NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-76
PHILIP BUNTING, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial on his G. L. c. 123A, § 9 (§ 9) petition
for release, the petitioner, Philip Bunting, appeals from a non-
unanimous jury verdict finding that he remained a sexually
dangerous person (SDP). His sole argument on appeal is that the
nonunanimous verdict violated his right to due process under the
Fourteenth Amendment to the United States Constitution. We
affirm.
Background. In 2009, the petitioner was adjudicated an SDP
and civilly committed to the Massachusetts Treatment Center.
Nine years later, in November 2018, he filed a petition for
release under G. L. c. 123A, § 9, and a trial on the matter
commenced in July 2022 in the Superior Court with a fifteen-
member jury.
The evidence at trial showed that the petitioner had, by
his own admission, engaged in at least eight acts of sexual
misconduct against both adult and child victims. Four of those incidents resulted in convictions for indecent assault and
battery -- one against a child under fourteen and three against
persons aged fourteen years or older. In the opinion of the
Community Access Board members and one qualified examiner, the
petitioner continued to suffer from at least one mental
abnormality or personality disorder that rendered him likely to
reoffend if he were to be released into the community. One
qualified examiner and two expert witnesses for the petitioner
testified that, in their opinion, he was no longer sexually
dangerous.
At the conclusion of trial, the parties agreed that all
fifteen jurors could deliberate. The jury were instructed, as
per the petitioner's proposed instructions, that "[t]he decision
you reach in [the] jury room concerning whether or not [the
petitioner] is [a] sexually dangerous person or not sexually
dangerous person need not be unanimous," so long as five-sixths,
or thirteen out of fifteen, jurors agreed. Ultimately, the jury
returned a non-unanimous verdict, with thirteen jurors finding
that the petitioner remained sexually dangerous and two jurors
finding that he was no longer so.
Discussion. On appeal, the petitioner claims that it is a
violation of his right to due process under the Fourteenth
Amendment to allow a jury to return a non-unanimous verdict in a
§ 9 case. As previously mentioned, the petitioner argued the
2 opposite in the trial court; thus, the issue is waived, and we
review only to determine whether any error created a substantial
risk of a miscarriage of justice. R.B., petitioner, 479 Mass.
712, 718 (2018).
When the Commonwealth initially seeks to civilly commit
someone as an SDP, it must follow the procedures outlined in
G. L. c. 123A, § 14, which requires a jury (when one is
demanded), in order to adjudicate the person an SDP, to find
"unanimously and beyond a reasonable doubt" that the
Commonwealth has met its burden. G. L. c. 123A, § 14 (d).
After an initial adjudication, petitions for release are
governed by § 9 of the same chapter, which provides only that
"[i]f a jury trial is demanded, the matter shall proceed
according to the practice of trial in civil cases in the
superior court." Case law confirms that in § 9 petitions, as in
any other civil action governed by G. L. c. 234A, § 68B, only
five-sixths of the jury must agree in order to return a verdict.
See Sheridan, petitioner, 422 Mass. 776, 777 (1996) (discussing
predecessor statute, G. L. c. 234, § 34A).
In deciding that the five-sixths requirement applies to § 9
petitions, the Supreme Judicial Court, using the due process
framework provided in Mathews v. Eldridge, 424 U.S. 319 (1976),
directly considered whether a unanimous jury verdict was
necessary to protect petitioners' fundamental liberty interest
3 and concluded that unanimity was not required. See Sheridan,
422 Mass. at 777-780. Indeed, the court has repeatedly held
that neither the Federal nor the State constitution affords
petitioners a right to trial by jury at all in G. L. c. 123A
proceedings; it is only the statute itself which provides and
defines the right. See Commonwealth v. Barboza, 387 Mass. 105,
113, cert. denied, 459 U.S. 1020 (1982). See also LeSage,
petitioner, 488 Mass. 175, 184 (2021); Gagnon, petitioner, 416
Mass. 775, 778 (1994). Cf. Commonwealth v. G.F., 479 Mass. 180,
202 (2018), quoting Sheridan, supra at 780 (declining, in
absence of "compelling constitutional basis," to override
statutory scheme requiring unanimity under § 14 but not § 9).
