COMMONWEALTH vs. EDWARD GIVEN.

CORDY, J. At the commitment trial of a person accused of being sexually dangerous, the Commonwealth is entitled to introduce in evidence "police reports relating to such person's prior sexual offenses." G. L. c. 123A, § 14 (c). We have previously held that "offenses," as used in § 14 (c), means convictions or adjudications, so that the Commonwealth may not introduce reports of nol prossed allegations of sexual assault. Commonwealth v. Markvart, 437 Mass. 331, 336 (2002). In this case, we must decide whether a police report concerning a prior

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sexual offense to which a defendant has pleaded guilty is admissible without redaction, when the same report also contains statements about an uncharged contemporaneous sexual assault. We conclude that it is.

1. Background. In November, 2000, the Commonwealth commenced proceedings under G. L. c. 123A, §§ 12-16, to commit Edward Given as a sexually dangerous person. After a finding of probable cause, the matter was tried before a jury in the Superior Court.

At trial, the Commonwealth introduced evidence that Given had been convicted in 1984 of indecent assault and battery on a child under fourteen years, and that he had pleaded guilty in 1991 to two indictments charging rape of a child, five indictments charging indecent assault and battery on a child under fourteen years, and two indictments charging indecent assault and battery on a mentally retarded person. [Note 1] Several of the charges to which Given pleaded guilty stemmed from a series of acts on a single day in 1990. One of Given's victims on that day, whom we shall call Francine, was the twelve year old mentally retarded niece of one of Given's friends. At trial, over Given's objection, the Commonwealth introduced an unredacted police report detailing Francine's allegations. [Note 2] According to the report, Given agreed to take Francine to the Roll-On America roller skating rink in Lancaster, but stopped at a house on the way and molested her. After they reached the rink, Given sexually assaulted her again in his locked motor vehicle. Francine reported that a six year old boy was also in the locked vehicle at the time of the assault, and that Given also attempted to molest him. [Note 3] Given was never charged with the alleged assault on the six year old boy.

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At the conclusion of the trial, the jury rendered a special verdict finding that Given was a sexually dangerous person, and the trial judge ordered him committed to the treatment center for an indefinite period, from one day to life. Given appealed, and the Appeals Court reversed the judgment and set aside the jury's special verdict, reasoning that the portion of the police report concerning the alleged assault on the six year old boy was inadmissible under § 14 (c), because it did not relate to a prior sexual offense of which Given had been convicted. Commonwealth v. Given, 59 Mass. App. Ct. 390, 394 (2003). We granted the Commonwealth's application for further appellate review. We find no error in the judge's decision to allow introduction of the unredacted police report and therefore affirm the judgment.

2. Discussion. a. Scope of admissible reports under § 14 (c). We first consider whether the police report was admissible under G. L. c. 123A, § 14 (c). Hearsay that is inadmissible under the rules of evidence is inadmissible in a proceeding under G. L. c. 123A, unless the evidence is made admissible by statute. Commonwealth v. Markvart, supra at 335; Commonwealth v. Rodriguez, 376 Mass. 632, 638 & n.10 (1978).

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Section 14 (c) enumerates several categories of specifically admissible evidence:

"Juvenile and adult court probation records, psychiatric and psychological records and reports of the person named in the petition, including the report of any qualified examiner, as defined in section 1, and filed under this chapter, police reports relating to such person's prior sexual offenses, incident reports arising out of such person's incarceration or custody, oral or written statements prepared for and to be offered at the trial by the victims of the person who is the subject of the petition and any other evidence tending to show that such person is or is not a sexually dangerous person shall be admissible at the trial if such written information has been provided to opposing counsel reasonably in advance of trial" (emphases added).

