Appeals Court (April 14, 2010)

A person who is found mentally ill and requires strict custody at Bridgewater (or other) state hospital may only be found guilty of assault and battery upon a correction officer in violation of G.L. c. 127, §38B if they are still serving a criminal sentence, or are awaiting trial on a criminal sentence. Otherwise, they are not "prisoners" as required by statute.

The defendant was convicted of assault and battery upon a correction officer. When his criminal sentence expired, the defendant was determined to be a mentally ill person (pursuant to G.L. c. 123 §§7 & 8) who required the strict custody of Bridgewater State Hospital and who would not receive similar care at any other DPH facility. Thereafter, he committed an assault and battery on a correction officer employed by the DOC and assigned to Bridgewater. The defendant appealed and the Appeals Court reversed and remanded for the defendant to be sentenced in accordance with the lesser included offense of assault and battery.

G.L. c. 127, §38B 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. The Appeals Court held that the defendant is not a prisoner within the meaning of the statute. In Commonwealth v. Gillis, 448 Mass. 354 (2007) the SJC held that the Commonwealth may not petition for an individual's SDP commitment if they are no longer serving a criminal sentence, even if they are still confined to a facility, because they are no longer a "prisoner." As in Gillis, the Court held that the term "prisoner" is defined as an individual who is either serving a criminal sentence or is awaiting trial on a criminal sentence. The defendant was a civilly committed patient and was neither serving a criminal sentence, nor awaiting trial and therefore, could not be convicted of c. 127, §38B.