Commonwealth v. Chapman

825 N.E.2d 508, 444 Mass. 15, 2005 Mass. LEXIS 160

• Court: Massachusetts Supreme Judicial Court
• Decided: April 14, 2005
• Status: Published

Opinions

Cordy, J.

The Commonwealth appeals from an order of a Superior Court judge dismissing its petition to commit Wayne Chapman as a sexually dangerous person, filed pursuant to G. L. c. 123A, §§ 12-16 (2004 petition). The judge ruled that the 2004 petition represented an impermissible collateral attack on a 1991 judgment that Chapman was not a sexually dangerous person. The Commonwealth contends that collateral estop-pel principles are inapplicable because its current petition presents a factual issue (Chapman’s present sexual dangerousness) different from the one litigated in 1991 (Chapman’s sexual dangerousness at that time), and because it intends to introduce evidence different from what was available in 1991. We conclude that the doctrine of collateral estoppel does not bar the Commonwealth’s petition, that the petition set forth a sufficient factual basis to support the Commonwealth’s allegation of present sexual dangerousness, and that the judge prematurely dismissed the petition. Therefore, we vacate the judge’s order and remand the matter to the Superior Court for a probable cause hearing pursuant to G. L. c. 123A, § 12 (c).

1. Background. In September, 1977, Chapman was convicted of two counts of rape of a child and was sentenced to a prison term of from fifteen to thirty years. Shortly thereafter, he pleaded guilty to counts of sodomy, open and gross lewdness, assault with intent to commit a felony, unnatural acts with a child under fourteen years, and indecent assault and battery on a child under fourteen years, for which he was sentenced to a prison term of from six to ten years. In both cases, the evidence demonstrated that Chapman had lured young boys into wooded areas under the pretext of searching for his missing dog. Once there, he sexually assaulted them.

In November, 1977, Chapman was found to be a sexually dangerous person and, the following March, was transferred from prison to the Massachusetts Treatment Center (treatment center).¹ In 1991, Chapman filed a petition for release from the treatment center pursuant to G. L. c. 123A, § 9.² After a two-day evidentiary hearing, the judge found that Chapman’s convictions of rape of a child “culminated a [ten] year history of child abuse in Massachusetts, Rhode Island and Pennsylvania. [Chapman’s] sexual activities involved attraction to blond, blue eyed hairless boys, [ten] or [eleven] years of age. It started with observing them naked and progressed to fellatio and sodomy. In all there were about [fifty] victims.” This finding, and Chapman’s apparent diagnosis as a pedophile, were not contested issues at the hearing.³ What was at issue was whether the treatment Chapman had received at the treatment center had tempered his pedophilia such that he was no longer sexually dangerous. On this subject, four “qualified examiners” testified.⁴ The Commonwealth called Dr. David Jones and Dr. Lisa Brooks. Both opined that Chapman had made considerable progress with treatment. Dr. Jones further testified, however, that Chapman remained a sexually dangerous person based on “the repetitive history and fixation with up to [fifty] incidents with boys who fit the description which attracted [him], his lack of empathy for his victims, lack of true remorse, his failure to understand the nature of his obsession and the absence of internalized control.” Similarly, Dr. Brooks, who had interviewed Chapman for the Commonwealth five times in the preceding two years, concluded that Chapman remained sexually dangerous. Dr. Richard Ober testified on behalf of Chapman and concluded that Chapman was not sexually dangerous because he understood his behavioral problems, expressed remorse and sadness for his victims, and had developed an ability to maintain significant relationships with adults both within and without the treatment center. Dr. Eric Sweitzer, who had worked with Chapman in weekly, individual therapy sessions for approximately two years, testified that although Chapman might still experience temptation to commit sexual offenses, he was not then sexually dangerous because the intensity of those temptations had decreased and Chapman had learned strategies to manage his anger and had “an excellent support group in his Christian Religion.”

