author: KAFKER, J.

text:
    COMMONWEALTH v. Patrick WAWERU.
    SJC-11784
    Supreme Judicial Court of Massachusetts, Essex..
    Argued April 6, 2018 Decided July 31, 2018
    Richard L. Goldman, Granby, for the defendant.
    Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.
   KAFKER, J.

A jury convicted the defendant, Patrick Waweru, of murder in the first degree on the theories of premeditation and extreme atrocity or cruelty, among other offenses. The defendant's primary defense at trial was that he lacked criminal responsibility for the murder because he suffers from mental illness. On appeal, the defendant argues error as to (1) the motion judge's denial of his motion to suppress statements made to a psychiatrist who interviewed him in the presence of police officers guarding him at the hospital; (2) the jury instructions regarding the presumption of sanity, the consequences of finding the defendant not guilty by reason of insanity, the failure to take prescribed medications, and reasonable doubt; and (3) the denial of his request for a jury-waived trial. For the reasons stated below, we affirm. After a thorough review of the record, we also decline to exercise our authority under G. L. c. 278, § 33E.

1. Background. We summarize the facts that the jury could have found at trial, reserving certain details for our discussion of the legal issues.

The defendant was in an on-again, off-again relationship with the victim. The couple had two children together. The victim's sister occasionally lived with the victim and the defendant, but the sister did not get along with the defendant. The victim's mother also lived with the victim and the defendant for a time.

The defendant has a history of mental illness. In 2002, he was diagnosed with bipolar disorder II and a personality disorder with impulsive features. He received outpatient medical health care. In 2005, he was hospitalized for taking an overdose of his prescribed psychiatric medications. He reported feeling that he was being "mistreated by his girlfriend and the legal system." During his hospitalization, the defendant was diagnosed with a major depressive disorder, but the hospital clinicians did not find sufficient evidence to substantiate a bipolar disorder II diagnosis. In early 2007, he was hospitalized and again diagnosed with bipolar disorder. He was prescribed mood stabilizing medication, Depakote ; an antipsychotic medication, Risperdal ; and an antidepressant. During this hospitalization, he threatened to kill the victim.

At the time of his arrest, the defendant was working two jobs, one as a residential counsellor for a mental health facility, and the other at a nursing home. The victim's sister testified that when the defendant and the victim were fighting, the defendant would periodically say that "even if he killed [the victim's sister] or [the victim], nothing would happen to him because ... he was bipolar."

In early 2007, the defendant moved out of the apartment he shared with the victim. Around this time, he told the victim's mother, "When you get to Kenya, be prepared to receive two coffins, because I'm going to kill these daughters of yours. And I'm starting with [the victim's sister]. [She] will not raise my children. Instead, they'll be raised by the [S]tate." Later the same year, the victim, her children, and her mother moved to Delaware, primarily to get away from the defendant. The victim's sister remained in Massachusetts.

On the weekend of October 14, 2007, the victim, her daughters, and her mother returned to Massachusetts, ostensibly for a Housing Court appearance related to the apartment the defendant and the victim had previously shared. During their visit, they stayed in the victim's sister's one-bedroom apartment in Lynn.

The victim left her sister's apartment in the early morning on October 15. She and the defendant spent the day running errands. Later that day, the victim and the defendant drove back to her sister's apartment. The victim called her sister from outside, at approximately 9:27 P.M. Her sister told her to come inside. When the victim entered the apartment a few minutes later, she locked the door behind her. The victim's sister observed that the victim appeared "somewhat calm, but nervous at the same time." The victim sat with the rest of her family in the living room and spoke with them, while the defendant continued to wait outside.

Approximately one-half hour after the victim arrived, the defendant appeared at the front door to the apartment and shouted through the door that he wanted his cellular telephone (cell phone) back. When the victim's mother heard the defendant's voice, she quickly placed a chair against the door and sat on it. The victim's sister told the defendant that he would get his cell phone back. She called each of her neighbors in the building to help facilitate a transfer of the cell phone, but no one answered. The defendant asked for his cell phone a second time, and the victim's sister again responded that he would get his cell phone back. The victim's mother told the victim and her sister that they should call the police. At some point, the victim's mother moved the chair away from the door. Not long after, the defendant broke through the door with a two- by-four piece of lumber taken from outside the apartment. The victim's mother testified that the defendant said something to her, but she could not understand him. The defendant immediately hit the victim's sister over the head with the piece of lumber. He then grabbed the sister by the collar, but she managed to pull away. She staggered out of the apartment and went upstairs, screaming for help. The victim's four year old daughter followed her.

The defendant hit the victim over the head with the same piece of lumber he had used to hit her sister. The victim fell to the ground and was seemingly knocked unconscious. The defendant took out a knife that he had hidden in his sock. The victim's mother attempted to grab the knife, but cut herself when the defendant pulled away. The defendant bent down and stabbed the victim twenty-four times in the back, the chest, the head, the neck, and the left arm. During the attack, their one year old daughter was crawling between the defendant, the victim, and the victim's mother. After stabbing the victim, the defendant fled the scene and disposed of the murder weapon in a cemetery.

The victim's sister was able to reach one of her neighbors, who telephoned the police. The victim was still alive when the police arrived, but died shortly thereafter. The defendant was subsequently arrested at his apartment. The arresting officers observed that the defendant appeared to be "under the influence of something." The defendant told the officers that he had "[taken] some pills." He was admitted to Union Hospital for treatment of a suicide attempt. The defendant was placed in the intensive care unit under police guard. A psychiatrist at the hospital, Dr. Maureen McGovern, performed a suicide risk evaluation on the defendant. He could not remember the night of the murder, but told the doctor that the victim "was the cause of all his problems" and that "he had thoughts about hurting her."

At trial, the defendant did not contest that he killed the victim, but argued that he lacked criminal responsibility at the time of the murder. Defense counsel called an expert witness, a forensic psychologist, who had performed a psychological evaluation of the defendant. The expert diagnosed the defendant with bipolar disorder II, with "mixed characteristics of depression and hypomania." The hypomania was exhibited by "restlessness" and "agitation," and the depression was exhibited by "subjective reports of depression ... [and] difficulty sleeping."

The defense's expert witness testified that the defendant had been depressed, in part because he felt that the victim was keeping him from seeing their children. The defendant indicated to the expert that he was having trouble sleeping in the days leading up to the murder. He had also stopped taking his mood stabilizing medication because "he had been feeling good."

The expert testified that the defendant indicated his "spirits went up" on the day of the murder because the victim had indicated a willingness to stay with him for a period of time to "help to extricate him from the depression that he was experiencing." This tentative plan would involve the victim going back to Delaware, gathering a few items for herself and the children, and returning to stay with the defendant.

The defense expert testified that, on the night of the murder, after waiting for the victim outside her sister's apartment for approximately ten to twenty minutes, the defendant began thinking she was not coming back. The defendant believed the victim's sister and mother would not allow him to go to Delaware with the victim. He indicated to the psychologist that "his intent was to go down [to the sister's apartment] and get [the victim] so they could be on their way to Delaware."

The defendant explained to the psychologist that he was carrying a knife in his sock in order to kill himself. He could not recall what happened after he reached the front door of the sister's apartment. Given the defendant's inability to recall the murder itself, the defense expert was unable to reach a definitive conclusion as to whether the defendant lacked criminal responsibility at the time of the murder. However, the expert testified that "[the defendant's] behaviors are consistent with an inability to conform his behavior to the requirements of the law."

The Commonwealth called its own expert witness on rebuttal, a forensic psychiatrist, who testified that he was not convinced that the defendant was bipolar, and did not believe that the defendant had a mental disease or defect at the time of the murder. The Commonwealth's expert further stated, "There's nothing that, in my opinion, ... resulted in the lack of substantial capacity to conform [the defendant's] conduct to requirements of the law." He also indicated that individuals with bipolar disorder usually "don't have a pattern of violence directed at others."

A jury convicted the defendant of murder in the first degree, home invasion, armed assault with intent to murder, assault and battery of the victim's sister by means of a dangerous weapon, and wanton and reckless endangerment of a child. He was acquitted of assault and battery of the victim's mother by means of a dangerous weapon.

2. Discussion. a. Admission of statement to psychiatrist. Prior to trial, the defendant sought to suppress statements he made to a psychiatrist after the murder. His motion to suppress was denied. On appeal, the defendant argues that the motion judge erred in denying his motion because the statements were (1) involuntary; (2) protected by the psychotherapist-patient privilege; and (3) obtained in violation of his due process rights. We address each argument in turn.

We summarize the motion judge's factual findings, supplemented by testimony from the hearing that was credited by the motion judge. See Commonwealth v. Walker, 466 Mass. 268, 270, 994 N.E.2d 764 (2013). See also Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). On the night of the victim's murder, police went to the defendant's residence. Officers knocked on the defendant's apartment door and heard a large crash. The officers knocked on the door again and asked, "Are you all right?" The defendant answered "I can't walk." Officers heard what sounded like someone falling, and entered the residence to find the defendant holding the door. The defendant confirmed his identity to the officers. He was on the floor with his legs tucked under him. The motion judge found that the defendant "appeared intoxicated and had blood on his jean pants." The officers placed the defendant in custody. They asked the defendant if he had taken drugs, and he responded affirmatively. There were drugs and packets of Clonazepam in the area around the defendant.

The defendant was taken to Union Hospital. He appeared to be conscious but under the influence. He was placed in a single room in the intensive care unit and shackled to a hospital bed. The defendant's toxicity screens came back negative, but he had to be intubated because he was "lethargic to the point that he could not protect his own airways."

