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SJC-12293
COMMONWEALTH vs. EDWARD CURRAN.
Worcester. September 6, 2017. - January 12, 2018.
Present: Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.
Sex Offender. Practice, Civil, Sex offender. Evidence, Sex offender, Expert opinion, Competency, Insanity. Incompetent Person, Commitment. Witness, Expert.
Civil action commenced in the Superior Court Department on December 3, 2015.
A pretrial motion to admit expert testimony with regard to criminal responsibility was heard by Richard T. Tucker, J.
An application for leave to prosecute an interlocutory appeal was allowed by Judd J. Carhart, J., in the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Marcia T. Kovner for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. General Laws c. 123A, § 15, allows incompetent
persons who are unable to stand trial for qualifying sex 2
offenses to be deemed sexually dangerous based on the commission
of those offenses. In 2008, we held that this proceeding did
not violate due process or equal protection because of the
rights the Legislature explicitly included in the statute to
"protect an incompetent defendant's ability to defend himself
against the allegations of crime and, thus, minimize the
likelihood of a mistake." Commonwealth v. Burgess, 450
Mass. 366, 375 (2008). Those protections encompass "all rights
available to criminal defendants at criminal trials, other than
the right not to be tried while incompetent," G. L. c. 123A,
§ 15, including the retention of experts, the right to present
evidence in defense of the charges, and "the right to a
determination of the commission of the criminal acts made beyond
a reasonable doubt." Burgess, supra.
Here, the defendant sought to introduce at a hearing on the
Commonwealth's G. L. c. 123A, § 15, petition expert testimony
that he was not criminally responsible. Interpreting the
statutory language "whether the person did commit the act or
acts charged" to mean that he should determine only whether the
acts were committed, not whether the defendant was guilty of the
acts, the judge denied the motion and allowed the Commonwealth's
motion to preclude the testimony. We conclude that the right of
an incompetent defendant to raise defenses in a proceeding
pursuant to G. L. c. 123A, § 15, includes that of a lack of 3
criminal responsibility. Therefore, the denial of the motion to
admit expert testimony, and the allowance of the Commonwealth's
motion to preclude that testimony, must be reversed.
1. Facts. The following facts are uncontested for the
purposes of this interlocutory appeal. While in a residential
treatment program for mental illness, the defendant approached a
female nurse who was attempting to administer medication; said,
"Look what I have for you"; and grabbed his genitals over his
clothing. He then used his body to push her against the
counter, placed his leg between her legs, and reached his hand
under her shirt and touched her breasts. The nurse called for
help, and the defendant backed away as other staff members came
to assist her.
The defendant was charged with indecent assault and battery
on a person age fourteen or older, G. L. c. 265, § 13H, a
qualifying sex offense under G. L. c. 123A, § 1. He was found
incompetent to stand trial; pursuant to G. L. c. 123, §§ 15 and
16 (f), the charge was dismissed and the defendant was committed
to Bridgewater State Hospital. The Commonwealth then filed a
petition under G. L. c. 123A, § 12, to have the defendant
committed as a sexually dangerous person. A Superior Court
judge ordered another competency hearing and found that the
defendant still was not competent, so the process moved forward
under G. L. c. 123A, § 15. 4
A second Superior Court judge concluded that there was
probable cause to believe that the defendant was a sexually
dangerous person. At a hearing pursuant to G. L. c. 123A, § 15,
before that judge, the defendant sought to present expert
evidence regarding criminal responsibility; the Commonwealth
filed a motion to preclude such evidence. The judge ruled that
expert testimony concerning a lack of criminal responsibility is
not admissible in a hearing on a petition pursuant to G. L.
c. 123A, § 15, because it is not relevant to a factual
determination whether the acts indeed had been committed. The
defendant filed an application for an interlocutory appeal in
the Appeals Court. A single justice of the Appeals Court
allowed the application, and we transferred the case to this
court on our own motion.
