commonwealth v. hunt, 462 mass. 807 (2012)

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NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST 67 Commonwealth v. Hunt, 462 Mass. 807 (2012) CONTRIBUTING EDITOR: DANIELLE FLYNN I. Procedural History A jury civilly committed the defendant as a sexually dangerous person following a trial in the Superior Court. 1 The Appeals Court affirmed his commitment. 2 The Supreme Judicial Court granted the defendant’s application for further review. 3 II. Facts On December 3, 1990, the defendant pleaded guilty to three indictments charging rape of a child and he was sentenced concurrently to State prison for eight to fifteen years on each of the indictments. 4 In 2004, the Commonwealth filed a petition seeking civil commitment of the defendant as a Sexually Dangerous Person. 5 At trial, the Commonwealth offered the testimony of two examiners and a forensic psychologist, each of whom opined that the defendant suffered from pedophilia, has a mental abnormality as defined by statute, and is likely to commit further sexual offenses if not confined. 6 Evidence that the defendant refused to participate in sex offender treatment programs while incarcerated was introduced and used by the experts over the defendant’s objections. 7 The defense put on three experts, two of which opined that the defendant did not have a mental abnormality as defined by statute. 8 The judge gave several jury instructions on the issues of mental abnormality and sexual dangerousness, 1 Commonwealth v. Hunt, 462 Mass. 807, 808 (2012). 2 Id. at 809. 3 Id. 4 Id. at 808. 5 Id. at 809. 6 Id. 7 Commonwealth v. Hunt, supra at 810. 8 Id. at 809.

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A jury civilly committed the defendant as a sexually dangerous person following a trial in the Superior Court. The Appeals Court affirmed his commitment. The Supreme Judicial Court granted the defendant’s application for further review.

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Page 1: Commonwealth v. Hunt, 462 Mass. 807 (2012)

NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

67

Commonwealth v. Hunt,

462 Mass. 807 (2012)

CONTRIBUTING EDITOR: DANIELLE FLYNN

I. Procedural History

A jury civilly committed the defendant as a sexually dangerous person

following a trial in the Superior Court.1 The Appeals Court affirmed his commitment.2 The Supreme Judicial Court granted the defendant’s application for further review.3

II. Facts

On December 3, 1990, the defendant pleaded guilty to three indictments charging rape of a child and he was sentenced concurrently to State prison for eight to fifteen years on each of the indictments.4 In 2004, the Commonwealth filed a petition seeking civil commitment of the defendant as a Sexually Dangerous Person.5 At trial, the Commonwealth offered the testimony of two examiners and a forensic psychologist, each of

whom opined that the defendant suffered from pedophilia, has a mental abnormality as defined by statute, and is likely to commit further sexual offenses if not confined.6 Evidence that the defendant refused to participate in sex offender treatment programs while incarcerated was introduced and used by the experts over the defendant’s objections.7 The defense put on three experts, two of which opined that the defendant did not have a

mental abnormality as defined by statute.8 The judge gave several jury instructions on the issues of mental abnormality and sexual dangerousness,

1 Commonwealth v. Hunt, 462 Mass. 807, 808 (2012). 2 Id. at 809. 3 Id. 4 Id. at 808. 5 Id. at 809. 6 Id. 7 Commonwealth v. Hunt, supra at 810. 8 Id. at 809.