Two officers arrived at the hospital to secure the defendant and keep him under observation. When they arrived, the defendant was lying down while somewhat propped up in the hospital bed. The officers noticed that the defendant's eyes were closed at times. They sat in chairs located inside the room, "past where the defendant was occupying the bed." Various hospital personnel visited the defendant, and the defendant was able to respond appropriately to their questions. At no point did the officers give the defendant Miranda warnings.

The physician who admitted the defendant asked an attending psychiatrist at the hospital, McGovern, to do a psychological consultation on the defendant. McGovern spoke with the defendant more than twelve hours after his arrest and in the presence of the police officers. During this conversation, McGovern was located on one side of the bed and the officers were seated on the other. The officers did not, however, engage McGovern or the defendant in conversation.

McGovern asked the defendant medical questions, but did not give him Lamb warnings. See Commonwealth v. Lamb, 365 Mass. 265, 270, 311 N.E.2d 47 (1974). His responses appeared to be appropriate to the questions asked. The defendant did not slur his speech, appear injured, or complain of pain. His vital signs were normal. McGovern further observed that the defendant was quiet, subdued, calm, and cooperative. She noted that the defendant had been medicated with a blood thinner and a medication to reduce stomach acidity. Neither of these medications affected his mental state. Although he appeared slightly drowsy, he was able to maintain attention throughout the thirty-minute interview with the psychiatrist. McGovern believed that the defendant was "cognitively intact" and had a "thought process [that] appeared goal oriented." However, she was concerned about his emotional stability and worried that he might attempt suicide again. She diagnosed him with depression, with elements of mania.

During her evaluation, McGovern asked the defendant if he wished to harm himself or others. He indicated that he wanted to harm himself, and stated, "Since Friday, I was thinking I wanted to kill my girlfriend because she's the cause of my problems."

i. Voluntariness. First, the defendant argues that his statements to McGovern were not given voluntarily, because they were given as a result of the defendant's debilitated condition. We disagree. The motion judge correctly found that the statements were voluntary.

"An admission by a defendant to a civilian is only admissible if voluntarily made." Commonwealth v. Anderson, 445 Mass. 195, 204, 834 N.E.2d 1159 (2005). See Commonwealth v. Kolenovic, 478 Mass. 189, 198, 84 N.E.3d 781 (2017). An admission is voluntary if it was "the product of a 'rational intellect' and a 'free will,' and not induced by physical or psychological coercion."

Commonwealth v. Harris, 468 Mass. 429, 434-435, 11 N.E.3d 95 (2014), quoting Commonwealth v. LeBlanc, 433 Mass. 549, 554, 744 N.E.2d 33 (2001). Courts evaluate voluntariness based on the totality of the circumstances. See Harris, supra at 435, 11 N.E.3d 95. See also Commonwealth v. Mello, 420 Mass. 375, 384, 649 N.E.2d 1106 (1995). "Statements that are attributable in large measure to a defendant's debilitated condition, such as insanity ... drug abuse or withdrawal symptoms, ... [or] intoxication ... are not the product of a rational intellect or free will and are involuntary."

Commonwealth v. Allen, 395 Mass. 448, 455, 480 N.E.2d 630 (1985). See Commonwealth v. Bell, 473 Mass. 131, 141, 39 N.E.3d 1190 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 2467, 195 L.Ed.2d 806 (2016).

Here, the motion judge found that the statements were made voluntarily because the defendant was "emotionally stable, cognitively intact, calm and cooperative, and not influenced by drugs or alcohol" during his conversation with McGovern. There was ample evidence to support the motion judge's conclusion. The defendant's toxicity screen was negative, the conversation took place over twelve hours after the defendant was arrested, and his speech was not slurred. Based on her conversation with the defendant, McGovern observed that he understood where he was and was able to understand the questions being asked of him and respond appropriately. See Commonwealth v. Brown, 449 Mass. 747, 767, 872 N.E.2d 711 (2007) (trial judge's finding that statement was voluntary was supported by testimony that defendant did not have trouble understanding questions his friends posed to him, and friends did not have trouble understanding his answers); LeBlanc, 433 Mass. at 555, 744 N.E.2d 33 ("Although the defendant was emotionally upset, he spoke calmly when giving his statement, and there is no evidence that he was acting irrationally"). While McGovern noted that the defendant's "insight and judgment [were] poor," this was based on his suicide attempt, not his responses to her questions.

Further, the defendant did not present any evidence indicating that his statements to McGovern were the result of threats, promises, or trickery. See Commonwealth v. Allen, 395 Mass. 448, 456, 480 N.E.2d 630 (1985). Nor were the police required to provide the defendant with Miranda warnings, as his statements were not made in response to a police interrogation and McGovern was not acting as an agent of the police. See id. 453-454, 480 N.E.2d 630. See also Commonwealth v. Trigones, 397 Mass. 633, 643, 492 N.E.2d 1146 (1986). Accordingly, we discern no error in the motion judge's determination that the defendant's statements were made voluntarily.

ii. Psychotherapist-patient privilege. The defendant argues that his statements to McGovern were protected by the patient-psychotherapist privilege set forth in G. L. c. 233, § 20B. The statute provides: "[I]n any court proceeding ... , a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition." The motion judge determined that because the defendant's statements were made in the presence of two police officers, the privilege did not attach or, to the extent it did, the defendant had waived it. We review for prejudicial error. See Commonwealth v. Dung Van Tran, 463 Mass. 8, 16, 972 N.E.2d 1 (2012). We conclude that the privilege did attach and was not waived by the presence of the police officers, but also that there was overwhelming evidence of the defendant's premeditation and any error in the admission of McGovern's testimony would not have been prejudicial.

A. Waiver. Under G. L. c. 233, § 20B, the psychotherapist-patient privilege attaches to any communications between a "patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition." In communicating with McGovern for the purpose of a suicide risk evaluation, the defendant met the statutory definition of "patient" under § 20B, and McGovern, as a licensed, practicing psychiatrist, met the statutory definition of "psychotherapist." The suicide risk evaluation was also specifically targeted at diagnosing and treating the defendant's "mental or emotional condition." Id. Thus, the defendant's communications with McGovern during the suicide risk evaluation met the statutory requirements for the psychotherapist-patient privilege to attach.

The Commonwealth contends that that the privilege was nonetheless waived because the communications between the defendant and McGovern were made in the presence of the police officers guarding the defendant in the hospital. The statute contemplates that a patient may choose to waive the privilege. See G. L. c. 233, § 20B ("If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his behalf under this section" [emphasis added] ). However, no explicit waiver occurred here. Thus, we must determine whether the presence of police officers constituted a waiver, absent the patient's affirmative consent to waive the privilege.

In interpreting the psychotherapist-patient privilege and the issue of waiver, we must look first to the text of the statute itself. See Commonwealth v. Vega, 449 Mass. 227, 230, 866 N.E.2d 892 (2007). See also Usen v. Usen, 359 Mass. 453, 457, 269 N.E.2d 442 (1971) ("We are not free to water down the legislative policy embodied in [ G. L. c. 233, § 20B,] by loose construction or by giving our approval to informal procedures different from those prescribed"). The plain language of G. L. c. 233, § 20B, does not waive or restrict the availability of the privilege based on the presence of others or the particular location. To the contrary, the statute explicitly states that, "a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition" (emphasis added). Id. The language here is expansive, not restrictive, broadly protecting "the private interest that patients have in speaking freely during psychotherapy, and the public interest in encouraging troubled people to seek therapy." Conklin v. Feitelberg, 146 F.Supp.3d 430, 437 (D. Mass. 2015), quoting Vanderbilt v. Chilmark, 174 F.R.D. 225, 227 (D. Mass. 1997).

Unlike many other States that require the communication to be confidential or not intended for further disclosure, the Commonwealth has no such requirement in the text of G. L. c. 233, § 20B. Contrast Ala. Code § 34-26-2 (privilege applies to "confidential relations and communications"); Fla. Stat. § 90.503 (privilege applies to "confidential communications," defined as those not intended to be disclosed to third parties, other than those expressly permitted in statute); Or. Rev. Stat. § 40.230 (same) ; S.D. Codified Laws § 19-19-503 (same). Indeed, in Massachusetts the privilege applies to psychotherapist-patient communications, "regardless of the patient's awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing." G. L. c. 233, § 20B. See Robinson v. Commonwealth, 399 Mass. 131, 135, 503 N.E.2d 31 (1987).

The expansive scope of the privilege is limited by six specific exceptions defining when the privilege is waived and disclosure is permitted. See G. L. c. 233, § 20B. None of these exceptions turns on the presence of a third party. We need not decide, however, whether the presence of a third party may still waive the privilege, as we conclude that the nature of the police presence here could not have done so.

Here, the police presence served essential public safety purposes. The defendant needed psychiatric services but also presented a grave danger to the public and hospital personnel. The police were deployed to guard the defendant and protect the public, including the hospital's medical personnel, and allow him to be treated despite those concerns. Given their public safety responsibilities, the police should not be required to leave the defendant's hospital room to allow the defendant to speak with a psychotherapist alone. Nor should the psychotherapist be required to get so close to the defendant that only she and the defendant can hear one another. Psychotherapists should not be tasked with putting their own safety at risk in order to treat a dangerous patient.