2. Discussion. When a person is convicted of a qualifying
sex offense or adjudicated delinquent or a youthful offender by
reason of a qualifying sex offense, the district attorney or
Attorney General may file a petition alleging that the person is
sexually dangerous. See G. L. c. 123A, § 12. If a person is
charged with a qualifying sex offense but found incompetent to
stand trial, however, that person also may be subject to
classification as sexually dangerous, notwithstanding the
absence of a conviction. See G. L. c. 123A, §§ 12, 15. 5
In the latter case, a judge in the court where the petition
is filed first determines whether there is probable cause to
believe that the incompetent person is sexually dangerous. See
G. L. c. 123A, § 12. Following that finding and temporary civil
commitment of the defendant, a judge conducts a hearing pursuant
to G. L. c. 123A, § 15,1 at which the judge hears evidence and
determines "whether the person did commit the act or acts
1 General Laws c. 123A, § 15, provides, in its entirety:
"If a person who has been charged with a sex offense has been found incompetent to stand trial and his commitment is sought and probable cause has been determined to exist pursuant to [G. L. c. 123A, § 12], the court, without a jury, shall hear evidence and determine whether the person did commit the act or acts charged. The hearing on the issue of whether the person did commit the act or acts charged shall comply with all procedures specified in [G. L. c. 123A, § 14], except with respect to trial by jury. The rules of evidence applicable in criminal cases shall apply and all rights available to criminal defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence the court shall make specific findings relative to whether the person did commit the act or acts charged; the extent to which the cause of the person's incompetence to stand trial affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, the court shall enter a final order, subject to appeal by the person named in the petition and the court may proceed to consider whether the person is a sexually dangerous person according to the procedures set forth in [G. L. c. 123A, §§ 13-14]. Any determination made under this section shall not be admissible in any subsequent criminal proceeding." 6
charged." The statute explicitly provides that, with the
exception of trial by jury, the procedures set forth in G. L.
c. 123A, § 14, apply to this judicial determination, that all
rules of evidence are applicable, and that "all rights available
to criminal defendants at criminal trials, other than the right
not to be tried while incompetent, shall apply." See G. L.
c. 123A, § 15. If an individual is found to have committed the
act or acts charged, the judge may proceed to consider under
G. L. c. 123A, §§ 13 and 14, whether the individual is a
sexually dangerous person.
In Burgess, 450 Mass. at 375, we concluded that the
provisions of G. L. c. 123A, § 15, do not violate due process
because the Legislature explicitly provided to incompetent
defendants statutory rights sufficient "to guard against the
erroneous potential deprivation of the defendant's liberty" and
to "protect an incompetent defendant's ability to defend himself
likelihood of a mistake." These rights include, inter alia, the
retention of experts, the right to present evidence in defense
of the charges, and "the right to a determination of the
commission of the criminal acts made beyond a reasonable doubt."
Burgess, supra. See G. L. c. 123A, § 15.
The Commonwealth argues, in effect, that the statute's
instructions to "determine whether the person did commit the act 7
or acts charged" refer solely to the conduct and not to the
person's intent or criminal responsibility.2 At argument before
us, the Commonwealth emphasized that the Legislature chose the
word "act," rather than "offense" or "crime."
"Our primary duty in interpreting a statute is 'to
effectuate the intent of the Legislature in enacting it.'"
Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water
Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.
740, 744 (2010). "Ordinarily, where the language of a statute
is plain and unambiguous, it is conclusive as to legislative
intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).
That said, "[w]e will not adopt a literal construction of a
statute if the consequences of such construction are absurd or
unreasonable." Attorney Gen. v. School Comm. of Essex, 387
2 The parties additionally addressed the question whether, and for how long, the Commonwealth may civilly commit an incompetent defendant who has been found to lack criminal responsibility following a hearing pursuant to G. L. c. 123A, § 15. According to the defendant, such an individual would be subject to civil commitment "under the mental health statute[s]." See G. L. c. 123, §§ 7, 8, 16. Civil commitment under those statutes, the defendant maintains, would "address both the defendant's mental illness and also the public safety." The Commonwealth urges the court not to reach the question, because the issue is not ripe. Where the case is before us on an appeal from orders on motions in limine, and the judge has yet to make a determination whether the defendant lacks criminal responsibility, we agree that the matter is not yet ripe. We strongly urge the Legislature to address the question of the appropriate course where a defendant has been found in a proceeding under G. L. c. 123A, § 15, to lack criminal responsibility. 8
Mass. 326, 336 (1982). See Black's Law Dictionary 11-12 (10th
ed. 2014) (defining "absurdity" as "being grossly unreasonable"
and "[a]n interpretation that would lead to an unconscionable
result, esp. one that . . . the drafters could not have
intended"). "Where the words of the statute are ambiguous, we
strive to make it an effectual piece of legislation in harmony
with common sense and sound reason and consistent with
legislative intent" (quotation and citation omitted).
