In re McHoul, SJC-09392 (MA 9/8/2005)

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James McHOUL, Jr., petitioner.

SJC-09392

Supreme Court of Massachusetts.

May 2, 2005.

September 8, 2005.

Sex Offender. Evidence, Sex offender, Hearsay, Medical record, Medical report, Police report. Practice, Criminal, Instructions to jury.

Petition filed in the Superior Court Department on October 2, 2000.

The case was tried before Sandra L. Hamlin, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

David Hirsch, Committee for Public Counsel Services, for the petitioner.

Mary P. Murray for the Commonwealth.

William R. Keating, District Attorney, & Tracey A. Cusick & Varsha Kukafka, Assistant District Attorneys, for District Attorney for the Norfolk District, amicus curiae, submitted a brief.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

SOSMAN, J.

In 1974, James McHoul, Jr. (petitioner), was committed to the Massachusetts Treatment Center (treatment center) as a "sexually dangerous person," pursuant to G.L. c. 123A, §§ 1 et seq., as appearing in St.1958, c. 646, § 1. See Commonwealth v. McHoul, 372 Mass. 11 (1977). See also McHoul v. Commonwealth, 10 Mass.App.Ct. 878 (1980). On October 2, 2000, he filed a petition for examination and discharge. G.L. c. 123A, § 9. After a trial at which the petitioner did not testify, the jury returned a verdict that the petitioner remained a sexually dangerous person. The petitioner now challenges various evidentiary rulings, including the admission of evidence containing "totem pole" (or "layered") hearsay; certain jury instructions, including an instruction that potential future injury to adult victims is not limited to physical injury; the sufficiency of the evidence; and the validity of his initial commitment. We transferred the case here on our own motion, and now affirm.¹

1. Facts. The jury could have found the following facts. The petitioner, born in 1943, has a lengthy history of sexual violence and aggression. While an adolescent, he once fondled his mother and attempted to engage her sexually. In 1959, he was sent to the Judge Baker Guidance Clinic for groping and attempting to kiss a nineteen year old woman. When he was seventeen years old and working as a messenger delivering telegrams, he sexually assaulted a woman in her home. He was acquitted of the resulting charge but later admitted committing the offense.

At age nineteen years, the petitioner broke into several apartments looking for women to assault sexually. In one case, he entered an unlocked apartment occupied by two young women, hid in a closet until one woman left, then sexually assaulted the other at knife point. He subsequently was charged with assault with intent to rape and breaking and entering with intent to rape. In 1964, he pleaded guilty to these offenses and was placed on supervised probation.

In 1966, while undergoing a psychiatric evaluation at Boston State Hospital as required under the terms of his supervised probation, the petitioner left the hospital grounds in violation of his probation, entered a randomly selected apartment, assaulted a woman lying on her bed, and choked her until she was unconscious, fleeing only when he heard the woman's mother in the apartment. As a result of this incident, he was convicted of assault with intent to commit rape, and breaking and entering a dwelling with intent to commit rape. He was sentenced to from twenty-five years to thirty years in prison. In 1974, a judge in the Superior Court adjudicated the petitioner to be a sexually dangerous person and committed him to the treatment center for a term of from one day to life.

The petitioner's long-standing medical problems include "a mild arrested hydrocephalus with a question of associated brain damage and psychosis." He has a history of mental illness dating from the 1960's, with repeated diagnoses of schizophrenia, schizoid personality disorder, and sociopathic disorder. Although he has been placed on various psychotropic medications, the petitioner continues to exhibit signs of major mental illness that, together with his intermittent refusal to take his prescribed medications, has complicated his progress in sex offender treatment. His fantasies about raping women, including female staff at the treatment center, persist, as does his sexual misconduct or inappropriate behavior toward other inmates and his female therapists. The petitioner has acknowledged that one reason he has not actually assaulted any women at the treatment center is because "they would lock my silly butt upstairs, jack me up on psychotropic medication." He has admitted that he would act out on his aggressions toward women if he thought he could get away with it.

