NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12293

COMMONWEALTH vs. EDWARD CURRAN.

Worcester. September 6, 2017. - January 12, 2018.

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

Sex Offender. Practice, Civil, Sex offender. Evidence, Sex offender, Expert opinion, Competency, Insanity. Incompetent Person, Commitment. Witness, Expert.

Civil action commenced in the Superior Court Department on December 3, 2015.

A pretrial motion to admit expert testimony with regard to criminal responsibility was heard by Richard T. Tucker, J.

An application for leave to prosecute an interlocutory appeal was allowed by Judd J. Carhart, J., in the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Marcia T. Kovner for the defendant. Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.

GAZIANO, J. General Laws c. 123A, § 15, allows incompetent

persons who are unable to stand trial for qualifying sex 2

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,

(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."

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 3

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. 4

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. 5

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

1 General Laws c. 123A, § 15, provides, in its entirety:

"If a person who has been charged with a sex offense has been found incompetent to stand trial and his commitment is sought and probable cause has been determined to exist pursuant to [G. L. c. 123A, § 12], the court, without a jury, shall hear evidence and determine whether the person did commit the act or acts charged. The hearing on the issue of whether the person did commit the act or acts charged shall comply with all procedures specified in [G. L. c. 123A, § 14], except with respect to trial by jury. The rules of evidence applicable in criminal cases shall apply and all rights available to criminal defendants at criminal trials, other than the right not to be tried while incompetent, shall apply. After hearing evidence the court shall make specific findings relative to whether the person did commit the act or acts charged; the extent to which the cause of the person's incompetence to stand trial affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on his own behalf; the extent to which the evidence could be reconstructed without the assistance of the person; and the strength of the prosecution's case. If the court finds, beyond a reasonable doubt, that the person did commit the act or acts charged, the court shall enter a final order, subject to appeal by the person named in the petition and the court may proceed to consider whether the person is a sexually dangerous person according to the procedures set forth in [G. L. c. 123A, §§ 13-14]. Any determination made under this section shall not be admissible in any subsequent criminal proceeding." 6

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,

, 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."

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 7

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,

(2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection,

(2010). "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

intent." Thurdin v. SEI Boston, LLC,

(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

2 The parties additionally addressed the question whether, and for how long, the Commonwealth may civilly commit an incompetent defendant who has been found to lack criminal responsibility following a hearing pursuant to G. L. c. 123A, § 15. According to the defendant, such an individual would be subject to civil commitment "under the mental health statute[s]." See G. L. c. 123, §§ 7, 8, 16. Civil commitment under those statutes, the defendant maintains, would "address both the defendant's mental illness and also the public safety." The Commonwealth urges the court not to reach the question, because the issue is not ripe. Where the case is before us on an appeal from orders on motions in limine, and the judge has yet to make a determination whether the defendant lacks criminal responsibility, we agree that the matter is not yet ripe. We strongly urge the Legislature to address the question of the appropriate course where a defendant has been found in a proceeding under G. L. c. 123A, § 15, to lack criminal responsibility.

(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,

(2014).

In Burgess,

, 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 9

responsibility threatens the constitutionality of the statute by

removing an important protection. Id. at 375.

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

3 The concurrence is correct that a G. L. c. 123A, § 15, hearing is civil, not criminal, in nature, and that we said in Commonwealth v. Burgess,

(2008), that "constitutional rights afforded criminal defendants do not necessarily apply" at such hearings. Immediately thereafter in the next paragraph, however, we clarified that "even though the hearing is civil in nature, . . . the Legislature has provided that it proceed much the same as a criminal trial, and that it include many rights to which a criminal defendant is constitutionally entitled." The statute is clear that those rights include all rights afforded a criminal defendant except the right not to be tried while incompetent and the right to a jury trial. See G. L. c. 123A, § 15. Among these rights are the assistance of counsel, the retention of experts, cross- examination of adverse witnesses, the right to present evidence in defense, the right to appeal from the final determination, the right to have the hearing conducted according to the rules 10

The Commonwealth also focuses on our conclusion in

Commonwealth v. Nieves,

, 590 n.6 (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 offense. Here, the defendant

was charged with indecent assault and battery on a person age

fourteen or older; the elements of that offense include an

intent to engage in the touching and a lack of justification or

excuse. Commonwealth v. Marzilli,

(2010). In

order to prove that the defendant committed the act or acts

charged, it therefore would be necessary to demonstrate that the

defendant possessed the requisite intent and did not have any

of evidence applicable in criminal cases, and the right to a determination of the commission of the criminal acts beyond a reasonable doubt. See

.

