Commonwealth v. Sheehan

• Decision Date: 11 January 2001
• Citation: 755 NE 2d 1208,435 Mass. 183
• Parties: COMMONWEALTH v. PAUL J. SHEEHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

435 Mass. 183

755 NE 2d 1208

COMMONWEALTH v. PAUL J. SHEEHAN.

Supreme Judicial Court of Massachusetts, Plymouth.

January 11, 2001.

October 2, 2001.

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

Colleen A. Tynan, Committee for Public Counsel Services, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

CORDY, J.

The defendant was convicted by a jury of rape of a child, his ten year old nephew, whom we shall call Steven. The Appeals Court reversed the defendant's conviction, set aside the verdict, and remanded the case for a new trial because in a pretrial order a motion judge had improperly ruled Steven's mental health records inadmissible at trial. In reaching its conclusion, the Appeals Court reviewed the records in question and concluded that the records contained information that could have supported the defendant's contention that his nephew had imagined the incident. Thus, that court concluded that the records were sufficiently probative that their exclusion deprived the defendant of a fair trial. Commonwealth v. Sheehan, 48 Mass. App. Ct. 916 (2000). We granted the Commonwealth's application for further appellate review. We have also examined the records in question. We agree with the result of the Appeals Court and for substantially the reasons set forth in its opinion.

The relevant facts may be summarized as follows. On August 17, 1993, the defendant invited Steven to spend the night at his house and Steven's mother agreed. Steven seemed immature for his age and was known to have a slight learning disability. He and his mother had previously lived with the defendant, and Steven had a good relationship with the defendant.

The defendant and Steven arrived at the defendant's house at approximately 12:30 A.M. The defendant fixed Steven a snack, and Steven prepared for bed. Steven claims that the defendant came into the bedroom with butter. Steven was lying on his stomach and remembers that his clothes "got off" but did not know how or when they were removed. According to Steven, the defendant put butter on Steven's "butt" and inserted his penis in Steven's rectum for "a couple of seconds." Steven asserts that the defendant then put his penis in Steven's mouth and told Steven that he would "give [him] a dollar" if he let the defendant keep his penis in Steven's mouth for the rest of the night. Steven claimed that he does not remember how long the defendant's penis was in his mouth but that he slept in the defendant's bed with the defendant. The defendant asserts that after he fixed Steven a snack, Steven fell asleep on his bed, and that he spent the night sleeping on the living room sofa.

The next morning the defendant returned Steven to his home. Steven told his mother that the defendant had "put his pee-pee in my bum-bum." His mother claims that she asked the defendant what happened and that the defendant responded that nothing had happened and left.

Steven's mother then took him to a hospital. Dr. Deborah Hartley visually examined Steven's rectum and found no bleeding or tearing of the rectal tissue. The doctor did not perform a digital examination or administer a rape kit.

The next day, Steven and his mother spoke with Detective Ralph N. Forni of the Wareham police department. Steven told the detective that the defendant had "put butter on my bum and licked my pee-pee." Detective Forni informed the defendant of Steven's allegations the following day. The defendant stated that he believed he should contact an attorney, and Detective Forni allowed the defendant to return home.

Prior to trial, in accordance with the procedure set forth in Commonwealth v. Bishop, 416 Mass. 169, 179-183 (1993) (Bishop procedure),¹ the defendant filed a motion seeking access to Steven's mental health records.² On November 21, 1995, a judge in the Superior Court (motion judge) ruled that the defendant had demonstrated a theory on which the records were likely to be relevant and ordered that all records of South Bay Mental Health Center and the Department of Social Services (DSS)³ be made available to both counsel subject to a protective order.⁴ After this point, the course of the proceedings becomes less clear. On November 6, 1996, the same motion judge caused a handwritten notation to be made on the face of the November 21, 1995, order: "[a]fter [r]eview of [i]mpounded [r]ecords, the [c]ourt finds no exculpatory [e]vidence for [u]se at [t]rial."⁵ It is this 1996 order that forms the subject of this appeal. The defendant argues that the records of South Bay Mental Health Center and DSS revealed that Steven had difficulty distinguishing fantasy from reality and that he fantasized to escape anxietyprovoking situations; because the defense was that Steven fantasized the event in question, the records were relevant to that defense, and the judge's nondisclosure order deprived the defendant of the use of the records to assist his defense.

