Commonwealth v. Cole (Lawyers Weekly No. 10-201-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11346 COMMONWEALTH vs. LESLIE COLE. Bristol. October 9, 2015. – December 18, 2015. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Homicide. Evidence, Medical record, Consciousness of guilt, Hearsay, Expert opinion. Deoxyribonucleic Acid. Witness, Expert. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Capital case, Hearsay, Instructions to jury, Confrontation of witnesses, Discovery, Argument by prosecutor, Required finding. Indictments found and returned in the Superior Court Department on March 3, 2006. The cases were tried before Robert J. Kane, J. James E. Methe for the defendant. Mary O’Neil, Assistant District Attorney, for the Commonwealth. SPINA, J. A Superior Court jury convicted the defendant, Leslie M. Cole, of the murder in the first degree of Rudolph Santos (victim) on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, in violation of G. L. c. 265, § 1.[1] On appeal, the defendant contends that (1) the trial judge erred by admitting in evidence unredacted medical records purportedly belonging to the defendant, together with related testimony from a nurse practitioner, and by instructing the jury on consciousness of guilt; (2) the admission of expert testimony concerning the statistical significance of deoxyribonucleic acid (DNA) evidence violated the defendant’s constitutional right to confront witnesses; (3) the trial judge erred by admitting in evidence the victim’s T-shirt, notwithstanding a purported discovery violation by the Commonwealth; (4) the prosecutor made improper remarks during her opening statement and her closing argument; and (5) the judge erred in denying the defendant’s motion for required findings of not guilty. The defendant also requests that we exercise our authority under G. L. c. 278, § 33E, to reduce the conviction of murder to a lesser degree of guilt or to order a new trial. For the reasons detailed below, we affirm the defendant’s convictions and decline to grant relief pursuant to G. L. c. 278, § 33E. 1. Background. We summarize the facts the jury could have found, reserving further details for our discussion of the alleged errors. Shortly before Christmas in 2005, the defendant and William Fields, who sold drugs together, discussed the possibility of robbing an unspecified drug dealer in order to resolve a cash flow problem. One day when the two men were visiting the New Bedford home of Fields’s friend, Shannon Almeida, they asked her if she knew anyone […]
Commonwealth v. Armstrong (Lawyers Weekly No. 11-191-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1538 Appeals Court COMMONWEALTH vs. EDWARD ARMSTRONG. No. 14-P-1538. Middlesex. November 6, 2015. – December 18, 2015. Present: Milkey, Carhart, & Massing, JJ. Armed Home Invasion. Practice, Criminal, Plea, New trial. Statute, Construction. Words, “Remains.” Indictment found and returned in the Superior Court Department on May 16, 2006. A motion for a new trial, filed on June 5, 2014, was considered by Kathe M. Tuttman, J. Judith Ellen Pietras for the defendant. Erin J. Anderson, Assistant District Attorney, for the Commonwealth. MASSING, J. The defendant, Edward Armstrong, appeals from the order denying his motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The defendant alleged in his motion that his guilty plea eight years earlier to a charge of armed home invasion was invalid for lack of a factual basis, contrary to the requirements of Commonwealth v. Hart, 467 Mass. 322, 325-326 (2014), and Mass.R.Crim.P. 12(c)(5)(A), as appearing in 442 Mass. 1511 (2004). Specifically, he claimed that the plea colloquy failed to establish a factual basis for one of the elements of the crime of armed home invasion: that having entered an empty dwelling, he “remain[ed] in such dwelling place knowing or having reason to know that one or more persons are present.” G. L. c. 265, § 18C, inserted by St. 1993, c. 333. A Superior Court judge (motion judge) denied the motion without a hearing. Discerning no abuse of discretion or other error of law, see Commonwealth v. Kirwan, 448 Mass. 304, 314 (2007), we affirm. Background. On September 27, 2006, the defendant pleaded guilty to a five-count indictment charging him with, among other things, armed home invasion. At the same time, he pleaded guilty to three counts in two 2005 indictments arising out of two prior incidents. With respect to one of the prior incidents, the plea judge sentenced the defendant to a State prison term of five to six years on a conviction of assault and battery by means of a dangerous weapon (ABDW), imposed on a “forthwith” basis. G. L. c. 279, § 27. The judge imposed State prison sentences of four to five years with respect to two of the convictions associated with the 2006 armed home invasion (assault by means of a dangerous weapon and possession of a firearm without a license), these sentences to run concurrently with […]
