Com. v. Dwyer

• Decision Date: 29 December 2006
• Citation: 448 Mass. 122,859 N.E.2d 400
• Parties: COMMONWEALTH v. Sean DWYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 400

859 N.E.2d 400

448 Mass. 122

COMMONWEALTH v. Sean DWYER.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued April 4, 2006.

Decided December 29, 2006.

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Carlene A. Pennell, Boston, for the defendant.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Andrew N. Nathanson, Philip J. Catanzano, Helen Gerostathos Guyton, John B. Koss, Noah C. Shaw, Susan M. Finegan, Boston, & Kathryn M. Reardon for Victim Rights Law Center & others.

Carol A. Donovan, Sarah Wunsch, & Anne Goldbach, Boston, for Committee for Public Counsel Services & others.

Wendy J. Murphy, Hyannis, for Victim Advocacy and Research Group & another.

Daniel F. Conley, District Attorney, & John P. Zanini, Assistant District Attorney, Martha Coakley, District Attorney, Michael O'Keefe, District Attorney, Timothy J. Cruz, District Attorney, & Jonathan W. Blodgett, District Attorney, for District Attorney for the Suffolk District & others.

Present: MARSHALL, C.J., GREANEY, SPINA, COWIN, SOSMAN, & CORDY, JJ.

RESCRIPT.

This appeal causes us to reconsider the protocols established by Commonwealth v. Fuller, 423 Mass. 216, 667 N.E.2d 847 (1996) (Fuller), and Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (1993) (Bishop), which govern a defendant's pretrial access to statutorily privileged records of witnesses in criminal cases. The defendant was convicted by a jury of rape of a child by force, G.L. c. 265, § 22A, and indecent assault and battery on a child under fourteen years, G.L. c. 265, § 13B. Among several challenges to his convictions, he claims that the denial of his repeated requests to review the complainant's therapy records was an abuse of discretion, and that the Bishop-Fuller protocols impose an unconstitutionally high burden on defendants, leading to the unavailability of exculpatory evidence and depriving defendants of their constitutional right to a fair trial. The defendant also asserts that the trial judge abused her discretion by admitting in evidence the complainant's detailed testimony of prior alleged but uncharged sexual assaults by the defendant; that he was denied his rights of due process and confrontation when the prosecutor cross-examined him about a nontestifying codefendant's confession that had been suppressed prior to trial; that his trial counsel was ineffective in several respects; and that the judge abused her discretion in denying his motion for a new trial without a hearing. We granted the defendant's application for direct appellate review.

For the reasons we explain below, we conclude that a number of errors at trial, in combination, require that we grant the defendant a new trial. As to the defendant's challenge to the Bishop-Fuller protocols, we announce today a new protocol governing a defendant's request to inspect statutorily privileged records of any third party. The new protocol, which replaces the Bishop-Fuller protocol, is not constitutionally compelled, and shall apply prospectively to all criminal cases tried after the issuance of the rescript in this case. Because the defendant is to receive a new trial, he shall have the benefit of the new protocol. We therefore do not consider his challenge to the rulings on his requests for access to the complainant's therapy records.¹

We turn first to the facts of this case. We then address the alleged errors at trial. Last, as described in more detail in the Appendix to this opinion, we outline the protocol applicable to pretrial requests for documents from nonparties in all criminal cases.

1. Factual background. In February, 2001, when the complainant was sixteen years old, she told her boy friend and then her parents that two of her cousins, the defendant and Frederick Lomberto, both four years older than the complainant, had raped and sexually assaulted her over a period of several years beginning in 1992 or 1993 when she was eight or nine years old.² On the evening she made these statements, the complainant attempted suicide. Her parents took her to Milford Hospital, where she was treated and released the following morning.

In March and April, 2001, the complainant met with several therapists, including a psychiatrist and a social worker, and underwent a psychiatric evaluation at Pembroke Hospital. She also received counselling at Wayside Counseling Center. After expressing suicidal thoughts to her boy friend, she met with her high school guidance counsellor, who in April, 2001, filed what appears to be the first report of suspected abuse pursuant to G.L. c. 119, § 51A.