The hearing judge “adoptfed] the opinions” of Dr. Ober and Dr. Sweitzer and ruled that the Commonwealth had failed to prove beyond a reasonable doubt that Chapman was then a sexually dangerous person. He ordered Chapman discharged from the treatment center and transferred back to prison to serve the remainder of his sentence.⁵

On September 16, 2004, approximately one month before Chapman’s anticipated release from prison, the Commonwealth filed its 2004 petition in which it sought a temporary order committing Chapman to the treatment center pending the disposition of the petition, see G. L. c. 123A, § 12 (<?); a hearing to determine whether there is probable cause to believe that Chapman is a sexually dangerous person, see G. L. c. 123, § 12 (c); and, if so, a sixty-day commitment to the treatment center for evaluation by two qualified examiners, see G. L. c. 123A, § 13 (a). Among the facts alleged in the 2004 petition was Chapman’s refusal to participate in sex offender treatment since 1991. Also included was a written evaluation by Dr. Robert Joss (dated September 10, 2004), who, after a review of thirty-six documents and reports pertinent to Chapman’s criminal, psychiatric, and institutional history, opined that Chapman suffered from a form of pedophilia that had proved to be particularly resistant to change.⁶

In assessing whether Chapman’s pedophilia rendered him currently sexually dangerous, Dr. Joss considered what he labeled “static” factors (over which a person has no control, such as prior history) and “dynamic” factors (“over which [a] person may exhibit some control and to which treatment programs are addressed”) relevant to analyzing the risk of reoffending. With respect to the dynamic factors, Dr. Joss found that (1) the type of treatment Chapman participated in at the treatment center up until 1991 (“individually oriented and psy-chodynamically based”) has since proved to be generally ineffective with sex offenders; and (2) after Chapman’s transfer back to prison he had been offered but refused treatment that was “cognitive — behaviorally oriented and group based” and that would normally be recommended where “arousal associated with pedophilia is noted to be a continuing problem.” Dr. Joss’s evaluation also noted that subsequent to his transfer from the treatment center to prison in 1991, Chapman had attended religious services for the purpose of transporting contraband for other inmates and had been disciplined for assaulting another inmate.

Based on his review of Chapman’s history and an analysis of the static and dynamic factors relating to his likelihood of reof-fending, Dr. Joss concluded that Chapman posed, at best, a “moderate risk” and, at worst, a “high risk” to reoffend sexually.⁷ Ultimately, “[b]ased upon the information available [to him],” it was Dr. Joss’s expert opinion that Chapman was currently a sexually dangerous person as defined in G. L. c. 123A, § 1, in that “he is likely to engage in sexual offenses if not confined to a secure facility.”

On October 5, 2004, Chapman moved to dismiss the Commonwealth’s petition on collateral estoppel grounds. On October 14, 2004, the judge allowed the motion, ruling that the 2004 petition was a collateral attack on the 1991 adjudication because (1) the Commonwealth’s 2004 petition was “based only on factors that were present” in 1991, except Chapman’s refusal to participate in sex offender treatment since that adjudication; and (2) such refusal did not amount to “additional evidence” on which a finding of current sexual dangerousness could properly be based. Consequently, the judge concluded that a finding of sexual dangerousness on the basis of the 2004 petition would violate due process in light of this court’s holding in Commonwealth v. Travis, 372 Mass. 238, 249 (1977).

The Commonwealth filed an emergency motion with the Appeals Court to stay Chapman’s release pending appeal. A single justice of the Appeals Court expressed “serious doubt” as to the correctness of dismissing the petition and stayed the motion judge’s order.⁸ On October 19, 2004, after a hearing on the matter, the single justice extended the stay and the temporary detention of Chapman and ordered an expedited appeal of the motion to dismiss before a panel of the Appeals Court. We transferred the case here on our own motion.

2. Discussion. We have previously held that although the double jeopardy clause of the Fifth Amendment to the United States Constitution does not apply to G. L. c. 123A commitment proceedings, “as a matter of fundamental fairness under the due process clause of the Fourteenth Amendment to the United States Constitution, a finding that an individual is no longer sexually dangerous must be as immune from subsequent or collateral attack as is a criminal judgment of acquittal.” Commonwealth v. Travis, supra at 249.⁹ See Hill, petitioner, 422 Mass. 147, 155, cert. denied, 519 U.S. 867 (1996) (“Due process in this context implies an aspect of constitutionally compelled res judicata”). “Collateral estoppel is available to a defendant as a shield against a subsequent attempt by the government to litigate an issue necessarily decided in previous litigation between the defendant and the government. . . where there is (1) a common factual issue; (2) a prior determination of that issue in litigation between the same parties; and (3) a showing that the determination was in favor of the party seeking to raise the estoppel bar.” Krochta v. Commonwealth, 429 Mass. 711, 715-716 (1999). Chapman contends that the principles of collateral estoppel preclude the Commonwealth from relitigating the issue of Chapman’s sexual dangerousness because the 1991 adjudication constituted a final determination between the same parties on the common factual issue of that dangerousness. We conclude, however, that the Commonwealth’s petition does not seek to relitigate an issue previously adjudicated.