In the absence of legislative direction to the contrary, we therefore conclude that police presence during a psychiatric consultation, which allows the defendant to receive necessary medical attention while protecting the public and medical personnel, does not waive the psychotherapist-patient privilege. Rather, allowing such consultations to go forward under police supervision, while leaving the privilege in place unless other exceptions providing for disclosure apply, properly balances both medical and public safety considerations. See State v. Deases, 518 N.W.2d 784, 788 (Iowa 1994) (doctor-patient privilege not waived by presence of third party if third party is present to assist doctor or presence is necessary to enable defendant to obtain treatment); People v. Sanders, 169 Misc. 2d 813, 819-820, 646 N.Y.S.2d 955 (N.Y. Sup. Ct. 1996) (doctor-patient privilege not waived where police officer "was required to remain with the defendant at all times" and the defendant "did not have the option or ability to request a private session with the psychiatrist"). Cf. Secrest v. State, 679 A.2d 58, 62 (Del. 1996) (third-party waiver "makes sense in situations where the patient is reasonably lucid and able to control access to the setting"). Accordingly, we hold that a patient who has been placed under police guard does not automatically waive the psychotherapist-patient privilege by speaking to a psychotherapist in the presence of said police guard. ,

B. Prejudice. Although the presence of the police officers did not waive the psychotherapist-patient privilege, we conclude that any error in the admission of McGovern's testimony would not have prejudiced the defendant because the evidence of the defendant's premeditation and criminal responsibility was overwhelming. Perhaps most significantly, the defendant had repeatedly stated that "even if he killed [the victim's sister] or [the victim], nothing would happen to him because ... he was bipolar." He also made his intentions clear to the victim's mother months before the murder, stating, "When you get to Kenya, be prepared to receive two coffins, because I'm going to kill these daughters of yours. And I'm starting with [the victim's sister]. [She] will not raise my children. Instead, they'll be raised by the [S]tate."

On the night of the murder, he acted in conformance with this plan: first attacking the victim's sister, and then attacking the victim. Further, the defendant appeared to act normally up until the night of the killing, even running errands with the victim. See Commonwealth v. Griffin, 475 Mass. 848, 856-857, 62 N.E.3d 490 (2016). There was also compelling evidence that the attack was planned. He brought the murder weapon with him, hidden in his sock, to the victim's sister's apartment. When he stabbed the victim in a very small, narrow space, he did so carefully enough to avoid injuring their one year old daughter, who was crawling between the defendant and the victim. Moreover, the defendant's own expert testified that the defendant "certainly understood the wrongfulness of the [murder] immediately after the events," because he fled the crime scene and disposed of the murder weapon. Given the substantial evidence of premeditation and criminal responsibility, the admission of the defendant's statement to McGovern about wanting to kill his girl friend did not prejudice the defendant.

iii. Due process. For the first time on appeal, the defendant argues that the admission of his statement to McGovern also violated his Federal and State due process rights because she did not provide him Lamb warnings indicating that the statement would not be confidential. He cites two cases involving the Federal and State constitutional privileges against self-incrimination for this proposition. "For the privileges [against self-incrimination] to attach, the State must compel the defendant to produce testimonial evidence." Commonwealth v. Seabrooks, 433 Mass. 439, 451, 743 N.E.2d 831 (2001). As previously discussed, the defendant's statement was voluntary and was not compelled. Further, Lamb warnings were not required, as the psychotherapist's questioning was not court-ordered or for the purposes of producing evidence against him. See Lamb, 365 Mass. at 270, 311 N.E.2d 47.

b. Jury instructions. The defendant argues that the trial judge, who was not the motion judge, erred in instructing the jury for four separate reasons. For the reasons discussed below, none of these arguments is persuasive.

i. Inference of sanity. On the issue of criminal responsibility, the trial judge in this case instructed the jury as follows: "[The Commonwealth has] to prove that the defendant was sane; that is, was criminally responsible. If you feel it appropriate you may take into account that the great majority of people are sane, and that there is a resulting likelihood that any particular person is sane." This instruction was given pursuant to our then-current case law, see Commonwealth v. Keita, 429 Mass. 843, 846, 712 N.E.2d 65 (1999) ("A jury instruction concerning the presumption of sanity should be given in every case in which the question of the defendant's criminal responsibility is raised"), as well as the Model Jury Instructions on Homicide in effect at the time. See Model Jury Instructions on Homicide 51 (1999). In Commonwealth v. Lawson, 475 Mass. 806, 814-815 & n.8, 62 N.E.3d 22 (2016), we held that, "given the meager weight of [the inference that a defendant is probably sane because most people are sane] and the risk of juror confusion regarding the burden of proof, judges should not instruct juries regarding this inference."

"Here, the defendant is entitled to the benefit of Lawson, as that case was released while the defendant's appeal was pending on direct review." Commonwealth v. Muller, 477 Mass. 415, 431, 78 N.E.3d 51 (2017). As defense counsel objected to the sanity presumption at trial, even though Lawson had not yet been issued, we review for prejudicial error. See Commonwealth v. Cole, 473 Mass. 317, 325, 41 N.E.3d 1073 (2015).

In this case, the trial judge "strongly and specifically instructed that the burden is on the Commonwealth to prove criminal responsibility beyond a reasonable doubt." Muller, 477 Mass. at 431, 78 N.E.3d 51, quoting Commonwealth v. Griffin, 475 Mass. 848, 863, 62 N.E.3d 490 (2016).

Further, as discussed above, there was overwhelming evidence of criminal responsibility. See Muller, supra, quoting Griffin, supra. Thus, the defendant was not prejudiced by any such error due to the overwhelming evidence of criminal responsibility and the trial judge's detailed instructions on the burden of proof for criminal responsibility. See Griffin, supra.

ii. Consequences of not guilty verdict. The trial judge instructed the jury on the consequences of finding the defendant not guilty by reason of insanity, as permitted by Commonwealth v. Mutina, 366 Mass. 810, 823 & n.12, 323 N.E.2d 294 (1975) ( Mutina instruction) and our Model Jury Instructions on Homicide in effect at the time of trial. In Commonwealth v. Chappell, 473 Mass. 191, 205-206, 40 N.E.3d 1031 (2015), we held that, going forward, Mutina instructions should "omit[ ] references to specific time frames for observation and mention[ ] the potential for successive commitment orders that could span the duration of the defendant's life." The defendant argues for the first time on appeal that the jury instructions created a substantial likelihood of a miscarriage of justice for failing to include the supplemental jury instructions from Chappell.

We have previously stated that it is not error for a judge to have given the Mutina instruction when it was the governing model jury instruction at the time of trial. See Commonwealth v. Dunn, 478 Mass. 125, 139, 84 N.E.3d 1 (2017). This is because we held in Chappell, 473 Mass. at 205, 40 N.E.3d 1031, that the trial judge in that case did not err in providing the Mutina instruction. Rather, in Chappell, the Mutina instruction was changed prospectively to "better explain to the jury 'what protection they and their fellow citizens will have if they ... arrive at a verdict of not guilty by reason of [lack of criminal responsibility].' " Dunn, supra, quoting Chappell, supra at 206, 40 N.E.3d 1031. Thus, because the trial here took place before our decision in Chappell, the instruction was proper and did not create a substantial likelihood of a miscarriage of justice. See Commonwealth v. Piantedosi, 478 Mass. 536, 550, 87 N.E.3d 549 (2017).

iii. Reasonable doubt instruction. The defendant claims that the trial judge's instruction on reasonable doubt created a substantial likelihood of a miscarriage of justice because it "was identical to the instruction that this court criticized and modified prospectively" in Commonwealth v. Russell, 470 Mass. 464, 477-478, 23 N.E.3d 867 (2015). Here, the trial judge instructed:

"Proof beyond a reasonable doubt does not mean proof beyond all possible doubt, for everything in the lives of the human beings is open to some possible or imaginary doubt. On the other hand, it is not enough for the Commonwealth to establish a probability, even a strong probability, that the defendant is more likely to be guilty than not guilty.... [P]roof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty."

Contrary to the defendant's assertion, the problematic language in Russell was not used in the trial judge's instruction here. See id. at 477, 23 N.E.3d 867 ("moral certainty" language required further clarification).

Further, the trial judge's instruction contains language we did not deem improper in Russell. See id. at 471-474, 23 N.E.3d 867 (rejecting argument that "firmly convinced" language lowered Commonwealth's burden of proof, or that "real possibility" language shifted burden of proof). Thus, the defendant's argument is without merit.

iv. Additional instruction on criminal responsibility. For the first time on appeal, the defendant argues that the jury should have been instructed that his "failure to take his prescribed medication did not preclude a finding that he was not criminally responsible." The defendant asserts that because the jury were not provided with this instruction, there was a substantial likelihood of a miscarriage of justice. The defendant's argument assumes that, without such an instruction, the jury may have found him criminally responsible on the basis of his failure to take his prescribed medication. In support of his argument, he cites two prior cases involving instructions on voluntary alcohol or drug usage, Commonwealth v. Berry, 457 Mass. 602, 931 N.E.2d 972 (2010), and Commonwealth v. DiPadova, 460 Mass. 424, 951 N.E.2d 891 (2011).

In Berry, 457 Mass. at 618, 931 N.E.2d 972, we set out new jury instructions for cases involving the interplay of drug or alcohol usage and lack of criminal responsibility:

"Where a defendant has an active mental disease or defect that caused her to lose the substantial capacity to appreciate the wrongfulness of her conduct or the substantial capacity to conform her conduct to the requirements of the law, the defendant's consumption of alcohol or another drug cannot preclude the defense of lack of criminal responsibility."

We also stated that "[w]here the Commonwealth offers evidence that the defendant knew or had reason to know of the effects of drugs or alcohol on her latent mental disease or defect, or on the intensification of her active mental disease or defect," an additional instruction must be provided. Id. at 617 n.9, 931 N.E.2d 972.

