John Doe, Sex Offender Registry Board No. 242548 v. Sex Offender Registry Board.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-564

JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 242548

vs.

SEX OFFENDER REGISTRY BOARD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, appeals from a Superior Court

judgment affirming his classification by the Sex Offender

Registry Board (SORB) as a level three sex offender. On appeal,

Doe argues that (1) the hearing examiner improperly prevented

him from making a statement by failing to accommodate his

request pursuant to G. L. c. 233, § 16, to be sworn in

consistent with his religious beliefs, (2) his right to counsel

was violated when the hearing examiner failed to conduct an

inquiry into Doe's request for an attorney, (3) the hearing

examiner improperly weighed Doe's failure to complete sex

offender treatment, and (4) the hearing examiner improperly

failed to consider two 2019 Static-99R tests that indicated a

lower risk profile for Doe. Concluding that the hearing

examiner failed to consider potentially significant evidence
bearing on Doe's classification, we vacate the judgment and

remand for further proceedings before SORB.

Background. In 2009, Doe was found guilty of one count of

rape in violation of G. L. c. 265, § 22. The charge stemmed

from an incident in 2007 when Doe anally raped a twenty-eight

year old man with whom he was in a romantic relationship. On

the day of the incident, Doe became angry with the victim after

the victim told Doe he did not want to move in with him. Doe

punched the victim in the face and destroyed some of the

victim's personal property. Doe then threatened him with a

knife and demanded that the victim drive both of them to Doe's

house. When they arrived, Doe threatened to kill the victim and

poked at his stomach with a knife. Doe then ordered the victim

to undress and anally raped him until he ejaculated inside of

the victim.

The victim ultimately was able to escape the following

morning, after Doe ordered the victim to drive him to the

hospital for a prearranged surgery. Although Doe took the

victim's car keys after they arrived at the hospital, the victim

was able to retrieve the keys from Doe's belongings while Doe

was in surgery and drive to safety.

Doe was sentenced to eight to twelve years of

incarceration. While Doe was incarcerated, SORB notified him

pursuant to G. L. c. 6, §§ 178E, 178K (2) (c), and 178L (1) (a),

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that he had a duty to register as a level three sex offender.

Doe challenged his duty to register and the classification and

requested an evidentiary hearing. A hearing was held pursuant

to G. L. c. 6, § 178L, on February 7, 2018. Following the

hearing, the hearing examiner issued a decision in which she

determined that Doe was required to register as a level three

sex offender. Doe was released from prison on April 22, 2019.

Doe sought judicial review of the hearing examiner's

decision in the Essex Superior Court pursuant to G. L. c. 6,

§ 178M, and G. L. c. 30A, § 14, and filed a motion for judgment

on the pleadings. On March 3, 2020, the Superior Court judge

found that the hearing examiner had not considered two reports

prepared by qualified examiners in 2019 for the purpose of

determining whether Doe qualified as a sexually dangerous person

(SDP). The judge stayed the motion for judgment on the

pleadings and remanded the case to the hearing examiner for

further consideration. On April 6, 2020, the hearing examiner

issued an amended decision again ordering that Doe register as a

level three offender. On April 8, 2021, a hearing was held on

the motion for judgment on the pleadings; the judge issued a

decision affirming Doe's classification on June 25, 2021. Doe

then appealed to this court.

Discussion. 1. Statements under oath or affirmation. Doe

first argues that the hearing examiner erred by requiring that

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Doe be sworn in prior to being permitted to speak. Before a

witness can provide testimonial evidence, the witness must swear

or affirm that the witness will testify truthfully.

Commonwealth v. Stewart, 454 Mass. 527, 531 (2009). The purpose

of such an oath or affirmation is "to remind witnesses and

observers alike that testimony is a solemn process with serious

consequences." Commonwealth v. Murphy, 57 Mass. App. Ct. 586,

592 n.5 (2003). However, not every word spoken at a hearing

constitutes testimony, and an oath or affirmation is not

required before a defendant or witness is permitted to make a

nontestimonial comment. Commonwealth v. Stewart, 255 Mass. 9,

18 (1926) (describing nontestimonial comment as one "not given

under oath").

