On April 14, 2010 the Mass Appeals court ruled in COMMONWEALTH vs. ISHMAEL SHAHEED 76 Mass.App.Ct. 598 (2010) that a post release convict cannot commit assault and battery on a Corrections officer.
The court stated “The defendant appeals from a conviction following a jury-waived trial in the Superior Court for assault and battery upon a correction officer, in violation of G. L. c. 127, § 38B. [FN1] *599 The parties agree on the essential facts of the case. Prior to November 17, 2006, the defendant was confined to the Suffolk County house of correction. At that time, he was found to be a person confined in a place of detention in need of hospitalization by reason of mental illness. G. L. c. 123, § 18(a). He was committed to Bridgewater State Hospital on November 17, 2006. His sentence to the house of correction expired on March 13, 2007.
When his sentence expired, the defendant was determined to be a mentally ill person who required the strict custody of Bridgewater State Hospital and who would not receive similar care at any other Department of Mental Health facility. G. L. c. 123, §§ 7 & 8. He continued to be held at Bridgewater State Hospital. [FN2] On May 8, 2007, the defendant committed an assault and battery on a correction officer employed by the Department of Correction and assigned to Bridgewater State Hospital. He was prosecuted for committing an assault and battery on a correction officer pursuant to G. L. c. 127, § 38B.
The issue on appeal is whether the defendant was a prisoner within the definition of the statute at the time of the assault. He contends that as an patient of the Bridgewater State Hospital under a civil commitment at the time of the assault he was not a “prisoner” for purposes of prosecution pursuant to G. L. c. 127, § 38B. We agree.
Discussion. The statute prohibits a “prisoner” from assaulting or battering an “officer, guard or other employee of any jail, house of correction or correctional institution” of the Commonwealth. G. L. c. 127, § 38B. The Commonwealth urges us to apply the statutory definition of “prisoner.” It argues that the defendant is a committed offender and such other person as is placed in custody in a correctional facility [Bridgewater State Hospital, a part of Massachusetts Correctional Institution, *600 Bridgewater (MCI)] in accordance with law,” G. L. c. 125, § 1(m), and thus, that he is a prisoner within the definition of the statute and subject to the penalty for assault and battery on a correction officer.
In Commonwealth v. Gillis, 448 Mass. 354, 360 (2007),the court held that persons committed to Bridgewater State Hospital under G. L. c. 123, §§ 7 & 8, who have completed a criminal sentence and have no pending charges, are not “prisoners” for purposes of a petition to determine whether that person is a sexually dangerous person pursuant to G. L. c. 123A. The reasoning of Gillis is persuasive in this case. The Gillis court determined that G. L. c. 123A affects the defendant’s liberty interests, thus the statute’s language must be strictly construed. See Gillis, supra at 357, quoting from Commonwealth v. Beck, 187 Mass. 15, 17 (1904) (“[l]aws in derogation of the liberty or general rights, of the citizen . . . are to be strictly construed”).
The assault at Bridgewater State Hospital followed the expiration of the defendant’s sentence. He was no longer a prisoner, but rather was a person under civil commitment to Bridgewater State Hospital. We reverse so much of the judgment that determined the defendant was a prisoner in a correctional institution within the definition of the statute. That part of the judgment that finds the defendant guilty of assault and battery is affirmed. The matter is remanded for sentencing consistent with the lesser included offense of assault and battery.”
Attorney Ronald A. Sellon