Opinion
18-P-1380
12-12-2019
John DOE, Sex Offender Registry Board No. 9969 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, Sex Offender Registry Board No. 9969 (Doe), appeals from a judgment of the Superior Court affirming the Sex Offender Registry Board's (the board's) final classification of Doe as a level three (high-risk) sex offender. On appeal, Doe claims that the hearing examiner's determination (1) was against the substantial weight of the evidence; (2) was based on an improper application of the regulatory factors; and (3) incorporated unreliable hearsay evidence. Doe further claims that he received ineffective assistance of counsel at his board hearing. We affirm.
Background. The evidence before the hearing examiner showed the following. In 1994, Doe was indicted and arraigned on charges including aggravated rape, assault by means of a dangerous weapon, and assault with intent to murder. The charges arose from a violent episode where Doe assaulted his then girlfriend for several hours, raping and threatening to kill her. In 2000, Doe committed the governing offense in which he sexually assaulted a twenty-one year old female who suffers from cerebral palsy and uses a wheelchair. As a result, Doe was convicted of rape and of indecent assault and battery on a person age fourteen or over. He was ultimately sentenced to fifteen to eighteen years in prison and five years of probation upon release.
Doe was indicted twice on these charges by two grand juries. The first set of indictments was nol prossed as duplicative of the second set, and the second set was dismissed for reasons not clear in the record.
Doe has a history of alcohol and substance abuse, has an extensive criminal record, and consistently fails to comply with probation conditions. Furthermore, four different women have obtained restraining orders against Doe, most recently in 2017.
On the basis of these circumstances, the hearing examiner determined that Doe presents a high risk of reoffense and a high degree of dangerousness such that public access to Doe's personal and sex offender information is in the interest of public safety. She accordingly ordered Doe to register as a level three sex offender. On review under G. L. c. 30A, § 14, a Superior Court judge, acting on cross motions for judgment on the pleadings, denied Doe's motion and allowed the board's motion, thereby affirming the examiner's decision.
Discussion. 1. Substantial evidence. Doe first argues generally that the hearing examiner's decision went against the substantial weight of the evidence. Our review of the record, according due weight to the hearing examiner's expertise, G. L. c. 30A, § 14 (7), indicates that there was substantial evidence to classify Doe as a level three sex offender.
To support a level three classification, the board must show by clear and convincing evidence that (1) the offender's risk of reoffense is high; (2) the offender's dangerousness is high; and (3) a public safety interest is served by Internet publication of the offender's registry information. Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643, 656-657 (2019) (Doe No. 496501 ). See G. L. c. 6, § 178K (2) (c ). Each element must be established by this standard. Doe No. 496501, supra. Review "does not turn on whether, faced with the same set of facts, we would have drawn the same conclusion, ... but only whether a contrary conclusion is not merely a possible but a necessary inference" (quotations and citations omitted). Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender Registry Bd., 472 Mass. 492, 500-501 (2015). In addition, "[a] hearing examiner has discretion to consider which regulatory factors to apply and how to weigh those factors based on the evidence at the hearing." Doe, Sex Offender Registry Bd. No. 291554 v. Sex Offender Registry Bd., 87 Mass. App. Ct. 210, 212 (2015) (Doe No. 291554 ).
In Doe No. 496501, 482 Mass. at 656-657, the Supreme Judicial Court announced the requirement that hearing examiners make separate and explicit findings on each of these three elements. Such findings were not made in this case. Nonetheless, reviewing courts retain discretion whether to remand for explicit and separate findings. For the reasons that follow, we do not exercise that discretion here.
Although the hearing examiner did not make explicit and separate findings as to each of the three factors, see note 2, supra, she provided a detailed account of the evidence she considered and an explanation of the relative weight that she assigned to each factor. In its totality, the evidence in support of each factor present was clear and convincing and supported a determination that Doe's risk of reoffense and degree of dangerousness were both high.
