Commonwealth v. Neumyer

• Citation: 432 Mass. 23,731 NE 2d 1053
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 06 March 2000
• Parties: COMMONWEALTH v. CRAIG NEUMYER

432 Mass. 23

731 NE 2d 1053

COMMONWEALTH v. CRAIG NEUMYER

Supreme Judicial Court of Massachusetts, Essex.

March 6, 2000.

June 30, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, & COWIN, JJ.

Wendy J. Murphy (Elizabeth M. Clague with her) for Boston Area Rape Crisis Center.

William J. Leahy, Committee for Public Counsel Services (Jill Sellers Gately, Committee for Public Counsel Services, with him) for the defendant.

The following submitted briefs for amici curiae:

Michael J. Sullivan, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District.

Ralph C. Martin, II, District Attorney, & John P. Zanini & Amanda Lovell, Assistant District Attorneys, for District Attorney for the Suffolk District.

Kevin M. Burke, District Attorney, & Gregory I. Massing & Christina E. Miller, Assistant District Attorneys, for District Attorney for the Eastern District & others.

Ellen M. Bublick, of Arizona, & Alexandra Miller, of Illinois, for National Coalition Against Sexual Assault & others.

COWIN, J.

The defendant was charged in two indictments with rape and in a third indictment with indecent assault and battery on a person over the age of fourteen years.¹ In preparing his defense, he sought certain records of the Boston Area Rape Crisis Center (BARCC). A Superior Court judge ordered BARCC to produce for the defendant a sanitized copy of its "hotline" records stating the time, date, and fact of a telephone communication between the victim and a rape counsellor. The judge concluded that these records were not privileged, but relevant, and thus discoverable pursuant to general discovery principles. The judge also ordered BARCC to produce, for in camera inspection, records of the substance of communications between the victim and the rape counsellor, after determining that these records were privileged, but relevant "pursuant to the principles of" Commonwealth v. Bishop, 416 Mass. 169 (1993), and Commonwealth v. Fuller, 423 Mass. 216 (1996).² BARCC refused to comply with these orders and the Superior Court judge ruled BARCC in contempt. BARCC appealed from the finding of contempt to the Appeals Court which affirmed the Superior Court judgment. Commonwealth v. Neumyer, 48 Mass. App. Ct. 154 (1999). We granted BARCC's application for further appellate review.³

Although this case arises in the context of a contempt proceeding, it involves essentially another application of the Bishop-Fuller procedure. The primary issues for resolution here are whether the time, date, and fact of a communication between the victim and the rape counsellor are privileged and whether the defendant's proffer in this case was sufficient under the standards of Commonwealth v. Fuller, supra,

to trigger an in camera review of the rape counselling records.

We start by summarizing the events culminating in the contempt adjudication. At a District Court probable cause hearing, the victim testified to the following during her direct testimony and cross-examination. After she and her friend Megan had spent an afternoon and night drinking alcohol and smoking marijuana with the defendant and three other individuals, the defendant raped and indecently assaulted her in the back seat of her automobile in the early morning hours of June 25, 1996. The victim only remembered portions of this incident due to her intoxicated condition. Later that day the victim asked Megan how she would define rape. Megan replied, "Someone does to you what you don't want them to do." With Megan present, the victim called BARCC and told a counsellor that she "thought [she] had been raped," but "didn't know what rape was." The woman at BARCC told her to go to a hospital.⁴ The next day the victim went with Megan to a hospital and, from there, telephoned the police and reported the incident. The victim continued to socialize with the defendant and spent the night of July 3, 1996, in the defendant's bedroom with him, Megan, and Jacqueline, who was both the defendant's girl friend and the victim's best friend. The victim never told Jacqueline about the incident because she feared losing her friendship. Later during cross-examination, defense counsel inquired regarding further details of the victim's conversations with the BARCC counsellor, and the victim responded that she and the counsellor discussed how to define rape.⁵

After a probable cause finding and the return of indictments in the Superior Court, the defendant filed a motion and affidavit requesting the court to determine whether the BARCC counselling records regarding this incident were privileged and, if so, to review them. On June 13, 1997, a Superior Court judge⁶ ordered BARCC to produce the requested records unless it claimed a privilege, see note 2, supra.⁷ In response to the order, BARCC asserted that, because all its counsellors are certified rape crisis counsellors, the records were absolutely privileged under G. L. c. 233, § 20J, the statute that protects from disclosure records of a victim's sessions with a sexual assault counsellor.