Commonwealth v. Pon, 469 Mass. 296, 302 (2014).
In Burgess, 450 Mass. at 374, we observed that "the
Legislature has provided that [a hearing pursuant to G. L.
c. 123A, § 15, shall] proceed much the same as a criminal trial,
and that it include many rights to which a criminal defendant is
constitutionally entitled. The Legislature also chose to import
to a [G. L. c. 123A, § 15,] hearing the familiar 'beyond a
reasonable doubt' standard." The Legislature's intent,
therefore, was to substitute this hearing for the criminal trial
that an incompetent person did not have before proceeding to a
determination whether the person is sexually dangerous. Our
holding in Burgess that the statute does not violate due process
relied on the provision of "adequate procedures to guard against
the erroneous potential deprivation of the defendant's liberty";
refusing to allow defendants to claim lack of criminal 9
responsibility threatens the constitutionality of the statute by
removing an important protection. Id. at 375.
The Legislature did not, as the Commonwealth argues,
restrict the ability of an incompetent defendant to raise all
available defenses. Rather, the Legislature intended, as it
broadly stated, to provide "all rights available to criminal
defendants at criminal trials, other than the right not to be
tried while incompetent." See G. L. c. 123A, § 15.
Importantly, these rights include the right to raise defenses,
such as intoxication, consent, diminished capacity, accident,
and lack of criminal responsibility. We are not persuaded, as
the Commonwealth suggests, that a lack of criminal
responsibility is different from other defenses that could be
raised at a hearing under G. L. c. 123A, § 15.3
3 The concurrence is correct that a G. L. c. 123A, § 15, hearing is civil, not criminal, in nature, and that we said in Commonwealth v. Burgess, 450 Mass. 366, 374 (2008), that "constitutional rights afforded criminal defendants do not necessarily apply" at such hearings. Immediately thereafter in the next paragraph, however, we clarified that "even though the hearing is civil in nature, . . . the Legislature has provided that it proceed much the same as a criminal trial, and that it include many rights to which a criminal defendant is constitutionally entitled." The statute is clear that those rights include all rights afforded a criminal defendant except the right not to be tried while incompetent and the right to a jury trial. See G. L. c. 123A, § 15. Among these rights are the assistance of counsel, the retention of experts, cross- examination of adverse witnesses, the right to present evidence in defense, the right to appeal from the final determination, the right to have the hearing conducted according to the rules 10
The Commonwealth also focuses on our conclusion in
Commonwealth v. Nieves, 446 Mass. 583, 590 n.6 (2006), that a
judge should "make the predicate factual determinations
regarding the actions that would ordinarily constitute a crime."
Those predicate factual determinations include proof of each of
the elements of the charged sex offense. Here, the defendant
was charged with indecent assault and battery on a person age
fourteen or older; the elements of that offense include an
intent to engage in the touching and a lack of justification or
excuse. Commonwealth v. Marzilli, 457 Mass. 64, 67 (2010). In
order to prove that the defendant committed the act or acts
charged, it therefore would be necessary to demonstrate that the
defendant possessed the requisite intent and did not have any
of evidence applicable in criminal cases, and the right to a determination of the commission of the criminal acts beyond a reasonable doubt. See Burgess, supra at 374-375.
