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COMMONWEALTH vs. Roy L. HUNT
COMMONWEALTH vs. Roy L. HUNT. No. 09-P-1885. January 24, 2011. - April 26, 2011. Sex Offender. Constitutional Law, Self-incrimination, Freedom of speech and press. Evidence, Sex offender, Prior violent conduct, Sexual conduct. Practice, Civil, Sex offender, Instructions to jury, Argument by counsel, Comment by judge. CIVIL ACTION commenced in the Superior Court Department on June 4, 2004. The case was tried before Jeffrey A. Locke, J. Brandon L. Campbell for the defendant. Christine M. Kiggen, Assistant District Attorney, for the Commonwealth. Present: Cypher, Brown, & Grainger, JJ. GRAINGER, J. The defendant, who appeals his commitment as a sexually dangerous person, G.L. c. 123A, declined to participate in voluntary rehabilitative treatment during the course of his incarceration after pleading guilty to charges of rape of a child. On appeal, he seeks to characterize the Commonwealth's affirmative use of his lack of treatment to support its claim of his ongoing sexual dangerousness as a violation of both the First and Fifth Amendments to the United States Constitution. In addition, the defendant claims that the judge erred in admitting unfairly prejudicial evidence and in instructing the jury, and that the prosecutor's closing argument amounted to reversible error. We conclude that the defendant's claims are without merit. Constitutional claims. 1. Fifth Amendment. The Fifth Amendment protects individuals from being "compelled in any criminal case to be a witness against" themselves (emphasis supplied). General Laws c. 123A "does not intend punishment and does not in terms impose it, and nothing therein justifies punitive treatment or confinement under any prison conditions." Commonwealth v. Barboza, 387 Mass. 105, 111, cert. denied, 459 U.S. 1020 (1982), quoting from Commonwealth v. Major, 354 Mass. 666, 668 (1968), cert. denied, 393 U.S. 1109 (1969). To the contrary, "the Massachusetts court and [L]egislature have made considerable effort to differentiate between the treatment of the sexually dangerous, on the one hand, and the penalizing of criminals on the other." Commonwealth v. Barboza, supra at 112, quoting from Gomes v. Gaughan, 471 F.2d 794, 800 (1st Cir.1973). See Commonwealth v. Bruno, 432 Mass. 489, 499-502 (2000) (G.L. c. 123A remedial as opposed to punitive in nature). Chapter 123A proceedings are not criminal prosecutions; the Fifth Amendment prohibition against compelled self-incrimination consequently is not violated by the use of a defendant's refusal to participate in treatment as evidence in these proceedings. Hill, petitioner, 422 Mass. 147, 152, cert. denied, 519 U.S. 867 (1996), citing Commonwealth v. Barboza, supra at 113. See, e.g., Custody of Two Minors, 396 Mass. 610, 617 (1986). To circumvent the defect in his argument posed by the civil character of G.L. c. 123A proceedings, the defendant focuses instead on the possibility of future criminal prosecution. Specifically, he contends that the anticipated use of his lack of treatment to ensure his commitment in a c. 123A proceeding effectively forces him to participate, which in turn compels him to make admissions that may serve as the basis of future criminal charges. [FN1] He argues that, by using his lack of treatment offensively during the c. 123A proceedings, the Commonwealth has subjected him to a constitutionally prohibited Hobson's choice: either accede to treatment that requires incriminating statements or face a substantially increased likelihood of civil commitment upon the completion of his term of incarceration. However, we
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decline to speculate on the outcome if the Commonwealth were to base a future criminal prosecution on such statements; that is not the case before us. We are cognizant of the risks inherent in conditioning treatment on a waiver of the Fifth Amendment right, see McKune v. Lile, 536 U.S. 24 (2002); Pentlarge v. Murphy, 541 F.Supp.2d 421 (D.Mass.2008). In certain circumstances, the consequences flowing from such action may make the exercise of that right costly. Here, it is undisputed that the defendant was presented with the choice of accepting the benefit of treatment or turning down that benefit in order to avoid providing what he feared would be self-incriminating statements. "Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." McKune v. Lile, supra at 53 (O'Connor, J., concurring), quoting from McGautha v. California, 402 U.S. 183, 213 (1971). [FN2] Moreover we do not adopt the assumptions underlying the defendant's arguments. The record does not establish that failure to participate in treatment guarantees subsequent civil commitment pursuant to G.L. c. 123A. [FN3] Rather, participation in treatment was merely one of several factors considered at the defendant's trial to determine sexual dangerousness. Compare Baxter v. Palmigiano, 425 U.S. 308, 317-318 (1976) (adverse inference from inmate's silence during disciplinary hearing not violation of Fifth Amendment where adjudication of guilt was not automatic), and Commonwealth v. Delisle, 440 Mass. 137, 145 (2003), citing Minnesota v. Murphy, 465 U.S. 420, 438-439 (1984) (no compulsion or violation of Fifth Amendment where revocation of probation was not automatic), with Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of the City of New York, 392 U.S. 280, 282-283 (1968) (violation of Fifth Amendment where failure to incriminate oneself resulted in automatic termination of employment). In this light, the consequence flowing from the defendant's lack of treatment was not "so great as to constitute compulsion for the purposes of the Fifth Amendment privilege against self-incrimination." McKune v. Lile, supra at 49 (O'Connor, J., concurring). We note as well that unlike the rehabilitative program in McKune v. Lile, supra, the treatment at issue in the present case does not clearly require participants to acknowledge past, uncharged offenses as a condition of treatment. The record reflects that treatments such as that at issue here typically focus on a defendant's willingness to take responsibility for the actions that resulted in his incarceration. Nothing in the record suggests mandatory disclosure of past, uncharged conduct. Thus, although participation in treatment requires the defendant to waive confidentiality, any subsequent reference to prior instances of uncharged criminal conduct would be entirely volitional. 2. First Amendment. The defendant also alleges he has a First Amendment right to refuse to participate in treatment, and that the Commonwealth may not punish him for exercising that right. As with his Fifth Amendment claim, the defendant addresses the fact that he is not actually forced to speak by arguing that the consequences for refusing make his participation in treatment compulsory. He thereby invokes the doctrine of forced speech. See, e.g., West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 645 (1943) (Murphy, J., concurring) ("The right of freedom of thought ... as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all"). Our conclusions in the Fifth Amendment context, that the Commonwealth's affirmative use of a defendant's nonparticipation in sex offender treatment against him in c. 123A proceedings does not amount to compulsion, that refusal does not guarantee subsequent G.L. c. 123A commitment, and that participation does not require self-incrimination, apply as well to the defendant's First Amendment claim. Improper admission of evidence. The defendant argues that evidence of his alleged rape of another inmate, improperly admitted by the trial judge, unfairly prejudiced his case in the eyes of the jury. In the instant case, the aforementioned rumor was contained within an incident report arising out of the defendant's incarceration. [FN4] As the trial judge recognized, G.L. c. 123A,

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