In DiPadova, we further stated:

"As in Berry, in this case, given the absence of a proper instruction, the jury could have misinterpreted the model instruction and concluded, erroneously, that even if the defendant's mental illness by itself caused him to lack substantial capacity, 'because [he] had consumed [drugs] that contributed to [his] incapacity, that would render the lack of criminal responsibility defense moot.' "

DiPadova, 460 Mass. at 435-436, 951 N.E.2d 891, quoting Berry, 457 Mass. at 618, 931 N.E.2d 972. Unlike in Berry, there was also evidence in DiPadova, supra, that the defendant "knew at the time of the murder that drugs intensified the symptoms of his mental illness." DiPadova, supra at 436-437, 951 N.E.2d 891. We therefore clarified that the jury should have been instructed

"(1) if the defendant's mental illness did not reach the level of a lack of criminal responsibility until he consumed drugs, he was criminally responsible if he knew (or should have known) that the consumption would have the effect of intensifying or exacerbating his mental condition; and, in contrast, (2) if the defendant's mental illness did reach the level of lack of criminal responsibility even in the absence of his consumption of drugs, it was irrelevant whether he took drugs knowing that they would exacerbate that condition."

Id. at 437, 951 N.E.2d 891.

The concerns at issue in Berry and DiPadova are markedly different from the ones presented here. In each case, the jury received erroneous instructions regarding the interaction of mental illness and the voluntary consumption of alcohol or drugs, which suggested that the consumption of the alcohol or drugs would negate a defense of lack of criminal responsibility. Here, the defendant does not identify any specific instruction as erroneous, such that it created juror confusion. Nor could he. As the trial judge remarked, "one thing I am not going to instruct [the jury] on is anything about the consumption of alcohol or substances. There's just no evidence of that. So I don't think this is an appropriate case for that." No instruction on the use of drugs, or lack thereof, was requested by either party, and none was given. Further, we discern nothing in the trial judge's instructions on criminal responsibility that would lead jurors to conclude that the defendant's failure to take his prescribed medication precluded the jury from finding him not criminally responsible. The instructions appropriately focused the jury on whether the defendant was criminally responsible at the time of the murder, not on the effect, if any, that the failure to take prescribed medicine could have on this determination. Cf. Commonwealth v. Shin, 86 Mass. App. Ct. 381, 388, 16 N.E.3d 1122 (2014). Thus, the jury instructions in this case do not create the same potential for juror confusion as existed in Berry or DiPadova.

Although defense counsel did refer to the defendant's failure to take his medication, stating in closing argument that "[u]nless properly treated and medicated the disease takes over, and that's what happened to [the defendant]," the Commonwealth never introduced evidence or argued at trial that the defendant was criminally responsible because he voluntarily chose not to take the medication that treated his mental illness. To the contrary, the Commonwealth primarily argued that the defendant's mental illness did not render him criminally irresponsible to begin with. The prosecution only referred to the defendant's failure to take his medication to express skepticism that it negatively affected his behavior. The prosecutor stated in her closing argument that "[i]t's a disease that waxes and wanes, that cycles over months, that even stopping his medications ... would take days, weeks, or month[s] for the effect of that to be noticeable." In these circumstances, where the defendant argues for an instruction on a theory of criminal responsibility that was not presented at trial, we conclude that no such instruction was required. Cf. Commonwealth v. Harris, 464 Mass. 425, 434-435, 983 N.E.2d 695 (2013) (no curative instruction required where, evaluating jury instructions as whole, no jury could have improperly concluded Commonwealth was relieved of burden of proof).

c. Right to jury-waived trial. The defendant requested a jury-waived trial, but his request was denied pursuant to G. L. c. 263, § 6, which does not provide defendants in a capital case the ability to waive their right to a jury trial. The defendant asks that we find this statute unconstitutional, and in so doing, overturn our holding in Commonwealth v. Francis, 450 Mass. 132, 137, 876 N.E.2d 862 (2007) (concluding G. L. c. 263, § 6, does not violate defendants' equal protection or due process rights). In support of this argument, the defendant asserts that jurors are biased against finding defendants not criminally responsible, and that jurors may have difficulty understanding instructions on criminal responsibility. Much like in Francis, these "arguments are policy matters suitable for legislative consideration," not judicial intervention. Id.

d. Review under G. L. c. 278, § 33E. We have reviewed the record pursuant to G. L. c. 278, § 33E, and discern no basis to set aside or reduce the verdict of murder in the first degree or to order a new trial. Accordingly, we decline to exercise our authority.

Judgments affirmed.

      The hospital diagnosis was not specific as to whether this was bipolar disorder I or bipolar disorder II.

      No actual court appearance had been scheduled. The defendant indicated to the defense's expert witness, a forensic psychologist, that he intended to "speak with a clerk about reassessing the decision that had been made by the Housing Court sometime earlier." The Commonwealth has characterized this as a "ruse" to lure the victim back to Massachusetts.

      There is no indication in the record whether, or why, the victim may have had the defendant's cellular telephone.

      The landlord had placed two-by-four pieces of lumber just outside the front door of the victim's sister's apartment in order to make repairs.

      Dr. Maureen McGovern testified that the defendant said he had thoughts about "hurting" the victim. One of the police officers on guard in the defendant's hospital room testified that he overheard the defendant say he had thoughts about "killing" the victim.

      The defense's expert witness defined hypomania as being a state with many of the same symptoms as mania, but lasting a shorter duration. These symptoms include "a heightened sense of self-esteem, a lessened sense of the need for sleep, changeability in mood states, [and] agitation."

      In Commonwealth v. Lamb, 365 Mass. 265, 270, 311 N.E.2d 47 (1974), we held that when a psychotherapist conducts a court-ordered examination of a defendant, the psychotherapist must warn the defendant that the communications are not privileged. We note that McGovern was not conducting a court-ordered examination. See Commonwealth v. Seabrooks, 433 Mass. 439, 450-451, 743 N.E.2d 831 (2001).

      McGovern testified that "cognitively intact" means that the defendant did not appear to be delirious or demented. Rather, he appeared to understand where he was and "his general fund of knowledge was average."

      McGovern testified that "goal oriented" describes a thought process in which the patient understands the questions being asked of him or her and gives appropriate answers.

      Moreover, the trial judge gave the jury a humane practice instruction after the jury heard testimony about the defendant's statements to McGovern. The judge instructed the jury, in relevant part, as follows: "[B]efore you can consider [the defendant's statement], the Commonwealth has to prove to you ... beyond a reasonable doubt, that the defendant's statement was voluntarily made[,] that is, that it was made as a product of his own free will and rational intellect."

      Under G. L. c. 233, § 20B, "patient" is defined as "a person who, during the course of diagnosis or treatment, communicates with a psychotherapist."

      Under G. L. c. 233, § 20B, "psychotherapist" is defined in relevant part as "a person licensed to practice medicine, who devotes a substantial portion of his time to the practice of psychiatry."

      The motion judge indicated that the psychotherapist-patient privilege requires a "confidential relationship" before it can attach. Although our prior cases have discussed the requirement that a "confidential relationship" exist between the patient and the psychotherapist, this was specifically in reference to the issue whether the person to whom the statement was made meets the statutory definition of "psychotherapist." See Commonwealth v. Mandeville, 386 Mass. 393, 409-410, 436 N.E.2d 912 (1982). A confidential relationship exists, such that the psychotherapist-patient privilege applies, whenever the statutory requirements of G. L. c. 233, § 20B, are met. See Robinson v. Commonwealth, 399 Mass. 131, 135, 503 N.E.2d 31 (1987) ; Commonwealth v. Clemons, 12 Mass. App. Ct. 580, 584 n.2, 427 N.E.2d 761 (1981). See also Mandeville, supra (adopting Clemons analysis).

      This is true even if the defendant is shackled to the bed. The police and not the courts are in the best position to know whether the defendant remains dangerous even while shackled.

      Our holding is also in accordance with our case law on attorney-client privilege. Attorney-client privilege is generally undermined by the presence of a third party. See Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 306, 901 N.E.2d 1185 (2009). There is an exception to this general rule, however, when the presence of the third party is "necessary for the effective consultation between client and attorney" (quotations omitted). Id. at 307, 901 N.E.2d 1185, quoting United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961). In order to be "necessary," the third-party presence must be "nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications." Comcast Corp., supra. In such instances, the privilege still attaches. Id.

      Although it was error to find that the defendant had waived the psychotherapist-patient privilege, we note that the statement may very well have been admissible under G. L. c. 233, § 20B (c ). Subsection (c ) provides that the psychotherapist-patient privilege will not apply
      "[i]n any proceeding, except one involving child custody, adoption or adoption consent, in which the patient introduces his mental or emotional condition as an element of his claim or defense, and the judge or presiding officer finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between patient and psychotherapist be protected."
      The defendant "introduce[d] his mental or emotional condition as an element of his claim or defense" by arguing at trial that he was not criminally responsible. See Commonwealth v. Brandwein, 435 Mass. 623, 630 n.8, 760 N.E.2d 724 (2002). The motion judge also could have found it "more important to the interests of justice" that the defendant's statements be admitted, particularly given that there was no ongoing patient-therapist relationship between the defendant and McGovern, and McGovern's evaluation was the only examination conducted around the time of the murder, rendering the evaluation important to the truth-seeking function of the court. See Commonwealth v. Seabrooks, 433 Mass. 439, 448-450, 743 N.E.2d 831 (2001). The defendant's apparent inability to recall the murder not only inhibited the jury's ability to evaluate his mental state but also interfered with defense counsel's own expert's ability to evaluate whether he lacked criminal responsibility. Insight into the defendant's mental state shortly after the crimes were committed would thus have been very helpful in evaluating his primary defense at trial. The trial judge, however, would have had to make findings and weigh all the factors set out in Seabrooks, supra at 449-450, 743 N.E.2d 831, including whether the defendant consulted with counsel before speaking to McGovern, which he did not.