In Commonwealth v. Travis, supra at 249 n.5, we noted that the protection afforded a determination made under G. L. c. 123A “applies only to circumstances in which there has been a finding that an individual is not sexually dangerous at that particular time and a subsequent or collateral attack is made on that finding as it relates to the individual’s status at the time the finding was made” (emphasis added).¹⁰ In the context of the present case, the Commonwealth would be precluded from subsequently challenging the judge’s 1991 finding, for example, on the basis of newly discovered evidence demonstrating that Chapman was in fact sexually dangerous at the time the judge found he was not. Similarly, it could not seek to vacate the judgment based on evidence that the judge had made a mistake in 1991 due to the evolving and inexact nature of psychiatric prediction. See id. at 249, 250 (“The not sexually dangerous finding is an unconditional adjudication of status at the time of the hearing, and as such may not be reevaluated in light of subsequent events”). However, neither the doctrine of collateral estoppel nor substantive due process prevents a judge from determining whether probable cause exists to find that Chapman (many years later) is presently a sexually dangerous person on a showing of sufficient facts.¹¹ See Commonwealth v. Bruno, 432 Mass. 489, 503 (2000) (“commitment proceedings turn on a person’s current mental condition”). Accordingly, we examine the facts set forth by the Commonwealth to determine whether its petition seeks merely to relitigate Chapman’s status in 1991, or whether it is sufficient to support the allegation of present sexual dangerousness and can proceed properly to the next stage along the statutorily prescribed course.¹²

In Commonwealth v. Bruno, supra at 505-506, we held that the Commonwealth was not estopped from seeking to commit Bruno where, its petition contained evidence of conduct that postdated a determination made by two qualified examiners that Bruno was not sexually dangerous.¹³ As we noted, “due to the additional evidence contained in the current commitment petition, the issue therein, whether [the defendant] is currently a sexually dangerous person, is quite different from whether he was sexually dangerous [in the past].” Id. at 506. See Gomes v. Gaughan, 471 F.2d 794, 797 (1st Cir. 1973) (rejecting petitioner’s collateral estoppel argument where “issue before the court in [the most recent proceedings] (his then propensities) was not the same as that in [the prior proceedings]; nor was the ‘evidence’ ”).¹⁴ While we might agree that if the Commonwealth’s 2004 petition had relied solely on Dr. Joss’s opinion that the type of treatment Chapman received prior to 1991 has proved to be an ineffective treatment for sex offenders, it would be insufficient to overcome the doctrine of collateral estoppel with respect to the 1991 adjudication that was based largely on expert testimony regarding the success of that form of treatment on Chapman’s condition. That, however, is not this case.¹⁵ Here, the Commonwealth’s petition seeks a present determination of sexual dangerousness predicated not only on Chapman’s criminal history and sexual misconduct prior to 1991, but also on conduct engaged in thereafter. Most importantly, Chapman, although an admitted pedophile, chose not to participate in sex offender treatment programs appropriate to his condition during the thirteen years subsequent to his release from the treatment center.¹⁶ Chapman argues that he was not obligated to continue with sex offender treatment after the 1991 adjudication, and therefore, his declining such treatment is not conduct sufficient to support a showing of sexual dangerousness. The issue is not whether Chapman was “obligated” to participate in sex offender treatment programs, but rather the effect of his failure to participate in such programs on the current state of his mental abnormality and therefore his sexual dangerousness. This failure is particularly relevant to Chapman’s present ability to control a mental abnormality (pedophilia) that otherwise creates a substantial risk of additional sexual offenses, where his own expert witness (and treating therapist) testified in 1991 that Chapman might “still have inclinations and temptation” but had reduced their intensity through then ongoing therapy. These facts, set forth in the 2004 petition and elaborated on in Dr. Joss’s evaluation incorporated therein, are sufficient to “reject [Chapman’s] claim that the Commonwealth is precluded from initiating commitment proceedings against him.” Commonwealth v. Bruno, supra at 506 (rejecting defendant’s collateral estoppel argument where defendant refused sex offender therapy and violated parole as result of nonsexual offenses committed after defendant was deemed no longer sexually dangerous). We therefore conclude that it was error to dismiss the petition.

