Commonwealth v. Curran

478 Mass. 630

88 N.E.3d 862

COMMONWEALTH

v.Edward CURRAN.

SJC–12293

Supreme Judicial Court of Massachusetts, Worcester..

Argued September 6, 2017

Decided January 12, 2018

Marcia T. Kovner, Shirley, for the defendant.

Ellyn H. Lazar–Moore, Assistant District Attorney, for the Commonwealth.

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

GAZIANO, J.

General Laws c. 123A, § 15, allows incompetent persons who are unable to stand trial for qualifying sex offenses to be deemed sexually dangerous based on the commission of those offenses. In 2008, we held that this proceeding did not violate due process or equal protection because of the rights the Legislature explicitly included in the statute to "protect an incompetent defendant's ability to defend himself against the allegations of crime and, thus, minimize the likelihood of a mistake." Commonwealth v. Burgess, 450 Mass. 366, 375, 878 N.E.2d 921 (2008). Those protections encompass "all rights available to criminal defendants at criminal trials, other than the right not to be tried while incompetent," G. L. c. 123A, § 15, including the retention of experts, the right to present evidence in defense of the charges, and "the right to a determination of the commission of the criminal acts made beyond a reasonable doubt." Burgess, supra.

Here, the defendant sought to introduce at a hearing on the Commonwealth's G. L. c. 123A, § 15, petition expert testimony that he was not criminally responsible. Interpreting the statutory language "whether the person did commit the act or acts charged" to mean that he should determine only whether the acts were committed, not whether the defendant was guilty of the acts, the judge denied the motion and allowed the Commonwealth's motion to preclude the testimony. We conclude that the right of an incompetent defendant to raise defenses in a proceeding pursuant to G. L. c. 123A, § 15, includes that of a lack of criminal responsibility. Therefore, the denial of the motion to admit expert testimony, and the allowance of the Commonwealth's motion to preclude that testimony, must be reversed.

1. Facts. The following facts are uncontested for the purposes of this interlocutory appeal. While in a residential treatment program for mental illness, the defendant approached a female nurse who was attempting to administer medication; said, "Look what I have for you"; and grabbed his genitals over his clothing. He then used his body to push her against the counter, placed his leg between her legs, and reached his hand under her shirt and touched her breasts. The nurse called for help, and the defendant backed away as other staff members came to assist her.

The defendant was charged with indecent assault and battery on a person age fourteen or older, G. L. c. 265, § 13H, a qualifying sex offense under G. L. c. 123A, § 1. He was found incompetent to stand trial; pursuant to G. L. c. 123, §§ 15 and 16 (f ), the charge was dismissed and the defendant was committed to Bridgewater State Hospital. The Commonwealth then filed a petition under G. L. c. 123A, § 12, to have the defendant committed as a sexually dangerous person. A Superior Court judge ordered another competency hearing and found that the defendant still was not competent, so the process moved forward under G. L. c. 123A, § 15.

A second Superior Court judge concluded that there was probable cause to believe that the defendant was a sexually dangerous person. At a hearing pursuant to G. L. c. 123A, § 15, before that judge, the defendant sought to present expert evidence regarding criminal responsibility; the Commonwealth filed a motion to preclude such evidence. The judge ruled that expert testimony concerning a lack of criminal responsibility is not admissible in a hearing on a petition pursuant to G. L. c. 123A, § 15, because it is not relevant to a factual determination whether the acts indeed had been committed. The defendant filed an application for an interlocutory appeal in the Appeals Court. A single justice of the Appeals Court allowed the application, and we transferred the case to this court on our own motion.

2. Discussion. When a person is convicted of a qualifying sex offense or adjudicated delinquent or a youthful offender by reason of a qualifying sex offense, the district attorney or Attorney General may file a petition alleging that the person is sexually dangerous. See G. L. c. 123A, § 12. If a person is charged with a qualifying sex offense but found incompetent to stand trial, however, that person also may be subject to classification as sexually dangerous, notwithstanding the absence of a conviction. See G. L. c. 123A, §§ 12, 15.

