Commonwealth v. Bradshaw

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15-P-568 Appeals Court
COMMONWEALTH vs. WILLIAM BRADSHAW.
No. 15-P-568.
Suffolk. November 6, 2017. - November 14, 2018.
Present: Agnes, Maldonado, & McDonough, JJ.
Constitutional Law, Sex offender, Self-incrimination. Due
Process of Law, Sex offender. Evidence, Sex offender,
Prior misconduct. Practice, Civil, Sex offender. Sex
Offender.
Civil action commenced in the Superior Court Department on
September 13, 2013.
The case was tried before Brian A. Davis, J.
Joseph M. Kenneally for the defendant.
Darcy A. Jordan, Assistant District Attorney (Nicole A.
Poirier, Assistant District Attorney, also present) for the
Commonwealth.
AGNES, J. Following a jury trial, the defendant, William
Bradshaw, was found to be a "sexually dangerous person." See
G. L. c. 123A, §§ 1, 12, 14. In accordance with the statute,
2
the judge committed the defendant to the Massachusetts Treatment
Center (treatment center) for an indeterminate period of from
one day to life.
This appeal followed and requires us to determine whether
the judge erred in allowing the Commonwealth to call a witness
who testified to instances of uncharged sexual misconduct
committed against her by the defendant. For the reasons that
follow, we conclude that such evidence was admissible because it
was relevant, it did not violate restrictions on the use of
character evidence, and its probative value far outweighed any
danger of unfair prejudice.
Background. In September, 2013, the district attorney
filed a petition to civilly commit the defendant as a sexually
dangerous person pursuant to G. L. c. 123A, § 12, based on the
defendant's prior adjudications of delinquency and his numerous
convictions of sexual offenses. See Commonwealth v. MacLeod,
437 Mass. 286, 290-291 (2002) (describing process pursuant to
G. L. c. 123A, § 12 (b), by which appropriate district attorney
is notified six months in advance of release from custody of
person serving sentence for any one of enumerated sexual
offenses, and opportunity that said prosecutor has to determine
whether prisoner is likely to be sexually dangerous, and, if so,
to file petition in Superior Court alleging that prisoner is
sexually dangerous, along with sufficient facts to support
3
same). The filing of a petition by the district attorney under
G. L. c. 123A, § 12 (b), triggers a probable cause hearing, see
G. L. c. 123A, § 12 (c),1 which, in turn may lead to a trial.
See G. L. c. 123A, § 14. See Commonwealth v. Gross, 447 Mass.
691, 693-694 (2006).
In order to prove that a person is a "sexually dangerous
person," the Commonwealth must establish, by the standard of
proof beyond a reasonable doubt, that the person was "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." G. L. c. 123A, § 1. In the present case, the
Commonwealth presented evidence at trial of the defendant's
adjudications and convictions, which consisted of a 1999
juvenile commitment for indecent assault and battery on a child
1 "At a probable cause hearing conducted pursuant to G. L.
c. 123A, § 12 (c), the judge is to conduct 'a two-part inquiry,
one quantitative and the other qualitative. The judge must be
satisfied, first, that the Commonwealth's admissible evidence,
if believed, satisfie[s] all of the elements of proof necessary
to prove the Commonwealth's case. Second, she must be satisfied
that the evidence on each of the elements is not so incredible,
insubstantial, or otherwise of such a quality that no reasonable
person could rely on it to conclude that the Commonwealth had
met its burden of proof.'" Commonwealth v. Fusi, 91 Mass. App.
Ct. 901 (2017), quoting Commonwealth v. Reese, 438 Mass. 519,
524 (2003).
4
under the age of fourteen2 and two 2012 convictions for rape of a
child and indecent assault and battery on a child under the age
of fourteen.3 Each of the three victims in these cases were
prepubescent girls (ages three, six, and eight) who were
relatives of the defendant.
