Opinion
No. 13–P–810.
09-30-2014
John DOE, Sex Offender Registry Board No. 166613 v. SEX OFFENDER REGISTRY BOARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, John Doe, appeals from a Superior Court judgment affirming the decision of the Sex Offender Registry Board (board) requiring him to register as a level three sex offender. On appeal, Doe contends that the hearing examiner's decision was not based on substantial evidence, arguing in part that the examiner relied on hearsay evidence contained in the police reports to establish the details of Doe's offense, which in turn formed the basis of most of the aggravating factors found by the examiner. Doe also contends that the decision was arbitrary and capricious because it failed to consider other factors in mitigation. Last, he claims error in the hearing examiner's denial of his motion for funds for an expert concerning the effect of his age on his risk of reoffense, relying in large extent on Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 621–623 (2010) (hereinafter, Doe No. 151564 I ). We affirm.
It does not appear that this issue was preserved in the appeal to the Superior Court. Doe's reply brief does not challenge this assertion. Accordingly, the issue is deemed waived. See Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 814 (2006).
In any event, it is well-settled that hearsay, including police reports, may be relied upon so long as it has an indicia of reliability. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 638 (2011) (“In the context of administrative proceedings, hearsay evidence bearing indicia of reliability constitutes admissible and substantial evidence”). Here, the fact of Doe's guilty plea to the offense at issue “is a powerful independent indicator of the reliability of the statements” contained in the police reports.
Commonwealth v. Given, 441 Mass. 741, 747–748 (2004) (concerning use of hearsay in police reports in sexually dangerous person proceedings).
Background. Doe pleaded guilty to the rape of a woman for whom he was doing some construction work in her home. The victim had muscular dystrophy and was considered to be an extravulnerable, extrafamilial victim. The rape involved multiple sex acts and threats of violence, including a threat that Doe would kill her if she told anyone. The victim reported the rape several months later, when she called police after fearing someone had broken into her home. Doe was convicted of threat and assault offenses arising from the incident, but a jury did not reach a verdict on the rape offense. Doe later pleaded guilty to the rape offense and was sentenced to two years' probation. In addition to the risk-aggravating factors inherent in the offense (committing multiple and violent sexual acts upon an extrafamilial and extravulnerable victim), Doe also has an extensive criminal history and a history of probation violations, including while on probation for the index offense. The hearing examiner noted that Doe had adjusted well to incarceration, but there was no evidence as to any other mitigating factors.
Doe also failed to appear for the hearing before the hearing examiner, and his whereabouts were purportedly unknown at the time of the hearing. It is unclear on this record whether his whereabouts are currently known. This may be considered a factor that increases risk.
The board notes, in its brief at 10, that Factor 19, recent behavior while incarcerated, is ordinarily a risk-elevating factor for bad behavior, not a risk-reducing factor for good behavior. The hearing examiner apparently considered it as “other useful information.”
Discussion. We first address the defendant's contention that his motion for funds to retain an expert was denied in error. His motion averred that “[i]n order to confront these particular diagnoses and conditions and their relationship to the sexual recidivism for an individual of the petitioner[']s age and alleged crime the petitioner needs his own expert.” In support of his motion, he submitted only one age-related study: Hanson, Age and Sexual Recidivism: A Comparison of Rapists and Child Molesters (Dept. of the Solicitor General Canada) (2001). However, his motion never identified what “particular diagnoses and conditions” he was attempting to confront.
“[I]n moving for expert witness funds, the burden [is] on the sex offender to identify and articulate the reason or reasons, connected to a condition or circumstance special to [her], that [she] needs to retain a particular type of expert. A general motion for funds to retain an expert to provide an opinion on the sex offender's risk of reoffense, without more, would appear to be insufficient.” Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 609–610 (2013), quoting from Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 775 (2008).