      Regarding the burden of proof on criminal responsibility, the trial judge stated:
      "[A]s to all of these charges, the Commonwealth also has to prove to you that defendant did not lack criminal responsibility. Remember the burden of proof is always on the Commonwealth. The Commonwealth has to prove that the person committed the crime charged, and that he was at the time in such a mental state that he did not lack criminal responsibility. If you're satisfied beyond a reasonable doubt that the defendant committed the crime -- any of the crimes that I have defined for you, you must decide whether the Commonwealth has met an additional burden. The Commonwealth also must prove that the defendant was criminally responsible when he committed the crime charged.... The Commonwealth must prove that the defendant was criminally responsible beyond a reasonable doubt. The burden is not on the defendant to prove a lack of criminal responsibility. Instead, the burden is on the Commonwealth to prove criminal responsibility beyond a reasonable doubt. Under the law, the Commonwealth bears the burden of proving beyond a reasonable doubt the defendant committed the crime or crimes with which he's charged, and also that the defendant is criminally responsible for his conduct."

      The trial judge instructed:
      "[I]n in the event that the defendant is found not guilty by lack of criminal responsibility ... , the District Attorney ... may petition ... for his commitment ... if in that proceeding the Commonwealth proves beyond a reasonable doubt that the defendant is mentally ill at the present time, and that his discharge would create a likelihood of serious harm to himself or others.... [T]he order of commitment is thereafter periodically reviewed[,] ... [and] [i]f the Commonwealth fails to prove these matters beyond a reasonable doubt, the defendant is discharged."

      We also stated in Commonwealth v. Russell, 470 Mass. 464, 479, 23 N.E.3d 867 (2015), that the new instruction provided therein was to apply prospectively, not retroactively. See Commonwealth v. Rakes, 478 Mass. 22, 48 n.23, 82 N.E.3d 403 (2017).

      Commonwealth v. Berry, 457 Mass. 602, 931 N.E.2d 972 (2010), and Commonwealth v. DiPadova, 460 Mass. 424, 951 N.E.2d 891 (2011), were decided after the defendant's trial, but while his case was pending on direct appellate review. Thus, we must still decide whether the absence of the defendant's proposed instruction created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Johnston, 467 Mass. 674, 704, 7 N.E.3d 424 (2014).

      That instruction was as follows:
      "However, if the Commonwealth has proved beyond a reasonable doubt that the defendant consumed drugs or alcohol knowing or having reason to know that the drugs or alcohol would activate a latent mental disease or intensify an active mental disease, causing her to lose the substantial capacity to appreciate the wrongfulness of her conduct or the substantial capacity to conform her conduct to the requirements of the law, then you would be warranted in finding the defendant criminally responsible for a crime in which you find she knowingly participated. In deciding what the defendant had reason to know about the consequences of her consumption of drugs or alcohol, you should consider the question solely from the defendant's point of view, including her mental capacity and her past experience with drugs or alcohol." Berry, 457 Mass. at 617 n.9, 931 N.E.2d 972.

      We further note that the failure to take prescription medication is not the same as the voluntary consumption of drugs or alcohol. See State v. Eager, 140 Haw. 167, 175, 398 P.3d 756 (2017). There are many reasons why an individual may fail to take his or her prescribed medication. See Commonwealth v. Shin, 86 Mass. App. Ct. 381, 388, 16 N.E.3d 1122 (2014) ("[M]entally ill people fail to take prescribed medication for a myriad of reasons, including, for example, side effects that may be otherwise dangerous to their health.... In addition, some people are unable to obtain the appropriate medication because of lack of money or access to medical care, or problems with necessary paperwork ...").

      Further, the prosecutor had elicited testimony from the Commonwealth's expert that failure to take the defendant's mood stabilizing medication "would take weeks, months ... to have an [e]ffect on this -- of the peaks and valleys [of the defendant's mood]. It's not like a diabetic going off instantly today and tomorrow near trouble with their blood sugar. This is a chemical that kind of the brain is in over a long period of time. It takes the peaks and the valleys off. Helps some people. But it -- sometimes even on [the medication], a person's going to rocket right through the high into a manic episode, manic psychosis, that requires hospitalization."

      The defendant also notes that the third conviction of a habitual offender is considered a "capital case" for the purposes of G. L. c. 278, § 33E, see G. L. c. 279, § 25 (b ), but is not considered a "capital case" under G. L. c. 263, § 6. Thus, "three-strike" habitual offenders are entitled to the same § 33E review as defendants convicted of murder in the first degree, but may still waive their right to a jury trial. The defendant fails to expand on this argument, but presumably sees this as an equal protection violation. As we stated in Commonwealth v. Francis, 450 Mass. 132, 135, 876 N.E.2d 862 (2007), "[i]t is reasonable for the Legislature to treat defendants facing a charge of murder in the first degree differently from other defendants." Further, we acknowledged that there was a difference between the definition of "capital" under G. L. c. 278, § 33E, and that under G. L. c. 263, § 6, but rejected the argument that any such difference requires allowing defendants charged with murder in the first degree the ability to waive their right to a jury trial. See Francis, supra at 137, 876 N.E.2d 862. For substantially the same reasons stated in Francis, we discern no equal protection violation here.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel NOE, Sex Offender Registry Board No. 5340 v. SEX OFFENDER REGISTRY BOARD.
    SJC-12447
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued April 3, 2018. Decided August 1, 2018.
    Christopher M. Bova for the defendant.
    Kate A. Frame, Salem (Eric B. Tennen, Boston, also present) for the plaintiff.
    William J. Kobuszewski, Danvers, & John C. Cratsley, Concord, pro se, amici curiae, submitted a brief.
    Nancy A. Dolberg, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   KAFKER, J.

In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Bd., 473 Mass. 297, 298, 41 N.E.3d 1058 (2015) ( Doe No.380316 ), we held that the Sex Offender Registry Board (board) is constitutionally required to prove the initial classification of a convicted sex offender under the sex offender registry law, G. L. c. 6, §§ 178C - 178Q, by clear and convincing evidence. We are now asked to consider whether reclassification hearings require the board to meet the same standard and burden of proof as initial classification hearings. We conclude that they do. We also conclude that, given the plain language of G. L. c. 6, § 178L (3), indigent sex offenders have a right to counsel in such reclassification hearings. ,

1. Background. The sex offender registry law is "an extensive statutory registration scheme for sex offenders" designed to "protect the public from the danger of recidivism posed by sex offenders and to aid law enforcement officials in protecting their communities" (quotations omitted). Commonwealth v. Kateley, 461 Mass. 575, 576, 962 N.E.2d 747 (2012), quoting Commonwealth v. Rosado, 450 Mass. 657, 659-660, 881 N.E.2d 112 (2008). An individual who has been convicted of a sex offense as defined under G. L. c. 6, § 178C, is required to register under the sex offender registry law on release from custody, if applicable, or on notification of his or her obligation to register. See G. L. c. 6, § 178E (a ), (c ).

a. Registration and classification. Sex offenders are subject to a two-step registration and classification process. First, the board assesses an individual's risk of reoffense and degree of dangerousness and prepares a recommendation as to the appropriate classification level for the offender. See G. L. c. 6, § 178L (1).

The board has identified thirty-eight factors to be considered in making this determination. See 803 Code Mass. Regs. § 1.33 (2016). The board's regulations recognize that "[t]hese factors may be present to varying degrees in any individual case. The final classification level is not based on a cumulative analysis of the applicable factors, but rather a qualitative analysis of the individual sex offender's history and personal circumstances." Id.

If the sex offender objects to the board's recommendation, he or she has the right to a de novo evidentiary hearing before an examiner who makes a final determination as to the offender's duty to register and the appropriate classification level. See G. L. c. 6, § 178L (1) ; 803 Code Mass. Regs. § 1.04(3) (2016). At the evidentiary hearing, the examiner must consider the criteria that the board has identified in its regulations when assessing an offender's risk of reoffense and degree of dangerousness. See 803 Code Mass. Regs. § 1.04(4). The examiner then issues a written decision and places the offender into one of three classification levels. See 803 Code Mass. Regs. § 1.20 (2016). The sex offender has the right to counsel at this initial classification hearing. See G. L. c. 6, § 178L (1).

Where "the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability," the sex offender is classified as level one. G. L. c. 6, § 178K (2) (a ). Where "the risk of reoffense is moderate and the degree of dangerousness posed to the public is such that a public safety interest is served by public availability of registration information," the offender is classified as level two. G. L. c. 6, § 178K (2) (b ). Where "the risk of reoffense is high and the degree of dangerousness posed to the public is such that a substantial public safety interest is served by active dissemination" of the offender's information, the offender is classified as level three. G. L. c. 6, § 178K (2) (c ). "Registration information for level one sex offenders is not provided to the public, information for level two and level three offenders is available to the public by request or on the Internet, and information for level three offenders may be disseminated actively to the public" (footnote omitted). Doe v. Lynn, 472 Mass. 521, 529, 36 N.E.3d 18 (2015).