On August 15, 1997, the defendant and the Commonwealth argued the defendant's motion. BARCC was not notified of and did not participate in this hearing. After the hearing, the judge issued a written memorandum and order in which he concluded that the records were privileged under G. L. c. 233, § 20J, because the records were generated as a result of communications between the victim and a certified sexual assault counsellor in a way that "did not disclose the information to a person other than a person present for the benefit of [the victim]." After determining that the records were privileged, the judge, "pursuant to Stage II of Commonwealth v. Bishop, 416 Mass. 169, 181 (1993), as modified by Commonwealth v. Fuller, 423 Mass. 216, 225-227 (1996)," reviewed the defendant's proffer, and concluded that the records "are relevant and material to the defense of the case and ... the information ... cannot accurately be obtained from another source." The judge's relevance determination was based on his decision that the conversations with the counsellor were the "turning point" in the case; that prior to that conversation, the victim was uncertain whether she had been raped; and that it was only after the conversation that she concluded that she had been raped and contacted the police. Thus, he issued an order to BARCC to produce the records for an in camera review pursuant to Commonwealth v. Fuller, supra.

On November 3, 1997, defense counsel informed the judge that, although BARCC had previously asserted that the records were privileged, it now claimed that no records existed. The judge ordered BARCC's keeper of records to testify regarding its failure to comply with his June 13 and August 15, 1997, orders to produce the records. At a hearing on November 17, 1997, BARCC's executive director (who is also the keeper of records) informed the judge that there were no treatment records regarding the victim, but that BARCC did possess log entries of the victim's call, which entries did not contain the substance of any conversation, but might contain information about referrals by the counsellor. In any event, BARCC pressed its claim that even a log entry (indicating the date and time of a call) was privileged.

The judge continued the case until November 21, 1997, and ordered BARCC to review its log entries to determine whether they included any information beyond the date and time of the victim's call. On November 21, 1997, BARCC informed the judge that it had identified a single log entry regarding the substance of the victim's conversation. The judge ruled that the date and time of the call were not privileged under G. L. c. 233, § 20J, and ordered BARCC to provide the defendant a redacted copy of the log showing only that information. As to the records that were privileged, the judge ruled that the defendant's proffer satisfied the requisites of Commonwealth v. Fuller, supra,⁸

for the reasons stated in his August 15, 1997, order, and ordered that BARCC produce the complete log entry for an in camera review.

BARCC refused to comply with either of the judge's orders. On November 24, 1997, the judge issued a written memorandum and order recounting the findings and orders he had made at the November 21, 1997, hearing and ruling that BARCC was in contempt for not complying with the orders.⁹

The defendant pleaded guilty, see note 1, supra, after the decision of the Appeals Court, but before the case was entered in this court. The case is not moot, however, as the contempt order remains outstanding and, pursuant to it, money is owed. Cf. Commonwealth v. Rape Crisis Servs. of Greater Lowell, Inc., 416 Mass. 190, 192-192 (1993) (appeal from order holding operator of treatment center in civil contempt for refusal to produce rape victim's treatment records for in camera inspection moot, where accused rapist's guilty plea ended his need for access to the records and judge had vacated contempt order).

BARCC contends on appeal that the judge's November 24, 1997, order (1) violates the provisions of G. L. c. 233, § 20J, and the mandates of Commonwealth v. Fuller, supra,

for a variety of reasons; (2) is erroneous because Mass. R. Crim. P. 14 (a) (1) (C), 378 Mass. 874 (1979), limits pretrial discovery to material in the possession, custody, or control of the prosecutor; and (3) violates the due process rights of BARCC and of the victim under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.

1. Time, date, and fact of communication. BARCC contends that the judge's order that it produce the "hotline" information violates G. L. c. 233, § 20J (sexual assault counsellor privilege), and the requirements of Commonwealth v. Fuller, supra.

The judge concluded correctly that the portion of the records that sets forth the time, date, and fact of a communication...