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13-P-1842 Appeals Court
JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 356011 vs. SEX
OFFENDER REGISTRY BOARD.
No. 13-P-1842.
Suffolk. January 7, 2015. - August 18, 2015.
Present: Kafker, Meade, & Maldonado, JJ.
Sex Offender. Sex Offender Registration and Community
Notification Act. Constitutional Law, Sex offender. Due
Process of Law, Sex offender. Administrative Law, Hearing.
Evidence, Expert opinion, Sex offender, Police report.
Witness, Expert.
Civil action commenced in the Superior Court Department on
February 1, 2013.
The case was heard by Jeffrey A. Locke, J., on a motion for
judgment on the pleadings.
Eric Tennen for the plaintiff.
David L. Chenail for the defendant.
MALDONADO, J. Following Doe's 2011 conviction for indecent
assault and battery on a person fourteen years of age or older, 1
1
Doe "groped" a female correction officer in "her crotch
area" during one of his incarcerations.
2
the Sex Offender Registry Board (SORB) notified Doe that he
would be required to register as a level three sex offender.
Doe obtained de novo administrative review pursuant to G. L.
c. 6, § 178L. Neither party called any witnesses, and the de
novo hearing proceeded on the basis of documentary evidence,
which included, among other things, classification records
containing a summary of Doe's disciplinary reports and a police
report that described sexual assault allegations of which Doe
was acquitted. The hearing examiner (examiner) found this
hearsay evidence probative of Doe's repetitive and compulsive
sexual history, and he classified Doe as a level three sex
offender. Doe appeals from a Superior Court judgment affirming
this classification. He asserts the examiner erred by
considering both the disciplinary history set forth in his
classification records and the police report of acquitted
conduct. Doe also challenges the denial of his request for
expert funds relative to his age as a mitigating factor. We
affirm.
Background. The examiner based Doe's level three
classification on multiple statutory factors, see G. L. c. 6,
§ 178K(1), including his sexual history and compulsive sexual
behavior (803 Code Mass. Regs. § 1.40[2] [2002]), his criminal
3
history 2 -- particularly as it related to a history of nonsexual
violent offenses -- (803 Code Mass. Regs. § 1.40[9][b], [c][6]
[2002]), his poor incarceration behavior (803 Code Mass. Regs.
§ 1.40[19] [2002]), 3 and his noncompliance with conditions of
probation (803 Code Mass. Regs. § 1.40[20] [2002]). 4 The
examiner also explicitly rejected Doe's claim that his age of
forty-nine years was a mitigating factor.
In assessing Doe's sexual propensities, the examiner relied
on several incidents. Aside from the 2011 sexual assault index
offense, the examiner found, from the history of disciplinary
reports documented in Doe's prison records, that in 1992 Doe
2
The examiner found that Doe's "lengthy criminal history
began in 1979 and includes numerous convictions for property
crimes, motor vehicle crimes, . . . and non-sexual violent
crimes," with convictions "in September 1995 for assault with
intent to rob (three counts), and unarmed robbery; in June 1999
for assault and battery; in April 2002 for threatening and
violation of an abuse prevention order; in July 2004 for assault
and battery with a dangerous weapon (two counts); and in October
2006 for assault and battery on [a] correctional officer (three
counts)."
3
The examiner found that Doe has had four separate periods
of incarceration: a nine to ten year sentence beginning in
1988; a three years to three years and one day sentence
beginning in 1995; a three years to three years and one day
sentence in 2000; and a period of incarceration from 2004-2012.
Doe incurred nineteen disciplinary reports during his first
incarceration; zero in his second incarceration; seven in his
third incarceration; and at least five in his last period of
incarceration.
4
The examiner found that Doe was found in violation of his
probation on six occasions between 1977 and 2000.
4
"brushed his hand against a female correctional officer's
buttocks" and "grabbed a female nurse's . . . crotch area." The
examiner noted that Doe "was not charged with any sex crimes
regarding [these] interactions." He "nevertheless f[ound] by a
preponderance of the evidence that [Doe] in fact inappropriately
touched the two women as they alleged." The examiner also found
probative the information pertaining to a disciplinary report
Doe incurred in the year 2000 "for exposing his genitals to a
female correctional officer." Doe was again not prosecuted
criminally for the incident, but based upon the narrative
contained in Doe's classification records, the examiner found
"by a preponderance of evidence that [Doe had] exposed himself
to" a female correction officer. The disciplinary reports
themselves were not in evidence. The examiner relied upon the
information documented in the incarceration history portion of
Doe's prison "Classification Report." 5
The examiner also credited statements contained in a police
report from Doe's 1999 arrest on charges, of which he was
ultimately acquitted, for assault with intent to rape, assault
and battery, and indecent assault and battery on a person over
5
Also in the record is what appears to be a copy of a
computer printout of similar records; the language contained in
the computer printout mirrors verbatim the language in the
classification report.
