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),
2
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
3
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."
4
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"
5
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
6
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).
7
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
8
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.
9
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
10
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
11
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
12
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.
13
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.
14