Com. v. Pickering

• Decision Date: 22 May 2018
• Docket Number: SJC–12312
• Citation: 97 N.E.3d 359,479 Mass. 589
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Jonathan PICKERING.

479 Mass. 589

97 N.E.3d 359

COMMONWEALTH

v.Jonathan PICKERING.

SJC–12312

Supreme Judicial Court of Massachusetts, Essex.

Argued December 5, 2017

Decided May 22, 2018

Emily A. Cardy, Committee for Public Counsel Services, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LOWY, J.

While serving a probationary term in connection with two convictions of open and gross lewdness, the defendant endeavored to meet a person whom he believed was a thirteen year old boy so that he could perform sexual acts on him. Following a probation violation hearing, a judge in the Superior Court concluded that the defendant had violated his probation by committing child enticement in violation of G. L. c. 265, § 26C. The defendant appealed, claiming that the exclusion of certain testimony violated his constitutional right to present a defense, and we granted his application for direct appellate review. Specifically, he argues that the judge's sua sponte ruling to exclude the admission of certain evidence as violative of the psychotherapist-patient privilege, G. L. c. 233, § 20B, deprived him of his constitutional right to present a defense. Without deciding whether the psychotherapist-patient privilege applies to group therapy, we agree that the judge's evidentiary ruling that the psychotherapist-patient privilege applied here was erroneous because there was no evidence that the privilege would have been applicable in these circumstances. However, the defendant was not precluded from presenting the evidence at issue in this appeal, and he presented other evidence of arguably more weight on the same issue. Moreover, the excluded evidence was of minimal probative value, and the Commonwealth presented overwhelming evidence that the defendant violated his probation. Accordingly, we conclude that the defendant's constitutional right to present a defense was not violated and exclusion of certain statements did not create a substantial risk of a miscarriage of justice.

Background. We recite the facts as they were developed at the defendant's probation violation hearing. In 2014, the defendant pleaded guilty to two counts of open and gross lewdness in violation of G. L. c. 272, § 16, and received a suspended term of incarceration and a five-year term of probation. The defendant's probation included special conditions that prohibited him from having unsupervised contact with children under age sixteen, and required him to undergo sex offender treatment. To fulfil this requirement, the defendant attended weekly group therapy sessions for sex offenders. These sessions were facilitated by a therapy "group leader," who supervised a group of approximately eight sex offenders, some of whom had been convicted of sexually abusing children.¹ In order to maintain a level of anonymity, the participants would only refer to each other by first name during the group therapy sessions.

Another participant in the defendant's sex offender therapy group, whom we shall call David Sawyer, attended the same group therapy sessions as the defendant for approximately six months. Sawyer did not speak much during those sessions and described himself as a "listener," in contrast to the defendant, who spoke rather often. Although the two men attended the same group therapy sessions, they did not have a close relationship, and they never communicated or met outside those sessions. Indeed, Sawyer never used his last name in group therapy and never provided it to the other group members. However, there was evidence that the group therapy participants recorded their first and last names on a sign-in sheet when they attended the group therapy, for purposes of keeping attendance and reporting to the probation department.²

During the time that Sawyer and the defendant were attending the same group therapy sessions, Sawyer came across a personal advertisement that the defendant had posted on the Internet Web site Craigslist. The subject of the defendant's advertisement was, "Naked Driving and more—m4m." The advertisement included a message stating that the defendant was seeking to meet "young guys," under twenty-five years old, to engage in various sexual acts. The advertisement did not include the defendant's name, but Sawyer recognized the defendant from the photographs included in the advertisement, one of which depicted the defendant in the nude.