Commonwealth v. Costa (Lawyers Weekly No. 11-190-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-911 Appeals Court COMMONWEALTH vs. THOMAS J. COSTA. No. 14-P-911. Bristol. May 8, 2015. – December 17, 2015. Present: Green, Milkey, & Maldonado, JJ. Motor Vehicle, Operating under the influence. Evidence, Breathalyzer test. Practice, Criminal, Reopening of evidence, Recalling witness, Judicial discretion, Failure to make objection, Failure to object. Complaint received and sworn to in the Taunton Division of the District Court Department on July 23, 2012. The case was heard by Thomas L. Finigan, J. Justin D. Cohen for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. MALDONADO, J. After a bench trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)(a)(1). On appeal, he asserts that (1) the breathalyzer test results were inadmissible because the Commonwealth did not follow certain regulations, (2) the judge erred by reopening the case to take additional evidence on the breathalyzer test after both parties had rested, and (3) the evidence was insufficient to support the conviction. We affirm. Inadmissibility of the breathalyzer. Regulations promulgated by the Executive Office of Public Safety govern how alcohol breath tests are to be administered and how breathalyzers should be maintained. See G. L. c. 90, § 24K. “For a breathalyzer test result to be valid and admissible in evidence, the Commonwealth must demonstrate compliance with those regulations that ‘go to the accuracy of the [breath testing] device or manner in which the [breathalyzer] test was performed.’” Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411 (2014), quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453 (1995). The regulations require “periodic testing” to check the breathalyzer’s function. “[P]rior to the admission of a breathalyzer result, the Commonwealth must prove . . . compliance with[] the requirements of a periodic testing program.” Commonwealth v. Barbeau, 411 Mass. 782, 786 (1992). The periodic tests must be done at a minimum “whenever the calibration standard [here, cylinders of gas, see 501 Code Mass. Regs. § 2.11(3) (2010)] is replaced and after the breath test device is certified by OAT [the office of alcohol testing].”[1],[2] 501 Code Mass. Regs. § 2.12(2) (2010). Each periodic test consists of “five calibration standard analysis tests.” 501 Code Mass. Regs. § 2.12(1) (2010). A calibration standard analysis test is a reading by the breathalyzer […]
Jaynes, petitioner (Lawyers Weekly No. 11-189-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1248 Appeals Court CHARLES JAYNES, petitioner. No. 14-P-1248. Plymouth. October 19, 2015. – December 16, 2015. Present: Berry, Green, & Blake, JJ. Name. Probate Court, Change of name. Constitutional Law, Freedom of religion, Equal protection of laws. Religion. Religious Land Use and Institutionalized Persons Act of 2000. Petition filed in the Plymouth Division of the Probate and Family Court Department on June 18, 2012. The case was heard by Catherine P. Sabaitis, J. Charles Jaynes, pro se. Michael Adam Chinman for Robert Lee Curley. BLAKE, J. On June 18, 2012, Charles Jaynes filed a petition pursuant to G. L. c. 210, § 12, to change his name,[1] citing in support of his request his “Wiccan religious tenets.” After a hearing, a judge of the Probate and Family Court denied the petition. On appeal, Jaynes argues that the judge abused her discretion and that the denial violates the free exercise clause of the First Amendment and the equal protection clause of the Fourteenth Amendment to the United States Constitution; art. 2 of the Massachusetts Declaration of Rights; art. 46 of the Amendments to the Massachusetts Constitution; and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq. (2012). We affirm. 