Although we have termed this set of exceptions " 'a very radical departure' from ordinary evidentiary rules," we have nonetheless acknowledged that the Legislature has expressed a clear policy preference in favor of admitting such evidence in G. L. c. 123A proceedings. Andrews, petitioner, 368 Mass. 468, 473 (1975), quoting Commonwealth v. McGruder, 348 Mass. 712, 715 (1965), cert. denied, 383 U.S. 972 (1966). The report admitted in evidence in this case is plainly a police report, and both parties concede that the Commonwealth provided the report to Given in advance of trial.

The report is also one "relating to [Given's] prior sexual offenses," as we have construed the term "offenses" in Commonwealth v. Markvart, supra at 336. An accepted guilty plea is a judicial finding of guilt, entered after a judge is satisfied that, among other things, there is a factual basis for the underlying charge. Mass. R. Crim. P. 12 (c) (5) (A), 378 Mass. 866 (1979). Consequently, a charge to which a defendant pleads guilty is an "offense" for purposes of G. L. c. 123A, § 14 (c). In this case, Francine's allegations that Given sexually assaulted her in his automobile at the roller skating rink gave rise to indictments

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to which Given pleaded guilty. [Note 4] The police report that memorializes Francine's description of what occurred is therefore admissible under § 14 (c) as a "police report relating to [Given's] prior sexual offenses."

The more difficult issue is whether the portion of the report describing Francine's statement that Given molested a six year old boy should have been redacted. The language of § 14 (c) makes clear that the Legislature did not intend to limit the scope of information admissible under § 14 (c) to the mere fact of conviction or even the facts presented at a plea colloquy; rather, other information in police reports -- including any statements describing the defendant's conduct and the circumstances attendant to the offense -- is also admissible. The fact that that information could have, but did not, result in additional criminal charges is irrelevant to its admissibility under § 14 (c). [Note 5]

Francine's statement refers to the six year old boy twice, and, in both instances, the references appear as part of her description of her own abuse. According to Francine, the boy was in the automobile while Given sexually assaulted her, and Given "did the same thing to the little boy." She and the boy were allegedly molested at the same time, in the same way, by the same person. This statement is unambiguously "relat[ed] to" the circumstances of her abuse in Given's automobile. Because Given pleaded guilty to charges stemming from this abuse, the

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police report, including Francine's statement about what occurred, related to an offense and was admissible at Given's trial. [Note 6]

b. Due process. Having determined that the police report was admissible without redaction under § 14 (c), we must evaluate whether its admission violates the due process provisions of the Massachusetts or the Federal Constitution. [Note 7], [Note 8]

Given argues that the admission of Francine's statement (as contained in the police report) without an independent finding that it was reliable violated his right to due process. "While commitment proceedings under c. 123A are civil proceedings, the potential deprivation of liberty to those persons subjected to these proceedings 'mandates that due process protections apply.' " Commonwealth v. Bruno, 432 Mass. 489, 502 (2000), quoting Commonwealth v. Travis, 372 Mass. 238, 250 (1977). However, even in proceedings that may result in a deprivation of liberty, "the due process clause does not place a per se prohibition on the use of hearsay evidence." Commonwealth v. Durling, 407 Mass. 108, 115 (1990) (probation revocation hearing). To determine whether the use of hearsay evidence in a civil commitment case

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violates due process, we need look no further than to its reliability. [Note 9] See id. at 117. See also Comomonwealth v. Negron, ante 685, 690 (2004).

"Evidence which would be admissible under standard evidentiary rules is presumptively reliable." Commonwealth v. Durling, supra at 118. However, as we have stated, the admission of hearsay contained in police reports under § 14 (c) is " 'a very radical departure' from ordinary evidentiary rules." Andrews, petitioner, supra, quoting Commonwealth v. McGruder, supra. This statutory departure is justified, however, where the proffered report relates to an offense of which the defendant has been convicted. The fact of conviction is a powerful

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independent indicator of the reliability of the statements describing the offense on which the conviction rests. In this case, while the fact that Francine, a child suffering from mental retardation, made her statement to police shortly after the traumatic experience of two sexual assaults might cast some doubt on its reliability, Given pleaded guilty to these very assaults.