Page 2: Commonwealth v. Hunt, 462 Mass. 807 (2012)

68 New Eng. L . Rev . Mass . Crim. Dig es t v. 47 | 67

which the defendant now claims were erroneous.9 On June 3, 2008, following the trial, a jury found the defendant to be a sexually dangerous person.10

III. Issues Presented

1. Did the possibility that evidentiary use would be made of defendant’s refusal to participate in sex offender treatment programs constitute compulsion and violate the defendant’s privilege against self-incrimination because the admission of such evidence constitutes a penalty

to compel testimony?11

2. Are unsubstantiated rumors of rape admissible in sexually dangerous person civil commitment proceedings?12

3. Did the judge’s instruction that, “[i]n this case, all 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” give the jury the false impression that all the experts agreed that pedophilia is a mental abnormality?13

4. Did the judge’s instruction, “[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,” give improper legal validation to the

prosecutor’s argument?14

IV. Holdings and Reasoning

A prisoner’s participation in sex offender treatment is not compelled by the possible evidentiary use of his refusal at a civil commitment

proceeding, and therefore, reference at trial to the defendant’s refusal to participate in sex offender treatment did not violate the defendant’s rights under either the United States Constitution or the Massachusetts Declaration of Rights.15 A statement is compelled where the penalties for the prisoner refusing to incriminate herself are so severe that they are “capable of coercing incriminating testimony.”16 In cases where the

Supreme Court of the United States has found compulsion, the severe

9 Id. at 824-825. 10 Id. at 809. 11 Id. at 811. 12 Id. at 821-822. 13 Commonwealth v. Hunt, supra at 824. 14 Id. at 824-825. 15 Id. at 815-816. 16 Id. at 812, quoting McKune v. Lile, 536 U.S. 24, 49 (2002) (O'Connor, J., concurring in the

judgment).

Page 3: Commonwealth v. Hunt, 462 Mass. 807 (2012)

2013 Common weal th v . Hunt 69

penalty that compelled the self-incrimination was automatically imposed following the defendant’s refusal to self-incriminate.17 In this case, there is no mandatory penalty arising from the refusal to participate—the prisoner only faces a possibility that the Commonwealth will attempt to use the

refusal as evidence if it seeks to civilly commit him as a sexually dangerous person.18 In addition, “the defendant’s refusal to participate in sex offender treatment is not being used against him in a criminal proceeding; his refusal is insufficient alone to support a finding of sexual dangerousness, and the Commonwealth is merely giving ‘evidentiary value’ to his refusal.”19

Although there was no constitutional violation and evidence that a defendant in an SDP civil commitment proceeding did not receive sex offender treatment is admissible, it is error to admit evidence that a defendant refused sex offender treatment where he could receive such

treatment only by waiving confidentiality.20 The jury may be inclined to believe that the defendant refused treatment because he did not want to be treated rather than the waiver of confidentiality.21 Thus, the probative value of the refusal is substantially outweighed by the risk of unfair prejudice.22 Therefore, the judge erred in admitting evidence that the defendant refused sex offender treatment and should have admitted only

evidence that he did not receive such treatment.23

Unsubstantiated rumors of rape that would be relevant only if offered for their truth are plainly not admissible in sexually dangerous person civil commitment proceedings.24 The evidence was not contained in an

admissible incident report and there is no applicable common-law rule of evidence.25

The instruction incorrectly gave the jury the impression that all experts agreed that pedophilia is a mental abnormality.26 Two experts testified that

the defendant may have met the criteria for pedophilia but did not meet the legal definition of “mental abnormality.”27 The judge’s instruction

17 See Lefkowitz v. Cunningham, 431 U.S. 801, 806-808 & n. 5 (1977). 18 Commonwealth v. Hunt, supra at 815. 19 Id. 20 Id. at 816-818. 21 Id. at 819. 22 Id. 23 Id. at 820. 24 Commonwealth v. Hunt, supra at 823. 25 Id. 26 Id. at 824. 27 Id.

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mischaracterized their opinions.28

The erroneous jury instruction may have given inappropriate legal

validation to the prosecutor’s argument.29 If the word “even” had been included in the instruction, it would have informed the jury they need not find that the defendant committed any act of sexual misconduct while in prison to find the prisoner sexually dangerous.30 Thus, the instruction was erroneous and not harmless.31

28 Id. 29 Id. at 825. 30 Commonwealth v. Hunt, supra at 825. 31 Id.