Commonwealth v. Hammond

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SJC-12096

COMMONWEALTH vs. AMANDA L. HAMMOND.

Plymouth. October 6, 2016. - July 21, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ.

Rape. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Sentence, Sex offender. Due
Process of Law, Sentence, Sex offender. Sex Offender
Registration and Community Notification Act. Evidence,
Admissions and confessions, Voluntariness of statement,
Videotape, Sexual conduct. Practice, Criminal, Admissions
and confessions, Voluntariness of statement, Redaction,
Argument by prosecutor, Sentence.

Indictments found and returned in the Superior Court
Department on August 10, 2012.

A pretrial motion to suppress evidence was heard by Richard
J. Chin, J.; the cases were tried before Cornelius J. Moriarty,
II, J., and a motion for postverdict relief was heard by him.

The Supreme Judicial Court granted an application for
direct appellate review.

Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
 2

LOWY, J. The defendant, a twenty-two year old woman, was

convicted of raping a fourteen year old boy and two thirteen

year old boys, in violation of G. L. c. 265, § 23. On appeal,

the defendant claims that there were three main defects with her

prosecution: (1) the incriminating statements she made to

police should have been suppressed; (2) the video recording of

these statements that was shown at trial should have been

further redacted; and (3) the prosecutor's closing argument was

improper. In addition, the defendant contends that the trial

judge's lack of authority to relieve her from registering as a

sex offender under G. L. c. 6, § 178E (f), constitutes a due

process violation, as applied to her.

We conclude that there was no reversible error and affirm

the convictions. We further conclude that, based upon the

record before us, there is no as-applied due process violation.

1. Background. We summarize the evidence the Commonwealth

adduced at trial, reserving further details for discussion of

the specific issues raised on appeal.

The charges in this case stem from two separate but related

episodes that took place in June, 2012, in Brockton. The first

episode began when the defendant met up with two of the victims,
 3

Roy,1 then age thirteen, and David, then age fourteen,2 in a

park. The boys, whom she knew before these events, accompanied

her to a liquor store and waited outside. When the defendant

left the store she was with a man named Mike, who was in his

thirties. They had purchased beer and "nip" liquor bottles.

The defendant seemed "relatively intoxicated" and was drinking

alcohol after leaving the liquor store.

The group made their way into the woods at the park. Mike

asked Roy and David if they had ever had sex before. Roy

responded with a "snide remark about [Mike] trying to have sex

with [him]," but Mike said he was talking about them having sex

with the defendant. Roy replied, "Oh, okay." Mike then asked

the defendant if "she was okay" with performing oral sex on the

boys. She responded, "Yeah." The defendant then performed oral

sex on each boy, as well as on Mike. This first episode in the

woods lasted about ten to fifteen minutes.

Roy, David, and the defendant then went to a friend's house

that was near the park. At the house were two other boys, the

third victim, James, then age thirteen, and Arthur, who was

twelve. The group spent about one-half hour at the house.

1
We refer to all of the underaged boys discussed in this
opinion by pseudonyms.
2
The only evidence in the record of the precise age of
David and another of the victims is the equivocal testimony of
Roy. The defendant does not contest the ages that were
asserted.
 4

During this time, Roy told James about his sexual encounter with

the defendant. James asked Roy to "get [the defendant] to do it

again." The boys convinced the defendant to go with them to a

store. All five walked toward the store via a path through the

park. The defendant was stumbling as she walked, aided by two

of the boys.

The second episode began as the group proceeded down the

path. Roy and James coaxed the defendant into having sex with

them. The defendant had vaginal intercourse with James, Roy,

and David. She also had oral sex with James during the second

episode. Arthur did not participate.

As the group left the woods, Arthur's father, who had been

searching for his son, was waiting. Arthur told his parents

what he had observed, and the police were called.

Several weeks after the incidents, Brockton police went to

the defendant's house, and she agreed to accompany them to the

police station for an interview. There, she spoke with two

detectives who had observed an earlier interview of James.

During the defendant's interview, she acknowledged that she had

had oral sex with Roy and David during the first episode and

vaginal sex with Roy, David, and James during the second

episode. At the end of the interview, the defendant was placed

under arrest. She was eventually indicted on six counts of
 5

statutory rape of Roy, David, and James in violation of G. L.

c. 265, § 23.

Before trial, the defendant moved to suppress her

statements to police. The motion was denied after an

evidentiary hearing.

Following a jury trial where Roy and Arthur both testified

under grants of immunity, the defendant was convicted on the

three indictments charging vaginal intercourse and found not

guilty on the three indictments charging oral penetration. The

judge imposed concurrent three-year probationary sentences with

several conditions. The judge also concluded that he could not

relieve the defendant from registering with the Sex Offender

Registry Board (SORB), G. L. c. 6, § 178E (f), but stayed the

registration requirement pending an appeal. We granted the

defendant's application for direct appellate review.

