Commonwealth v. Jones ( 2017 )

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revision and are superseded by the advance sheets and bound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-12255
COMMONWEALTH vs. RICHARD JONES.
Essex. May 4, 2017. - October 4, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ.1
Child Abuse. Rape. Indecent Assault and Battery. Evidence,
Medical record, Production on demand, Privileged record,
Cross-examination, Prior misconduct.
Indictments found and returned in the Superior Court
Department on March 27, 2009.
Motions for summonses for the production of records were
heard by Timothy Q. Feeley, J., and the cases were tried before
him.
The Supreme Judicial Court granted an application for
direct appellate review.
Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
David F. O'Sullivan, Assistant District Attorney (Kimberly
Faitella, Assistant District Attorney, also present) for the
Commonwealth.
Meagen K. Monahan, Anthony D. Mirenda, Madeleine K.
Rodriguez, Jeremy W. Meisinger, Stacy A. Malone, & Lindy L.
1
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
Aldrich, for Victim Rights Center & others, amici curiae,
submitted a brief.
LOWY, J. The defendant appeals from his convictions
stemming from his sexual abuse of his two daughters. He argues
that (1) a Superior Court judge abused his discretion by
refusing to issue summonses pursuant to Mass. R. Crim. P. 17 (a)
(2), 378 Mass. 885 (1979), regarding the release of the mental
health and counselling records of the younger of the daughters,
Diane;2 and (2) the judge's restriction of the defendant's cross-
examination of Diane was an abuse of discretion. We affirm the
convictions.3
Background. In 2005 or 2006, when Diane was in the seventh
grade and eleven or twelve years old, she stayed home from
school one day. She was sitting on a couch watching television
and her father was at a nearby computer when a commercial with
sexual themes came on the air. After a discussion regarding sex
sparked by the commercial, the defendant sat down next to Diane
and she wound up in his lap. The defendant then slid his hand
under Diane's pants and underwear and touched her vagina. Diane
pushed her father's hand away and ran upstairs to her room.
2
A pseudonym.
3
We acknowledge the amicus brief of the Victim Rights Law
Center; Jane Doe, Inc.; and the Boston Area Rape Crisis Center.
3
In the fall of 2008, when Diane was a fourteen year old
freshman in high school, she started acting out in school. Due
to her behavior she was referred to a psychiatrist and also met
with a therapist at a counselling center. At around the same
time, Diane first disclosed to a friend at school that her
father sexually abused her two years earlier. A high school
counsellor heard about the incident and spoke with Diane in the
counsellor's office. Diane told the counsellor that "it was all
just a dream." The counsellor called Diane's mother and on the
way home from school that day Diane told her mother "it was a
dream." Diane testified that she was not ready to tell anybody
else about the incident at that time because it was around
Christmas and she did not want to break up her family.
In February, 2009, Diane told her older sister, Beth,4 about
the sexual abuse, and said she was going to tell the counsellor
what happened to her. Beth then told Diane that the defendant
had been sexually abusive to her when she was younger. Beth
told Diane that she would take care of it and "would do
something to put a stop to" the defendant's abuse. Several days
later, Beth took some money from her grandmother's purse. The
grandmother told the defendant, who became angry and yelled at
Beth. Beth then left the house with her friend and went to the
4
A pseudonym.
4
police and reported the sexual abuse. The Department of
Children and Families (DCF)5 then became involved.
The defendant was convicted of five of the six charges he
faced stemming from the abuse.6 We granted his application for
direct appellate review.
Discussion. 1. Rule 17 (a) (2) motion. The defendant
argues that the trial judge abused his discretion by denying his
motions requesting rule 17 (a) (2)7 summonses for (a) records
5
The events in this case straddle the name change of the
Department of Social Services to the Department of Children and
Families (DCF). St. 2008, c. 176. We refer to the agency as
DCF.
6
The defendant was found guilty on indictments charging
three counts of rape of a child with force, G. L. c. 265, § 22A;
and two counts of indecent assault and battery on a child under
the age of fourteen, G. L. c. 265, § 13B. All of the
convictions relate to conduct involving the defendant and Beth,
except one of the indecent assault and battery convictions,
which involved Diane. The judge ordered a required finding of
not guilty on one charge of indecent assault and battery on a
child under the age of fourteen as to Beth.