We have emphasized the critical rights at stake in a sexually dangerous person proceeding, and the necessity of due process protections where a defendant's liberty interest is at stake and he faces confinement for a period of up to life. See id. We also have emphasized that G. L. c. 123A, § 15, satisfies due process requirements specifically because it "protect[s] an incompetent defendant's ability to defend himself against the allegations of crime." Burgess, supra at 375. As noted, those protections include, among other things, all defenses. The due process protections recognized in Burgess, supra, would be significantly diminished if, as the concurrence maintains, evidence of a lack of criminal responsibility were admissible, if at all, within a judge's discretion, and then only to "provide the judge a better understanding of the respondent's actions and mental condition," post at , rather than, as the statute makes clear, serving as a defense. 11
justification or excuse for the touching; the defendant likewise
could present evidence negating those elements.
Furthermore, reading the statute to mean only the conduct
charged would result in absurd consequences. A person deemed
competent to stand trial could be found not guilty by reason of
insanity at trial, and the Commonwealth would be unable to
designate that individual a sexually dangerous person, but an
incompetent person charged with a sex offense, on virtually
identical facts, would not be able to present evidence of a lack
of criminal responsibility at a hearing under G. L. c. 123A,
§ 15, and could be deemed sexually dangerous. The Legislature
could not have intended such disparate results for the same
offense.
We therefore conclude that G. L. c. 123A, § 15, allows
incompetent defendants to raise any defenses that they could
raise in a criminal trial, including that of a lack of criminal
responsibility.
3. Conclusion. The orders denying the defendant's motion
to admit expert testimony and allowing the Commonwealth's motion
to preclude that testimony are reversed, and the matter is
remanded to the Superior Court for further proceedings
consistent with this opinion.
So ordered. KAFKER, J. (concurring, with whom Cypher, J., joins). I
have a very different understanding of the scope and purpose of
a G. L. c. 123A, § 15, hearing. General Laws, c. 123A, involves
civil, not criminal, proceedings intended to determine sexual
dangerousness, not whether the respondent would have been
convicted of a crime. More specifically, § 15 consists of a
preliminary determination whether a person who has been found
incompetent to stand trial "did commit the act or acts charged,"
not whether that person, if he or she had been competent to
stand trial, would have been convicted of a crime for engaging
in such actions or found not guilty by reason of insanity. See
G. L. c. 123A, § 15. If a person subject to a § 15 hearing is
found to have committed the act or acts charged, the court will
then proceed to determine whether he or she suffers from a
mental abnormality or personality disorder that makes him or her
likely to engage in sexual offenses if not confined to a secure
facility. See G. L. c. 123A, §§ 1, 13, 14. All of these
determinations are designed to identify sexual dangerousness,
not prove whether the respondent would have been either
convicted of a crime or found not criminally responsible for the
acts committed. This distinction defines and circumscribes the
evidence admissible in the sexually dangerous person (SDP)
proceedings in general, and § 15 in particular. Although I
ultimately agree that the respondent is not precluded from 2
presenting evidence of a lack of criminal responsibility, as it
provides the judge a fuller picture of the respondent's actions
and over-all mental health, and may even simplify the § 15
inquiry, the judge has wide discretion to limit such evidence,
as it is not directly relevant to the determinations at issue in
the SDP process.
We have repeatedly emphasized the fundamental difference
between criminal punishment and civil commitment of a sexually
dangerous person, stating that a "G. L. c. 123A proceeding is
neither criminal nor penal in nature, but is a civil proceeding
to which constitutional rights afforded criminal defendants do
not necessarily apply." Commonwealth v. Burgess, 450 Mass. 366,
374 (2008). We have likewise stressed that the purpose of G. L.
c. 123A is not to punish individuals, but to "protect the public
from sexually dangerous persons, and to provide them treatment,
and rehabilitation." Commonwealth v. Bruno, 432 Mass. 489, 500
(2000). These fundamental distinctions inform our reading of
§ 15.
Ordinarily, criminal justice and civil commitment
procedures are separate and distinct, and their relationship is
relatively straightforward. A defendant is convicted of a
sexual offense in a criminal trial and sentenced; six months
before the defendant's release, the district attorney and
Attorney General are notified, and if either finds the defendant 3
likely to be an SDP, either can petition the court to initiate
SDP proceedings. See G. L. c. 123A, § 12. See also Bruno, 432
Mass. at 495. The Legislature astutely recognized, however,
that some persons who may be sexually dangerous may also have
been found incompetent to stand trial in their criminal case.