Doe's hearing was conducted via videoconference and he was

represented by an attorney. The attorney's representation of

Doe dated back at least to July 21, 2017, when SORB first shared

with the attorney the documents it planned to introduce in

evidence at Doe's hearing. An interpreter was present to help

ensure that Doe understood the proceedings and could communicate

with the hearing examiner. During the hearing, the interpreter,

speaking on Doe's behalf, stated, "he wants to request a hearing

. . . and he wants to find an attorney." Speaking for himself

in English, Doe then added, "I have to fix an issue because if I

proceed, it's going to -- this really could cause me a problem."

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The hearing examiner then stated, "I mean he has an attorney so

help me understand what he's actually saying." Doe's attorney

responded, "we can't really narrow it down exactly what he's

going to say, but I think we need to let him say it."

In response to the confusion regarding what Doe wished to

communicate, the hearing examiner suggested that Doe's comments

may constitute substantive testimony, which would require that

Doe first be sworn in. The record, however, does not support

this supposition, because the hearing had not yet turned to the

merits of the case. Neither Doe nor his attorney had indicated

that Doe wished at that time to testify in his own defense.

Instead, the record at least suggests that Doe was experiencing

an issue with his attorney and that he wanted to explain the

issue to the hearing examiner.

When the hearing examiner explained that she would

administer an oath to allow Doe to speak, Doe declined and

explained that taking an oath conflicted with his religious

beliefs. The hearing examiner then suggested a modified version

of the oath. She asked Doe, "will you cooperate with holding

your hand up and I can say do you affirm that you're going to

tell the truth and nothing but the truth?" In response, Doe

stated, "When I say the truth, I'll say the truth," and a moment

later added, "[w]henever my hand is a symbol . . . it's against

my rules." The hearing examiner's use of the word "affirm"

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instead of "swear" did not assuage Doe's religious objections to

taking an oath or raising his hand. The hearing examiner also

did not consider Doe's statement "When I say the truth, I'll say

the truth" to be an adequate affirmation.

The hearing examiner then explained to Doe that, if he

wished to make a statement, "there is a certain procedure we

have to follow by the law. . . . I have to be able in some

fashion to have you sworn in." SORB's attorney contributed to

the confusion by asserting that SORB "would object to any type

of statement without him being sworn in some form or fashion."

The hearing examiner invited Doe to put any statement he wished

to make into writing and submit it. However, the examiner also

informed Doe he would not be permitted to speak unless he were

sworn in. At that point, Doe signed off from the

videoconference. The hearing then proceeded without him "at the

agreement of both counsels."

The comments Doe wished to make did not seem to amount to

testimony. Doe never mentioned the substance of his case or any

facts he wished to emphasize or dispute. Accordingly, it

appears as if there was no need for him to be sworn in. He

could have been permitted to make his statement and, if it

turned out to be testimonial, the hearing examiner could have

declined to consider it unless Doe first affirmed that he would

tell the truth and then repeated his statement. The hearing

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examiner should have attempted to listen to Doe's concerns

before concluding that he needed to raise his hand and be sworn

in. Once that occurred, if Doe wanted to discharge his attorney

and attempt to have a new one appointed, or represent himself,

the hearing officer could have then conducted an appropriate

colloquy after an affirmation. SORB's request that Doe not be

permitted to speak without being sworn in was likewise

unhelpful.

Although we agree with Doe that he should have been able to

make nontestimonial comments to potentially express his apparent

desire to have new counsel without being sworn in, see

Commonwealth v. Moran, 388 Mass. 655, 659 (1983) ("a judge must

permit a defendant to advance his reasons for wanting to

discharge his attorney"), we also conclude that Doe's decision

to abruptly sign off from the hearing alongside his failure to

raise this argument before either the hearing examiner or the

Superior Court preclude him from making this argument for the

first time on appeal. Smith v. Sex Offender Registry Bd., 65

Mass. App. Ct. 803, 814 (2006). In SORB cases, the hearing

examiner serves as the agency factfinder and is therefore

appropriately positioned to develop the factual record to the

degree necessary to support appellate review of legal issues

that arise at the hearing. Doe, Sex Offender Registry Bd. No.