Finally, with respect to Chapman’s custodial status, if a person is scheduled to be released from prison “prior to the court’s probable cause determination,” the court may “temporarily commit such person . . . pending disposition of the petition,” id. at 495, if the Commonwealth can make “a sufficient showing based on ‘evidence before the court,’ that the person named in the petition is sexually dangerous . . . and... is likely to commit future harm.” Id. at 503-504, quoting G. L. c. 123A, § 12 (e). This threshold has been met in the present petition on the basis of the facts alleged and Dr. Joss’s detailed expert evaluation of Chapman’s present dangerousness. Consequently, the petitioner is to be detained pursuant to G. L. c. 123, § 12 (e), pending a probable cause hearing.¹⁷

The order is vacated and the case is remanded to the Superior Court for further proceedings pursuant to G. L. c. 123A, § 12(c).

So ordered.

1 In 1977, G. L. c. 123A provided that, “[i]f a prisoner under sentence in any jail, house of correction or prison . . . appeared] to the sheriff. . . or to the district attorney for the district in which such prisoner was sentenced to be a sexually dangerous person and in need of the care and treatment provided at the center, such officer [was permitted to] notify the commissioner of mental health, who [would] thereupon cause such prisoner to be examined by a psychiatrist at the institution wherein he [was] confined.” G. L. c. 123A, § 6, as appearing in St. 1958, c. 646, § 1. If the examining psychiatrist determined that the prisoner might be sexually dangerous, the sheriff or the district attorney filed a motion to commit the prisoner to the treatment center for an observation period not to exceed sixty days. Id. If the prisoner was subsequently determined to be not sexually dangerous by his examining psychiatrists, the judge was required to “order such prisoner to be reconveyed to the institution wherein he was serving his sentence, there to be held until the termination of his sentence.” Id. If the examining psychiatrists determined that the prisoner was sexually dangerous, a hearing was held. On a finding of sexual dangerousness, the judge committed the prisoner to the center “for an indeterminate period of a minimum of one day and a maximum of such person’s natural life” or made “such other disposition upon the recommendation of the department of mental health consistent with the purpose of treatment and rehabilitation.” Id.

In 1990, §§ 3-6 and 7 of G. L. c. 123A were repealed. St. 1990, c. 150, § 304. On September 10, 1999, the Legislature enacted emergency legislation, St. 1999, c. 74, §§ 3-8, adding new procedures for adjudicating persons as sexually dangerous. A commitment petition may now only be brought by the district attorney or the Attorney General and only at the conclusion of a person’s sentence. G. L. c. 123A, § 12.

2 The version of G. L. c. 123A, § 9, in effect at the time, provided, in relevant part: “Any person committed to the center shall be entitled to file a petition for examination and discharge once in every twelve months.” G. L. c. 123A, § 9, as amended through St. 1989, c. 555.

3 Only the judge’s findings and not the full record of the 1991 hearing were included in the record on appeal.

4 In 1991, a “[qjualified examiner” was defined as “a physician who is licensed pursuant to section two of chapter one hundred and twelve who is either certified in psychiatry by the American Board of Psychiatry and Neurology or eligible to be so certified, or a psychologist who is licensed pursuant to sections one hundred and eighteen to one hundred and twenty-nine of chapter one hundred and twelve; provided that the examiner has had two years of experience with diagnosis or treatment of sexually aggressive offenders and is designated by, and satisfies the qualifications required by, the department of mental health.” G. L. c. 123A, § 1, inserted by St. 1985, c. 752, § 1.

5 Under the version of G. L. c. 123A in effect in 1991, an inmate committed to the treatment center prior to the completion of his sentence was returned to prison to complete the remainder, if any, of his original sentence on a finding that he was no longer a sexually dangerous person. Commonwealth v. Rodriguez, 376 Mass. 632, 640 (1978).

6 Dr. Joss did not interview Chapman for the evaluation.

7 Dr. Joss used “actuarial instruments” in estimating Chapman’s risk of reoffending: “Static-99” (developed by the office of the Solicitor General of Canada), which employs ten static risk factors and resulted in a predicated risk of recidivism of fifty-two per cent within fifteen years for persons with Chapman’s characteristics; and MnSOST-R (Minnesota sex offender screening tool — revised), which employs twelve static and four dynamic factors and resulted in a predicated risk of recidivism of between twenty-nine per cent and sixty-six per cent within six years.