1. Background. Jaynes is currently serving a life sentence, with the possibility of parole, for the 1997 kidnapping and second degree murder of a ten year old boy. See Commonwealth v. Jaynes, 55 Mass. App. Ct. 301 (2002). After Jaynes filed his petition, an order entered requiring notice by publication. Following publication in a local newspaper, nine individuals filed affidavits of objection; three of those persons also filed appearances in the matter. One of those three was the victim’s father. On November 20, 2012, a hearing was held, at which Jaynes testified that “my old heathen name is religiously offensive. It is also spiritually debilitating due to the fact that God and Jesus Christ had given me a new name.” Based on his testimony,[2] the judge found that a name change is not essential to Jaynes’s Wiccan faith. Jaynes does not challenge this finding on appeal.[3] The victim’s father, his counsel Michael Chinman, and two of the other nine objectors spoke in opposition. The victim’s father briefly described the crimes Jaynes had committed and noted Jaynes’s […]
South Boston Elderly Residences, Inc. v. Moynahan (Lawyers Weekly No. 11-188-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-319 Appeals Court SOUTH BOSTON ELDERLY RESIDENCES, INC. vs. GERALD MOYNAHAN. No. 15-P-319. Suffolk. November 2, 2015. – December 15, 2015. Present: Agnes, Sullivan, & Blake, JJ. Practice, Civil, Summary Process, Appeal, Dismissal of appeal, Assembly of record. Summary Process. Rules of Appellate Procedure. Summary process. Complaint filed in the Boston Division of the Housing Court Department on February 4, 2013. A motion to dismiss the appeal was heard by Jeffrey M. Winik, J. A. Joseph Ross for the tenant. W. Paul Needham for the landlord. BLAKE, J. Following the entry of judgment in a summary process action in the Boston Division of the Housing Court, the defendant tenant, Gerald Moynahan, filed a notice of appeal from the judgment. More than one year later, the plaintiff landlord, South Boston Elderly Residences, Inc. (SBER), moved to dismiss the appeal, citing Moynahan’s delay in filing the trial transcript with the court. The motion was allowed, and this appeal followed. We reverse. 1. Procedural background. On October 28, 2013, Moynahan’s notice of appeal relating to the underlying judgment was filed with the court. On November 25, 2013, Moynahan through counsel (counsel) ordered a copy of the recording of the trial, which the court received on December 2, 2013, and so notified counsel that day. On January 21, 2014, counsel retrieved the copy and sent it to be transcribed. A dispute arose between the transcriber and counsel as to who would file the transcript with the court. The transcriber ultimately refused to file the transcript, contrary to Mass.R.A.P. 8(b)(3)(iv), as appearing in 388 Mass. 1106 (1983). On February 18, 2014, the transcription was completed and delivered to counsel. Rather than filing the transcript when he received it from the transcriber, counsel decided to wait until after he recovered from a scheduled surgery to file it.[1] Counsel eventually filed the transcript with the court on December 12, 2014. On December 17, 2014, SBER filed a motion to dismiss the appeal for undue delay pursuant to Mass.R.A.P. 9(c), as amended, 417 Mass. 1601 (1994), and Mass.R.A.P. 10(c), as amended, 417 Mass. 1602 (1994). After a hearing, a judge allowed the motion, on the ground that counsel had committed inexcusable neglect by purposely delaying the filing of the transcript to control the timing of the appeal. Moynahan filed a timely notice […]
Saia v. Bay State Gas Company (Lawyers Weekly No. 11-187-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 14-P-1010 Appeals Court DIANE SAIA[1] vs. BAY STATE GAS COMPANY. No. 14-P-1010. Suffolk. April 15, 2015. – December 15, 2015. Present: Cohen, Wolohojian, & Maldonado, JJ. Massachusetts Retail Instalment Sales Act. Massachusetts Consumer Credit Cost Disclosure Act. Consumer Protection Act, Class action. Practice, Civil, Summary judgment. Contract, Lease of equipment. Civil action commenced in the Superior Court Department on November 2, 2010. After review by this court, 81 Mass. App. Ct. 1127 (2012), the case was heard by Janet L. Sanders, J., on motions for summary judgment. Valeriano Diviacchi for the plaintiff. J. Christopher Allen, Jr. (Troy Lieberman with him) for the defendant. MALDONADO, J. The plaintiff appeals from a judgment of dismissal contending, as she did below, that a transaction involving the lease of a water heater was actually a credit sale in disguise, and, consequently, that the defendant’s failure to make certain required disclosures amounted to common-law misrepresentation and a violation of G. L. c. 93A. Guided by Silva v. Rent-A-Center, Inc., 454 Mass. 667 (2009) (Silva), a Superior Court judge concluded that the transaction at issue did not meet the definition of either a “credit sale” under the Consumer Credit Cost Disclosure Act (CCCDA), G. L. c. 140D, § 1, or a “retail installment sale agreement” under the Retail Instalment Sales and Services Act (RISSA), G. L. c. 255D, § 1, and, accordingly, granted summary judgment in favor of the defendant. We agree and affirm. Background. In July, 2010, the plaintiff, Diane Saia, entered into an agreement with the defendant, Bay State Gas Company (Bay State), for the installation of a new water heater at her home in Longmeadow. The plaintiff signed a document entitled “Appliance Lease Agreement,” which obligated her to pay $ 28.16 per month for three years for use of a water heater. The total lease payments for the three-year “minimum term” amounted to $ 1,013.76. That amount combined with a $ 220 upfront installation fee brought the plaintiff’s total obligation under the agreement to $ 1,233.76. At the end of the minimum term, both the plaintiff and the defendant could cancel the lease at any time upon a thirty-day written notice. Absent the written cancellation notice, the lease could continue indefinitely. The plaintiff was also given the option to purchase the water heater at any time during the lease […]
Carrington v. Commonwealth (Lawyers Weekly No. 10-200-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11889 KERR CARRINGTON vs. COMMONWEALTH. December 11, 2015. Supreme Judicial Court, Superintendence of inferior courts. Kerr Carrington appeals from a judgment of a single justice of this court denying his petition for relief under G. L. c. 211, § 3. Carrington was convicted in 2010 of several criminal offenses. His convictions were affirmed by the Appeals Court, and we denied further appellate review. Commonwealth v. Carrington, 84 Mass. App. Ct. 1101, S.C., 466 Mass. 1103 (2013). In his G. L. c. 211, § 3, petition, Carrington challenged various asserted errors in the criminal proceedings. The single justice denied relief without a hearing. We affirm. Carrington has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a petitioner seeking relief from an interlocutory ruling of the trial court to “set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” That rule does not apply here, as the charges against Carrington have gone to final judgment. Nonetheless, it is clear that Carrington had, and exercised, an adequate opportunity to obtain review in the ordinary appellate process. Moreover, he remains free to file a motion for a new trial pursuant to Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), and to appeal from any adverse ruling thereon. “The court’s extraordinary power of general superintendence under c. 211, § 3, is ‘exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course.’” Doyle v. Commonwealth, 472 Mass. 1002, 1003 (2015), quoting Norris v. Commonwealth, 447 Mass. 1007, 1008 (2006). Judgment affirmed. The case was submitted on briefs. James P. McKenna for the petitioner. Full-text Opinions
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Souza v. Commonwealth (Lawyers Weekly No. 10-199-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11941 ROBERT M. SOUZA vs. COMMONWEALTH. December 11, 2015. Supreme Judicial Court, Superintendence of inferior courts. It appears from the sparse material before us, and from our review of the trial court docket, that the petitioner was convicted in the District Court in August, 2013, of four counts of violating an abuse prevention order. He was sentenced in November, 2013. His direct appeal was entered in the Appeals Court in September, 2014, and is currently pending there. The petitioner is represented by counsel in that appeal. In May, 2015, the petitioner, acting on his own, filed a pleading in the county court entitled “Petition to Remand Sentence for Resentencing.” He averred in a supporting affidavit, among other things, that his sentences were “unduly harsh” and “much [too] severe all facts considered.” He also averred that his conviction was the product of ineffective assistance of his trial counsel. He asked that a single justice of this court “review and reconsider the sentence[s].” His petition was treated by the single justice as a petition pursuant to G. L. c. 211, § 3, and denied without a hearing. He now appeals from the judgment of the single justice. The single justice neither erred nor abused her discretion in denying the petition. A defendant in these circumstances can challenge the legality of his or her sentence, and the constitutional effectiveness of his or her counsel, through the normal course of postconviction motions and appeals. Beyond that, a defendant is not entitled to the extraordinary intervention of this court to vacate or change a sentence that is legal but that the defendant feels is too harsh. Judgment affirmed. The case was submitted on briefs. Robert M. Souza, pro se. Full-text Opinions
