Commonwealth v. Felt (Lawyers Weekly No. 10-163-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11370 COMMONWEALTH vs. RICHARD FELT. Middlesex. May 7, 2013. ‑ August 30, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sex Offender. Practice, Civil, Sex offender, Dismissal. Evidence, Sex offender. Witness, Expert, Psychiatric examination. Statute, Construction. Civil action commenced in the Superior Court Department on July 13, 2011. A motion to dismiss was heard by Garry V. Inge, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. James D. Kerr, Assistant District Attorney (Heidi Lyn Gosule, Assistant District Attorney, with him) for the Commonwealth. David Hirsch, Committee for Public Counsel Services, for the defendant. BOTSFORD, J. The defendant, Richard Felt, is the subject of a petition for commitment under G. L. c. 123A, § 12. A judge in the Superior Court allowed a motion for the defendant’s counsel to be present during interviews conducted by qualified examiners pursuant to G. L. c. 123A, § 13 (a) (§ 13 [a]).[1] One of the two qualified examiners refused to conduct the interview with counsel in the room and submitted to the court her qualified examiner report based on her review of the defendant’s records only. The questions we consider in this case are whether the “examination” that a qualified examiner must undertake under § 13 (a) as the first step of a sexually dangerous person commitment process must include a personal interview of the defendant in accordance with the terms of a court order permitting his counsel to be present; and, if so, what consequences flow from the failure of the qualified examiner to conduct such an interview. We conclude that a personal interview is generally a required component of a § 13 (a) examination, regardless of whether counsel is present. Nevertheless, in the circumstances of this case, dismissal of the Commonwealth’s petition was not warranted as a remedy for the refusal of one of the qualified examiners to conduct the interview with counsel in attendance, where the other qualified examiner personally interviewed the defendant as part of his § 13 (a) examination and filed with the court a report expressing the opinion that the defendant is a sexually dangerous person. On remand, however, the Commonwealth may not use at trial the report or testimony of the qualified examiner who refused to interview the defendant. 1. Background. In 1988, a […]