Commonwealth v. Given

796 N.E.2d 845, 59 Mass. App. Ct. 390, 2003 Mass. App. LEXIS 1004
CourtMassachusetts Appeals Court
DecidedSeptember 24, 2003
DocketNo. 02-P-544
StatusPublished
Cited by4 cases

This text of 796 N.E.2d 845 (Commonwealth v. Given) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Given, 796 N.E.2d 845, 59 Mass. App. Ct. 390, 2003 Mass. App. LEXIS 1004 (Mass. Ct. App. 2003).

Opinion

Doerfbr, J.

After a trial held pursuant to G. L. c. 123A, § 14, a jury determined that the defendant was a sexually dangerous person. At trial, over objection, a police report was admitted in evidence that referred to an allegation that the defendant had sexually assaulted an unidentified child; this allegation did not [391]*391result in any indictment of the defendant. The admission of this evidence constituted prejudicial error1 requiring a new trial.

Evidence at trial. In 1984 the defendant was convicted of indecent assault and battery on a child under fourteen. The victim was the ten year old son of the defendant’s cousin, and the incident occurred on or about November 5, 1983. The defendant was sentenced to probation with counseling. In 1991, the defendant pleaded guilty to offenses set forth in two separate sets of indictments. The first set involved sexual assaults on his two stepchildren, a ten year old girl and a nine year old boy. Those incidents occurred during late 1989 and early 1990 in the home where the defendant and the children all lived. The second set of indictments was based on incidents that occurred on October 19, 1990, involving an eleven year old boy whom the defendant knew, and a twelve year old girl with mental retardation, Francine,2 who was the niece of a friend of the defendant.3 The defendant received concurrent committed sentences of nine to twelve years on these two sets of indictments, which he served. The petition to commit him as a sexually dangerous person was filed as he was about to be released at the completion of his sentences. G. L. c. 123A, § 12(b).

The only issues at trial were whether the defendant suffers from a mental abnormality or personality disorder and whether that mental abnormality or personality disorder makes him likely to engage in sexual offenses if he is not confined to a secure facility. G. L. c. 123A, § 1. The trial on these issues included the testimony of two experts for the Commonwealth and two for the defendant who came to differing conclusions whether the defendant was a sexually dangerous person as defined by the statute. The defendant also testified. The judge allowed police reports in evidence under G. L. c. 123A, § 14(c).

The defendant objected to the admission of a portion of one [392]*392police report that included information about an alleged sexual assault involving an unidentified child that was never prosecuted. The police report in issue related to the investigation of the forcible rape of Francine. In her interview with the police, Francine recounted a sequence of events involving the defendant, who had requested and received permission from her uncle to take her to a roller rink. On the way, the defendant said that he needed to pick up his stepchildren. The defendant and Francine then went into a residence where his stepchildren were supposed to be and, when they were not there, he put his hand down Francine’s blouse and in her pants. Francine threatened to tell her uncle, and they left. At the roller rink Francine started to call her father, but when the defendant, who was watching, started to approach her, Francine handed the phone to a bystander and told that bystander to complete the call and to ask Francine’s father to come and get her. Francine said the defendant forced her into his car, locked all the doors, and forcibly penetrated her vaginally. Francine said she then managed to escape back into the roller rink. Her father arrived, and the defendant told him that Francine was upset because he was unable to buy her a soda. The defendant took off quickly in his car, and Francine told her father what had happened.

The report then states, “[Francine] later said that while they were in the locked car there was a 6 year-old boy inside the car also and that Ed tried to molest him, too. The 6 year-old was standing outside waiting for his ride [she] said. [Francine] mentioned something about the 6 year-old calling his mom and his mom calling his Dad on the cellular phone and that his Dad would be picking him up. The 6 year-old’s Dad arrived and the boy ran over to his dad’s car and he was crying and had a cut on his hand. [Francine] also said that the boy’s father had called the police on his cellular phone in the car. Then the boy and his dad got in their car. Then [Francine] said [the defendant] approached the boy’s father’s car and the boy’s father took off.”4 As previously stated, these allegations concerning the six year old boy did not result in any indictment.

[393]*393Inadmissibility of portions of the police report. The defendant argues that G. L. c. 123A, § 14(c), is unconstitutional as applied in this case because the judge was not required to rule on the reliability of the hearsay supposedly made admissible by the statute. We need not consider the constitutional argument, however, because the evidence in question was not admissible under the statute. Commonwealth v. Markvart, 437 Mass. 331, 339 (2002).5 Commonwealth v. Boyer, 58 Mass. App. Ct. 662, 666-667 (2003). G. L. c. 123A, § 14(c), as inserted by St. 1999, c. 74, § 8, provides:

“Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person’s prior sexual offenses, incident reports arising out of such person’s incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial.”

[394]*394In Commonwealth v. Markvart, supra, the Supreme Judicial Court held that a police report relating to a sexual assault by the defendant that resulted in an indictment that was later nol pressed did not constitute a police report “relating to such person’s prior sexual offenses” and, thus, was not admissible at trial under the statute. The court also stated that such a report was not admissible as “ ‘any other evidence’ tending to show that the defendant is or is not sexually dangerous” as that phrase is used in G. L. c. 123A, § 14(c). Markvart, supra at 335 n.3. The portion of the police report to which objection was made here does not, as it did not in Markvart, “relate to” a “prior sexual offense” of the defendant because he had not been charged, much less convicted, of any offense involving the alleged assault on the unidentified six year old boy. Compare Markvart, supra at 337.

The record is clear that the police report was admitted, without limitation, for the truth of the matter stated therein, namely that the defendant had sexually assaulted a six year old boy on the same occasion that he sexually assaulted Francine.6 This information was available to the jury in assessing whether the defendant was a sexually dangerous person. There was no doubt about the use to which the jury were allowed to put this information because the judge specifically told the jury they could consider both charged and uncharged sexual misconduct:

“But in deciding the likelihood that Mr.

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COMMONWEALTH v. GEORGE MACKIE.
100 Mass. App. Ct. 78 (Massachusetts Appeals Court, 2021)
Commonwealth v. Given
808 N.E.2d 788 (Massachusetts Supreme Judicial Court, 2004)
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805 N.E.2d 1007 (Massachusetts Appeals Court, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
796 N.E.2d 845, 59 Mass. App. Ct. 390, 2003 Mass. App. LEXIS 1004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-given-massappct-2003.