In May, 2001, the complainant underwent the first of two sexual abuse intervention network (SAIN) interviews.³ In the first SAIN interview conducted at the Milford police department, the complainant stated that abuse by the defendant and Lomberto had commenced when she was eight or nine years old and stopped when she was thirteen years old. She described several specific instances that she said had occurred when she was nine or ten years old, and stated that the defendant had raped or sexually assaulted her "almost fifty times." Thereafter, in June, 2001, a physician conducted a child protection evaluation and physical examination of the complainant at the University of Massachusetts Memorial Medical Center.

In the second SAIN interview, conducted at the Bellingham police department in July, 2001, the complainant was questioned about a handwritten list she had prepared of alleged incidents of sexual abuse by the defendant and Lomberto beginning in June, 1992, and ending in September, 1997. Among other incidents, the complainant described two rapes by the defendant in the summer of 1997. She said one had taken place at her home in July, 1997, one week before her thirteenth birthday; the second had taken place, she said, in the basement of her grandparents' house during a yard sale in August, 1997. These allegations served as the basis for two sets of indictments against the defendant, charging him with rape of a child by force and indecent assault and battery on a child under fourteen years.⁴,⁵

2. Procedural background. In May, 2003, the defendant's motion for severance from his codefendant Lomberto was allowed. Before the cases were severed, the defendant and Lomberto filed several joint motions seeking access to the complainant's therapy records in accordance with the procedures set forth in Bishop, supra at 179-183, 617 N.E.2d 990. Two judges in the Superior Court denied the motions concluding that the defendants had not demonstrated a sufficient basis for ordering in camera review of the records.⁶ Their motion for reconsideration was denied.

The defendant's trial commenced on January 9, 2004; the jury deliberated for three days, and returned guilty verdicts on the indictments relating to the August, 1997, incident only. Because the jury failed to agree on a verdict on the indictments relating to the July, 1997, incident, the judge declared a mistrial as to those indictments.

Lomberto's trial commenced on January 21, 2004, immediately following the conclusion of the defendant's trial. When the jury could not reach verdicts on any of the eleven charges, the judge declared a mistrial. Before his retrial, Lomberto filed a renewed Bishop motion for access to the therapy records of the complainant. A different judge in the Superior Court allowed the motion, ordered all of the complainant's therapy records produced for in camera review, and subsequently permitted Lomberto and his counsel to review and copy certain records.⁷ In September, 2004, a jury returned guilty verdicts against Lomberto on two of the rape charges and three of the indecent assault and battery charges and verdicts of not guilty on four of the rape charges and two of the indecent assault and battery charges.

In December, 2004, the defendant's counsel filed a motion for a new trial, arguing among other things that the denial of access to the records had deprived the defendant of an "viable defense to the charged offenses" because the redacted records introduced at Lomberto's second trial reflect that the complainant "repeatedly and consistently reported" that the alleged abuse occurred several years before the defendant turned seventeen years old, and "directly contradict" the complainant's testimony at the defendant's trial that the alleged abuse had occurred in July and August of 1997. See note 5, supra. The judge denied the defendant's motion for a new trial without a hearing. The defendant's appeal from that ruling was consolidated with his direct appeal.

3. Prior bad acts. At the defendant's trial the complainant, who was then nineteen years old, testified first about the two charged incidents, which allegedly occurred in July and August, 1997. Following this testimony, the prosecutor asked the complainant to "estimate" how many times the defendant had "touched [her] in a sexual way" before August, 1997. The complainant responded, "Uncountable." After the judge gave a limiting instruction,⁸ the prosecutor proceeded to question the complainant about seven different incidents of uncharged sexual abuse that allegedly had occurred before 1997, each of which the complainant described in detail.

The defendant contends that the judge abused her discretion in allowing the complainant to testify in such detail about the unindicted incidents and that this testimony "overwhelmed" the evidence of the two incidents with which the defendant was charged. We agree. The jury heard more about uncharged sexual assaults than they did about the crimes charged. Of the sixty-five transcript pages of the complainant's direct testimony, fifteen pages covered the July and August, 1997, incidents, while twenty-one pages contained testimony of the uncharged assaults. Trial counsel's cross-examination of the complainant, in turn, was directed primarily at discrediting her testimony of the...