The standard of proof required to satisfy due process has been the subject of much litigation. The sex offender registry law calls for the board to prove the appropriateness of a sex offender's classification by a preponderance of the evidence. See G. L. c. 6, § 178L (2). In 1998, two years after the passage of the sex offender registry law, we held that this preponderance of the evidence standard satisfied due process under the State and Federal Constitutions. See Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 103-104, 697 N.E.2d 512 (1998) ( Doe No. 972 ). However, seventeen years later, in light of changes to the sex offender registry law that had significantly increased the burdens on registered offenders, and other factors such as greater Internet dissemination of sex offender information, we determined that the preponderance of the evidence standard no longer satisfied due process. See Doe No. 380316, 473 Mass. at 311-312, 314, 41 N.E.3d 1058. Rather, the "extensive private interests now affected by classification counsel in favor of requiring a higher standard of proof," namely clear and convincing evidence, for final classification hearings. Id. at 311-312, 41 N.E.3d 1058.

b. Reclassification. Under the statutory and regulatory scheme, a sex offender may be reclassified in one of two ways. See Doe, Sex Offender Registry Bd. No. 326573 v. Sex Offender Registry Bd., 477 Mass. 361, 364, 76 N.E.3d 241 (2017) ( Doe No. 326573 ). Pursuant to G. L. c. 6, § 178L (3), the board can initiate reclassification proceedings "on its own initiative or upon written request by a police department or district attorney." Although the language of the statute allows the board to seek higher or lower reclassification level where new information is received "relevant to a determination of a risk of re-offense or degree of dangerousness," G. L. c. 6, § 178L (3), the board has promulgated regulations restricting it to seeking upward reclassification. See 803 Code Mass. Regs. § 1.32(1) (2016). Pursuant to G. L. c. 6, § 178L (3), the board must provide the offender with the information that led the board to seek reclassification. The offender has the right to challenge the reclassification, may submit "documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public," and has the right to counsel. Id. Board-initiated reclassifications must follow the same procedures used for original classifications. See 803 Code Mass. Regs. § 1.32(4).

The board's regulations specify a separate procedure for sex offenders seeking downward reclassification. See 803 Code Mass. Regs. § 1.31 (2016). An individual classified as a level two or level three sex offender may seek reclassification based on a decreased risk of reoffense or degree of dangerousness. See 803 Code Mass. Regs. § 1.31(1). Offenders are eligible to seek downward reclassification no sooner than three years after the date of their final classification. 803 Code Mass. Regs. § 1.31(2)(a). An offender who has committed a new sex offense since his or her original classification, however, must be offense free for at least ten years before he or she can seek reclassification. Id. Offenders who have experienced "a material change in circumstances related to a medical condition" may file a motion for reclassification less than three years after the date of their prior classification. 803 Code Mass. Regs. § 1.31(3). The procedure for offender-initiated downward reclassifications is as follows. The offender must file a motion detailing why reclassification is appropriate and include supporting documentation. 803 Code Mass. Regs. § 1.31(2)(b), (c). The offender must also supply "an affidavit that provides an overview of his or her behavior and lifestyle during the three years prior to the filing of his motion for reclassification." 803 Code Mass. Regs. § 1.31(2)(d). The board bases its decision on new and updated information but may also consider information the board used in prior classification decisions, including any prior written decisions by the board. 803 Code Mass. Regs. § 1.31(5)(e).

The sex offender registry law does not specify the standard and burden of proof for reclassification hearings. See G. L. c. 6, § 178L (3). However, the board's regulations dictate that for offender-initiated motions for reclassification, the burden is on the offender to prove why downward reclassification is appropriate by clear and convincing evidence. 803 Code Mass. Regs. § 1.31(2)(c).

c. Noe's reclassification. The plaintiff, Noe, was convicted of open and gross lewdness and lascivious behavior on five separate occasions between 1990 and 2004. In each incident, the plaintiff exposed himself and masturbated in public. None of these incidents involved physical contact with the plaintiff's victims. Noe was classified as a level three sex offender in January, 2007. In the six years following his final classification, Noe lived in the community without any further sexual reoffenses. In January, 2013, he filed a request for downward reclassification and was granted a hearing before the board. In his letter to the board, Noe indicated:

"I am writing this letter to request a reduction in my current status as level [three] sex offender. First, I would like to accept full responsibility for my poor choices and behavior. I have a long history of criminal activity which has had an impact on innocent people. I express sincere regret for affecting others in a negative way and have made major changes in my life. I admit to having a history of alcoholism and drug addiction. I believe that my past behavior is directly related to my substance abuse issues. I am currently sober and have not engaged in any such conduct in [seven] years. I am currently homeless and am finding it extremely difficult to put my life back together. There are many people who are aware of my history and status as a level [three] sex offender which make it hard to move on in my life. This public information creates a barrier for me to gain employment and become a productive member of society. I am truly a changed man and would like an opportunity to start my life over again. Please take this request into consideration."

Noe appeared, pro se, before a panel of three examiners. Noe did not offer new evidence or call any witnesses. The board introduced only an updated copy of Noe's board of probation record and correspondences to the Boston police indicating that he was seeking reclassification. During the hearing, Noe expressed confusion about the kind of documentation he needed to provide to the examiners. In May, 2014, the board issued a decision denying Noe's request for reclassification. Although the board acknowledged that Noe "has remained offense free to the community for approximately seven years" and "has maintained sobriety for approximately five and one half years," the majority of the board concluded by a preponderance of the evidence that Noe "remains a high risk of reoffense and a high degree of dangerousness." Accordingly, Noe's request for reclassification was denied and he was ordered to continue to register as a level three sex offender.

Noe sought judicial review of the board's decision in the Superior Court, pursuant to G. L. c. 30A, § 14, and G. L. c. 6, § 178M. He moved for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). While that motion was pending, Noe amended his complaint to include claims for declaratory relief under G. L. c. 231A, § 1, challenging the board's procedures for failing to provide a right to counsel in the reclassification hearing and placing the burden of proof in reclassification on the offender by clear and convincing evidence. The Superior Court judge declared that the board's regulations, which place the burden of proof on the offender seeking reclassification, violate the offender's right to due process under the Fourteenth Amendment to the Federal Constitution and art. 12 of the Massachusetts Declaration of Rights. The judge further declared that the board's failure, through its regulations and procedures, to provide counsel for indigent offenders who seek reclassification violates G. L. c. 6, § 178L (3). The board appealed, and we transferred the case to this court on our own motion.

2. Discussion. "We review de novo a judge's order allowing a motion for judgment on the pleadings under Mass. R. Civ. P. 12 (c)." Merriam v. Demoulas Super Mkts., Inc., 464 Mass. 721, 726, 985 N.E.2d 388 (2013). A court may rule on a motion for judgment on the pleadings seeking declarations of the parties' rights if there are no material issues of fact left to be determined. See id.

a. Standard and burden of proof in reclassification proceedings. The board's regulations place the burden of proof on the offender to prove by clear and convincing evidence that downward reclassification is appropriate. 803 Code Mass. Regs. § 1.31(2)(c). To determine whether this standard and burden of proof violate due process, we apply the familiar test outlined in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which requires that we balance "the private interests affected, the risk of erroneous deprivation, the probable value of additional or substitute safeguards, and the governmental interests involved."

Doe No. 380316, 473 Mass. at 311, 41 N.E.3d 1058, quoting Doe No. 972, 428 Mass. at 100, 697 N.E.2d 512.

i. Private interests. The private interests at stake in sex offender registration and classification are significant. The "liberty and privacy interests" implicated include "stringent affirmative reporting requirements," "stigma and legal restrictions that will make it harder ... to find stable housing or employment," and possible threats of physical harm. Doe No. 380316, 473 Mass. at 311, 41 N.E.3d 1058. The effects of registration and classification are "continuing, intrusive, and humiliating." Doe v. Attorney Gen., 426 Mass. 136, 149, 686 N.E.2d 1007 (1997) (Fried, J., concurring). Dissemination of a sex offender's registry information and photograph on the Internet also widely publicizes the offender's registration and classification status, magnifying their effects. See Doe, Sex Offender Registry Bd. No. 7083 v. Sex Offender Registry Bd., 472 Mass. 475, 485, 35 N.E.3d 698 (2015) ( Doe No. 7083 ).

The board asserts nonetheless that reclassification implicates lesser private interests because the offender has already been classified and registered, and dissemination of the offender's information has occurred and is likely to remain on the Internet even after the offender's reclassification. See, e.g., Moe v. Sex Offender Registry Bd., 467 Mass. 598, 604, 606, 6 N.E.3d 530 (2014) ("Once [level two and level three sex offenders'] registry information is published on [the board's] Web site, there is a substantial likelihood that they would soon be identified on private Web sites listing sex offenders, and that the subsequent removal of their names from [the board's] Web site would not result in the removal of their names from these private Web sites").

We recognize that an offender who has previously been registered is not in the same position as someone who has never offended or never been registered. The decision to reclassify an offender is not "written on a clean slate." Doe No. 326573, 477 Mass. at 367, 76 N.E.3d 241. That being said, the different classification levels have different consequences and entail different public perceptions. These consequences include, but are not limited to, the required public Internet dissemination for level two and three offenders. See G. L. c. 6, 178D; Doe No. 380316, 473 Mass. at 307, 41 N.E.3d 1058. The difference between level three and level two classifications can also be particularly significant, especially for aging offenders. For example, a level three sex offender may not reside in a nursing home. G. L. c. 6, § 178K (2) (e ). After an offender's initial classification, as he or she grows older this particular consequence has an even more significant impact on the offender's interests. In sum, the private interests at stake in reclassification remain significant.

ii. Risk of erroneous deprivation. Under Mathews, 424 U.S. at 334-335, 96 S.Ct. 893, we must also examine "the risk of an erroneous deprivation of [these private interests] through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards." In Doe No. 380316, 473 Mass. at 312, 41 N.E.3d 1058, we concluded that imposing a clear and convincing burden of proof on the government was necessary to address "the actual risk of an erroneous deprivation of a registered sex offender's privacy or liberty" in an original classification decision. We emphasized the difficulty in determining such risk and stated that offenders "should not be asked to share equally with society the risk of error." Id. at 313, 41 N.E.3d 1058, quoting Addington v. Texas, 441 U.S. 418, 427, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).