2. Discussion. a. Voluntariness of confession. Before

trial, the defendant moved to suppress statements she made

during the police interview, alleging they were obtained in

violation of Miranda v. Arizona, 384 U.S. 436, 467-474 (1966),

and that they were not voluntary. The judge denied the motion

in a written memorandum. On appeal, the defendant argues only

that this decision was in error because the Commonwealth did not

meet its burden to prove, beyond a reasonable doubt, that her

confession was voluntary because the police (1) threatened to
 6

adversely affect her child custody situation; (2) minimized the

consequences of confessing to statutory rape; and (3) used false

and deceptive tactics when they characterized Arthur's

allegations against her. Commonwealth v. O'Brian, 445 Mass.

720, 724, cert. denied, 549 U.S. 898 (2006).

When reviewing a denial of a motion to suppress, we "review

de novo any findings of the motion judge that were based

entirely on documentary evidence." Commonwealth v. Monroe, 472

Mass. 461, 464 (2015), quoting Commonwealth v. Thomas, 469 Mass.

531, 539 (2014). Because there is a video recording of the

defendant's interview with police, "we are in the same position

as the motion judge to determine what occurred during the

interview." Monroe, supra at 464, quoting Thomas, supra at 535

n.4.

"The test for voluntariness . . . is 'whether, in light of

the totality of the circumstances surrounding the making of the

statement, the will of the defendant was overborne to the extent

that the statement was not the result of a free and voluntary

act.'" Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011),

quoting Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998). A

statement is voluntary when it is "the product of a 'rational

intellect' and a 'free will,' and not induced by physical or

psychological coercion." Monroe, 472 Mass. at 468, quoting

Tremblay, 460 Mass at 207. "Under this 'totality of the
 7

circumstances' test, we consider all of the relevant

circumstances surrounding the interrogation and the individual

characteristics and conduct of the defendant." Tremblay, 460

Mass. at 207, quoting Commonwealth v. Selby, 420 Mass. 656, 663

(1995).3 The Commonwealth must establish voluntariness beyond a

reasonable doubt. Commonwealth v. Baye, 462 Mass. 246, 256

(2012).

i. Alleged coercion relating to defendant's children. The

defendant claims that the detectives improperly threatened that

she might not regain custody of her children if she did not

cooperate. Concern for a child or loved one can, in certain

circumstances, make a statement involuntary. Monroe, 472 Mass.

at 469; Commonwealth v. Scott, 430 Mass. 351, 355 (1999). Those

circumstances are not present here. In Monroe, supra, we held

that the police tactics were improperly coercive in part because

the interrogation was "rife with threats to the defendant's

ability to maintain contact with his infant daughter." There,

"the detectives threatened the defendant with the loss of

3
Factors that are relevant to the totality of the
circumstances inquiry include, but are not limited to, "promises
or other inducements, conduct of the defendant, the defendant's
age, education, intelligence and emotional stability, experience
with and in the criminal justice system, physical and mental
condition, the initiator of the discussion of a deal or leniency
(whether the defendant or the police), and the details of the
interrogation." Commonwealth v. Selby, 420 Mass. 656, 663
(1995), quoting Commonwealth v. Mandile, 397 Mass. 410, 413
(1986). No one factor is dispositive. See Commonwealth v.
Baye, 462 Mass. 246, 256 (2012); Selby, 420 Mass. at 664.
 8

contact with his child by repeatedly and falsely claiming that

if he did not tell them what happened, the child could be taken

away and raised by strangers." Id.

The references to the defendant's children in the instant

case were quite different. As the detectives urged the

defendant to confess, the defendant said, "I have children. I'm

trying to protect myself." One of the detectives responded:

"If that's what's hanging you up is you're afraid if you
tell us, you're never going to get your kids back, is that
what you're afraid of? That's it, isn't it? Yeah, okay.
I mean, and I understand that, okay. But listen, you're
not doing yourself any good lying to us and we know you're
lying to us. I can see it."

This exchange is far from the "barrage" of references to the

suspect's daughter in Monroe. See Monroe, 472 Mass. at 467.

ii. Alleged minimization. The defendant claims that her

confession was not voluntary because the detectives improperly

"minimized" the consequences of confessing to the crime of

statutory rape. Specifically, the defendant claims that by

threatening her with a charge of rape by force,4 her only choice

was to confess to statutory rape.