Keeping in mind these precedents, and that "we have no power to
alter, overrule or decline to follow the holding of cases the
Supreme Judicial Court has decided," we reject the petitioner's
arguments. Ready, petitioner, 63 Mass. App. Ct. 171, 180
(2005), quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485
(2003).
1. Right to a unanimous jury verdict. The petitioner's
first argument is that the Supreme Court's decision in Ramos v.
Louisiana, 140 S. Ct. 1390 (2020), gives him a substantive right
to a unanimous jury, and that § 9's non-unanimous jury provision
infringes on that right. We are unpersuaded. Ramos established
that the Sixth Amendment, as incorporated in and applicable to
4 the States under the Fourteenth Amendment, requires a unanimous
verdict to support a conviction of a serious criminal offense in
State court, as it does in Federal court. Id. at 1397.
However, the Sixth Amendment right to a trial by jury does not
extend to SDP proceedings under c. 123A, which are civil in
nature. See Barboza, 387 Mass. at 112. Thus, the holding in
Ramos has no direct bearing on whether civil commitment
proceedings must be decided by a unanimous jury. See Interest
of T.B., 641 S.W.3d 535, 539 (Tex. App. 2022) ("Ramos is limited
to verdicts in criminal cases, and we decline to extend its
holding to civil commitment proceedings").
Nevertheless, the petitioner attempts to reframe Ramos as
holding that jury unanimity, like the right to notice and an
opportunity to be heard by an impartial tribunal, is now an
element of procedural due process that must be met when the
stakes are sufficiently serious, regardless of the context in
which the case arises. Given that Ramos specifically bases its
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-76
PHILIP BUNTING, petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a trial on his G. L. c. 123A, § 9 (§ 9) petition
for release, the petitioner, Philip Bunting, appeals from a non-
unanimous jury verdict finding that he remained a sexually
dangerous person (SDP). His sole argument on appeal is that the
nonunanimous verdict violated his right to due process under the
Fourteenth Amendment to the United States Constitution. We
affirm.
Background. In 2009, the petitioner was adjudicated an SDP
and civilly committed to the Massachusetts Treatment Center.
Nine years later, in November 2018, he filed a petition for
release under G. L. c. 123A, § 9, and a trial on the matter
commenced in July 2022 in the Superior Court with a fifteen-
member jury.
The evidence at trial showed that the petitioner had, by
his own admission, engaged in at least eight acts of sexual
misconduct against both adult and child victims. Four of those incidents resulted in convictions for indecent assault and
battery -- one against a child under fourteen and three against
persons aged fourteen years or older. In the opinion of the
Community Access Board members and one qualified examiner, the
petitioner continued to suffer from at least one mental
abnormality or personality disorder that rendered him likely to
reoffend if he were to be released into the community. One
qualified examiner and two expert witnesses for the petitioner
testified that, in their opinion, he was no longer sexually
dangerous.
At the conclusion of trial, the parties agreed that all
fifteen jurors could deliberate. The jury were instructed, as
per the petitioner's proposed instructions, that "[t]he decision
you reach in [the] jury room concerning whether or not [the
petitioner] is [a] sexually dangerous person or not sexually
dangerous person need not be unanimous," so long as five-sixths,
or thirteen out of fifteen, jurors agreed. Ultimately, the jury
returned a non-unanimous verdict, with thirteen jurors finding
that the petitioner remained sexually dangerous and two jurors
finding that he was no longer so.
Discussion. On appeal, the petitioner claims that it is a
violation of his right to due process under the Fourteenth
Amendment to allow a jury to return a non-unanimous verdict in a
§ 9 case. As previously mentioned, the petitioner argued the
2 opposite in the trial court; thus, the issue is waived, and we
review only to determine whether any error created a substantial
risk of a miscarriage of justice. R.B., petitioner, 479 Mass.