5
the age of fourteen. The police report that recounts the
victim's claim states:
"[T]he suspect [who she had been introduced to and had
drinks with the night before] [remained] in [her] building
all night and wouldn't leave. Just after 5 A.M. he knocked
on her door, [and] she let him in to use the phone, which
he did. When the suspect hung up the phone he wouldn't
leave. He proceeded to grab the victim's breasts and
vagina, through her clothing, while stating 'I told you,
you want me.' She told him 'Please don't do that' and 'no'
repeatedly. He then grabbed her by the throat and pushed
her into the bedroom onto her bed and said 'shut the fuck
up' and 'stay the fuck here.' He then went to the hallway
to retrieve the victim's dog that had run out while the
door was ajar. He returned to find that the victim had
locked herself in her bedroom and was on the phone with
[the Lowell Police Department]. He fled on foot before
[the police's] arrival."
The examiner again recognized that Doe "was not convicted of
these offenses" but nevertheless found that the police report
was sufficiently "detailed and consistent with [Doe's] behavior
[as] reported by the Victim of his governing offense and the
other complaints[,]" so as to render it probative of "further
evidence of sexual misconduct."
Discussion. 1. Standard of review. "To determine the
validity of an agency's decision, the reviewing court must
determine whether the decision is supported by substantial
evidence." Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., 447 Mass. 779, 787 (2006). "The decision
may only be set aside if the court determines that the decision
is unsupported by substantial evidence or is arbitrary or
6
capricious, an abuse of discretion, or not in accordance with
law." Ibid., citing G. L. c. 30A, § 14(7)(e), (g). "An appeal
from a classification decision by the board is pursuant to G. L.
c. 30A, § 14, and is confined to the administrative record."
Doe, Sex Offender Registry Bd. No. 10304, 70 Mass. App. Ct. 309,
311 (2007) (Doe, No. 10304). We "give due weight to the
experience, technical competence, and specialized knowledge of
the agency, as well as to the discretionary authority conferred
upon it." Doe, Sex Offender Registry Bd. No. 10216 v. Sex
Offender Registry Bd., supra, quoting from G. L. c. 30A,
§ 14(7).
2. Incarceration history of disciplinary reports. Doe
contends the examiner abused his discretion in admitting and
crediting the disciplinary report history of sexual misconduct
documented in his prison classification records. Doe asserts
that the secondary report of the incidents in Doe's prison
classification records constitutes multilevel hearsay for which
there is no corroboration; he argues that without the
disciplinary reports themselves there can be no assurance that
the allegations were substantiated. We disagree.
A hearing examiner "need not observe the rules of evidence
observed by courts" at a classification hearing. G. L. c. 30A,
§ 11(2), inserted by St. 1954, c. 681, § 1. See 803 Code Mass.
Regs. § 1.19(1) (2002); Doe, No. 10304, supra at 312. He may
7
admit and give probative effect to that evidence "which
reasonable persons are accustomed to rely in the conduct of
serious affairs." G. L. c. 30A, § 11(2), inserted by St. 1954,
§ 681, § 1. The examiner must "assess the reliability of the
exhibits introduced." 803 Code Mass. Regs. § 1.21(1)(g) (2002).
See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender
Registry Bd., 459 Mass. 603, 638 (2011) (Doe, No. 10800).
Hearsay, even multilevel hearsay, may be admissible at
classification hearings. See Doe, No. 10304, supra. "[T]o
determine the reliability of . . . multi-level hearsay
statements, [one] look[s] to the circumstances under which [the
statements] were made." Doe, Sex Offender Registry Bd. No.
136652 v. Sex Offender Registry Bd., 81 Mass. App. Ct. 639, 649
(2012), quoting from Edward E. v. Department of Social Servs.,
42 Mass. App. Ct. 478, 484 (1997). The disciplinary report
history that appears in Doe's classification records satisfies
this measure of reliability.
When a disciplinary report is filed against a prisoner,
prison officials must conduct an initial review of the
allegations of misconduct. 103 Code Mass. Regs. § 430.09
(2006). Only those disciplinary reports that are founded
proceed to a hearing, see 103 Code Mass. Regs. § 430.10(1)
(2006), which is assigned to an impartial hearing officer to
8
determine the inmate's guilt or innocence. 6 See 103 Code Mass.