Minimization, combined with other factors, may render a

confession involuntary because it can serve as an implied

promise that the requested confession will result in leniency.

4
During the police investigation, James initially said in
an interview that he had been forcibly raped by the defendant.
 9

Commonwealth v. DiGiambattista, 442 Mass. 423, 439 (2004).

Here, the detectives' tactics were not improper. One of the

detectives were aware that James had said in his interview that

the defendant forced him to have sex. The police were trying to

understand what happened; they were not improperly minimizing

the gravity of the crime of statutory rape to elicit a

confession.

iii. Alleged false and deceptive tactics. The defendant

argues that the detectives' characterization of Arthur's

allegations was false and deceptive because the detectives

suggested that the boy had claimed that he was "propositioned"

by the defendant, and that Arthur had agreed with James's

characterization of the rapes as forcible.

The use of false and deceptive tactics by police, while not

strictly forbidden, can cast doubt on the voluntariness of a

statement. See DiGiambattista, 442 Mass. at 432-433, and cases

cited. Such tactics are inappropriate. They will not by

themselves ordinarily render a statement involuntary, as their

use is one factor in the analysis of the totality of the

circumstances. Tremblay, 460 Mass. at 208; Selby, 420 Mass. at

663-664.

The detectives falsely claimed that Arthur had said the

defendant "propositioned" him on one occasion, and they never

explicitly said that Arthur was unsupportive of James's claim of
 10

forcible rape. These statements constituted a fraction of the

forty-odd minute long interview. Further, at the time of the

interview there was a real question whether the rapes were

forcible based on James's interview. To the extent that these

misstatements in the interview could be described as false and

deceptive, we conclude that the defendant's will was not

overborne. See Selby, 420 Mass. at 664-665 (confession

voluntary even though police improperly used photocopy of random

handprint to suggest defendant was at crime scene).

Based on the totality of the circumstances, the judge was

correct in ruling that the defendant's confession was voluntary.

The defendant appeared sober and oriented during the interview.

She was provided Miranda warnings even though she was not in

custody, and she was specifically told that she could leave and

get an attorney if she so chose. Moreover, the defendant

demonstrated the ability and mental agility to deny any sexual

contact with the boys through her initial rendition of what had

occurred. We affirm the order denying the defendant's motion to

suppress.5

5
The defendant also claims that her poor educational and
mental health background contributed to her vulnerability to
coercion. The defendant does nothing more to support these
claims than point to her own statements in the interview that
she was "kind of slow" and suffered from depression and bipolar
disorder. On this record, there is nothing indicating that any
shortcomings in the defendant's educational or mental health
background rendered her confession involuntary. See
 11

b. Redaction of video recording. The defendant argues

that the judge committed prejudicial error by failing to redact

the following two statements by the detectives from the video

recording of the defendant's interview with police: (1) "You're

talking rape by force or statutory, okay," and (2) "You want to

know why I know you are telling the truth? . . . You are telling

[Arthur]'s story verbatim right now. Other than he knows the

order. He remembers the order." The judge allowed the first

statement to provide context to what the judge found to be the

"implied admissions" of the defendant during the interview.6 The

judge allowed the second statement because it provided context

for the defendant's statement that she could not recall the

order in which she had sex with the boys.

"Whether evidence is relevant and whether its probative

value is substantially outweighed by its prejudicial effect are

matters entrusted to the trial judge's broad discretion and are

not disturbed absent palpable error." Commonwealth v. Sylvia,

Commonwealth v. Ostrander, 441 Mass. 344, 350, 351, 357, cert.
denied, 543 U.S. 867 (2004) (affirming denial of motion to
suppress where expert testimony from both defendant and
Commonwealth showed defendant had intellectual functioning
between "mildly mentally retarded to borderline"); Commonwealth
v. Beland, 436 Mass. 273, 282 (2002) (affirming denial of motion
to suppress where defendant had prior diagnosis of schizophrenia
and psychosis).
6
According to the judge, the "implied admissions" made by
the defendant were the following statements: "The way to look
at it it's bad"; "People mess up"; and "But you still have to
have the consequences."
 12

456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434

Mass. 570, 578-579 (2001). We will conclude that there has been

an abuse of discretion only if the judge has "made 'a clear

error of judgment in weighing' the factors relevant to the

decision, . . . such that the decision falls outside the range

of reasonable alternatives" (citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