The Legislature therefore designed § 15 to address this specific
problem.
General Laws c. 123A, § 15, begins by stating:
"If a person who has been charged with a sexual offense has been found incompetent to stand trial and his commitment is sought and probable cause has been determined to exist [that the person is sexually dangerous], the court, without a jury, shall hear evidence and determine whether the person did commit the act or acts charged."
The text is carefully written. When referring to the criminal
process in which the defendant has been found incompetent, it
uses the word "offense." Id. But when it sets out the
objective of a § 15 hearing, the statute makes no reference to
the word "crime" or "offense," but rather refers only to the
"act or acts" charged. Id. The next sentence of the statute
then indicates that the "hearing on the issue of whether the
person did commit the act or acts charged shall comply with all
procedures specified in [G. L. c. 123A, §] 14, except with
respect to trial by jury." Id. Again the Legislature uses the
phrase "act or acts." The consistent use of the word "act," and
not "crime" or "offense," throughout § 15 is significant and 4
done for a specific purpose. See Hartford Ins. Co. v. Hertz
Corp., 410 Mass. 279, 283 (1991) ("As a general rule, when the
Legislature has employed specific language in one part of a
statute, but not in another part which deals with the same
topic, the earlier language should not be implied where it is
not present"). The Legislature did not intend for § 15 to be
the equivalent of, or a substitute for, a criminal trial.
In our prior cases, we have also expressly recognized the
Legislature's focus on the acts themselves, not whether the
respondent would have been convicted of a crime for engaging in
the acts. As we have previously explained, in a § 15 hearing,
"the judge may make the predicate factual determinations
regarding the actions that would ordinarily constitute a crime"
(emphasis added). Commonwealth v. Nieves, 446 Mass. 583, 590
n.6 (2006). If the Legislature had intended for § 15 hearings
to determine whether the person satisfied all of the elements of
the crime, thereby transforming the SDP proceedings into the
criminal case that could not take place due to the defendant's
incompetence, it would have simply said so.
Although any comparison between the elements to be proved
in a criminal case and the SDP process should be approached with
caution, the repeated references to "act or acts" in § 15 is
most aptly aligned with the actus reus element of a crime. Cf.
Commonwealth v. Lopez, 433 Mass. 722, 725 (2001) ("A fundamental 5
tenet of criminal law is that culpability requires a showing
that the prohibited conduct [actus reus] was committed with the
concomitant mental state [mens rea] prescribed for the
offense"). The mens rea element is not the subject of the § 15
inquiry, as evidenced by the specific language utilized by the
Legislature. See Commonwealth v. Kennedy, 435 Mass. 527, 530
(2001) ("Where the statutory language is clear, courts apply the
plain and ordinary meaning of that language").1 Finally, the
subsequent inquiry to evaluate whether the person has a mental
abnormality or personality disorder that renders him or her
1 The Legislature knows precisely how to craft an incompetency hearing designed to examine the different elements of a criminal offense, rather than solely the acts underlying that offense. For example, when an incompetent defendant has been committed under G. L. c. 123, he or she may request an opportunity for a hearing under G. L. c. 123, § 17 (b), to determine whether there is "a lack of substantial evidence to support a conviction" of the offense for which the defendant has been indicted, warranting the dismissal of the indictment. Unlike the language in G. L. c. 123A, § 15, which repeatedly uses the phrase "act or acts," the language in G. L. c. 123, § 17 (b), refers to "charges," "conviction," and "indictment." It also provides the incompetent person with the opportunity to "establish a defense of not guilty to the charges pending." Id. Yet even this more traditional inquiry into the elements of a criminal offense expressly excludes "the defense of not guilty by reason of mental illness or mental defect." Id. In sum, the Legislature knows precisely how to define which elements of a criminal offense it wants examined in incompetency hearings and carefully limited the inquiry under G. L. c. 123A, § 15, to whether the individual committed the "act or acts charged," not whether the defendant can establish a legal defense to criminal conviction as it did under G. L. c. 123, § 17 (b). G. L. c. 123A, § 15. Under neither provision is not guilty by reason of mental illness or mental defect a defense. See id.; G. L. c. 123, 17 (b). 6
sexually dangerous could not be more different from the proof
required to satisfy the McHoul standard. Compare G. L. c. 123A,
§ 1 (defining SDP to include person who has been "charged with a
sexual offense and was determined to be incompetent to stand
trial and who suffers from a mental abnormality or personality
disorder which makes such person likely to engage in sexual
offenses if not confined to a secure facility"), and
Commonwealth v. McHoul, 352 Mass. 544, 546-547 (1967) (defendant
will not be held criminally responsible if, at time of
underlying conduct, defendant "lack[ed] substantial capacity
either to appreciate the criminality [wrongfulness] of his
conduct or to conform his conduct to the requirements of law,"
due to mental disease or defect).