We have emphasized the critical rights at stake in a sexually dangerous person proceeding, and the necessity of due process protections where a defendant's liberty interest is at stake and he faces confinement for a period of up to life. See

We also have emphasized that G. L. c. 123A, § 15, satisfies due process requirements specifically because it "protect[s] an incompetent defendant's ability to defend himself against the allegations of crime."

. As noted, those protections include, among other things, all defenses. The due process protections recognized in

would be significantly diminished if, as the concurrence maintains, evidence of a lack of criminal responsibility were admissible, if at all, within a judge's discretion, and then only to "provide the judge a better understanding of the respondent's actions and mental condition," post at , rather than, as the statute makes clear, serving as a defense. 11

justification or excuse for the touching; the defendant likewise

could present evidence negating those elements.

Furthermore, reading the statute to mean only the conduct

charged would result in absurd consequences. A person deemed

competent to stand trial could be found not guilty by reason of

insanity at trial, and the Commonwealth would be unable to

designate that individual a sexually dangerous person, but an

incompetent person charged with a sex offense, on virtually

identical facts, would not be able to present evidence of a lack

of criminal responsibility at a hearing under G. L. c. 123A,

§ 15, and could be deemed sexually dangerous. The Legislature

could not have intended such disparate results for the same

offense.

We therefore conclude that G. L. c. 123A, § 15, allows

incompetent defendants to raise any defenses that they could

raise in a criminal trial, including that of a lack of criminal

responsibility.

3. Conclusion. The orders denying the defendant's motion

to admit expert testimony and allowing the Commonwealth's motion

to preclude that testimony are reversed, and the matter is

remanded to the Superior Court for further proceedings

consistent with this opinion.

So ordered. KAFKER, J. (concurring, with whom Cypher, J., joins). I

have a very different understanding of the scope and purpose of

a G. L. c. 123A, § 15, hearing. General Laws, c. 123A, involves

civil, not criminal, proceedings intended to determine sexual

dangerousness, not whether the respondent would have been

convicted of a crime. More specifically, § 15 consists of a

preliminary determination whether a person who has been found

incompetent to stand trial "did commit the act or acts charged,"

not whether that person, if he or she had been competent to

stand trial, would have been convicted of a crime for engaging

in such actions or found not guilty by reason of insanity. See

G. L. c. 123A, § 15. If a person subject to a § 15 hearing is

found to have committed the act or acts charged, the court will

then proceed to determine whether he or she suffers from a

mental abnormality or personality disorder that makes him or her

likely to engage in sexual offenses if not confined to a secure

facility. See G. L. c. 123A, §§ 1, 13, 14. All of these

determinations are designed to identify sexual dangerousness,

not prove whether the respondent would have been either

convicted of a crime or found not criminally responsible for the

acts committed. This distinction defines and circumscribes the

evidence admissible in the sexually dangerous person (SDP)

proceedings in general, and § 15 in particular. Although I

ultimately agree that the respondent is not precluded from 2

presenting evidence of a lack of criminal responsibility, as it

provides the judge a fuller picture of the respondent's actions

and over-all mental health, and may even simplify the § 15

inquiry, the judge has wide discretion to limit such evidence,

as it is not directly relevant to the determinations at issue in

the SDP process.

We have repeatedly emphasized the fundamental difference

between criminal punishment and civil commitment of a sexually

dangerous person, stating that a "G. L. c. 123A proceeding is

neither criminal nor penal in nature, but is a civil proceeding

to which constitutional rights afforded criminal defendants do

not necessarily apply." Commonwealth v. Burgess,

(2008). We have likewise stressed that the purpose of G. L.

c. 123A is not to punish individuals, but to "protect the public

from sexually dangerous persons, and to provide them treatment,

and rehabilitation." Commonwealth v. Bruno,

(2000). These fundamental distinctions inform our reading of

§ 15.