Specifically, the examiner found two factors indicating a "high risk of reoffense," including Doe's governing offense occurring subsequent to being charged with the 1993 rape, 803 Code Mass. Regs. § 1.33(2) (2016), and his serving his entire term of incarceration, 803 Code Mass. Regs. § 1.33(6). She also identified eleven risk-elevating factors, including most notably Doe's persistent probation violations, 803 Code Mass. Regs. § 1.33(13) ; the fact that both of his victims were extrafamilial, 803 Code Mass. Regs. § 1.33(7) ; the numerous abuse prevention orders that have been taken out against him by multiple women, 803 Code Mass. Regs. § 1.33(15) ; his lengthy criminal history, 803 Code Mass. Regs. § 1.33(10) ; and his failure to attend sex offender treatment programs, 803 Code Mass. Regs. § 1.33(24). She gave three risk-mitigating factors due consideration, but assigned little or no weight to them. These facts are adequate to support the hearing examiner's determination that Doe poses a high risk of reoffense. See 803 Code Mass. Regs. § 1.33.
We note that the hearing examiner accorded minimal weight to the maximum term of incarceration factor.
Doe committed the governing sex offense while on probation from a conviction arising from an attempted armed bank robbery, and, by the time of his sex offender classification hearing, was found to be in violation of his then current terms of probation on several grounds.
Similarly, the hearing examiner considered several factors bearing on Doe's dangerousness. She considered Doe's commission of offenses against multiple victims, 803 Code Mass. Regs. § 1.33(22) ; and that assaults against both victims involved a high degree of physical contact, 803 Code Mass. Regs. § 1.33(19). She further considered the extravulnerable nature of the victim of the governing offense, 803 Code Mass. Regs. § 1.33(18) ; and that the 1993 assault involved murder threats and significant physical violence, 803 Code Mass. Regs. § 1.33(8). These factors constitute substantial evidence to support a finding by clear and convincing evidence that Doe poses a high degree of dangerousness to the public. See 803 Code Mass. Regs. § 1.33.
While the examiner determined that the public availability of Doe's personal information would serve the interest of public safety, she likewise did not make separate and explicit findings in support of this element. Given Doe's history and having determined Doe's reoffense risk and degree of dangerousness to be high, however, it follows that public access to Doe's information is in the interest of public safety. See Doe No. 496501, 482 Mass. at 655 ("Where a sexually violent offender presents a moderate risk to reoffend and a moderate degree of dangerousness, Internet publication will almost invariably serve a public safety interest ...").
Because "the underlying facts of the case ... so clearly dictate the appropriate classification level," we do not exercise our discretion to remand for further findings on the three underlying elements. See Doe No. 496501, 482 Mass. at 657 n.4. Furthermore, because there was substantial evidence to support each element by clear and convincing evidence, we determine that there was no error in the hearing examiner's classification of Doe as a level three sex offender.
2. Regulatory risk factors. Doe next contends that the hearing examiner's application of the regulatory risk factors, as set forth in G. L. c. 6, § 178K (1) (a )-(k ), and 803 Code Mass. Regs. § 1.33, was arbitrary and capricious, an abuse of her discretion, or factual and legal error.
Doe claims, without any elaboration, that the hearing examiner erred in her application of factor ten, factor thirty, and factor thirty-three. We do not address these claims. See Zora v. State Ethics Comm'n, 415 Mass. 640, 642 n.3, (1993) ("bald assertions of error, lacking legal argument and authority," do not rise to level of appellate argument).
Specifically, Doe argues the examiner's application of factor nine, alcohol and substance abuse, was error since Doe submitted evidence that he was currently abstaining from alcohol due to a liver transplant. In addition to current substance abuse, however, factor nine also applies to past abuse. See 803 Code Mass. Regs. § 1.33(9)(a). The hearing examiner properly applied factor nine upon consideration of a 2017 health evaluation in which Doe reported a history of extensive alcohol and substance use. Doe further argues that the hearing examiner erred by making expert findings based on the health evaluation without providing Doe the opportunity to obtain his own expert. Such an opportunity, however, is only afforded where a hearing examiner relies on the "testimony or report of an expert witness prepared specifically for the purposes of the classification proceeding," G. L. c. 6, § 178L (1) (a ) ; whereas here the health evaluation relied on by the hearing examiner was performed at the request of the Bristol County Superior Court probation department.