The judge worked diligently with the attorneys in this case

to redact any potentially prejudicial statements in the

recording. The full recording of the defendant's interview with

police was more than forty minutes, while the recording

ultimately shown at trial, after careful redaction, was less

than one-half hour, and there are nearly twenty transcript pages

describing the discussion between the judge and the attorneys of

what to redact. The decision not to redact two statements by

police to provide context in an interview of more than twenty-

seven minutes was well within the range of reasonable

alternatives.7

7
The defendant further complains that the prejudicial
effect of these two statements was enhanced because the jury had
access to the recording during deliberations and watched it
multiple times. After the jury began deliberations, the
prosecutor asked the judge if the jury could have the recording.
The judge stated, "If they request it, sure." Defense counsel
did not object to this. Where evidence is admissible, it is not
error for the jury to view it during deliberations in its
admissible form. It was not an abuse of discretion to allow the
jury to view during deliberations the defendant's recorded
 13

c. Closing argument. The defendant asserts that the

prosecutor's closing argument was "rife" with improper arguments

that warrant the grant of a new trial.

After reviewing the six statements the defendant

identifies, in light of the prosecutor's entire argument and in

light of the judge's instructions to the jury and the evidence

at trial, we conclude that any errors in the prosecutor's

closing argument did not prejudice the defendant. Commonwealth

v. Tu Trinh, 458 Mass. 776, 785 (2011).

Four of the six statements were proper. First, the

prosecutor did not improperly shift the burden to the defendant

when he argued that it was more likely that the defendant would

have gone to the police after the first episode when Mike was

involved if she had truly been a victim, rather than returning

to the woods with two of the same boys. See Commonwealth v.

Francis, 450 Mass. 132, 142 (2007) (prosecutor entitled to

invite jury to draw fair inferences from evidence). Second, the

prosecutor urged the jury to decide the case on the facts when

he asked a rhetorical question that implored the jury to regard

the case no differently from how they would if the victims were

female and the defendant male. See Commonwealth v. Kozec, 399

statements that had been admitted in evidence. Commonwealth v.
Freiberg, 405 Mass. 282, 305, cert. denied, 493 U.S. 940 (1989)
("Because the tapes were admitted in evidence, the jury were
free to listen to them as often as they pleased during
deliberations").
 14

Mass. 514, 516 (1987) (proper for prosecutor to argue for

conviction based on evidence). Third, the prosecutor did not

improperly vouch for Roy and Arthur when he mentioned that they

were immunized, because it is proper to argue that the

motivation of witnesses is to tell the truth and to mention the

possibility of perjury charges if a witness testifies

untruthfully. Commonwealth v. Webb, 468 Mass. 26, 36 (2014).

Fourth, the prosecutor's statement regarding the timeline of the

day of the crimes was a reasonable inference from the evidence.

Two of the prosecutor's statements were improper. The

first improper statement was the prosecutor's invocation of his

oath to suggest his personal belief in the defendant's guilt.8

Defense counsel objected to this statement, and the trial judge

agreed that the reference to taking an oath would have been

"better left unsaid." The judge gave a curative instruction on

this issue during his final instructions.9 Although the

prosecutor's reference to his oath was improper, it was not

8
The prosecutor said, "Frankly, I have a little bit of
sympathy for [the defendant]. But I took an oath to the
Commonwealth of Massachusetts to faithfully and fairly prosecute
the laws of the Commonwealth. And you as jurors took an oath to
follow the rules of law as explained to you by [the judge]."
9
The judge's instruction was: "[T]here was reference by
one of the attorneys during the closing arguments that he had
taken an oath. Ladies and gentlemen, I suggest to you the mere
fact that the assistant district attorney may have taken an oath
does not give him any greater knowledge as to the credibility of
any witness. It is for you to determine the credibility of all
the witnesses in this case."
 15

overly prejudicial when viewed in context of the entire argument

and in conjunction with the judge's effective curative

instruction. See Commonwealth v. Robidoux, 450 Mass. 144, 162-

163 (2007). The jury are presumed to have followed the judge's

instruction. Id.10

The second improper statement occurred when the prosecutor

told the jury the purpose of the statute the defendant was

charged under was to protect minors.11 The judge agreed with the

defendant that this remark "should not have been stated." The

prosecutor's statement was improper. Jurors decide facts and

apply those facts to the law. An appeal to policy reasons for

the enactment of criminal statutes is inappropriate argument.