We recognize that Doe's contention here that the hearing examiner erroneously denied his motion for funds to retain an expert on the issue of his age may have some initial appeal in light of our recent case, Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass.App.Ct. 1 (2014) (hereinafter, Doe No. 151564 II ), an appeal that followed further proceedings required by Doe No. 151564 I (remanding the matter to the board to consider scientific and statistical studies submitted by the plaintiff, but ignored by the board, concerning the effect of age on recidivism, and to determine whether the plaintiff, age sixty-one at the time of his original hearing, was entitled to expert witness funds on the subject). On remand from Doe No. 151564 I, the hearing officer denied the request for funds and proceeded to interpret the studies on her own, without the aid of expert guidance. We held this to be error and concluded that the plaintiff “was entitled to funds for an expert to inform both his own presentation and the hearing examiner's classification review.” Doe No. 151564 II, supra at 2.
The decision of the hearing examiner here was dated December, 2011, and the decision of the Superior Court judge entered in August, 2012, both well before our decision in Doe No. 151564 II, supra, issued in February, 2014.
Here, the hearing examiner reviewed a study submitted by Doe and a study submitted by the board and ruled that she did “not find aging to be a condition beyond ‘common knowledge’ or understanding to necessitate expert testimony. I have reviewed the submitted articles and have in fact considered them both in this case.” From this statement, it may appear that the hearing examiner attempted to analyze and apply the studies to Doe's situation without the benefit of expert guidance, which may be inconsistent with our recent decision in Doe No. 151564 II, especially in light of the examiner's acknowledgement, at least preliminarily, that Doe's age would affect the likelihood that he would reoffend. However, we view her ruling as having properly deemed the plaintiff's request as a “general motion for funds,” and conclude she properly denied the motion based on Doe's failure to “identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Doe No. 89230, 452 Mass. at 775.
The hearing examiner stated, “[I]t does appear that the research supports that his risk shows a decline (relative to his risk at the time of his governing offense at age 37) as a function of his age. In the Board's ... article, there is a wide disparity of findings that is derived from a relatively small number of replication of results—essentially the sample pool is too small to really know and understand the [e]ffects on age with regard to sexual recidivism. After reviewing [Doe's] Motion coupled with the information contained within the record, I find that [Doe] has failed to meet his burden as he has not articulated any reasons particular to him. Therefore, [Doe's] Motion For Expert Funds is DENIED.”
Simply put, Doe has not adequately explained why the fact that he was age forty-eight at the time of his hearing, in and of itself, requires an expert. The single study he offered shows neither significant nor substantial authority to support his burden of particularization; in other words, Doe failed to demonstrate how an expert was necessary to show a condition or circumstance special to him beyond a generalization that recidivism rates for rapists decline with age. Moreover, the study itself stated in several places that more research was required.
Nor does the study submitted by Doe support his claim that his age reduces his risk to reoffend. At best, this Hanson study makes a very generalized conclusion that “recidivism risk for sexual offenders decreased with age, but the overall effect was not large and the pattern of decline was different for rapists, extrafamilial child molesters and incest offenders” and, generally speaking, the “recidivism rate for rapists steadily decreased with age,” but not significantly before age fifty. Compare Doe No. 151564 I, 456 Mass. at 622–623 (although plaintiff was denied expert funds, he was able to put in evidence studies correlating recidivism rates with age). Consequently, we discern no error in the hearing examiner's decision to deny funds for an expert.
Last, Doe contends that it was arbitrary and capricious for the hearing examiner to acknowledge, but fail to consider, any mitigating factors. This claim is without merit. The hearing examiner acknowledged the one mitigating factor that she previously identified: Doe's adjustment to incarceration, which, as noted by the board, is not actually a mitigating factor, see note 3, supra. She also acknowledged that, while a probationary period was usually a protective or mitigating factor against a risk of reoffense, Doe could not obtain the benefit of that factor due to his violations while on probation, including probation for the index offense.
Even were other mitigating factors present, the hearing examiner has discretion to consider which risk factors to consider and how much weight each should be given. See Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 633 (2011), citing Smith v. Sex Offender Registry Bd., 65 Mass.App.Ct. 803, 812–813 (2006) (“hearing examiner has discretion to consider which regulatory factors are applicable and how much weight to give each factor based on evidence at hearing”). The hearing examiner properly concluded that the risk factors outweighed any factors suggested by Doe in mitigation, and that Doe remained a high risk to reoffend, thus warranting a level three classification.
Judgment affirmed.