Both qualified examiners diagnosed Mr. Bradshaw with
pedophilia and antisocial personality disorder. They also stated
that the existence of these disorders contributed to their
conclusions that he suffers from a mental abnormality4 and a
personality disorder,5 as defined in G. L. c. 123A, § 1. Doctors
2 This charge was the result of a 1998 incident when Mr.
Bradshaw was sixteen years of age. Mr. Bradshaw and his niece,
referred to as "D," were in the bathroom when the child’s mother
saw him wiping what she believed to be semen off of the child,
who was seated with her underwear down and her dress up. The
child said that the defendant licked her vagina and rubbed his
penis against her until he ejaculated.
3 The 2012 convictions involved two separate incidents with
different victims. In 2005, the defendant touched his eight
year old cousin, referred to as "N," on her vagina on two
occasions while they played video games. In 2009, while the
defendant's mother was also home, the defendant took off his
daughter's clothes and covered her mouth, telling her to be
quiet as he raped her.
4 A mental abnormality is defined as "a congenital or
acquired condition of a person that affects the emotional or
volitional capacity of the person in a manner that predisposes
that person to the commission of criminal sexual acts to a
degree that makes the person a menace to the health and safety
of other persons." G. L. c. 123A, § 1.
5
Johnson and Belle testified that Mr. Bradshaw had not
sufficiently progressed in treatment, had not come to understand
his offending behavior, and was likely to reoffend sexually if
released from confinement. Dr. Katrin Rouse-Weir, who testified
on behalf of Mr. Bradshaw, concluded that he was not sexually
dangerous. She testified that though Mr. Bradshaw suffered from
pedophilia and antisocial personality disorder, which satisfied
the statutory definitions of mental abnormality and personality
disorder, he was unlikely to reoffend. The two other qualified
examiners testified that Mr. Bradshaw was not of advanced age and
did not suffer from poor health, factors that are both associated
with lower risks of reoffending. They also noted that Mr.
Bradshaw has struggled with substance abuse which, left
unaddressed, may diminish inhibitions related to offending.
Prior to trial, B.B., who also was related to the
defendant, spoke with a prosecutor and an investigator and
recounted the sexual abuse perpetrated against her by the
defendant while she was between the ages of five and eleven,
which spanned the years 1995-2001.6 B.B.'s pretrial statements,
5 A "personality disorder" is defined as "a congenital or
acquired physical or mental condition that results in a general
lack of power to control sexual impulses." G. L. c. 123A, § 1.
6 The Commonwealth chose not to prosecute the defendant
based on the allegations made by B.B.
6
which mirror her trial testimony in all material respects, were
subsequently memorialized in a report that was provided to the
defendant prior to the trial and submitted to the qualified
examiners assigned to the case. The defendant filed a pretrial
motion to exclude B.B.'s testimony for a number of reasons,
including a claim that it would force the defendant to waive his
privilege against self-incrimination, and that such evidence was
prejudicial, irrelevant, and cumulative. The judge denied the
motion.
At trial, both qualified examiners testified that B.B.'s
statements constituted further evidence of the defendant's
sexual attraction to prepubescent girls. In particular, these
experts testified that the defendant's criminal acts committed
against B.B. were evidence of the "persistence of his deviant
sexual arousal toward prepubescent girls" (Dr. Johnson) and
"another indicator of his inability to control his sexual
impulses" (Dr. Belle). The jury ultimately found beyond a
reasonable doubt that the defendant was a sexually dangerous
person. He was committed to the Bridgewater State treatment
center for an indefinite period ranging from one day to life.
Discussion. 1. Evidentiary issues. Much of the
defendant's argument why B.B.'s testimony should not have been
admitted at trial is mistakenly focused on G. L. c. 123A,
§ 14 (c). Specifically, the defendant argues that § 14 (c) does
7
not authorize the admission of evidence of uncharged criminal
conduct. The statute reads as follows:
"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."