The issue at trial is not whether rape of a child is wrong. It

10
The defendant also argues that the prosecutor's reference
to the jurors' oath was improper. This was not a call upon the
jury to do their "job" by convicting the defendant. Contrast
Commonwealth v. Degro, 432 Mass. 319, 328-329 (2000) (improper
argument to tell jurors to "do your job" where it implicitly
meant jury had duty to convict). Here, the prosecutor was not
suggesting to the jurors that their oath obliged them to
convict, rather he was telling the jury to follow the law given
to them by the judge. See Commonwealth v. Adams, 434 Mass. 805,
822 (2001).
11
The prosecutor argued, "And I suggest to you that there
is a darn good reason for this statute. Because young people
under the age of sixteen aren't mature enough to make the
decision to engage in sex. They don't truly understand the
potential ramifications, be it unwanted pregnancy or sexually
transmitted diseases. It doesn't matter whether the boys wanted
the sex, enjoyed the sex, or whether they wanted to testify in
court. None of that matters. We as a society have a greater
interest in protecting minors from themselves in these kind of
situations."
 16

is. The issue is whether the Commonwealth has proved

penetration and that the age of the complainant is under sixteen

beyond a reasonable doubt.

The judge, however, gave a corrective instruction.12 Where

there is an improper argument, "we must and do recognize that

closing argument is identified as argument, the jury understands

that, instructions from the judge inform the jury that closing

argument is not evidence, and instructions may mitigate any

prejudice in the final argument." Kozec, 399 Mass. at 517.

Given the pointed curative instruction and the judge's entire

charge, including instructing the jury not to decide this case

on sympathy, we cannot say that this statement by the prosecutor

was prejudicial.

d. Due process challenge. Before imposing the sentence of

straight probation, the judge ordered the defendant to undergo a

sex offender evaluation performed by a licensed clinical social

worker. The social worker reported that the defendant was not a

pedophile and not sexually dangerous. Based on this, the

defendant asked the judge to stay her obligation to register as

a sex offender pursuant to G. L. c. 6, §§ 178C to 176P. The

12
The judge told the jury, "In [the prosecutor]'s closing
argument to you he referenced what he believed to be the
purposes of the statute. Your focus is upon the evidence. It
is not upon the purposes of the statute. All right? So to the
extent that there is some suggestion that you should be
influenced by the purposes of the statute, and I am not
suggesting that there was, you should disregard it."
 17

judge concluded that he had no authority to relieve the

defendant of her obligation to register because her offenses

involved children, see G. L. c. 6, § 178E (f), but agreed to

stay her obligation to register pending appeal.

The defendant now argues that the statute, which

categorically deprives a sentencing judge of authority to

relieve a defendant of the obligation to register in any case

involving a sex offense against a child, is unconstitutional as

applied to her under the Fourteenth Amendment of the United

States Constitution and arts. 1, 10, and 12 of the Massachusetts

Declaration of Rights.

We begin with an overview of the relevant portion of

Massachusetts sex offender registry laws to clarify the due

process issue, and then turn to the particulars of the

defendant's claim.

i. Massachusetts sex offender registry scheme. In 1999,

the Legislature overhauled the sex offender registry law after

an earlier version was successfully challenged on due process

grounds. See Roe v. Attorney Gen., 434 Mass. 418, 422-423

(2001). The 1999 statute requires adults convicted of a sex

offense (as well as juveniles adjudicated as having committed a

sex offense) to register with SORB. G. L. c. 6, §§ 178C, 178E,

178K. The registration process essentially involves two stages.
 18

During the first stage, which occurs shortly after

sentencing, those who must register submit their information to

SORB, which then transmits the data to local police and the

Federal Bureau of Investigation (FBI). See G. L. c. 6, § 178E

(c); 803 Code Mass. Regs. § 1.06(1) (2016). A sentencing judge

has the authority in certain circumstances to relieve the

offender of this preliminary obligation and thus allow the

offender to avoid the registration process entirely. For

example, a judge who does not sentence an offender to immediate

confinement has the authority -- and indeed is directed -- to

determine whether that person should be required to register at

all. G. L. c. 6, § 178E (f).13 The judge, however, is precluded

by the statute from relieving any person who, like the

defendant, has been convicted of a sex offense with a child from

registering as a sex offender. See G. L. c. 6, § 178E (f).

Those who are not relieved of the obligation to register by the

sentencing judge will then go through the second stage of the

process.

13
"In the case of a sex offender who has been convicted of
a sex offense . . . and who has not been sentenced to immediate
confinement, the court shall . . . determine whether the
circumstances of the offense in conjunction with the offender's
criminal history indicate that the sex offender does not pose a
risk of reoffense or a danger to the public. If the court so
determines, the court shall relieve such sex offender of the
obligation to register under sections 178C to 178P, inclusive.
The court may not make such a determination or finding if the
sex offender . . . has been convicted of a sex offense involving
a child . . . ." G. L. c. 6, § 178E (f).
 19

During the second stage, SORB prepares an initial

classification of the offender as a level one, two, or three

offender, based on the person's dangerousness and the degree of

risk (from low to high) that the person poses to reoffend.