8 The single justice also committed Chapman to the treatment center pending further order of the Appeals Court.

9 In Commonwealth v. Travis, 372 Mass. 238, 239 (1977), Travis was adjudged no longer sexually dangerous in 1973 and was granted conditional release from the treatment center, based on the version of G. L. c. 123A, § 9, then in effect. G. L. c. 123A, § 9, as appearing in St. 1966, c. 608 (permitting court to release sexually nondangerous persons on conditions such as continued treatment). In 1975, the same judge who issued the 1973 judgment vacated his prior finding and issued a new order, finding, inter alla, that Travis in fact had been a sexually dangerous person at the time of the prior hearing. Id. at 241. We held that the judge could not validly vacate the prior finding, even though the version of G. L. c. 123A in effect at the time permitted the judge to recommit Travis for breaching the conditions of his release. Id. at 245, 251.

10 We further stated: “Our reasoning here would not bar subsequent statutorily and constitutionally valid proceedings under this chapter to determine an individual’s status at the time of the subsequent proceedings; for example, a person found not sexually dangerous after conviction of a [statutorily enumerated sexual] offense might later be validly adjudicated to be sexually dangerous after conviction of a subsequent [statutorily enumerated sexual] offense.” Commonwealth v. Travis, supra at 249 n.5. Chapman argues that this passage implies that the Commonwealth is barred from relitigating the issue of Chapman’s sexual dangerousness unless he is convicted of a subsequent sexual offense. We decline to interpret this “example” as the only circumstance in which a person adjudicated not sexually dangerous at one point in time could be validly adjudicated sexually dangerous at a later time on the basis of a subsequent petition.

11 The Commonwealth also argues that the doctrine of collateral estoppel is inapplicable because the current statutory definition of “sexually dangerous person” differs from the definition in effect at the time of the 1991 adjudication. Specifically, the Commonwealth contends that the addition of the terms “mental abnormality” and “personality disorder” under the 1999 amendments to G. L. c. 123A, § 1, present a different legal issue. We disagree. We have previously held that the pre-1999 version of the statute, which “does not explicitly mandate a determination of ‘mental illness,’ ” nonetheless implicitly “requires a finding that the individual suffer from a present mental condition that creates a likelihood that the individual will engage in sexually dangerous conduct in the future.” Dutil, petitioner, 437 Mass. 9, 14-15 (2002).

12 To file a petition alleging that a prisoner is a sexually dangerous person, the Commonwealth need only “stat[e] sufficient facts to support such allegation,” G. L. c. 123A, § 12 (£>), that is, that the prisoner has been convicted of a sexual offense and that “it is ‘likely’ that [he] possesses the requisite mental condition under the statute.” Commonwealth v. Bruno, 432 Mass. 489, 503 (2000), quoting G. L. c. 123A, § 12 (b).

13 In Commonwealth v. Bruno, supra at 505, we noted that Bruno was never adjudged to be no longer sexually dangerous. Rather, on the conclusion of two qualified examiners (made under the version of G. L. c. 123 A that predated the 1990 repeal) that Bruno was not a sexually dangerous person, he was released from commitment and returned to prison to serve the remainder of his sentence.

14 The court in Gomes v. Gaughan, 471 F.2d 794, 797 (1st Cir. 1973), cautioned that, although “not double jeopardy under the Fifth Amendment [to the United States Constitution], the oppressive misuse of multiple commitment proceedings would doubtless be a violation of due process.” This view was subsequently expressed in Commonwealth v. Travis, supra at 246-250. We do not, however, find the facts of this case to present an “oppressive misuse of multiple commitment proceedings.”

15 We do not mean to suggest that such evidence would not be relevant to assessing the effect of Chapman’s subsequent decision not to participate in more effective forms of treatment after 1991.

16 While incarcerated and subsequent to 1991, Chapman was also disciplined for assaulting a fellow inmate (in 1998), and attended religious services for the purpose of transporting contraband for other inmates. Chapman notes, however, that there is nothing in his prison disciplinary record that indicates sexual misconduct. Chapman’s prior criminal history, however, indicates a predilection for young boys. As we stated in Hill, petitioner, 422 Mass. 147, 157, cert. denied, 519 U.S. 867 (1996), “[e]xamples of recent conduct showing sexual dangerousness may often be lacking where the individual’s dangerous disposition is of a sort that there will be no occasion for that disposition to manifest itself in a secure environment.”

17 Chapman may challenge the Commonwealth’s showing and his temporary commitment and move for relief therefrom at any time prior to the probable cause determination. G. L. c. 123A, § 12 (e).