COMMONWEALTH vs. PETER BOYER.

KANTROWITZ, J. On April 9, 1984, Boyer pleaded guilty to two counts of rape of a child and to four counts of indecent assault and battery on a child under fourteen. The children involved were three of his nephews. He received a sentence of eighteen years and one day at M.C.I., Concord. [Note 1] Paroled in 1987, he was

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returned to prison on November 15, 1993, for a violation of its conditions. His scheduled release date from custody was May 4, 2001.

On May 2, 2001, pursuant to G. L. c. 123A, § 12, inserted by St. 1999, c. 74, § 8, the Commonwealth filed a petition for commitment of Boyer as a sexually dangerous person. [Note 2] At the preliminary hearing, probable cause was found and Boyer was temporarily committed for a sixty-day evaluation at the Massachusetts Treatment Center at Bridgewater for the purpose of examination and diagnosis. [Note 3] Two examiners filed written reports of their examinations, diagnoses, and recommendations. The Commonwealth, in a timely fashion, moved for trial. [Note 4] After a jury-waived trial, the judge found the defendant a sexually dangerous person and committed him to a treatment center for an indeterminate period of time. [Note 5]

Boyer appeals, alleging the judge erred by applying the incorrect statutory definition of sexually dangerous person and erred by admitting unlimited substantive hearsay. He also allegesthat

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the civil commitment violates due process principles. [Note 6]

General Laws c. 123A. The definition of a sexually dangerous person is divided into three separate prongs. The Commonwealth is obligated to prove beyond a reasonable doubt that only one prong applies to a defendant. A sexually dangerous person is one who has been

(i) "convicted of or adjudicated as a delinquent juvenile or youthful offender by reason of a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility;" or

(ii) "charged with a sexual offense and was determined to be incompetent to stand trial and who suffers from a mental abnormality or personality disorder which makes such person likely to engage in sexual offenses if not confined to a secure facility; or"

(iii) "previously adjudicated as such by a court of the commonwealth and whose misconduct in sexual matters indicates a general lack of power to control his sexual impulses, as evidenced by repetitive or compulsive sexual misconduct by either violence against any victim, or aggression against any victim under the age of 16 years, and who, as a result, is likely to attack or otherwise inflict injury on such victims because of his uncontrolled or uncontrollable desires." G. L. c. 123A, § 1, inserted by St. 1999, c. 74, § 6.

The trial judge, in writing his findings, believed that the probable cause determination, made pursuant to § 12(c), qualified as a prior adjudication of sexually dangerous, and applied the third prong. This was error, as the Commonwealth concedes. The determination that probable cause exists, made pursuant to § 12(c), is not an adjudication that he is a sexually dangerous person. Rather, it is the first step of a multi-step process that includes, as stated above, the finding of probable cause,

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temporary commitment to a treatment center, psychological examinations and trial. G. L. c. 123A, §§ 12- 14.

Boyer argues that since the improper standard was used (the third prong), automatic reversal is mandated. Conversely, the Commonwealth asserts that, although the judge utilized the wrong standard, there was undisputed evidence presented at trial that met the correct standard (the first prong) and therefore the determination that the defendant was a sexually dangerous person was correct as a matter of law.

The position of the Commonwealth has some validity. It is clear upon reading the transcript that the Commonwealth indeed focused upon, presented evidence to, and argued the proper standard, that a "sexually dangerous person is one who has been . . . convicted of . . . a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses . . . ." G. L. c. 123A, § 1. It is uncontested that the defendant (1) had a prior conviction for a sexual offense and (2) suffers from a mental abnormality or personality disorder. [Note 7]

The road now, however, turns bumpy. [Note 8] The first prong asks whether that "mental defect or personality disorder . . . makes the person likely to engage in sexual offenses if not confined to a secure facility?" The judge found Boyer's behavior repetitive and compulsive in accordance with defining a sexually dangerous person under the third prong. However, in doing so, the judge also found Boyer's risk of reoffending "moderate." [Note 9] Additionally, it is unclear what impact the judge's erroneous belief of a prior finding of sexually dangerous had upon his ultimate decision. What is clear is that the judge placed emphasis on

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evidence that was improperly admitted, an issue that we now address.