G. L. c. 6, § 178K (2) (a)-(c). Following the initial

classification, offenders required to register have a right to

challenge SORB's decision at a de novo administrative hearing.

G. L. c. 6, § 178L (2). At this hearing, SORB has the burden to

prove the appropriateness of its classification by clear and

convincing evidence. Doe, Sex Offender Registry Bd. No. 380316

v. Sex Offender Registry Bd., 473 Mass. 297, 298 (2015). The

determination reached after the de novo hearing is considered

the final classification. G. L. c. 6, § 178L (2). Following

the hearing, the offender has a right to appeal the final

classification decision to the Superior Court. See G. L. c. 6,

§ 178M; G. L. c. 30A, § 14.

For certain sex offenses, SORB, like the sentencing judge,

has the authority to relieve the offender of the obligation to

register because his or her circumstances do not indicate a risk

of reoffense or a danger to the public. G. L. c. 6, § 178K (2)

(d).14 SORB, like the judge during sentencing, however, is

14
"The board may, upon making specific written findings
that the circumstances of the offense in conjunction with the
offender's criminal history do not indicate a risk of reoffense
or a danger to the public and the reasons therefor, relieve such
 20

precluded from relieving any person who has been convicted of a

sex offense with a child of his or her registration obligation

(unless that person has already been registered for ten years).

Id. Significantly, if an offender is relieved of the

registration obligation by the board at the second stage of the

process, the information received from the offender during the

first stage and transmitted to the local police and FBI is

removed from the registry and the police and FBI are so

notified. Id.

ii. The defendant's claim. When government action

interferes with a protected liberty or property interest,

procedural due process concerns arise. Roe, 434 Mass. at 427

(2001), citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Where there is interference with such an interest, a court must

look at "the private interest that will be affected by the

official action . . . the risk of an erroneous deprivation of

such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural

sex offender of any further obligation to register, shall remove
such sex offender's registration information from the registry
and shall so notify the police departments where said sex
offender lives and works or if in custody intends to live and
work upon release, and where the offense was committed and the
Federal Bureau of Investigation. . . . The provisions of this
subsection shall . . . not apply if a sex offender has been
convicted of a sex offense involving a child or a sexually
violent offense, and such offender has not already registered
pursuant to this chapter for at least ten years . . . ." G. L.
c. 6, § 178K (2) (d).
 21

safeguards; and finally, the Government's interest." Mathews,

424 U.S. at 335. Procedural due process requires a "pragmatic

and flexible" analysis, as opposed to a "rigid [and]

hypertechnical" one. Roe, 434 Mass. at 427. Due process "calls

for such procedural protections as the particular situation

demands." Id., quoting Morrissey v. Brewer, 408 U.S. 471, 481

(1972).

A defendant's due process rights are implicated in

different ways during the first stage and the second stage of

the registration process.15

A. Stage one. The defendant's case currently resides in

stage one of the SORB process, where the only recognized

interest at stake for the defendant is having to send her

registration information to SORB, which would then transmit that

information to law enforcement. Roe, 434 Mass. at 428. She is

not being classified at this stage, and, as we explain below, is

15
We distinguish the issue in this case from the issue in
Commonwealth v. Dalton, 467 Mass. 555 (2014). In that case, the
sentencing judge concluded that the use of "may not" in G. L.
c. 6, § 178E (f), see supra note 13, gave a judge discretion to
relieve a defendant convicted of a sex offense involving a child
and not sentenced to immediate confinement from the obligation
to register with SORB. Id. at 555-556. We held that the plain
language of the statute precluded such discretion. Id. at 559.
Here, the Commonwealth is correct to point out that Dalton
precludes the defendant from relief from registration based on
the statute. That does not mean, however, that the defendant
may not challenge the statute on constitutional grounds. See
Roe v. Attorney Gen., 434 Mass. 418, 442 (2001) (facial validity
of statute does not preclude as applied due process challenges).
 22

not precluded from seeking relief from the registration

requirement at stage two. Her information would not be publicly

disseminated at this stage. She is only being required to send

her information to the board. This requirement infringes to

some extent on her liberty, see id. ("The mere fact that a

citizen is being forced to take some action [unconnected from

the citizen's own desire to engage in a form of regulated

activity] infringes, to at least some extent, on his liberty"),

but her interest is slight compared to the considerable

governmental interest at this stage.