Doe also claims that the hearing examiner violated his patient-psychotherapist privilege by considering the health evaluation. Having failed to raise this issue at the hearing or in Superior Court, however, it is waived and we need not address it. See Smith v. Sex Offender Registry Bd., 65 Mass. App. Ct. 803, 810, 814 (2006).
Doe also argues that the subsidiary findings themselves were unsupported. The hearing examiner, however, provided detailed reasoning in reaching her conclusion that Doe's "psychological pattern ... may contribute to his risk of sexual reoffense." See Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 91 (2019) (applying preponderance of evidence standard to subsidiary fact finding).
We are similarly unpersuaded by Doe's argument that the hearing examiner erred by according the mitigating factors of community stability and physical condition minimal weight, despite evidence supporting a stronger application. The hearing examiner exercised proper discretion in crediting the evidence, noting that the evidence of Doe's stability in the community was "sparse and uncorroborated," and that "there [was] no evidence to suggest how, if at all, [Doe's physical condition] would affect his risk of reoffense." Furthermore, "[t]he weight [the hearing examiner] afforded each of those factors was hers to determine, and fell within the bounds of her discretion." Doe No. 291554, 87 Mass. App. Ct. at 214.
3. Hearsay evidence. Doe further avers that the hearing examiner improperly relied on hearsay statements contained in police reports when finding that Doe did, in fact, commit the sexual assault he was charged and indicted for in 1994. We disagree.
The record includes four police reports concerning the 1993 incident. Two contain statements from the victim, and two contain statements from Doe and the victim's mother.
It is well settled that the board is not bound by the rules of evidence and may
"consider evidence of a kind ‘on which reasonable people are accustomed to rely in the conduct of serious affairs,’ 803 Code Mass. Regs. § 119(1).... [P]articular narratives [in police reports] ... may be admissible in board hearings depending on the general plausibility and consistency of the victim's or witness's story, the circumstances under which it is related, the degree of detail, the motives of the narrator, the presence or absence of corroboration and the like."
Doe, Sex Offender Registry Bd. No. 10304 v. Sex Offender Registry Bd., 70 Mass. App. Ct. 309, 312-313 (2007). As the hearing examiner noted in her decision, "[t]he victim provided significant detail [in the police reports], some of which was corroborated by her mother." Furthermore, given the nature of Doe's governing offense, the several restraining orders taken out against him by different women, and Doe's history of criminal activity, the statements were plausible. Despite Doe's contentions, the lack of convictions resulting from the incident, the victim's failure to report the sexual assault in the initial police interview, and minor inconsistencies between the different reports do not override the indicia of reliability the hearing examiner identified. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638-639 (2011) (absence of criminal conviction does not render information contained within police report inadmissible in administrative proceeding); Doe, Sex Offender Registry Bd. No. 523391 v. Sex Offender Registry Bd., 95 Mass. App. Ct. 85, 90 (2019) ("inconsistent statements by a hearsay declarant may or may not detract from the reliability of the hearsay, depending on the circumstances of those statements"). We are, therefore, satisfied that the statements contained in the police reports were reliable and discern no error in the hearing examiner's use of them in finding that Doe committed the 1993 sexual assault.
4. Ineffective assistance of counsel. Finally, Doe claims that his counsel was ineffective for (1) failing to adequately document Doe's physical condition and stable living environment; (2) failing to request funds for an expert to explore the impact of Doe's medical condition and experience as a child victim of sexual abuse on his risk of recidivism; and (3) failing to file motions to exclude or object to the police reports and health evaluation.
Doe also notes that counsel failed to follow the performance standards promulgated by the Committee for Public Counsel Services. Such a violation, however, does not automatically render counsel's performance ineffective. Commonwealth v. Drew, 447 Mass. 635, 641 (2006).
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At no point does Doe meet the burden of demonstrating that "there was a reasonable probability that his classification would have been lower" if such documentation had been provided or an expert requested. Poe v. Sex Offender Registry Bd., 456 Mass. 801, 815 (2010). Nor has he made a showing that a more favorable result was probable if the health evaluation had been excluded from evidence. Finally, as we concluded above, the hearing examiner did not err in relying on the police reports, so any effort to prevent consideration of those reports by counsel would not have borne fruit. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
Judgment affirmed.