7
Rule 17 (a) (2) of the Massachusetts Rules of Criminal
Procedure, 378 Mass. 885 (1979), provides:
"A summons may also command the person to whom it is
directed to produce the books, papers, documents, or other
objects designated therein. The court on motion may quash
or modify the summons if compliance would be unreasonable
or oppressive or if the summons is being used to subvert
the provisions of Rule 14. The court may direct that
books, papers, documents, or objects designated in the
summons be produced before the court within a reasonable
time prior to the trial or prior to the time when they are
to be offered in evidence and may upon their production
permit the books, papers, documents, objects, or portions
5
from the psychiatrist and the counselling center and (b)
counselling records from the middle school where Diane was a
student.8
Where "a defendant seeks pretrial inspection of statutorily
privileged records of any third party," he must satisfy the
protocol established in Commonwealth v. Dwyer, 448 Mass. 122,
145-146 (2006). Commonwealth v. Sealy, 467 Mass. 617, 627
(2014) The "protocol is designed to give the fullest possible
effect to legislatively enacted privileges consistent with a
defendant's right to a fair trial that is not irreparably
prejudiced by a court-imposed requirement all but impossible to
satisfy." Dwyer, supra at 144. To trigger the protocol, "a
defendant must first comply with the threshold requirements of
[rule] 17 (a) (2), as elucidated in [Commonwealth v. Lampron,
441 Mass. 265, 269 (2004)]." Sealy, supra. Under the protocol:
"[T]he party moving to subpoena documents to be
produced before trial must establish good cause, satisfied
by a showing '(1) that the documents are evidentiary and
relevant; (2) that they are not otherwise procurable
reasonably in advance of trial by exercise of due
diligence; (3) that the party cannot properly prepare for
trial without such production and inspection in advance of
trial and that the failure to obtain such inspection may
tend unreasonably to delay the trial; and (4) that the
application is made in good faith and is not intended as a
general "fishing expedition"'" (emphasis added).
thereof to be inspected and copied by the parties and their
attorneys if authorized by law."
8
The Commonwealth agreed to the production of the records
of the high school counsellor and DCF.
6
Dwyer, supra at 140-141, quoting Lampron, supra.
To satisfy the first requirement of Lampron (i.e., that the
documents sought are "evidentiary and relevant"), the defendant
must make a factual showing "that the documentary evidence
sought has a 'rational tendency to prove [or disprove] an issue
in the case.'" Lampron, 441 Mass. at 269-270, quoting
Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989).
"Potential relevance and conclusory statements regarding
relevance are insufficient" to satisfy the rule. Lampron, supra
at 269. "Relevance is merely one factor in the analysis, and it
is not established by rank speculation." Commonwealth v.
Alcantara, 471 Mass. 550, 564 (2015). The requested documentary
evidence must also be "likely to be admissible at hearing or at
trial." Lampron, supra.
The fourth requirement of Lampron9 acts as "a reminder that
rule 17 (a) (2) is not a discovery tool" (emphasis in original).
Dwyer, 448 Mass. at 142, citing Lampron, 441 Mass. at 269.
Rather, it is intended to "expedite trial proceedings and to
avoid delays caused when counsel must inspect or examine
documents or objects produced in response to a summons."
Commonwealth v. Mitchell, 444 Mass. 786, 796-797 (2005).
9
The second and third requirements of Commonwealth v.
Lampron, 441 Mass. 265, 269 (2004), are neither disputed nor
relevant to this appeal.
7
We review a judge's ruling on rule 17 (a) (2) motions for
abuse of discretion. Mitchell, 444 Mass. at 791. "[A] judge's
discretionary decision constitutes an abuse of discretion where
we conclude the judge made 'a clear error of judgment in
weighing' the factors relevant to the decision, such that the
decision falls outside the range of reasonable alternatives"
(citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185
n.27 (2014). Here, there was no abuse of discretion.
a. Psychiatrist and counselling center records. In his
motions, the defendant argued that there were two grounds that
made the records of the psychiatrist and from the counselling
center relevant. The defendant did not advance an argument as
to why the records were likely to be admissible at a hearing or
trial.
i. The defendant's first argument was based on the fact
that Diane had received treatment from both the psychiatrist and
the counselling center, in part because of behavioral issues at
school, and that, after having told her friend about the abuse,
she had denied to her mother and to the counsellor that abuse
had occurred. These records would be relevant to Diane's
credibility, the defendant argued, regardless of whether Diane
disclosed the abuse during them or not.
The judge disagreed and ruled that, because at the time
Diane was referred to the psychiatrist and the counselling
8
center she had not yet disclosed the abuse to anyone, the
requested records would not contain any statements regarding
abuse because both the psychiatrist and the counselling center
were mandatory reporters under G. L. c. 119, § 51A, and neither
had reported abuse. He also ruled that the defendant's
assertion that the lack of disclosure in the records was
relevant was too speculative where a girl of Diane's age was
referred to a psychiatrist and a counselling center for school
behavior issues.
In Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433 (2007),
the Appeals Court held that mental health records are not
relevant simply because they exist and a victim is referred to
mental health services at around the time she first revealed the
abuse. Id. at 437.10 In Commonwealth v. Olivier, 89 Mass. App.
Ct. 836, 845 (2016), the Appeals Court held that a defendant's
argument that the records of the victim's appointment with her
therapist after the alleged rape might contain "an inconsistent
account or meaningful silence" was too speculative where there
was "no evidence the victim ever even spoke to her counsellor
about the alleged rape." Id. at 845-846. This was so even
10
The Appeals Court drew this conclusion under the earlier,
more stringent standard set forth in Commonwealth v. Fuller, 423
Mass. 216, 226 (1996). Commonwealth v. Bourgeois, 68 Mass. App.
Ct. 433, 437 (2007). The court explained in a footnote,
however, that even under Commonwealth v. Dwyer, 448 Mass. 122
(2006), the defendant had not made the required showing.
Bourgeois, supra at 437 n.10.
9
though the victim had been encouraged by her doctor to speak to
the counsellor about the incident. Id. Contrast Commonwealth
v. Labroad, 466 Mass. 1037, 1039 (2014) (access to complainant's
records allowed because defendant "alleged, with particularity,
that [they] contained specific information regarding her
complaint of sexual assault").
Here, the defendant provided no factual basis to
demonstrate that the materials sought were relevant or would
likely be admissible at trial. Although the fact that the
psychiatrist and the counselling center did not file mandated
reports under G. L. c. 119, § 51A, is not dispositive of the
issue, it is a strong indicator that the records sought were not
relevant.11 Without some basis demonstrating the relevance of
the records beyond their mere existence, the defendant's motions
and affidavits submitted by his counsel lacked sufficient
specificity, and were thus too speculative under Lampron. See
Sealy, 467 Mass. at 628 (defendant failed to establish relevance
of requested records where "all of the allegations contained [in
the affidavit supporting the request] were couched in
hypothetical language").
11
The defendant's argument that the counsellor's failure to
report the abuse after first speaking with Diane shows that
mandatory reporters may not always report abuse is unavailing.
Diane never told the counsellor that she was abused. Rather,
she denied it when the counsellor confronted her.
10
Further, were we to accept the defendant's argument that
the records would be relevant both because they might contain
information regarding the alleged assault and because they might
not, certain statutory and common-law privileges would be
rendered meaningless.12 See Olivier, 89 Mass. App. Ct. at 845-
846; Bourgeois, 68 Mass. App. Ct. at 437.
ii. The defendant's second argument that the psychiatrist
and the counselling center records were relevant was based on
the fact that the DCF records that had been provided to the
defendant, see note 8, supra, contained statements that
indicated that Diane's allegations may be the result of
repressed memories. Specifically, counsel's affidavit averred
that the DCF report stated Diane "only recalls one incident but
is unsure if anything else happened that she can't remember" and
that Diane "had a 'flashback' that was triggered by a class mate
[sic] grabbing her leg." The judge concluded that the
defendant's argument that the allegations "may stem" from
repressed memory was too speculative to satisfy the Lampron
standard.
The defendant's argument that Diane's allegations may have
been the result of repressed memory was too speculative. The
12
We further note that the acceptance of such an argument
would destroy the rape crisis center counsellor privilege, G. L.
c. 233, § 20J, because presumably any records of confidential
discussion with a rape crisis counsellor would contain
information relevant to sexual assault allegations.
11
DCF records do not indicate that Diane ever forgot the alleged
abuse. Further, the connection between a teenager's description
of coming to terms with abuse (e.g., a "flashback") and
repressed memory is not clear given that repressed memories can
be a symptom of dissociative amnesia, which is a specific
medical diagnosis. See Commonwealth v. Shanley, 455 Mass. 752,
757 (2010) (discussing dissociative amnesia as defined in
Diagnostic and Statistical Manual of mental disorders).13
b. Middle school records. The defendant also sought
Diane's records from her middle school, including the records of
the guidance counsellor there. This motion was accompanied by
an affidavit stating that Diane had attended this middle school
and had received a letter of recommendation from a guidance
counsellor there that reflected that she "helps her father
work[] on cars, [and] she shares an interest in cars with her
father."
The judge denied this motion. He reasoned that the
requested documents predated Diane's initial disclosure of the
alleged abuse; thus, although a lack of disclosure in the
13
On the day of trial, the defendant renewed his motion for
the release of the records of the psychiatrist and the
counselling center because the Commonwealth was planning to call
an abuse expert as a witness. The defendant argued that this
would "open[] the door" to Diane's mental health history, and so
he should have access to her records. The judge denied the
motion for the same reason he rejected the defendant's first
argument regarding these records. There was no abuse of
discretion.