The board contends, however, that reclassifications are different. The offender has already been properly classified. The board argues, therefore, that it is up to offenders to prove by clear and convincing evidence changed circumstances in their lives that indicate a diminished risk of reoffense or degree of dangerousness. We conclude that the risk of erroneous classification and deprivation remains in reclassification proceedings and that that risk must continue to be borne by the government. Therefore, the ultimate burden of proof should remain with the board to prove by clear and convincing evidence that the classification is current and correct. We further conclude, however, that there is a burden of production on the offender seeking reclassification to demonstrate some change in his or her circumstances, as he or she is in the best position to provide such evidence.

The board's regulations require a significant passage of time and thus a meaningful waiting period before an offender can request a reclassification. Such requests cannot be made less than three years after the initial classification, or less than ten years afterward if another offense has occurred since the initial classification. See 803 Code Mass. Regs. § 1.31(2)(a). The reclassification regulations "recognize[ ] that the risk to reoffend and the degree of dangerousness posed by a sex offender may decrease over time." 803 Code Mass. Regs. § 1.31(1). See 803 Code Mass. Regs. § 1.33(29), (30), (31) (recognizing that likelihood of recidivism and dangerousness decreases with additional offense-free time in community, advanced age, and debilitating illness). Accordingly, the purpose of holding reclassification hearings is to assess an offender's current risk of reoffense and degree of dangerousness, taking into account the significant passage of time and the new information provided by the offender. Doe No. 7083, 472 Mass. at 483, 35 N.E.3d 698.

Reclassification is therefore not, as the board would seem to suggest, a mere continuation of the original classification wherein the board's determination of the proper level is reviewed or verified. Procedural safeguards for reclassification must protect against the risk that an offender will be erroneously denied a downward reclassification, despite posing a decreased risk of reoffense or degree of dangerousness. Placing the burden of proof on the board by clear and convincing evidence, as is necessary in original classification hearings, would appropriately reduce the risk of erroneous deprivation. See Doe No. 380316, 473 Mass. at 311-314, 41 N.E.3d 1058. Importantly, it would make very little sense to flip the burden of proof from clear and convincing evidence on the board in original classification proceedings to clear and convincing evidence on the offender in reclassification proceedings. Although the ultimate burden of proof by clear and convincing evidence remains on the board, offenders do have a burden of production to show a change in circumstances indicating a decreased risk of reoffense or degree of dangerousness. See G. L. c. 6, § 178L (3). Combining the burden of proof on the board with the burden of production on the offender seeking reclassification further minimizes the risk of error. Offenders are in the best position to provide such information and thus have a duty to do so if they seek a downward reclassification.

"The 'burden of production' refers to 'a party's obligation to come forward with evidence to support its claim.' " Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681 n.7, 46 N.E.3d 24 (2016), quoting Director, Office of Workers' Compensation Programs, Dep't of Labor v. Greenwich Collieries, 512 U.S. 267, 272, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994). To satisfy the burden of production, an offender "must present some credible evidence that circumstances have changed," such that his or her risk of reoffense or degree of dangerousness has decreased. Care & Protection of Erin, 443 Mass. 567, 572, 823 N.E.2d 356 (2005). Once the offender has satisfied this burden of production, the board has the ultimate burden to prove, by clear and convincing evidence, the appropriateness of the offender's existing classification. Imposing this burden of production and burden of proof is constitutionally necessary to prevent an undue risk of erroneous classification.

See Doe No. 380316, 473 Mass. at 311-314, 41 N.E.3d 1058.

iii. Government interests. Finally, we assess the government interests involved. Mathews, 424 U.S. at 335, 96 S.Ct. 893. Registration requirements provide law enforcement with important information about potentially dangerous individuals. See Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 789-790, 882 N.E.2d 298 (2008), quoting St. 1999, c. 74, § 1 ("the registration of sex offenders is a proper exercise of police powers 'regulating present and ongoing conduct, which will provide law enforcement with additional information critical to preventing sexual victimization' "). As the Legislature explained in passing the 1999 iteration of the sex offender registry law, "the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, [is] grave and ... the protection of the public from these sex offenders is of paramount interest to the government." St. 1999, c. 74, § 1. That interest is best served, however, by ensuring that the classification of each individual offender is accurate. See Soe, Sex Offender Registry Bd. No. 252997 v. Sex Offender Registry Bd., 466 Mass. 381, 391, 995 N.E.2d 73 (2013) ( Soe No. 252997 ).

The government interest in accurate classifications applies equally to reclassifications and to original classifications. Indeed, all of the interests at stake in the classification and reclassifications of sex offenders depend on accuracy in the classification process. We have repeatedly recognized the importance of ensuring such accurate classifications. See Doe No. 380316, 473 Mass. at 314, 41 N.E.3d 1058 (interest in ensuring notification and classification system is fair and accurate); Soe No. 252997, 466 Mass. at 391, 995 N.E.2d 73 ("both the public and a sex offender have a substantial interest in assuring the accuracy of the offender's classification"); Roe v. Attorney Gen., 434 Mass. 418, 430, 750 N.E.2d 897 (2001) ("It is in everyone's best interests-including the best interests of sex offenders themselves-that the board work from accurate, up to date, and thorough information"). See also Doe No. 972, 428 Mass. at 107, 697 N.E.2d 512 (Marshall, J., concurring in part and dissenting in part) ("The State has no interest in making erroneous classifications and implementing overbroad registration and notifications"). The overclassification of sex offenders frustrates the governmental interests in registration because it "both distracts the public's attention from those offenders who pose a real risk of reoffense, and strains law enforcement resources." Doe No. 380316, supra at 313-314, 41 N.E.3d 1058. iv. Balancing. In balancing the Mathews factors, we therefore recognize that reclassifications are different from original classifications, but there remain important private interests at stake in reclassifications, as the different levels impose significantly different consequences for offenders. We also note that in downward reclassification proceedings the offender is in the best position to know whether changed circumstances exist that justify reclassification and is also in the best position to bring such evidence forward, and thus has a burden of production to do so if he or she wants to be reclassified downward.

We further recognize that in reclassifications, as in original classifications, there remains an actual risk of misclassification due to the passage of time and changed circumstances. Given the difficulties of accurate classification, such classification is best achieved through imposing a clear and convincing evidence standard. See Doe No. 380316, 473 Mass. at 314, 41 N.E.3d 1058. We also conclude that the risk of misclassification must be borne by the government, not the offender. See id. at 313, 41 N.E.3d 1058. Consequently, once the offender has met his or her burden of production in downward reclassification proceedings, due process requires that the board be required to prove the appropriateness of the offender's current classification by clear and convincing evidence. If the board fails to satisfy this burden of proof, the offender must be reclassified to a lower level.

Our balancing also recognizes that the government has important public protection interests at stake in reclassifications as well as original classifications, as many of these offenders remain public safety concerns, but those interests are best served by an accurate classification. Overclassification, as explained above, strains public safety resources.

Our balancing of the Mathews factors therefore results in a burden of production being imposed on the offender in downward reclassification proceedings to provide some evidence of changed circumstances, but requires the board to prove by clear and convincing evidence that the offender is properly classified once such evidence is provided. We conclude that such process, and the accompanying burdens of production and proof, properly balance the Mathews factors.

b. Right to counsel in reclassification proceedings. We must next determine whether the board's regulations violate G. L. c. 6, § 178L (3), insofar as they fail to provide the right to counsel for indigent offenders seeking reclassification. We review the validity of regulations promulgated by the board "guided by the established principle that '[r]egulations are not to be declared void unless their provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.' " Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 646, 729 N.E.2d 627 (2000), quoting Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 613, 677 N.E.2d 213 (1997). We may reject, however, an "agency regulation that is contrary to the plain language of the statute and its underlying purpose." Massachusetts Teachers' Retirement Sys. v. Contributory Retirement Appeal Bd., 466 Mass. 292, 301, 994 N.E.2d 355 (2013), quoting Duarte v. Commissioner of Revenue, 451 Mass. 399, 408, 886 N.E.2d 656 (2008).

The board urges us to interpret G. L. c. 6, § 178L (3), as providing the right to counsel in "board-initiated" reclassifications but not in "offender-initiated" reclassifications. This proposed distinction has no basis in the text of the statute. Section 178L does not distinguish between board-initiated reclassifications and offender-initiated reclassifications. Rather, it refers only to "reclassification hearing[s]" held for the purpose of reclassifying offenders "in the event that new information, which is relevant to a determination of a risk of re-offense or degree of dangerousness, is received." G. L. c. 6, § 178L (3). The statute also makes no distinction between upward reclassifications and downward reclassifications. It simply provides that the board may seek to reclassify "any registered and finally classified sex offender" when it receives new information. Id. In all such hearings, the offender is guaranteed the right to counsel. Id.

This understanding of § 178L (3) is also in accord with the over-all statutory scheme. As discussed above, the board's interests depend greatly on the classification being accurate and current. Therefore, a key purpose of the reclassification process is ensuring that the offender is accurately classified, based on current information. Indeed, reclassification is an essential component of the registration scheme because it is the only means through which an offender can obtain a lower classification level where the circumstances warrant it. Without such a provision, an offender could face indefinite registration and classification at his or her original classification level, regardless of any subsequent changes in circumstance or rehabilitation.

Even under the board's own interpretation of the statute, the sex offender registry law provides sex offenders with the right to counsel at the initial classification hearing, at board-initiated upward reclassification hearings, and at a termination hearing. Given that the sex offender registry law provides the right to counsel at each of these other hearings, it makes little sense to interpret § 178L (3) as depriving indigent offenders of the right to counsel exclusively in the context of offender-initiated reclassification hearings, particularly in the absence of any statutory language to that effect.