Insofar as Francine's statement concerning the six year old boy was part of her detailed description of the circumstances of Given's sexual assaults on her, its reliability is similarly bolstered by Given's plea. This is so even though his plea may not have contained an admission to any of the specific facts as described by Francine. [Note 10] Without Given's plea, Francine's statement would be merely an unproven allegation; with the plea, her statement is part of a set of facts that formed the basis for the charges to which Given pleaded guilty. Cf. Commonwealth v. Jackson, 428 Mass. 455, 459-460 (1998) (guilty plea bolstered statement concerning precise factual circumstances of crime, providing sufficient indicia of reliability to justify admitting alleged factual circumstances of crime as modus operandi evidence). To the extent Given desired to challenge any of the details provided by Francine and included in the report, he had both advance notice of them and the power to call Francine or others as witnesses for examination in his case. G. L. c. 123A, § 14 (c) (police reports admissible only if "provided to opposing counsel reasonably in advance of trial"). G. L. c. 123A, § 14 (b) ("person named in the petition shall be entitled to have process issued from the court to compel the attendance of witnesses on his behalf"). The admission of the unredacted police report containing Francine's statements did not offend due process. [Note 11]

c. Additional issues. Given raises several other challenges to

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the judgment. As the Appeals Court concluded, the testimony of the Commonwealth's examiners was more than sufficient to support a finding that Given was a sexually dangerous person, and Given's motion for a required finding of not sexually dangerous was properly denied. None of the remainder of Given's arguments has merit. [Note 12]

3. Conclusion. The judge committed no error by admitting the unredacted police report containing Francine's statement concerning Given's contemporaneous sexual abuse of a six year old boy. The jury's special verdict is therefore reinstated, and the judgment is affirmed.

So ordered.

IRELAND, J. (dissenting, with whom Spina and Cowin, JJ., join). Because I conclude that the portions of the police report concerning the abuse of Francine that referenced the unidentified, unknown six year old boy were inadmissible under G. L. c. 123A, § 14 (c), and violated the defendant's due process rights, and because, in the circumstances of this case, we cannot know for certain that the information did not influence the jury's decision, I would set aside the special verdict and reverse the judgment.

As the court notes, ante at 741, in Commonwealth v. Markvart, 437 Mass. 331 (2002), we held that the phrase "prior sexual offenses" as used in G. L. c. 123A, § 14 (c), regarding the admissibility of information contained in police reports means a conviction or adjudication. Id. at 336. Because this is a narrow exception to the normal rules of evidence, it should be construed strictly. In this case, Given was not charged with any crime concerning the six year old boy and thus was neither convicted nor had an adjudication concerning him.

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Moreover, even if the statute does not preclude the admission of the evidence about the six year old boy, its admission violates Given's due process rights because it constitutes unreliable hearsay. The court implicitly acknowledges that the evidence is hearsay that does not fit within any firmly rooted exception to the hearsay rule, ante at 747 n.9, citing Ohio v. Roberts, 448 U.S. 56, 66 (1980). In that case, the Supreme Court held that hearsay may be admissible if it is reliable and falls within a firmly rooted exception to the hearsay rule. Unless the hearsay fits within such an exception, however, it must be shown to possess a "particularized guarantee[] of trustworthiness" before it may be admitted in evidence. [Note Dissent-1] Id. at 67.

The court concludes that Francine's statement contains the requisite trustworthiness based on the fact that Given pleaded guilty to sexually assaulting her. His guilty plea undoubtedly imbued her statement with reliability, but not all of it. Principles similar to collateral estoppel must apply, for that is the basis underlying the reliability, and hence the admissibility, of those portions of Francine's statement relating to the offenses committed against her. Here, there is no indication that, in his guilty plea, Given adopted that portion of Francine's statement that referred to the six year old boy. The record is silent as to

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whether the Commonwealth advanced the evidence about the boy at the time of Given's plea, either as a victim in his own right or as evidence of the manner and means by which Given committed the offense against Francine. As such, the evidence is not related to Given's guilty plea and is unreliable hearsay. Given's guilty plea did not transform Francine into a reliable reporter for all purposes. Rather, its effect only went to that portion of her statement concerning the facts necessary to support a conviction.