Ordinarily, criminal justice and civil commitment

procedures are separate and distinct, and their relationship is

relatively straightforward. A defendant is convicted of a

sexual offense in a criminal trial and sentenced; six months

before the defendant's release, the district attorney and

Attorney General are notified, and if either finds the defendant 3

likely to be an SDP, either can petition the court to initiate

SDP proceedings. See G. L. c. 123A, § 12. See also Bruno,

. The Legislature astutely recognized, however,

that some persons who may be sexually dangerous may also have

been found incompetent to stand trial in their criminal case.

The Legislature therefore designed § 15 to address this specific

problem.

General Laws c. 123A, § 15, begins by stating:

"If a person who has been charged with a sexual offense has been found incompetent to stand trial and his commitment is sought and probable cause has been determined to exist [that the person is sexually dangerous], the court, without a jury, shall hear evidence and determine whether the person did commit the act or acts charged."

The text is carefully written. When referring to the criminal

process in which the defendant has been found incompetent, it

uses the word "offense." Id. But when it sets out the

objective of a § 15 hearing, the statute makes no reference to

the word "crime" or "offense," but rather refers only to the

"act or acts" charged. Id. The next sentence of the statute

then indicates that the "hearing on the issue of whether the

person did commit the act or acts charged shall comply with all

procedures specified in [G. L. c. 123A, §] 14, except with

respect to trial by jury." Id. Again the Legislature uses the

phrase "act or acts." The consistent use of the word "act," and

not "crime" or "offense," throughout § 15 is significant and 4

done for a specific purpose. See Hartford Ins. Co. v. Hertz

Corp.,

(1991) ("As a general rule, when the

Legislature has employed specific language in one part of a

statute, but not in another part which deals with the same

topic, the earlier language should not be implied where it is

not present"). The Legislature did not intend for § 15 to be

the equivalent of, or a substitute for, a criminal trial.

In our prior cases, we have also expressly recognized the

Legislature's focus on the acts themselves, not whether the

respondent would have been convicted of a crime for engaging in

the acts. As we have previously explained, in a § 15 hearing,

"the judge may make the predicate factual determinations

regarding the actions that would ordinarily constitute a crime"

(emphasis added). Commonwealth v. Nieves,

, 590

n.6 (2006). If the Legislature had intended for § 15 hearings

to determine whether the person satisfied all of the elements of

the crime, thereby transforming the SDP proceedings into the

criminal case that could not take place due to the defendant's

incompetence, it would have simply said so.

Although any comparison between the elements to be proved

in a criminal case and the SDP process should be approached with

caution, the repeated references to "act or acts" in § 15 is

most aptly aligned with the actus reus element of a crime. Cf.

Commonwealth v. Lopez,

(2001) ("A fundamental 5

tenet of criminal law is that culpability requires a showing

that the prohibited conduct [actus reus] was committed with the

concomitant mental state [mens rea] prescribed for the

offense"). The mens rea element is not the subject of the § 15

inquiry, as evidenced by the specific language utilized by the

Legislature. See Commonwealth v. Kennedy,

(2001) ("Where the statutory language is clear, courts apply the

plain and ordinary meaning of that language").1 Finally, the

subsequent inquiry to evaluate whether the person has a mental

abnormality or personality disorder that renders him or her

1 The Legislature knows precisely how to craft an incompetency hearing designed to examine the different elements of a criminal offense, rather than solely the acts underlying that offense. For example, when an incompetent defendant has been committed under G. L. c. 123, he or she may request an opportunity for a hearing under G. L. c. 123, § 17 (b), to determine whether there is "a lack of substantial evidence to support a conviction" of the offense for which the defendant has been indicted, warranting the dismissal of the indictment. Unlike the language in G. L. c. 123A, § 15, which repeatedly uses the phrase "act or acts," the language in G. L. c. 123, § 17 (b), refers to "charges," "conviction," and "indictment." It also provides the incompetent person with the opportunity to "establish a defense of not guilty to the charges pending." Id. Yet even this more traditional inquiry into the elements of a criminal offense expressly excludes "the defense of not guilty by reason of mental illness or mental defect." Id. In sum, the Legislature knows precisely how to define which elements of a criminal offense it wants examined in incompetency hearings and carefully limited the inquiry under G. L. c. 123A, § 15, to whether the individual committed the "act or acts charged," not whether the defendant can establish a legal defense to criminal conviction as it did under G. L. c. 123, § 17 (b). G. L. c. 123A, § 15. Under neither provision is not guilty by reason of mental illness or mental defect a defense. See id.; G. L. c. 123, 17 (b). 6