712, 718 (2018).
When the Commonwealth initially seeks to civilly commit
someone as an SDP, it must follow the procedures outlined in
G. L. c. 123A, § 14, which requires a jury (when one is
demanded), in order to adjudicate the person an SDP, to find
"unanimously and beyond a reasonable doubt" that the
Commonwealth has met its burden. G. L. c. 123A, § 14 (d).
After an initial adjudication, petitions for release are
governed by § 9 of the same chapter, which provides only that
"[i]f a jury trial is demanded, the matter shall proceed
according to the practice of trial in civil cases in the
superior court." Case law confirms that in § 9 petitions, as in
any other civil action governed by G. L. c. 234A, § 68B, only
five-sixths of the jury must agree in order to return a verdict.
See Sheridan, petitioner, 422 Mass. 776, 777 (1996) (discussing
predecessor statute, G. L. c. 234, § 34A).
In deciding that the five-sixths requirement applies to § 9
petitions, the Supreme Judicial Court, using the due process
framework provided in Mathews v. Eldridge, 424 U.S. 319 (1976),
directly considered whether a unanimous jury verdict was
necessary to protect petitioners' fundamental liberty interest
3 and concluded that unanimity was not required. See Sheridan,
422 Mass. at 777-780. Indeed, the court has repeatedly held
that neither the Federal nor the State constitution affords
petitioners a right to trial by jury at all in G. L. c. 123A
proceedings; it is only the statute itself which provides and
defines the right. See Commonwealth v. Barboza, 387 Mass. 105,
113, cert. denied, 459 U.S. 1020 (1982). See also LeSage,
petitioner, 488 Mass. 175, 184 (2021); Gagnon, petitioner, 416
Mass. 775, 778 (1994). Cf. Commonwealth v. G.F., 479 Mass. 180,
202 (2018), quoting Sheridan, supra at 780 (declining, in
absence of "compelling constitutional basis," to override
statutory scheme requiring unanimity under § 14 but not § 9).
Keeping in mind these precedents, and that "we have no power to
alter, overrule or decline to follow the holding of cases the
Supreme Judicial Court has decided," we reject the petitioner's
arguments. Ready, petitioner, 63 Mass. App. Ct. 171, 180
(2005), quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485
(2003).
1. Right to a unanimous jury verdict. The petitioner's
first argument is that the Supreme Court's decision in Ramos v.
Louisiana, 140 S. Ct. 1390 (2020), gives him a substantive right
to a unanimous jury, and that § 9's non-unanimous jury provision
infringes on that right. We are unpersuaded. Ramos established
that the Sixth Amendment, as incorporated in and applicable to
4 the States under the Fourteenth Amendment, requires a unanimous
verdict to support a conviction of a serious criminal offense in
State court, as it does in Federal court. Id. at 1397.
However, the Sixth Amendment right to a trial by jury does not
extend to SDP proceedings under c. 123A, which are civil in
nature. See Barboza, 387 Mass. at 112. Thus, the holding in
Ramos has no direct bearing on whether civil commitment
proceedings must be decided by a unanimous jury. See Interest
of T.B., 641 S.W.3d 535, 539 (Tex. App. 2022) ("Ramos is limited
to verdicts in criminal cases, and we decline to extend its
holding to civil commitment proceedings").
Nevertheless, the petitioner attempts to reframe Ramos as
holding that jury unanimity, like the right to notice and an
opportunity to be heard by an impartial tribunal, is now an
element of procedural due process that must be met when the
stakes are sufficiently serious, regardless of the context in
which the case arises. Given that Ramos specifically bases its
holding on the language of the Sixth Amendment, which guarantees
a "trial by an impartial jury" during criminal proceedings, see
Ramos, 140 S. Ct. at 1396, we see no support for the
petitioner's expansive reading and decline to extend Ramos
beyond the Sixth Amendment criminal context. See generally
Kansas v. Hendricks, 521 U.S. 346, 370 (1997) (explaining that
5 civil commitment proceedings do not trigger constitutional
protections that pertain exclusively to penal statutes).