In the circumstances of this case, the admission of this hearsay was prejudicial to the defendant. [Note Dissent-2] Not only was the police report itself submitted to the jury, but the jury also saw the two reports prepared by the Commonwealth's experts, which quoted parts of the police report, including reference to the six year old boy. [Note Dissent-3] In the Markvart case, the court stated:

"Recitation of facts in that report that, although admissible, turn out not to be admitted during trial (or elicited on cross-examination of the expert) would undermine the balance we struck in Department of Youth Servs. v. A Juvenile, [ 398 Mass. 516, 531 (1986)]. In context, the qualified examiner's report is the equivalent of the direct examination of the expert, and the report as submitted to the jury should therefore be subject to the same constraints. Consistent with the principles articulated in Department of Youth Servs. v. A Juvenile, supra and Commonwealth v. Jaime, [ 433 Mass. 575, 577-578 (2001)], the qualified

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examiner's report must be redacted prior to its submission to the jury to exclude any facts or data that were not presented in evidence or elicited during the cross-examination of the qualified examiner. In short, an expert's direct examination is not a vehicle for the introduction of facts in evidence (other than those that the expert directly observed), and the qualified examiner's report should not be transformed into such a vehicle." Id. at 338-339.

In addition, as detailed in the Appeals Court's decision, the experts disagreed on several points, including whether Given suffers "from a mental abnormality or personality disorder," the likelihood of Given's reoffending, and the methodology used to predict that likelihood. Commonwealth v. Given, 59 Mass. App. Ct. 390, 396 (2003).

Furthermore, one of the Commonwealth's experts stated that the fact that Given abused Francine in a public place suggested difficulty controlling his impulses, and the other expert stated that the defendant's behavior escalated over time to include children in the community, demonstrating that Given's "behavior [was] being driven." The evidence regarding the six year old boy undermined a critical portion of the defense, one of whose experts stated that a person who preys on unfamiliar victims is more dangerous than those who molest children they know. Given's other expert stated, "[O]ne factor that has been shown to actually predict future offenses is the pattern of past offenses. That's the best predictor. What someone has done in the past is the best predictor of what they'll do in the future."

Moreover, the judge specifically told the jury, "Given's past sexual misconduct need not have led to criminal charges in order for you to consider that in determining the issues before you. You . . . may also consider any sexual misconduct charges that have been brought to your attention." As the Appeals Court noted in its decision, "The only uncharged conduct in evidence was the alleged incident relating to the six year old boy." Commonwealth v. Given, 59 Mass. App. Ct. 390, 395 (2003).

We cannot be sure that the error either did not influence or have a slight effect on the jury, Commonwealth v. Alphas, 430 Mass. 8, 13-14 n.7 (1999), and cases cited; id. at 23 (Greaney, J., concurring), where, as here, at least some of the information

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about the boy contained in the police report was submitted to the jury three times, experts testified that Given's abuse of Francine showed an escalation in his behavior, and the judge told the jury that they could consider uncharged sexual misconduct. There is little doubt as to the potency of such evidence, for the same reasons we discourage its use as impeachment evidence. See Commonwealth v. Elliot, 393 Mass. 824, 833-834 (1985), quoting Commonwealth v. DiMarzo, 364 Mass. 669, 680-682 (1974) (Hennessey, J., concurring) (use of conviction of prior sexual offense to impeach defendant has high potential for unfair prejudice in trial for sexual offense).

Accordingly, I respectfully dissent.