By contrast, providing indigent offenders with a right to counsel in offender-initiated reclassification hearings logically comports with the complex nature of the reclassification process. The regulations require that the offender provide the board with an affidavit, a detailed motion, and documentation that addresses specific topics. See 803 Code Mass. Regs. § 1.31(2)(b),(c),(d). The board determines the offender's risk of reoffense and degree of dangerousness using risk factors derived from sophisticated scientific research. See 803 Code Mass. Regs. § 1.33. Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 85 Mass.App.Ct. 1, 9-10, 4 N.E.3d 1264 (2014) (scientific and statistical studies on risk factors are "technical and complex," and expert testimony is important for proper interpretation and understanding). The offender is expected to present evidence to the board, whether through witness testimony or documentary evidence, that is probative of these factors.

Noe's hearing before the board illustrates how difficult it can be for indigent offenders to navigate the reclassification process without counsel. At his hearing, Noe introduced no evidence and called no witnesses, other than himself. He appeared confused at times and wanted to address topics beyond the scope of the hearing. He spoke at length about his guilty pleas and the underlying facts that led to his duty to register and his classification as a level three sex offender. Noe also testified that he had injuries to his back and shoulders that were significant enough to keep him from working but failed to provide any documentation of the injury even after the hearing examiners requested it. This may have been significant in the board's determination. See G. L. c. 6, § 178K (1) (d ) (evidence of physical condition that would minimize risk of reoffense is factor to be considered in risk of reoffense); 803 Code Mass. Regs. § 1.33(31) ("the [b]oard shall give consideration to the offender who has a physical condition that is documented by a treating medical provider" [emphasis added] ). As Noe's case demonstrates, many, if not most, offenders are simply not capable of adequately representing themselves when appearing before the board. This only inhibits the ability of reclassification proceedings to accurately classify the offender.

Recognizing the importance and complexity of this process, the Legislature has provided a statutory right to counsel throughout the registration and classification process. Juvenile offenders must be represented by counsel at initial classifications as well as any subsequent reclassifications. See G. L. c. 6, § 178L (2) ("All offenders who are juveniles at the time of notification shall be represented by counsel at the hearing"); G. L. c. 6, § 178L (3) (same for reclassification hearing). Adult offenders have the right to retain counsel or have counsel appointed if they are indigent at the original classification hearing. G. L. c. 6, § 178L (1). General Laws c. 6, § 178L (3), gives offenders the same right to counsel for reclassification hearings, and G. L. c. 6, § 178M, extends that right to offenders who seek judicial review in the Superior Court of a classification or reclassification decision by the board. The board does not contest the fact that the Legislature gave offenders the right to counsel at each of these points, but nevertheless argues that the right to counsel is neither provided for nor necessary at offender-initiated reclassification hearings. We conclude that such an interpretation frustrates the underlying purpose of the reclassification proceeding and is not supported by the text of the statute.

Thus, the board's regulations, insofar as they fail to provide offenders with the right to counsel at reclassification hearings, are in clear conflict with both the text and the purpose of G. L. c. 6, § 178L. See Duarte, 451 Mass. at 411, 886 N.E.2d 656. We therefore hold that the board's regulations violate G. L. c. 6, § 178L (3), insofar as they fail to provide the right to counsel for indigent offenders seeking reclassification.

3. Conclusion. The decision of the Superior Court judge vacating the board's reclassification of Noe as a level three sex offender is affirmed.

Judgment affirmed.

      Months after a judge in the Superior Court heard oral arguments in this case, the plaintiff's counsel learned that the plaintiff had died in August, 2016, of natural causes. The Sex Offender Registry Board (board) argued in its appellate brief that the plaintiff's death renders this case moot. At oral arguments before this court, however, the board eventually conceded that it makes little sense to decline to address the merits of this case on the basis of mootness, given the importance of the issues involved. Further, the board has temporarily ceased holding reclassification hearings pending the outcome of its appeal in this case and our resolution of these issues. Thus, "[w]e exercise our discretion to reach the merits of [this] appeal regardless of whether the matter may currently be moot, because the issues are significant and have been fully briefed and it is in the public interest to do so."Doe v. Police Comm'r of Boston, 460 Mass. 342, 343 n.3, 951 N.E.2d 337 (2011).

      We acknowledge the amicus briefs submitted by volunteer pro bono attorneys providing legal services for veterans and by the Committee for Public Counsel Services.

      After the plaintiff moved for reclassification, the board changed its regulatory scheme. The new regulations are numbered differently from the ones in effect at the time of the plaintiff's motion. To avoid confusion, we refer to the new regulations except where noted.

      General Laws c. 6, § 178L (3), provides:
      "The board may, on its own initiative or upon written request by a police department or district attorney, seek to reclassify any registered and finally classified sex offender in the event that new information, which is relevant to a determination of a risk of re-offense or degree of dangerousness, is received. The board shall promulgate regulations defining such new information and establishing the procedures relative to a reclassification hearing held for this purpose; provided that (i) the hearing is conducted according to the standard rules of adjudicatory procedure or other rules which the board may promulgate, (ii) the hearing is conducted in a reasonable time, and (iii) the sex offender is provided prompt notice of the hearing, which includes: the new information that led the board to seek reclassification of the offender, the offender's right to challenge the reclassification, the offender's right to submit to the board documentary evidence relative to his risk of reoffense and the degree of dangerousness posed to the public, the offender's right to retain counsel for the hearing, and the offender's right to have counsel appointed if the offender is indigent, as determined by the board using the standards in [G. L. c. 211D]. An indigent offender may also apply for and the board may grant payment of fees for an expert witness in any case in which the board intends to rely on the testimony or report of an expert witness prepared specifically for the purposes of the reclassification proceeding. The failure of the offender to attend the hearing may result in a waiver of the offender's rights and the board's recommended reclassification becoming final."

      Under the 2013 regulations, offenders were required to demonstrate that they had remained offense free for more than five continuous years. 803 Code Mass. Regs. § 1.37C(2)(d) (2013). The current regulations do not contain this requirement, but permit the board to summarily deny the offender's reclassification request if he or she has not remained offense free for more than three continuous years since his or her last classification. See 803 Code Mass. Regs. § 1.31(2)(e) (2016).

      Apart from these sex offenses, Noe also had an extensive criminal record.

      At the hearing, Noe explained that he had been unable to work since 2006 or 2007, due to medical issues. When the hearing examiners indicated that Noe needed to provide the board with medical documentation, he responded that he "didn't know [he] needed medicals." Although he indicated a willingness at the hearing to provide medical documentation, the board was never furnished with those records.

      At the time of Noe's reclassification hearing, the board's regulations articulated a preponderance of the evidence standard for reclassification hearings. See 803 Code Mass. Regs. § 1.37C(2)(c) (2013). The regulations were amended in 2016 to increase the quantum of proof to clear and convincing evidence. See 803 Code Mass. Regs. § 1.31(2)(c) (2016).

      Only level two sex offenders who were classified as such after July 12, 2013, may have their information published on the board's Web site. See Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616, 6 N.E.3d 530 (2014).

      The board's reliance on Commonwealth v. Ronald R., 450 Mass. 262, 268-269, 877 N.E.2d 918 (2007), in support of placing the burden on the offender is misplaced. As we stated in Ronald R., supra at 268, 877 N.E.2d 918, "[G. L. c. 6, § 178E (f ) ], benefits a limited class of sex offenders by granting them the opportunity to avoid registration." This is the exception and not the rule, as "there is a presumption that sex offenders must register." Id. at 264, 877 N.E.2d 918. Section 178E (f ) also requires the unusual determination that the offender does not pose a risk. We held that the "Legislature's use of the word 'not' suggests that the burden is on the sex offender because as a practical matter he is in the best position to bring forth evidence demonstrating that he does not pose a risk of reoffense." Id. at 269, 877 N.E.2d 918. Finally, if the exception is found not to apply and the offender is required to register, the burden of proof is thereafter imposed on the government to establish the appropriate classification level. See id. at 264-265, 877 N.E.2d 918. In these circumstances, where an offender seeks to avoid registration altogether, we held: " 'A person who seeks relief under [this] statute bears the burden of proving that his case falls within its terms,' especially where [the] statute already protects due process rights." Id. at 268, 877 N.E.2d 918, quoting Andrews, petitioner, 449 Mass. 587, 590, 870 N.E.2d 610 (2007).

      We note, however, that if a level three offender seeks reclassification to level one and the board fails to prove by clear and convincing evidence that the offender should remain classified at level three, the offender will not necessarily be reclassified at level one. Rather, if the board has presented evidence sufficient to show by clear and convincing evidence that the offender should at least be classified as level two, the offender's classification will only be reclassified downward to level two, not level one.

      Because we conclude that indigent offenders have a statutory right to counsel at reclassification hearings, we need not address whether there is also a constitutional right to counsel at such hearings.


text:
    COMMONWEALTH v. Justin A. KING
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. James P. ALLEN.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Martin CARR.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Robin B. BRASKIE.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Lony E. BOURGAULT.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Reyshawn PANNELL.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Catherine BARBER v. COMMONWEALTH & another.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Alvin CAMPBELL.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Alexander COTTON.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Abimael BATISTA.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Mohammed KHAN.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Irina BELENKOVA.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    ADOPTION OF XOLA.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Brian MACDONALD.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


author: Mme. Justice Budd did not participate.

text:
    COMMONWEALTH v. Pov PECH.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.
   Mme. Justice Budd did not participate.


author: Mr. Justice Kafker did not participate.

text:
    COMMONWEALTH v. Christ O. LYS.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review granted.
   Mr. Justice Kafker did not participate.


text:
    ADOPTION OF EMMETT
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    Nicholas G. BELEZOS v. BOARD OF SELECTMEN OF HINGHAM.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Scott J. BOLTON.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Moses COLLINS.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Christopher M. CAMARA.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.


text:
    COMMONWEALTH v. Joseph C. HUGAL.
    Supreme Judicial Court of Massachusetts.
    February 6, 2018
    Appellate review denied.