In Commonwealth v. Markvart, 437 Mass. 331, 333-334 336
(2002), the Supreme Judicial Court held that a defendant must be
convicted or adjudicated delinquent of the crime underlying a
police report or witness statement as a precondition of its
admissibility in evidence during a trial on a sexually dangerous
person petition.7 The defendant attempts to use the statutory
language of § 14 (c), and the Court's holding in Markvart to
argue that B.B.'s testimony was improperly admitted in evidence
7 This general rule has since been tempered by other
opinions of this court and the Supreme Judicial Court. See
Commonwealth v. Given, 441 Mass. 745-746 (2004) (statement of
uncharged conduct in police report admissible in sexually
dangerous person proceeding as it was "unambiguously 'relat[ed]
to'" circumstances of victim's abuse that resulted in guilty
plea); Commonwealth v. Starkus, 69 Mass. App. Ct. 326, 333
(2007) (uncharged conduct in follow-up report by police
admissible where it related to sexual offense of which defendant
was ultimately convicted).
8
at trial because her testimony recounted sexual misconduct that
did not result in a conviction. The defendant's argument is
unpersuasive.
As its plain language suggests, § 14 (c) is a statutory
exception to the hearsay rule that "enumerates several
categories of specifically admissible evidence," Commonwealth v.
Given, 441 Mass. 741, 744 (2004), that would otherwise be
inadmissible hearsay. See McHoul, petitioner, 445 Mass. 143,
147 (2005); Given, supra; Markvart, supra at 335-336. See also
Mass. G. Evid. § 1103 (b) (1) (2018). B.B. provided live-
witness testimony based on her direct experience and, as such,
her testimony was not hearsay and was not affected by § 14 (c).
See Mass. G. Evid. § 801 (2018).
Although the defendant was never charged with a crime based
on B.B.'s allegations, the limitation placed on the
admissibility of witness statements and police reports by the
court in Markvart does not limit a witness's ability to testify
about uncharged sexual misconduct during a trial on a sexually
dangerous person petition. Indeed, in Markvart, 437 Mass. at
337, the Court, in its discussion as to whether the material
from a nol prossed case could form the basis of a qualified
examiner's opinion, explained: "The fact that a prior charge
was nol prossed does not mean that the underlying information on
which the charge was predicated has become inherently
9
inadmissible. For example, the complaining witness in the nol
prossed case would still be allowed to testify, as would any of
the other witnesses who could have testified if that case had
gone to trial." Here, B.B. did just that.
We now turn to the question of whether B.B.'s testimony,
which was not admitted pursuant to a particular statutory
exception to our common law of evidence, was properly admitted.
The defendant's objection is framed in terms of due process and
is based on two principal arguments. First, the defendant
contends in general terms it is fundamentally unfair to impose
on him a burden to defend against allegations of criminal
activity for which he was neither charged nor convicted and that
are alleged to have occurred over twenty years before his trial.
This argument, in turn, calls for a consideration of the
probative value of the evidence weighed against its potential
for unfair prejudice. B.B.'s testimony was highly probative and
its evidential value was not substantially outweighed by the
danger of unfair prejudice. See Mass. G. Evid. § 403 (2018).8
8 Because the definition of a sexually dangerous person
under G. L. c. 123A, § 1, requires the Commonwealth to prove
that there is a likelihood that the defendant will reoffend in
the future if he is not confined to a secure facility, and all
the experts who testified at trial were in agreement that the
defendant suffered from pedophilia, evidence that the defendant
committed sexual assaults against children other than those that
resulted in his conviction was inherently relevant and probative
on the question of the likelihood of reoffending in the future.
As the Virginia Supreme Court recently observed in a civil
10
In a proceeding requiring the Commonwealth to prove that
the defendant was sexually dangerous if released into society,
the probative value of B.B.'s testimony was significant because,
as the qualified examiners testified, it further evinced the
defendant's inability to control his sexual impulses and his
deviant arousal. B.B. testified that she was sexually assaulted
from the mid-1990s until approximately 2001, and the defendant
was convicted or adjudicated delinquent of other sexual offenses
occurring between 1998 and 2009. The defendant's conduct set
commitment proceeding, evidence that a defendant committed
sexual offenses against persons that did not result in criminal
charges is not an improper use of character evidence, see Mass.
G. Evid. § 404 (a) (1) (2018), because the central question
before the court is not whether the defendant committed those
other offenses. "Rather, it is whether, because of a mental
abnormality or personality disorder, he finds it difficult to
control his predatory behavior, which makes him likely to engage
in sexually violent acts in the future." Commonwealth v.