2. Substantive due process. Next, the petitioner claims
that, because the jury verdict provided for in § 9 ultimately
infringes on his fundamental liberty interest in freedom from
physical restraint, the non-unanimity requirement should be
subject to strict scrutiny. Yet the petitioner fails to explain
how the five-sixths provision works any such infringement.
Certainly, the petitioner's continued civil commitment is
an infringement upon his liberty interest that must be
adequately justified and narrowly tailored, see LeSage, 488
Mass. at 181, but the particular verdict provision that the
petitioner challenges is just as likely to result in his release
as his continued confinement. In G.F., 479 Mass. at 201-202,
the court confirmed that the verdict provisions under c. 123A
are symmetrical; thus, although the Commonwealth must obtain
only five-sixths of the jurors' votes to continue an SDP's
commitment, the same is true for an SDP's bid to be released.
Importantly, § 9 hearings are not zero-sum proceedings in which
the Commonwealth's failure to obtain a verdict in its favor
automatically results in a petitioner's release. See, e.g.,
LeSage, supra at 177 (hung jury during § 9 proceeding resulted
in mistrial). Rather, to be released, a petitioner must obtain
a verdict in his favor. Allowing five-sixths of the jury to
6 return a verdict thus may work to a petitioner's benefit as well
as his detriment. For example, the defendant in G.F. sought to
have the five-sixths provision of § 9 apply at his § 14 hearing
after several mistrials because it would have been easier to
obtain a verdict in his favor if unanimity were not required.
See G.F., supra at 188. In sum, the five-sixths provision for
obtaining a verdict under § 9, as compared to § 14, advantages
and disadvantages both parties equally, and the provision does
not, in and of itself, infringe on the petitioner's liberty
interest.
3. Arbitrariness. Finally, the petitioner asserts that,
even if strict scrutiny is not warranted, the statute is still
unconstitutional because the Commonwealth cannot demonstrate
that the five-sixths provision of § 9 is not arbitrary.
However, this question was effectively resolved in G.F., where
the court concluded that the five-sixths provision in § 9 is
rationally based on the fact that "[a]n individual who petitions
for release under [§ 9], unlike a person tried under [§ 14], has
had access to at least one year of sex offender treatment," and
therefore is potentially more prepared to reenter society.
G.F., 479 Mass. at 202. If the distinction between § 9 and § 14
has a rational basis, it cannot be arbitrary. See, e.g.,
Goodridge v. Department of Pub. Health, 440 Mass. 309, 329-330
(2003) (due process requirement that state action have rational
7 basis and not be arbitrary); id. at 331 (referring to "rational
basis test for . . . due process"). Thus, we conclude that the
agreement of only five-sixths of the jurors is constitutionally
sufficient to render a verdict in § 9 cases.
The petitioner also argues that the five-sixths provision
is invalid because "the way the law assesses whether the
Commonwealth met its burden is to have a verdict rendered by a
unanimous jury." This assertion simply assumes the desired
conclusion, that the Commonwealth's burden is not only to prove
beyond a reasonable doubt that the petitioner remains an SDP but
also to prove it to every juror. Yet § 9, as interpreted in
Sheridan, does not require such unanimity, and neither the Sixth
Amendment nor the Fourteenth Amendment's due process clause
invalidates that aspect of § 9. See Sheridan, 422 Mass. at 780.
In short, although the petitioner asserts that "the law"
requires a unanimous jury in § 9 proceedings, he has not
8 identified any statute, constitutional provision, or other
source of law that creates such a requirement.
Judgment affirmed.
By the Court (Sacks, Singh & Walsh, JJ. 1),
Assistant Clerk
Entered: April 10, 2024.
1 The panelists are listed in order of seniority.