Commonwealth v. Roy L. Hunt
79 Mass. App. Ct.
April 26, 2011
Appeals Court
Facts
The defendant, who appealed his commitment as a sexually dangerous person, did not participate in voluntary rehabilitative treatment during the course of his incarceration after pleading guilty to the rape of a child. On appeal, he sought to characterize the Commonwealth's use of his lack of treatment to support its claim of ongoing sexual dangerousness as a violation of both the First and Fifth Amendments to the United States Constitution. In addition, the defendant claimed that the judge erred in admitting prejudicial evidence and in instructing the jury, and that the prosecutor's closing argument amounted to reversible error. The defendant’s claims were without merit.
Issue 1: The Fifth Amendment
Chapter 123A proceedings are not criminal prosecutions; the Fifth Amendment prohibition against compelled self-incrimination consequently is not violated by the use of a defendant's refusal to participate in treatment as evidence in these proceedings. Hill, petitioner, 422 Mass. 147, 152, cert. denied, 519 U.S. 867 (1996), citing Commonwealth v. Barboza, supra at 113. To circumvent the defect in his argument posed by the civil character of G.L. c. 123A proceedings, the defendant focused on the possibility of future criminal prosecution. Specifically, he said that the anticipated use of his lack of treatment to ensure his commitment in a c. 123A proceeding forced him to participate. He argued that, by using his lack of treatment offensively during the c. 123A proceedings, the Commonwealth had subjected him to a constitutionally prohibited Hobson's choice: either accede to treatment that requires incriminating statements or face a substantially increased likelihood of civil commitment upon the completion of his term of incarceration. Here, it was undisputed that the defendant was presented with the choice of accepting the benefit of treatment or turning down that benefit in order to avoid providing what he feared would be self-incriminating statements. Participation in treatment was merely one of several factors considered at the defendant's trial to determine sexual dangerousness. In this light, the consequence flowing from the defendant's lack of treatment was not "so great as to constitute compulsion for the purposes of the Fifth Amendment privilege against self-incrimination." McKune v. Lile, supra at 49 (O'Connor, J., concurring).
Issue Two: First Amendment
The defendant also alleged he has a First Amendment right to refuse to participate in treatment, and that the Commonwealth may not punish him for exercising that right. As with his Fifth Amendment claim, the defendant addressed the fact that he was not actually forced to speak by arguing that the consequences for refusing make his participation in treatment compulsory. He thereby invoked the doctrine of forced speech. Our conclusions in the Fifth Amendment context, that the Commonwealth's affirmative use of a defendant's nonparticipation in sex offender treatment against him in c. 123A proceedings did not amount to compulsion, that refusal did not guarantee subsequent G.L. c. 123A commitment, and that participation did not require self-incrimination, apply as well to the defendant's First Amendment claim.
Issue Three: Improper Admission of Evidence
The defendant argued that evidence of his alleged rape of another inmate, improperly admitted by the trial judge, unfairly prejudiced his case in the eyes of the jury. In the instant case, the aforementioned rumor was contained within an incident report arising out of the defendant's incarceration. As the trial judge recognized, G.L. c. 123A, § 14(c ), explicitly provides for the admission of incident reports in their entirety. Such reports carry a "considerable degree of reliability" in c. 123A proceedings. Any prejudice was neutralized on recross-examination, where defense counsel established the Commonwealth's lack of any concrete evidence that the rape had ever occurred.
Issue Four: Jury Instructions
The defendant asserted errors in the jury instructions. He contended that the judge improperly commented on the evidence and also provided inconsistent instructions on standards for mental abnormality and proof beyond a reasonable doubt. In considering these issues, "[w]e look to the charge as a whole to determine whether it fairly instructs the jury." Commonwealth v. Smiley, 431 Mass. 477, 487 (2000), quoting from Commonwealth v. Richardson, 429 Mass. 182, 185 (1999). In evaluating whether a trial judge erred, "[w]e consider what a 'reasonable juror could have interpreted the instruction' to mean." Ibid.
1. Improper commentary.
The trial judge instructed the jury that "[y]ou may conclude that the [defendant] is likely to commit a future act of sexual misconduct if you find that the [defendant] has not committed any act of sexual misconduct during his incarceration." The defendant said that this instruction constituted improper commentary on the evidence. The Court disagreed. The instruction, although somewhat confusingly phrased, did not suggest guilt beyond a reasonable doubt in the absence of recent sexual misconduct.
2. Mental abnormality.
After correctly instructing the jury on the definition of a mental abnormality pursuant to G.L. c. 123A, § 1, the judge summarized the expert testimony at trial as follows: "[A]ll the experts agreed that the mental abnormality at issue is pedophilia, although the experts disagree about whether [the defendant] meets the clinical diagnostic criteria for pedophilia." The defendant, citing no supporting Massachusetts case law, alleged that the judge's summation conflated a diagnosis of pedophilia with a finding of mental abnormality, and in the process failed to convey to the jury the necessity of finding that the defendant lacked the ability to control his pedophilia.
3. Proof beyond a reasonable doubt.
The defendant pointed to one statement in the judge's charge that reduced the Commonwealth's burden to a mere preponderance of the evidence. While the judge's phrasing was directed to discharge rather than committal, there was no doubt that the phrasing was, at best, confusing. The statement used the words "beyond a reasonable doubt" even while describing evidence which admitted of "two plausible inferences." The entire charge was examinedto determine whether instruction on reasonable doubt is adequate. Here, the judge subsequently provided the jury with a thorough instruction on proof beyond a reasonable doubt, noting that proof required "an abiding conviction to a moral certainty that the allegation is true.” Thus, in the context of the entire charge, the isolated reference did not leave the jury with an improper inference.
Closing argument.
The defendant pointed to numerous missteps made in closing argument by the Commonwealth. This was not reversible error. To determine any prejudice, the Court looked to the entire closing as well as the instructions that followed. A majority of the panel was satisfied that any improper inference was cured by the judge's instruction that the jury were not to be swayed by a concern that the defendant may be released into the community. See Commonwealth v. Maynard, 436 Mass. 558, 571 (2002) (jury presumed to follow the judge's instructions).
Judgment affirmed.
--Prepared by JWK