Sawyer testified that he was concerned that the defendant's advertisement indicated that the defendant was seeking to meet underage people in order to engage in sexual conduct. To determine whether Sawyer's concern was well founded, Sawyer responded by electronic mail (e-mail) message to the defendant's advertisement, claiming to be a thirteen year old boy who was interested in meeting the defendant.³ The ensuing e-mail exchange involved the defendant sending multiple sexually explicit messages seeking to meet the boy and perform sexual acts on him. Moreover, on multiple occasions the defendant sought to confirm his understanding that the person he was communicating with was a thirteen year old boy. In one such e-mail message, the defendant requested a photograph of the boy so that he could verify that he was communicating with a thirteen year old boy and "[n]ot a cop or someone else." Sawyer responded by sending the defendant a photograph of a young boy that he found as a result of searching for "cute young boy" on the Internet. After receiving that photograph, the defendant made the additional request that the boy send a nude photograph of himself. Sawyer declined, stating, "Absolutely not.... For your own good." The defendant responded, stating his approval, "Good answer.... I await your next contact.... You seem concerned about me ... and you."

Throughout the course of this correspondence, Sawyer took precautions to conceal his identity and maintain the illusion that he was a thirteen year old boy. Sawyer did this by using a privacy setting on the Craigslist Web site. When this setting is applied, the recipient of an e-mail message can see only a generic alpha-numeric address and not the sender's personal e-mail address. Moreover, Sawyer steadfastly maintained that he was a thirteen year old boy throughout the exchange; the defendant never indicated that he was aware that he was communicating with anyone other than a thirteen year old boy.

Sawyer eventually sent the sexually explicit e-mail exchange between him and the defendant to the therapy group leader. He did so anonymously and under the guise of a "concerned friend."⁴ The therapy group leader forwarded the messages to the State police, and an investigation ensued. Because Sawyer did not reveal that he was the author of the messages, the investigation proceeded with the understanding that the defendant had been communicating with a child. Shortly after the investigation began, the defendant's probation officer issued a notice of probation violation to him, stating that the defendant had violated his probation by having unsupervised contact with a child under sixteen years old. The defendant was detained without bail pending his probation violation hearing.

The defendant does not contest that he was the author of the advertisement or that he used his personal e-mail address to post the advertisement on Craigslist. Furthermore, the e-mail address that he used to post the personal advertisement at issue here is the same address that the defendant had used to post a similar personal advertisement in 2009, which led to his prior conviction of enticement of a child.⁵

At some point during the investigation, the police discovered that Sawyer had been the person corresponding with the defendant, not a thirteen year old boy. A State police trooper interviewed Sawyer, and Sawyer admitted to authoring the e-mail messages. During this interview, the trooper also inquired into Sawyer's criminal background. Sawyer acknowledged that he had been charged with statutory rape and pleaded guilty to the lesser charges of indecent assault and battery on a child and child enticement. Sawyer explained that when he was eighteen years old, he began dating a person whom he believed to be sixteen years old. Eventually, that individual revealed to Sawyer that he was actually only thirteen years old; Sawyer immediately ended the relationship. Sawyer was adamant that the situation was a misunderstanding. Moreover, Sawyer stated that he has no sexual interest in children.

After police discovered that Sawyer was the author of the messages purporting to be from a child, the Commonwealth amended the defendant's notice of probation violation to reflect that he violated his probation by committing the crime of child enticement. At the defendant's probation violation hearing, the defendant's theory of defense was that he knew that he had been communicating with Sawyer, not a thirteen year old boy, and the two men were engaging in a fantasy role play. The defendant argued that he did not have the requisite intent to commit the crime of child enticement because he knew that he was not communicating with a child. In support of this theory, the defendant presented testimony from a digital forensic analyst, who examined the messages at issue, which had been recovered from the defendant's cellular telephone. The analyst opined that it was possible, despite the e-mail privacy setting, that "David Sawyer" may have appeared as the sender of the messages. Based on the way they were saved, the analyst conceded that he could not determine whether the defendant actually saw Sawyer's name or the anonymized e-mail address when the defendant received the messages.

Throughout the probation violation hearing, the Commonwealth and defense counsel sought to elicit testimony concerning the substance of discussions that had occurred in the course of the sex offender group therapy sessions. On numerous occasions the judge expressed concern...