In the latter case, a judge in the court where the petition is filed first determines whether there is probable cause to believe that the incompetent person is sexually dangerous. See G. L. c. 123A, § 12. Following that finding and temporary civil commitment of the defendant, a judge conducts a hearing pursuant to G. L. c. 123A, § 15,¹ at which the judge hears evidence and determines "whether the person did commit the act or acts charged." The statute explicitly provides that, with the exception of trial by jury, the procedures set forth in G. L. c. 123A, § 14, apply to this judicial determination, that all rules of evidence are applicable, and that "all rights available to criminal defendants at criminal trials, other than the right not to be tried while incompetent, shall apply." See G. L. c. 123A, § 15. If an individual is found to have committed the act or acts charged, the judge may proceed to consider under G. L. c. 123A, §§ 13 and 14, whether the individual is a sexually dangerous person.

In Burgess, 450 Mass. at 375, 878 N.E.2d 921, we concluded that the provisions of G. L. c. 123A, § 15, do not violate due process because the Legislature explicitly provided to incompetent defendants statutory rights sufficient "to guard against the erroneous potential deprivation of the defendant's liberty" and to "protect an incompetent defendant's ability to defend himself against the allegations of crime and, thus, minimize the likelihood of a mistake." These rights include, inter alia, the retention of experts, the right to present evidence in defense of the charges, and "the right to a determination of the commission of the criminal acts made beyond a reasonable doubt." Burgess, supra. See G. L. c. 123A, § 15.

The Commonwealth argues, in effect, that the statute's instructions to "determine whether the person did commit the act or acts charged" refer solely to the conduct and not to the person's intent or criminal responsibility.² At argument before us, the Commonwealth emphasized that the Legislature chose the word "act," rather than "offense" or "crime."

"Our primary duty in interpreting a statute is 'to effectuate the intent of the Legislature in enacting it.' " Sheehan v. Weaver, 467 Mass. 734, 737, 7 N.E.3d 459 (2014), quoting Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010).

"Ordinarily, where the language of a statute is plain and unambiguous, it is conclusive as to legislative intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444, 895 N.E.2d 446 (2008). That said, "[w]e will not adopt a literal construction of a statute if the consequences of such construction are absurd or unreasonable." Attorney Gen. v. School Comm. of Essex, 387 Mass. 326, 336, 439 N.E.2d 770 (1982). See Black's Law Dictionary 11–12 (10th ed. 2014) (defining "absurdity" as "being grossly unreasonable" and "[a]n interpretation that would lead to an unconscionable result, esp. one that ... the drafters could not have intended"). "Where the words of the statute are ambiguous, we strive to make it an effectual piece of legislation in harmony with common sense and sound reason and consistent with legislative intent" (quotation and citation omitted). Commonwealth v. Pon, 469 Mass. 296, 302, 14 N.E.3d 182 (2014).

In Burgess, 450 Mass. at 374, 878 N.E.2d 921, we observed that "the Legislature has provided that [a hearing pursuant to G. L. c. 123A, § 15, shall] proceed much the same as a criminal trial, and that it include many rights to which a criminal defendant is constitutionally entitled. The Legislature also chose to import to a [ G. L. c. 123A, § 15,] hearing the familiar 'beyond a reasonable doubt' standard." The Legislature's intent, therefore, was to substitute this hearing for the criminal trial that an incompetent person did not have before proceeding to a determination whether the person is sexually dangerous. Our holding in Burgess that the statute does not violate due process relied on the provision of "adequate procedures to guard against the erroneous potential deprivation of the defendant's liberty"; refusing to allow defendants to claim lack of criminal responsibility threatens the constitutionality of the statute by removing an important protection. Id. at 375, 878 N.E.2d 921.

The Legislature did not, as the Commonwealth argues, restrict the ability of an incompetent defendant to raise all available defenses. Rather, the Legislature intended, as it broadly stated, to provide "all rights available to criminal defendants at criminal trials, other than the right not to be tried while incompetent." See G. L. c. 123A, § 15. Importantly, these rights include the right to raise defenses, such as intoxication, consent, diminished capacity, accident, and lack of criminal responsibility. We are not persuaded, as the Commonwealth suggests, that a lack of criminal responsibility is different from other defenses that could be raised at a hearing under G. L. c. 123A, § 15.³

The Commonwealth also focuses on our conclusion in Commonwealth v. Nieves, 446 Mass. 583, 590 n.6, 846 N.E.2d 379 (2006), that a judge should "make the predicate factual determinations regarding the actions that would ordinarily constitute a crime." Those predicate factual determinations include proof of each of the elements of the charged sex...