Aurora Loan Services, LLC v. Murphy (Lawyers Weekly No. 11-186-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-874 Appeals Court AURORA LOAN SERVICES, LLC vs. WALTER MURPHY.[1] No. 13-P-874. Plymouth. November 4, 2015. – December 11, 2015. Present: Berry, Meade, & Maldonado, JJ. Mortgage, Foreclosure, Real estate. Real Property, Mortgage, Sale. Sale, Real estate. Notice, Foreclosure of mortgage. Practice, Civil, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Summary process. Complaint filed in the Southeast Division of the Housing Court Department on February 6, 2012. The case was heard by Anne Kenney Chaplin, J., and a motion for reconsideration was heard by her. Paul R. Collier, III, for the defendant. Shawn Michael Masterson for the plaintiff. MEADE, J. Walter Murphy purchased his home in 2007 with a mortgage loan from GreenPoint Mortgage Funding, Inc. (GreenPoint). In November of 2010, Murphy received a notice from Aurora Loan Services, LLC (Aurora), notifying him that he had defaulted on his loan. The letter also informed him of his right to cure the default, or to assert the nonexistence of a default or any other defense to acceleration of the loan in a foreclosure proceeding. Acting as nominee for GreenPoint, the Mortgage Electronic Registrations Systems, Inc. (MERS), assigned the mortgage to Aurora on April 13, 2011. In October, 2011, Aurora foreclosed on and purchased the property in an extrajudicial foreclosure auction. Thereafter, Aurora commenced a summary process action to evict Murphy. In Housing Court, the judge determined that Aurora, as mortgage servicer, adequately complied with the requirements under G. L. c. 244, § 35A, as mortgagee, and granted it summary process to recover possession of the premises. On appeal from the judgment, Murphy claims that, pursuant to the Supreme Judicial Court’s (SJC) recent decision in Pinti v. Emigrant Mort. Co., 472 Mass. 226 (2015), Aurora’s failure to strictly comply with the notice of foreclosure procedures contained in Murphy’s mortgage renders the subsequent foreclosure void. Asserting that a ruling in his favor would not impair existing property interests and doing so would apply Pinti‘s otherwise prospective limitation equitably and without appearing arbitrary and capricious, Murphy claims the Pinti ruling ought to extend to cases pending on appeal (when the claim was raised and preserved) at the time of the Pinti decision’s release. We agree and therefore reverse. 1. Background. Murphy purchased 245 Holmes Street in Halifax on March 13, 2007, through a mortgage loan […]
Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board (Lawyers Weekly No. 10-198-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11823 JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 380316 vs. SEX OFFENDER REGISTRY BOARD. Middlesex. September 9, 2015. – December 11, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Sex Offender. Sex Offender Registration and Community Notification Act. Constitutional Law, Sex offender, Burden of proof. Due Process of Law, Sex offender, Hearing, Standard of proof. Practice, Civil, Sex offender, Standard of proof. Internet. Civil action commenced in the Superior Court Department on November 21, 2013. The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Brandon L. Campbell for the plaintiff. David L. Chenail (Elisha W. Willis with him) for the defendant. Beth L. Eisenberg & Larni S. Levy, Committee for Public Counsel Services, & Eric B. Tennen, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. Andrew S. Crouch, for Youth Advocacy Division of the Committee for Public Counsel Services & another, amici curiae, submitted a brief. LENK, J. We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender’s risk classification by a preponderance of the evidence. In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender’s risk classification by clear and convincing evidence.[1] 1. Background. When Doe was thirty-five years old, he reportedly “twisted” the penis of his six year old nephew through the child’s underwear while both were in the bathroom. […]