sexually dangerous could not be more different from the proof

required to satisfy the McHoul standard. Compare G. L. c. 123A,

§ 1 (defining SDP to include person who has been "charged with a

sexual offense and was determined to be incompetent to stand

trial and who suffers from a mental abnormality or personality

disorder which makes such person likely to engage in sexual

offenses if not confined to a secure facility"), and

Commonwealth v. McHoul,

(1967) (defendant

will not be held criminally responsible if, at time of

underlying conduct, defendant "lack[ed] substantial capacity

either to appreciate the criminality [wrongfulness] of his

conduct or to conform his conduct to the requirements of law,"

due to mental disease or defect).

None of this is to suggest that the proof and procedures

required to establish whether the person did commit the act or

acts charged are anything less than rigorous, or that the

respondent cannot present all relevant evidence to provide a

full understanding of his or her actions or mental health.

Proof of alibi, mistaken identity, or consent, which could

affect a determination whether the person actually committed the

prohibited conduct, is of course highly relevant. The

respondent may also choose, for example, not to contest that he

or she committed the act or acts charged in the § 15 hearing,

but to provide an explanation that, at the time, he or she 7

lacked substantial capacity either to appreciate the

wrongfulness of his or her conduct or to conform his or her

conduct to the requirements of the law. Although not a defense

in the SDP process, it does provide the judge a better

understanding of the respondent's actions and mental condition

and may even simplify the § 15 hearing. Such an approach also

allows the respondent, if he or she so chooses, to proceed in

the SDP process as he or she intends to proceed in the criminal

process.

Allowing the respondent to introduce such evidence is

consistent with the comprehensive process designed by the

Legislature. The statute provides that the "hearing on the

issue of whether the person did commit the act or acts charged

shall [also] comply with all procedures specified in [§] 14,

except with respect to trial by jury." G. L. c. 123A, § 15.

Those include the right to counsel and the right to retain

experts or professionals to perform an examination. See G. L.

c. 123A, § 14. "The Legislature also chose to import to a § 15

hearing the familiar 'beyond a reasonable doubt' standard."

Burgess,

. Moreover, the "rules of evidence

applicable in criminal cases shall apply and all rights

available to criminal defendants at criminal trials, other than

the right not to be tried while incompetent, shall apply."

G. L. c. 123A, § 15. None of these proof or procedural 8

requirements changes the fundamental purpose of a § 15 hearing:

to determine whether the respondent "did commit the act or acts

charged." Id. Nor does it transform a preliminary step in a

civil commitment proceeding regarding sexual dangerousness into

a criminal case requiring proof of all of the elements necessary

to establish criminal liability. Indeed, § 15 concludes by

reiterating that a § 15 hearing is not designed to determine

criminal liability, stating that "[a]ny determination made under

this section shall not be admissible in any subsequent criminal

proceeding." Id. But these protections do caution against any

unnecessary limitation on the evidence the respondent may choose

to present.

In sum, the Legislature has proposed a thoughtful solution

to the very difficult problem presented by a person who is

incompetent to stand trial, but may still be sexually dangerous.

As we have previously held, "it is beyond question that the

Legislature has a compelling interest in protecting the public

from sexually dangerous persons. That interest is not

diminished when that person happens to be incompetent to stand

trial." Burgess,

. This is no less true when

the individual might conceivably be not guilty by reason of

insanity. Indeed, an incompetent person who did commit the act

or acts charged and meets the mental abnormality or personality

disorder requirements of sexual dangerousness, but who lacks 9

substantial capacity to appreciate the wrongfulness of his or

her conduct or to conform his or her conduct to the requirements

of law, may be particularly likely to engage in future sexual

offenses if not confined to a secure facility. The Legislature

recognized this possibility and drafted the SDP statute

accordingly. Section 15 does not bar the introduction of such

evidence, but it also does not make such evidence a defense to

being found to have committed the act or acts charged.