Regs. § 430.13(1), (6) (2006). If proved by a preponderance of
the evidence, the hearing officer may find the inmate guilty of
the allegations contained in the disciplinary report. 103 Code
Mass. Regs. § 430.16(1) (2006). If a charged inmate is found
guilty of the disciplinary report (either by plea, an admission
of guilt, or upon a finding of guilt by the hearing officer)
only then will "all reports, notices, correspondence, requests
and any other related documents . . . be kept in the inmate's
institutional and central office records." 103 Code Mass. Regs.
§ 430.17(4) (2006). "Dismissed and not guilty reports may be
kept for the specific and exclusive purposes of, and may only be
used for research, officer training and statistical data." 103
Code Mass. Regs. § 430.20 (2006). Given this indicia of
reliability, we conclude that it was reasonable for the examiner
to admit and credit the disciplinary report incidents documented
in Doe's classification records. See Doe, No. 10304, 70 Mass.
App. Ct. at 313 (hearing examiner did not err by crediting
statements in classification report).
6
The charged inmate will be provided reasonable notice of
the hearing date and time, see 103 Code Mass. Regs. § 430.11(1),
(3) (2006), and may appear with or without counsel, 103 Code
Mass. Regs. § 430.12(1) (2006). He may confront and cross-
examine the evidence against him, and may call witnesses and
present evidence on his or her own behalf. See 103 Code Mass.
Regs. § 430.14(3), (4) (2006).
9
The examiner also properly confined his use of the
information. See Doe, Sex Offender Registry Bd. No. 89230 v.
Sex Offender Registry Bd., 452 Mass. 764, 777 (2008) (Doe, No.
89230) ("While a hearing examiner may not consider a
[continuation without a finding (CWOF)] a 'prior offense' in
relation to the classification factor that looks at the dates,
number, and nature of prior offenses,[footnote omitted] he is
permitted to take into account the misconduct underlying the
CWOF on the issue whether the sex offender's conduct was
repetitive and compulsive"). He did not rely on these incidents
of sexual misconduct to determine Doe's criminal history under
G. L. c. 6, § 178K(1)(b)(iii), and 803 Code Mass. Regs.
§ 1.40(9)(b) (2002), but, rather, limited his use of it to an
assessment of Doe's repetitive and compulsive sexual misconduct.
See Doe, No. 89230, supra. There was no error.
3. Police report of acquitted conduct. Doe next asserts
the hearing examiner impermissibly considered a police report
that recounted allegations of sexual abuse of which he was
acquitted. We agree that, generally, "a non-eyewitness police
report, standing alone, cannot constitute substantial evidence
within the meaning of G. L. c. 30A." Doe, No. 10304, supra at
312. "However, particular narratives related therein may be
admissible in board hearings depending on the general
plausibility and consistency of the victim's or witness's story,
10
the circumstances under which it is related, the degree of
detail, the motives of the narrator, the presence or absence of
corroboration and the like." Id. at 312-313. The police report
at issue here, which relates a detailed and plausible incident
of sexual assault, satisfies these criteria. See ibid.
In the police report, the victim, who is identified by
name, does not hide the fact that she had been introduced to her
assailant the night before and had gone out drinking with him
but explains that he lingered in her building late into the
evening and would not leave. The victim tells how she opened
the door to her apartment in order to let him use the telephone
to call for a ride, which explains not only her attacker's
presence in the apartment but why the door, through which her
dog ran out, would be left ajar. The victim recounts how the
attacker left to retrieve the dog after pushing her onto the bed
-- another highly conceivable detail, as the dog's presence in
the hallway at that hour might alert the attention of neighbors.
Finally, lending further plausibility to her claim, the victim
describes how she then swiftly locked the bedroom door and
telephoned for the police before the return of her attacker, who
then ran off before the police arrived.
In addition, as found by the examiner, the conduct that the
victim described was consistent with Doe's other sexual
assaults. Like Doe's 2011 conviction for "grop[ing]" the
11
"crotch area" of a female correction officer and his earlier
disciplinary reports for both "brush[ing] his hand against a
female correctional officer's buttocks" and "grabb[ing] a female
nurse's . . . crotch area," the assailant here grabbed the
victim's "breasts and vagina" over her clothing. Compare Doe,
No. 10800, 459 Mass. at 638-639 (hearing examiner did not err in
crediting uncorroborated police reports containing victim
statements because they bore indicia of reliability; they were
"sufficiently detailed" and displayed a "common course of
conduct"); Doe, No. 10304, 70 Mass. App. Ct. at 313 (hearing
examiner did not err in crediting "[t]he victim's story,
contained in police reports, [as it] was plausible,
consistent[,] . . . highly detailed . . . [and] corroborated by
the petitioner's testimony").
Contrary to Doe's assertion, the fact that Doe was
ultimately acquitted of the criminal charges does not render the
report inadmissible or unreliable. See Soe, Sex Offender
Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass.