The government interest at stake here is the protection of

"the vulnerable members of our communities from sexual

offenders." St. 1999, c. 74, emergency preamble. In crafting

the law, the Legislature found "the danger of recidivism posed

by sex offenders, especially sexually violent offenders who

commit predatory acts characterized by repetitive and compulsive

behavior, to be grave and that the protection of the public from

these sex offenders is of paramount interest." St. 1999, c. 74,

§ 1. "It also found that 'law enforcement agencies' efforts to

protect their communities' from sex offenders are 'impaired by

the existing lack of information known about sex offenders who

live within their jurisdictions'; that the registration of sex

offenders is a proper exercise of police powers 'regulating

present and ongoing conduct, which will provide law enforcement
 23

with additional information critical to preventing sexual

victimization'; and that the 'registration by sex offenders is

necessary in order to permit classification of such offenders on

an individualized basis according to their risk of reoffense and

degree of dangerousness'" (emphases omitted). Doe, Sex Offender

Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass.

780, 789-790 (2008) (Doe No. 8725), quoting St. 1999, c. 74,

§ 1.

On balance, and on the record before us, we conclude that

the governmental interest in ensuring that law enforcement has

accurate information on the defendant, who was convicted of

three indictments charging child rape, at this preliminary stage

of the registration process significantly outweighs the

defendant's liberty interest in not having to mail her

registration information to SORB. Roe, 434 Mass. at 430-431.

There is, in short, no due process violation in the defendant's

having to send her information to SORB, or in the judge's being

unable under the statute to relieve her of the obligation to do

so.

B. Stage two. Because we do not find a due process

violation in the first stage of the sex offender registration

process, the defendant will have to move forward into the second

stage. That is, after she submits her information to SORB she

will then undergo the SORB classification process. This stage
 24

of the SORB process, which can result in a defendant being

classified as a sex offender, implicates much more serious

liberty interests for the defendant that are entitled to strong

procedural due process protections. See Doe v. Attorney Gen.,

426 Mass. 136, 143 (1997). See also Doe No. 8725, 450 Mass. at

792. The defendant, however, is not yet at that stage. The

only claim she has made so far -- indeed, the only claim she can

properly make at this time in the context of this direct appeal

from her convictions -- is her due process challenge to the

sentencing judge's authority at the first stage, which we have

already addressed. In the context of this criminal case it

would be imprudent for us to attempt to go further and decide

whether the forthcoming SORB classification process will itself

result in a due process violation.16

We are not blind to the virtual certainty that the

defendant will be classified as at least a level one sex

offender. The statute does not permit the board to relieve any

offender who has been convicted of an offense involving a child.

See G. L. c. 6, § 178K (2) (d). Nothing we have said, however,

16
We note that the vast majority of cases that challenge
various aspects of the sex offender registration scheme on due
process grounds come to the court in the context of civil
litigation where SORB is a party and the statutory and
constitutional challenges have been fully briefed. Here, the
challenge is part of a criminal appeal where the bulk of the
arguments are focused on the defendant's trial, its surrounding
circumstances, and her sentencing.
 25

prevents the defendant from reasserting her as applied due

process challenge during stage two of the process. SORB will

have a fuller record than the sentencing judge on which to

assess the defendant's dangerousness and risk of reoffense.

Although SORB as an administrative agency does not have the

authority to find the statute unconstitutional on its face or as

applied, Doe, Sex Offender Registry Bd. No. 10800 v. Sex

Offender Registry Bd., 459 Mass. 603, 628 (2011), there appears

to be nothing in the statute that would prevent it, when making

its classification decision, from finding that the defendant

presents no risk of reoffense or danger to the public, if that

is the case. The defendant would be able to present that

favorable finding (or challenge any adverse finding) in an

appeal to the Superior Court under G. L. c. 6, § 178M, and G. L.

c. 30A, § 14, or in a declaratory judgment action, and argue

that the mandatory registration requirement of G. L. c. 6,

§ 178K (2) (d), constitutes a due process violation. A Superior

Court judge would then have the benefit not only of the

sentencing judge's assessment, but also of SORB's insight into

her risk of recidivism and dangerousness when addressing her due

process claim.

3. Conclusion. The judgments below are affirmed. We also

hold that there has been no due process violation in the judge's
 26

declining to relieve the defendant of her obligation to register

as a sex offender.

So ordered.
 HINES, J. (concurring in part and dissenting in part, with

whom Lenk and Budd, JJ., join). Although I agree that the court

properly rejected the defendant's appeal from the denial of her

motion to suppress and other alleged errors, I write separately

to express disagreement with the court's resolution of the

defendant's claim that G. L. c. 6, § 178E (f), is

unconstitutional as applied to her. The court spurns the

defendant's constitutional claim, taking the position that no

due process right is implicated by the defendant's provision of

the registration data to the Sex Offender Registry Board (SORB)

and SORB's transmission of that information to law enforcement

authorities. In my view, this analytical approach fails to take

the full measure of the liberty interest at stake for this

defendant who, having been convicted of statutory rape under

G. L. c. 265, § 23, but determined by the trial judge to present

no danger to the "vulnerable" population protected by the

statute, is subject to mandatory registration, with all its

attendant consequences. Therefore, I dissent.

