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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.