed and he would have to be released.[6] In April, this motion was denied, on the grounds that the jury's failure to reach a unanimous verdict did not require either a directed verdict or dismissal of the SDP petition.

         In May, the petitioner waived the trial date that had been scheduled for June, due to his attorney's medical complications and resulting temporary inability to work on his case. The petitioner expressed his desire to have the same counsel continue to represent him, and "waive[d] all of [his] procedural rights for a trial of this action during the next four months." The judge allowed this motion and ordered the parties to confer with the session clerk to set a new trial date. Also that month, the Commonwealth moved to admit evidence that, prior to the third trial, the petitioner had declined to speak with the qualified examiners; the motion was allowed.

         In August, 2015, the petitioner moved to continue his trial to December because of his attorney's medical complications and resulting incapacity. The judge allowed the continuance, and scheduled the trial for January, 2016; the parties thereafter jointly requested that date be postponed. ...


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