None of this is to suggest that the proof and procedures
required to establish whether the person did commit the act or
acts charged are anything less than rigorous, or that the
respondent cannot present all relevant evidence to provide a
full understanding of his or her actions or mental health.
Proof of alibi, mistaken identity, or consent, which could
affect a determination whether the person actually committed the
prohibited conduct, is of course highly relevant. The
respondent may also choose, for example, not to contest that he
or she committed the act or acts charged in the § 15 hearing,
but to provide an explanation that, at the time, he or she 7
lacked substantial capacity either to appreciate the
wrongfulness of his or her conduct or to conform his or her
conduct to the requirements of the law. Although not a defense
in the SDP process, it does provide the judge a better
understanding of the respondent's actions and mental condition
and may even simplify the § 15 hearing. Such an approach also
allows the respondent, if he or she so chooses, to proceed in
the SDP process as he or she intends to proceed in the criminal
process.
Allowing the respondent to introduce such evidence is
consistent with the comprehensive process designed by the
Legislature. The statute provides that the "hearing on the
issue of whether the person did commit the act or acts charged
shall [also] comply with all procedures specified in [§] 14,
except with respect to trial by jury." G. L. c. 123A, § 15.
Those include the right to counsel and the right to retain
experts or professionals to perform an examination. See G. L.
c. 123A, § 14. "The Legislature also chose to import to a § 15
hearing the familiar 'beyond a reasonable doubt' standard."
Burgess, 450 Mass. at 374. Moreover, the "rules of evidence
applicable in criminal cases shall apply and all rights
available to criminal defendants at criminal trials, other than
the right not to be tried while incompetent, shall apply."
G. L. c. 123A, § 15. None of these proof or procedural 8
requirements changes the fundamental purpose of a § 15 hearing:
to determine whether the respondent "did commit the act or acts
charged." Id. Nor does it transform a preliminary step in a
civil commitment proceeding regarding sexual dangerousness into
a criminal case requiring proof of all of the elements necessary
to establish criminal liability. Indeed, § 15 concludes by
reiterating that a § 15 hearing is not designed to determine
criminal liability, stating that "[a]ny determination made under
this section shall not be admissible in any subsequent criminal
proceeding." Id. But these protections do caution against any
unnecessary limitation on the evidence the respondent may choose
to present.
In sum, the Legislature has proposed a thoughtful solution
to the very difficult problem presented by a person who is
incompetent to stand trial, but may still be sexually dangerous.
As we have previously held, "it is beyond question that the
Legislature has a compelling interest in protecting the public
from sexually dangerous persons. That interest is not
diminished when that person happens to be incompetent to stand
trial." Burgess, 450 Mass. at 376. This is no less true when
the individual might conceivably be not guilty by reason of
insanity. Indeed, an incompetent person who did commit the act
or acts charged and meets the mental abnormality or personality
disorder requirements of sexual dangerousness, but who lacks 9
substantial capacity to appreciate the wrongfulness of his or
her conduct or to conform his or her conduct to the requirements
of law, may be particularly likely to engage in future sexual
offenses if not confined to a secure facility. The Legislature
recognized this possibility and drafted the SDP statute
accordingly. Section 15 does not bar the introduction of such
evidence, but it also does not make such evidence a defense to
being found to have committed the act or acts charged.