3974 v. Sex Offender Registry Bd., 457 Mass. 53, 58 (2010).

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Without an adequately-developed record, the appellate court

lacks the factual clarity required to fairly adjudicate alleged

legal errors.

Here, because none of these issues were raised before the

hearing examiner, the record before us on these issues has been

inadequately developed. We cannot, for example, divine from the

transcript of the SORB hearing what issue Doe wanted to bring to

the attention of the hearing examiner or why Doe abruptly signed

off from the hearing. Because such factual gaps impede proper

analysis of the related legal issues, we must deem the issues

waived.

Doe's subsequent counsel before the Superior Court also had

another opportunity to raise the issue. See Doe, Sex Offender

Registry Bd. No. 15606 v. Sex Offender Registry Bd., 452 Mass.

784, 788 (2008) (Doe No. 15606) (Superior Court judge considered

argument not raised before hearing examiner). See also M. H.

Gordon & Son, Inc. v. Alcoholic Beverages Control Comm'n, 386

Mass. 64, 68 (1982) (plaintiffs had right to argue issue on

appeal not raised at administrative hearing but raised before

Superior Court). Had he done so, and in particular had he

identified what statement Doe was trying to make and how it was

material, the judge would have had an opportunity to remand the

case to the hearing examiner to further develop the factual

record necessary to support Doe's claims of legal error. But

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Doe's then-counsel did not do so, and this precludes Doe from

making these arguments for the first time on appeal or from

making the showing of prejudice necessary to obtain relief.

2. Right to counsel at SORB hearing. Doe argues that the

hearing examiner's failure to inquire into Doe's potential

conflict with his attorney violated his right to counsel.

"[T]he sex offender registration law provides sex offenders with

the right to counsel at the initial classification hearing."

Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry

Bd., 480 Mass. 195, 209 (2018). See G. L. c. 6, § 178L (1) (a).

As explained above, Doe had an attorney to represent him at his

February 7, 2018, initial classification hearing who had served

in this role since the previous July. The record does not

indicate whether Doe spoke with his attorney before the hearing

or if Doe even knew he had an attorney. During the hearing, Doe

stated, through his interpreter, that he "wants to find an

attorney." Doe was unable to expand on this remark because the

hearing examiner improperly prevented Doe from speaking without

being sworn in. His attorney also stated that he was "objecting

to [Doe] saying anything, but he has a right if he wants to over

my objection to go ahead and do what he wants to do." Doe

shortly thereafter signed off from the hearing and his attorney

proceeded with remainder of the hearing in Doe's absence.

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 Like with Doe's argument about the hearing examiner not

allowing Doe to speak, Doe's subsequent counsel before the

Superior Court had an opportunity to raise any alleged violation

of Doe's right to counsel in the Superior Court, as well as to

show any resulting prejudice. Doe No. 15606, 452 Mass. at 788.

This would have allowed the judge to further develop the factual

record to establish whether a conflict existed. But the

argument was not raised below and because it cannot be raised

for the first time here, we deem the issue waived. In any

event, Doe has not identified any particular prejudice related

to his dissatisfaction with, or uncertainty about the role of,

the attorney who appeared with him at the hearing.

3. Weight afforded Doe's sex offender treatment. Doe also

argues that because the hearing examiner failed to consider

Doe's reason for declining to fully participate in sex offender

treatment, she erred by giving his limited participation in the

program only minimal mitigating weight. In support, Doe cites

Doe, Sex Offender Registry Bd. No. 23656 v. Sex Offender

Registry Bd., 483 Mass. 131, 141 (2019) (Doe No. 23656), which

discussed the dilemma sex offenders face regarding

nonconfidential sex offender treatment. In such programs, a

participant may face the risk of incriminating themselves

because any uncharged sexual offense the participant admits to

during treatment can later be used to support a prosecution of

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the participant. Because of this dilemma, the court in Doe No.

23656, supra at 140-141, held that if "sex offender treatment is

conditioned on a waiver of confidentiality, refusal of treatment

alone is insufficient to support an inference that the

[offender] does not want to be treated" (citation omitted).