Contrary to the court's view, the burden on the defendant's

liberty interest is not simply in having to provide her

registration data to SORB and live with the consequences of

having that information transmitted to law enforcement

authorities. That measure for a protected liberty interest may

be appropriate in circumstances where the outcome of the
 2

registration process is not fixed, as where SORB has the

authority to determine that the defendant presents no risk of

sexual reoffense and may be relieved of the obligation to

register at all. See G. L. c. 6, § 178K (2) (d) (relief from

registration based on "risk of reoffense or a danger to the

public" cannot be granted to a "sex offender [who] has been

convicted of a sex offense involving a child" and "has not

already registered . . . for at least ten years").

Here, of course, the irrebuttable presumption of

dangerousness compels at least a level one classification which

imposes certain restraints on the defendant's liberty. See Doe,

SORB No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 308

(2015); G. L. c. 6, § 178K (2) (a). Where a defendant is forced

to register, despite posing no danger to the community, this

"presents an 'importantly distinct kind of constitutional

danger,' because it 'forces an action on the person required to

register. It is a continuing, intrusive, and humiliating

regulation of the person [her]self.'" Doe, Sex Offender

Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass.

780, 792 (2008) (Doe No. 8725), quoting Doe v. Attorney Gen.,

426 Mass. 136, 149 (1997) (Fried, J., concurring). Even though

registration data is not released publicly, the defendant will

be "singled out and brought to the attention of the law

enforcement agencies in the municipalities in which [she]
 3

live[s] and work[s]" because SORB immediately shares that

information with local law enforcement and the FBI (citation

omitted). Doe, No. 8725, supra at 791. G. L. c. 6, § 178E (c).

The defendant's ability to move from her home, work, or place of

higher learning is restricted because she must provide SORB ten

days' notice before moving. G. L. c. 6, § 178E (h)-(j).

Further, if she is a homeless person, the defendant must verify

her registration every thirty days. G. L. c. 6, § 178F. The

police and SORB may release the registration data of level one

offenders to the Department of Children and Families, which may

question the safety of the defendant's children. G. L. c. 6,

§ 178K (2) (a). See Adoption of Anton, 72 Mass. App. Ct. 667,

668 (2008). Thus, the defendant's liberty interest is not de

minimis.

We have come to this bridge before. In Doe, No. 8725, 450

Mass. at 785-786, we acknowledged that, "where the record would

establish 'that Doe poses no risk at all [of reoffense]' the

application of the statutory provisions that permanently

foreclose his being relieved of the duty to register may be

'constitutionally vulnerable.'" Id., quoting Doe, Sex Offender

Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass.

750, 762 (2006). See Roe v. Attorney Gen., 434 Mass. 418, 445

(2001) ("While the Legislature is justified in providing for the

dissemination of registration data to law enforcement
 4

authorities when the persons the Legislature seeks to regulate

may be dangerous and at risk of committing another offense, it

is not justified in doing so with respect to those persons who

neither the Legislature nor the [SORB] could rationally find

present a threat to vulnerable persons"). Therefore, I am

persuaded that the defendant's liberty interest is not so narrow

as to forgo any consideration of due process protections. For

that reason, the court should consider whether the time has come

to answer the unresolved constitutional question that hangs over

this case, and provide guidance for similarly situated

defendants.

As I have noted above, the issue is significant for this

defendant and others who are able to credibly establish that

they are not dangerous to vulnerable persons. And, the issue is

presented here on a record that has not been challenged as

lacking in credibility. Therefore, I see no reason to avoid the

issue by sending the defendant on a journey where the end will

be the same as the beginning. SORB has no authority to relieve

her of the obligation to register. Nor does the Superior Court

have such authority; the limitations on the trial judge in this

case are the same as those faced by the Superior Court in a

G. L. c. 30A review of the SORB classification decision.

Because the issue ultimately will come to this court and the

defendant has no other means to raise this claim, she is
 5

entitled to a determination by this court whether the statute is

unconstitutional as applied to her. Instead of sending the

defendant on this futile quest for relief, this court should

just decide the issue.

Notwithstanding the importance of the issue, it has not

been properly briefed by the parties, making it unwise to go

further than a recognition that the nature of the liberty

interest at stake justifies further consideration by this court.

Therefore, I would order supplemental briefing by the parties

and invite amicus briefs by interested parties, including the

Attorney General, and preserve the option for argument on the

issue.