The petitioner presents a number of risk factors that, taken together, are associated with a very high risk of reoffending. These include: (1) a large number of prior sex offenses, (2) sex offenses against strangers, (3) commission of a sex offense at a relatively young age, (4) deviant sexual arousal and sexual arousal to violence, (5) failure to complete treatment, (6) antisocial behavior, (7) a negative relationship with his mother, (8) poor judgment and impulse control, (9) cognitive distortions about women and his own behavior, and (10) limited motivation to change his behavior. Despite years of treatment, he has been unable to overcome or offset these risk factors.

2. Discussion. a. Hearsay. The petitioner argues that the judge erroneously admitted in evidence two classes of inadmissible hearsay. First, he argues that the experts should not have been permitted to testify to the jury about out-of-court statements the petitioner made to others and observations of the petitioner's conduct made by others on which the experts based their opinions. Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). However, those statements and observations were reflected in various records and reports that were admitted in evidence, thus making it permissible for the expert witnesses to reference that evidence in their own expert testimony. See Commonwealth v. Markvart, 437 Mass. 331, 338 (2002); Commonwealth v. Jaime, 433 Mass. 575, 577-578 (2001).

Second, the petitioner contends that certain of the records and reports at issue should not have been admitted in evidence because they contained totem pole hearsay. In particular, he objected to and challenges on appeal the introduction of "group notes" and annual treatment reports of the treatment center (which contained the petitioner's descriptions of sexual assaults for which he had not been convicted and his descriptions of his feelings toward the victims of his sexual assaults), and "observation and behavior reports" concerning his actions at the treatment center. See Commonwealth v. Markvart, supra at 335 ("hearsay not otherwise admissible under the rules of evidence is inadmissible at the trial of a sexually dangerous person petition unless specifically made admissible by statute"). There was no error, as these reports are among those made admissible by statute, notwithstanding that they contain hearsay.

The sexually dangerous person statute provides that specifically identified documents and reports "shall be admissible" at trial of a petition for examination and discharge from the treatment center. G.L. c. 123A, §§ 6A, 9. Under § 9, either side may introduce in evidence the report of a qualified examiner, the petitioner's "juvenile and adult court and probation records," the petitioner's "psychiatric and psychological records," and the Department of Correction's annual progress report pertaining to the petitioner. Under § 6A, either side may introduce in evidence the report of the community access board evaluating the petitioner for participation in the community access program, and that board's annual report concerning the petitioner's current sexual dangerousness. With respect to a petition by the Commonwealth seeking to commit a defendant as a sexually dangerous person, G.L. c. 123A, § 14 (c ), similarly lists a variety of records and documents that "shall be admissible" (provided that they have been made available to the opposing side in advance of trial): probation records, "psychiatric and psychological records and reports," reports from qualified examiners, "police reports relating to such person's prior sexual offenses," incident reports during the person's incarceration or custody, and "oral or written statements prepared for and to be offered at the trial by the [defendant's] victims."²

Absent these statutory provisions, such documents would ordinarily be excluded as inadmissible hearsay. However, the Legislature has the power to prescribe rules of evidence superseding any contrary common-law rule. See Beeler v. Downey, 387 Mass. 609, 614-615 (1982), quoting Holmes v. Hunt, 122 Mass. 505, 516-517 (1877). We have long recognized that the admissibility of the various records and reports in sexually dangerous person proceedings represents "`a very radical departure' from ordinary evidentiary rules," Andrews, petitioner, 368 Mass. 468, 473 (1975), quoting Commonwealth v. McGruder, 348 Mass. 712, 715 (1965), cert. denied, 383 U.S. 972 (1966); but we have repeatedly applied the evidentiary rules prescribed by the Legislature for such proceedings. See Commonwealth v. Given, 441 Mass. 741, 744-745, cert. denied, 125 S.Ct. 366 (2004); Commonwealth v. Rodriguez, 376 Mass. 632, 641 (1978); Andrews, petitioner, supra at 472-475. The petitioner has given us no cause to change course.

His contention—that courts must subject the contents of each document to an analysis for totem pole hearsay, with the statutory provision of admissibility curing only the hearsay problem of admitting the evidence in the form of a written report—has been rejected implicitly in our prior cases.³ With respect to a former version of the statute that allowed a "psychiatric report" in evidence, the court noted that the statute...