12
records "may well be relevant impeachment inquiry,"14 it did not
make them "evidentiary and relevant."
The motion regarding the middle school records was entirely
speculative, and the defendant failed to provide a factual basis
as to why the records may be relevant. See Sealy, 467 Mass. at
628. That a middle school student made neutral (or mildly
positive) statements regarding her father for the purpose of a
recommendation letter for entrance into a high school is
unsurprising, even where the child alleges abuse by her parent.
The defendant's request to receive these records was a
prohibited fishing expedition. See Lampron, 441 Mass. at 269.15
2. Limitation on cross-examination. Prior to trial, the
Commonwealth filed a motion in limine to limit the defense from
referencing "bad character" or "bad acts" of Diane. Defense
counsel opposed the motion and argued that the evidence the
Commonwealth wanted to preclude went both to Diane's bias or
motive to fabricate and to her ability to provide a reliable
story, and therefore should be admissible. The judge precluded
inquiry into alleged specific instances of "bad acts" because
they went to character and were not tied to a motive to
14
Indeed, Diane was cross-examined on her delayed
disclosure and recantations at trial.
15
We decline the invitation of the defendant to alter the
Dwyer protocol.
13
fabricate.16 The judge also ruled that the defense's inquiry
into Diane's mental and emotional health was not relevant to
"either a motive to fabricate or some sort of inability to
recall properly." Rather, the judge ruled that the proposed
inquiry constituted impermissible character evidence.
On appeal, the defendant argues that this ruling by the
judge was an abuse of discretion and violated his right to
confront witnesses against him under the Sixth and Fourteenth
Amendments to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights.
A defendant has a well-established constitutional right "to
cross-examine a prosecution witness to show the witness's bias,
and hence to challenge the witness's credibility." Commonwealth
v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861
(1995). "A judge may not restrict cross-examination of a
material witness by foreclosing inquiry into a subject that
could show bias or prejudice on the part of the witness."
Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987).
In order to pursue a subject in an attempt to demonstrate
bias, a defendant "must make a plausible showing that the
16
Massachusetts does not have a rule of evidence similar to
Fed. R. Evid. 608(b), which "permits the scope of permissible
cross-examination to include evidence and inquiry relating to
the facts of specific instances of prior misconduct on the part
of a witness, for the purpose of attacking or supporting the
witness's character for truthfulness." Commonwealth v. Almonte,
465 Mass. 224, 241 (2013).
14
circumstances existed on which the alleged bias is based." Tam
Bui, 419 Mass. at 401. "Determining whether the evidence
demonstrates bias, however, falls within the discretion of the
trial judge." Commonwealth v. LaVelle, 414 Mass. 146, 153
(1993). In addition, "[a] witness may 'be impeached by evidence
challenging his testimonial facilities (e.g., ability to
perceive the events or remember them accurately).'" Alcantara,
471 Mass. at 564, quoting Commonwealth v. Daley, 439 Mass. 558,
564 (2003). The scope of such impeachment is also a matter of
the judge's discretion. Alcantara, supra at 564-565.
Here, the defendant's argument that Diane was biased was
too tenuous because it depended on a showing that Diane so
wanted to escape discipline by her father that she concocted a
false story of abuse to have him removed from the family home.
The defendant hoped to show bias by questioning Diane about,
among other things, an allegation that she had stabbed another
student at school; a dirt-covered doll that had no legs that she
owned; and her desire to "do séances" and use a Ouija board.
The defendant offered nothing that tied this evidence of conduct
-- and the inquiry into Diane's mental and emotional health --
to Diane's motive to lie, bias, or inability to perceive
reality. See Alcantara, 471 Mass. at 564-565 (no error to
exclude evidence where no nexus between mental health issues and
ability to perceive and recall); Commonwealth v. Parent, 465
15
Mass. 395, 406 (2013) (no error to exclude evidence where "there
was no plausible inference of bias or a motive to lie arising"
from the proffered evidence). See also Tam Bui, 419 Mass. at
401.
The excluded evidence and Diane's mental health history had
minimal, if any, probative value and created a strong risk of
misuse by the jury. If this evidence was admitted it may have
caused the jury to discount Diane's testimony, not because of
bias or inability to perceive and recall, but because of her
mental and emotional health. See Commonwealth v. Weichel, 403
Mass. 103, 106 (1988). The judge did not abuse his discretion
in excluding this evidence.
Judgments affirmed.