Proffitt, 292 Va. 626, 640 (2016). Because the expert witnesses
in the present case testified that not only did the defendant
suffer from a mental abnormality and a personality disorder, but
that he was unable to control his deviant sexual impulses, it
cannot be said that the defendant's commitment rests solely on
proof of his bad character. See Kansas v. Hendricks, 521 U.S.
346, 357 (1997) (civil commitment cannot be based on "a mere
predisposition to violence; rather, it requires evidence of past
sexually violent behavior and a present mental condition that
creates the likelihood of such conduct in the future if the
person is not incapacitated"). See also Commonwealth v. George,
477 Mass. 331, 336 (2017) (Massachusetts law does not permit
indefinite commitment of people because they are diagnosed as
having psychiatric or psychological condition). Finally, the
balancing test that is applicable under Mass. G. Evid. § 403 is
the traditional one that calls for exclusion of relevant
evidence only when its probative value is "substantially
outweighed" by the danger of unfair prejudice. Contrast
Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014).
11
forth in B.B.'s testimony was thus not too remote in time to the
other crimes of which the defendant was convicted or adjudicated
delinquent so as to render B.B.'s testimony unfairly
prejudicial.9
The defendant was given timely notice that B.B. would
testify, and was aware of the substance of her testimony. The
defendant also had the opportunity to cross-examine B.B. and
expose any weaknesses in her testimony. He chose not to do so.
The jury were also adequately instructed that it was to
determine the credibility of the witnesses who testified at
trial and the weight that any particular witness's testimony
should be given.
The second aspect of the defendant's due process argument
is that the introduction of B.B.'s testimony unlawfully burdened
his decision to testify in his own defense. The defendant
asserts that, if he had testified at trial, he would have been
placed in the position of choosing between two undesirable
options: he could have asserted before the jury his right
against self-incrimination under the Fifth Amendment to the
9 The defendant further argues that the qualified examiners
improperly considered a report that mirrored B.B.'s testimony,
discussed supra, in concluding that the defendant was a sexually
dangerous person. This argument is unavailing. The qualified
examiners properly relied on the report, as the facts contained
therein were admitted at trial through B.B.'s testimony. See
Markvart, 437 Mass. at 336-337, citing Department of Youth
Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).
12
United States Constitution with respect to the misconduct
underlying B.B.'s testimony, or, alternatively, he could have
challenged B.B.'s claims knowing that his testimony could
subject him to criminal liability; the defendant ultimately did
not testify at trial.
The defendant's argument is unavailing as he cites no
authority to support his contention. The prohibition against
self-incrimination applies in civil proceedings, such as those
brought pursuant to G. L. c. 123A, § 12, where the defendant's
testimony may give rise to "future criminal proceedings."
Commonwealth v. Hunt, 462 Mass. 807, 811-812 (2012). The
parties do not dispute that the defendant could have been
subjected to criminal liability based on B.B.'s testimony.
However, the defendant depicts his choice as one between
testifying and exposing himself to cross-examination with
reference to a matter that could result in a future criminal
prosecution or not testifying at all. There was another option.
The defendant could have sought a ruling that he would not have
to assert his privilege against self-incrimination in front of
the jury unless he testified about B.B.'s allegations on direct
examination. The judge could then have then ruled on the
defendant's assertion of the privilege outside the presence of
the jury. See Commonwealth v. Fischer, 433 Mass. 340, 349-350
(2001). If the judge determined that there was a valid basis
13
for asserting the privilege to questions relating to B.B.'s
testimony, the Commonwealth could have been prevented from
questioning the defendant about the allegations set forth by
B.B.
Conclusion. For the above reasons, evidence of uncharged
criminal conduct similar in nature to the conduct described in
the predicate offenses and alleged to have occurred close in
time to the acts that make up the predicate offenses is
admissible in a proceeding to determine whether the defendant is
a sexually dangerous person because it is relevant and probative
on the question of the defendant's likelihood of reoffending and
any danger of unfair prejudice can be avoided by appropriate
instructions to the jury.
Judgment affirmed.