This limits SORB's authority to apply its classification factor

24, under which the refusal of treatment is an aggravating

factor indicating an "increased risk of reoffense and degree of

dangerousness." 803 Code Mass. Regs. § 1.33(24) (2016). See

Doe No. 23656, supra at 140.

Here, in contrast, the hearing examiner considered the

mitigating effect of Doe's limited sex offender treatment

participation. And while the program's nonconfidential

structure may have contributed to Doe's failure to complete the

program, the hearing examiner credited Doe's "suspen[sion] from

treatment several times due to receiving disciplinary reports"

as a primary reason. Because the hearing examiner did not cite,

or seem to use, Doe's failure to complete sex offender treatment

as an aggravating factor, and instead decided he was not

entitled to the full mitigating weight of a program from which

he was dismissed for disciplinary reasons, we conclude the

hearing examiner acted within her discretion.

4. Consideration of 2019 qualified examiner reports and

2017 Static-99R scoring. Doe argues that the hearing examiner

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abused her discretion when, in applying SORB's factor 35

(psychological or psychiatric profiles indicating risk to

reoffend), she failed to adequately consider the two 2019

qualified examiner reports generated as part of an effort to

civilly commit Doe as an SDP pursuant to G. L. c. 123A. He also

argues that the hearing examiner erred by relying on the 2017

Static-99R because the test was not scored properly. "We

reverse or modify [SORB]'s decision only if we determine that

the decision is unsupported by substantial evidence or is

arbitrary or capricious, an abuse of discretion, or not in

accordance with law." Doe, Sex Offender Registry Bd. No. 10800

v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011). Also,

"the proper standard of review when an offender successfully

challenges the application of a regulatory factor is to ask

whether the error may have affected the classification and, if

so, to remand to SORB." Doe, Sex Offender Registry Bd. No.

22188 v. Sex Offender Registry Bd., 101 Mass. App. Ct. 797, 804

(2022).

The hearing examiner referred to both 2019 qualified

examiner reports in her discussion of factor 35. While

explaining their role in her broader analysis of Doe's

classification level, the hearing examiner discounted their

relevance by noting that the 2019 reports did not squarely

address the factors SORB considers "in determining sex

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offenders' level of recidivism." Both 2019 reports, however,

use the same Static-99R tool the hearing examiner relied on

earlier in her decision. That the qualified examiners were

using the tool to assess Doe's potential status as an SDP rather

than to assess Doe's proper SORB classification level does not

suggest that the results have no place in the hearing examiner's

analysis. See Doe, Sex Offender Registry Bd. No. 11204 v. Sex

Offender Registry Bd., 97 Mass. App. Ct. 564, 570-571 (2020)

("evaluations and information generated during the SDP process

may still bear on the issues raised by the SORB classification

decision"). And because the qualified examiners giving the

tests in 2019 both scored Doe in the "average risk" category

compared to the "high risk" score he received in the 2017 test,

inclusion of their 2019 reports in considering factor 35 may

have been significant enough to affect the hearing examiner's

broader analysis of Doe's classification.

The 2017 test also contains at least one error that calls

into question the accuracy of how factor 35 figured into Doe's

risk level classification. On the chart listing the relevant

scoring categories, Doe received a total of six points, placing

him in the "high risk" category. In the following narrative,

however, the report only assigns Doe a point in five categories,

which would place Doe in the "above average risk" category.

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Doe's appellate brief asserts with some plausibility that the

2017 test result suffered from several other scoring errors.

The hearing examiner's failure to consider the 2019 Static-

99R tests and the scoring error (or errors) present in 2017

raise the possibility that the hearing examiner's application of

factor 35, and thus Doe's level three classification, was

erroneous. Accordingly, we vacate the judgment of the Superior

Court. A new judgment shall enter remanding the matter to SORB

with instructions to reconsider Doe's classification level in

light of the results of the 2019 Static-99R tests and the

claimed scoring errors on the 2017 test.

So ordered.

By the Court (Sacks,
Brennan & D'Angelo, JJ. 1),

Clerk

Entered: December 8, 2023.

1 The panelists are listed in order of seniority.

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