Hearsay. The judge in his findings gave special weight to a statement contained in a parole report indicating that Boyer asked his girlfriend's two year old daughter, as she was sitting on his lap, if she "was horny." [Note 10] The Commonwealth asserts that the evidence was admissible under G. L. c. 123A, § 14(c). [Note 11]

The use of hearsay evidence is guided, in part, by § 14(c). That section lists a litany of classic hearsay evidence, e.g., probation records, police reports, psychiatric reports, etc., which "shall be admissible." While parole reports are not listed specifically, they fit comfortably within the catch-all phrase found at the end of the statute -- "and any other evidence tending to show that such person is or is not a sexually dangerous person . . . ."

While § 14(c) trumps a hearsay objection to the admission of the report, still remaining is the issue of hearsay within the report. Traditional rules of evidence apply. When there is hearsay within hearsay it is commonly referred to as totem pole hearsay. "Generally, evidence based on a chain of statements is admissible only if each out-of-court assertion falls within an exception to the hearsay rule." Commonwealth v. McDonough, 400 Mass. 639 , 643 n.8 (1987) (citations omitted).

If there is not an exception for each statement, the hearsay is

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not admissible substantively, so long as an objection is lodged. [Note 12] However, it may be admissible if used for an alternative purpose, i.e., by an expert in forming his opinion. See G. L. c. 123A, § 13(b) [Note 13]; Commonwealth v. Markvart, 437 Mass. 331 , 339 (2002).

In Commonwealth v. Markvart, the Supreme Judicial Court was confronted with the issue whether hearsay contained in police reports and witness statements from a nol prossed complaint was admissible at trial pursuant to G. L. c. 123A, § 14(c), either directly or through expert opinion. The court held "that G. L. c. 123A, § 14(c), does not render police reports and witness statements from nol prossed cases admissible at trial. They may be provided to a qualified examiner, and a qualified examiner may rely on them as the basis for an expert opinion, consistent with the requirements and limitations of Department of Youth Servs. v. A Juvenile, [ 398 Mass. 516 (1986)]." Commonwealth v. Markvart, supra at 339.

Department of Youth Servs. v. A Juvenile counsels that an expert is permitted "to base an opinion on facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." Id. at 531.

We cannot ascertain, as we do not have the parole report, the source of the hearsay. If it were an identifiable individual, the statement would appear to be independently admissible through the appropriate witness (e.g., the child's mother or whoever

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heard the comment). See Commonwealth v. Markvart, supra at 337. Whether, then, the statement served as a permissible basis for the expert to consider appears, in this case, to be a given. Indeed both experts considered the statement, which helped them form their respective opinions.

In sum, that hearsay contained in a report may be used for one purpose -- here, as a basis for the expert's opinion -- does not necessarily mean that it may be used for all substantive purposes by a factfinder who has to make a finding beyond a reasonable doubt. See Commonwealth v. Tucker, 23 Mass. App. Ct. 391 , 393-395 (1987). Assuming independent admissibility, if the admission of the totem pole hearsay contained in the report was for the purpose of ascertaining the basis of the examiners' opinions, and not for the substantive facts set forth, there is no error. See id. at 395. However, it is error where, as here, the judge, over objection, relied upon the statement as proven and substantive. It was improper for the judge to consider it in the manner he did. [Note 14]

Conclusion. "With respect to the weighing and crediting of testimony admitted at trial, we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." Commonwealth v. Boucher, 438 Mass. 274 , 275-276 (2002) (citation omitted). The trial judge employed the wrong definition of sexual dangerousness, using the third, rather than the first, prong of the statute. He additionally weighed hearsay evidence that should not have been admitted substantively. As such, the judgment in this matter is vacated and the case is "remanded to the trial judge to determine whether the evidence, in the context of the particular facts and circumstances of the case, supports a finding that [Boyer] would reasonably be expected to engage in sexual offenses if not confined to a secure facility." Commonwealth v. Boucher, supra

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at 281. See Commonwealth v. Bladsa, 362 Mass. 539 , 540-542 (1972); Thompson, petitioner, 5 Mass. App. Ct. 282 , 284 (1977). [Note 15] Pending that determination, the trial judge's order of confinement shall stand.

So ordered.