381, 396 (2013) (Soe, No. 252997). Examiners have been
permitted to consider other instances of conduct that did not
result in a conviction. An examiner may consider, for example,
uncharged conduct, see Doe, No. 10800, supra at 638 (allowing
consideration of police reports even though the plaintiff
"neither admitted to nor was convicted of forcible rape"), and
12
conduct underlying a matter resulting in a continuation without
a finding, see Doe, No. 89230, 452 Mass. at 776-777 (allowing
consideration of alleged sexual misconduct where resulting
charge was continued without a finding and later dismissed).
Examiners may also rely on the facts underlying pending criminal
matters; they need not await their final adjudication. 7 See Soe,
No. 252997, supra at 387 ("[W]hen a sex offender is awaiting
trial on other sex offense charges, the hearing examiner may
consider the facts underlying the alleged sex offenses if proved
by a preponderance of the evidence"). Moreover, the examiner is
not required to reopen the classification hearing or set aside
his classification determination simply because the plaintiff
was subsequently acquitted of the charge. Id. at 396. This is
because "[a]n acquittal at a criminal trial simply means that a
jury did not find the defendant guilty of the charged sex
offense beyond a reasonable doubt; it does not demonstrate that
the evidence at the classification hearing did not warrant a
finding by a preponderance of the evidence that the sex offender
committed the charged offense." Ibid.
7
We note there is at least one situation where the nonfinal
nature of a conviction could matter: where an individual was
convicted of a sex offense, SORB exercised jurisdiction based on
that conviction, and that conviction was reversed or vacated on
appeal.
13
The difference between the burden of proof at a criminal
trial and the burden of proof required, for instance, at a
probation revocation hearing is the reason why the Commonwealth
is not barred at a probation revocation hearing from basing the
revocation on "evidence of a violation of law of which a
probationer has been found not guilty". Commonwealth v.
Holmgren, 421 Mass. 224, 225 (1995). A similar distinction
exists here. "In a criminal case, of course, the Commonwealth
must prove the elements of each crime charged beyond a
reasonable doubt." Id. at 225-226. By comparison, at Doe's
classification hearing the examiner could credit those facts
that are proven by a preponderance of the evidence. See Soe,
No. 252997, supra at 396, quoting from Doe, Sex Offender
Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90,
103-104 (1998) ("'preponderance of the evidence standard,
combined with a requirement that that the fact finder make
detailed findings to demonstrate that close attention has been
given to the evidence and that the appropriateness of the
classification has been shown,' is standard that must be met in
board classification decisions"). Given this distinction, we
see no error with the examiner crediting allegations of sexual
misconduct of which Doe was ultimately acquitted. 8 See
8
Here again, the examiner properly did not rely on this
evidence to calculate Doe's criminal history -- using it instead
14
Commonwealth v. Holmgren, supra at 225 ("The reason for this
result lies in the difference in the burden of proof in the two
proceedings").
4. Motion for expert funds. Doe challenges the hearing
examiner's denial of his motion for expert funds. However, he
failed to meet his burden "to establish the reason why [expert]
funds are needed." Doe, Sex Offender Registry Bd. No. 151564 v.
Sex Offender Registry Bd., 456 Mass. 612, 624 (2010) (Doe, No.
151564 I). "A general motion for funds to retain an expert to
provide an opinion on the sex offender's risk of reoffense,
without more, would appear to be insufficient." Doe, No. 89230,
452 Mass. at 775. Here, Doe did nothing more than say that he
is "almost 50 years old." He failed to tie his age, forty-nine
years at the time of the hearing, to a particular need for an
expert. Moreover, Doe was no more specific in his request for
funds at the hearing itself -- arguing only that his "funds
motion is a Constitutionally based motion" and that he was
entitled to funds "as a matter of due process" because he "is
indigent" and "[un]able to afford the assistance and testimony
of an expert witness in sex offender recidivism."
We are also not persuaded by Doe's assertion that his
motion lacked specificity because he filed the motion without
only in the assessment of Doe's repetitive and compulsive
behavior. Doe, No. 89230, 452 Mass. at 777.
15
the benefit of our decision in Doe, Sex Offender Registry Bd.
No. 151564 v. Sex Offender Registry Bd., 85 Mass. App. Ct. 1,
10-11 (2014). At the time that he filed his motion, Doe at
least had the benefit of Doe, No. 151564 I, supra at 621, which
noted that "numerous scientific and statistical studies,
published during the last decade, . . . conclude age is an
important factor in determining the risk of recidivism." Doe
has failed to articulate, the "reason or reasons, connected to a
condition or circumstance special to him, that he needs to
retain a particular type of expert[,]" therefore, we conclude
the examiner did not err in his denial of Doe's request for
expert funds. Doe, No. 89230, supra.
Judgment affirmed.