The first problem presented by this case is procedural. By her order of November 21, 1995, the motion judge indicated that she had determined the records to be relevant pursuant to a Bishop Stage Two determination.⁶ Her protective order of the same date was in compliance with Stage Three of the Bishop procedure.⁷ Thus, at this point any further proceedings regarding the records presumably would be governed by Stage Four of the Bishop procedure. Stage Four requires that the defendant demonstrate that disclosure of the relevant portions of the records to the trier of fact is required to provide the defendant a fair trial. If so, the judge is to permit disclosure of those portions of the records shown to be needed to prepare and mount a defense.

In arriving at this determination, the judge is to base his or her decision on written motions by the parties and an in camera hearing as the judge deems necessary. "In any case, the judge shall set forth in writing the reasons for the decision in a memorandum of decision." Commonwealth v. Bishop, supra at 183.⁸ But the parties were not required to provide the Stage Four written motions; the judge did not set forth in writing the reasons for her decision; and, as far as the record reveals, no hearing (in court or in camera) was held. All that is before us is the judge's notation that the records are not exculpatory for use at trial. We take this to be a determination by the judge that the defendant had not met his Stage Four burden of demonstrating that disclosure of the records to the trier of fact was necessary to provide the defendant a fair trial. We do so because of the prior rulings on the issue by the motion judge (apparently made pursuant to Stages Two and Three of the Bishop procedure) and because the parties have not indicated that any other stage applies.⁹

Regardless of the posture in which this issue was presented, the motion judge should have conducted a Stage Four proceeding to determine whether the defendant could demonstrate that disclosure of the relevant portions of the records was necessary for the purpose of preparing and mounting a defense. We keep in mind that in making the Stage Four decision, the judge is to "resolve any doubt ... in the defendant's favor."¹⁰ Commonwealth v. Bishop, supra at 183. As in many cases of this nature, the trial was a credibility contest between the complainant and the defendant. There was no corroboration from physical evidence or eyewitness testimony. The defense was that the ten year old complainant, who had a learning disability, was immature for his age, had difficulty distinguishing fantasy from reality and had imagined the incident.¹¹

An examination of the records that the defendant was prohibited from disclosing to the trier of fact reveals that they contain statements that the complainant did have some tendency to fantasize inappropriately and to converse in his mind with his deceased grandmother. The records also state: "His cognitive processing of information presented to him seems somewhat unsophisticated and immature, which may predispose him to less effective interpretations of events in his environment." This information provides abundant fodder for cross-examination of Steven and his mother as to the reality of the child's perceptions.

We recognize that the defendant was not deprived completely of his defense. He was able to cross-examine Steven at trial regarding the fact that, when he was ten years old (his age at the time of the alleged incident) he still believed in Santa Claus and the Tooth Fairy and that he would pretend he was a "Power Ranger." Steven said that he thought he believed at age ten that the "Power Rangers" were real. This evidence, however, is not nearly as compelling as evidence of mental health professionals regarding the boy's perception difficulties. The records provided evidence that "went directly to the issue of [the complainant's] credibility, the core issue to be resolved by the jury." Commonwealth v. Pare, 427 Mass. 427, 431 (1998). The evidence "could have made it more likely, in the jury's view, that the complainant did not perceive the event accurately ... [and] could have been helpful for the jury to determine whether the complainant was telling the truth or whether [he] imagined the entire incident." Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989).¹²

The Commonwealth argues that the admission of the complainant's mental health records would not have benefited the defendant because the complainant had no psychiatric history prior to the alleged rape and the therapists all describe Steven's fantasizing as a coping mechanism. It is true that the treatment did not begin until after the alleged rape and that it was precipitated by marked changes in the child's behavior (sleep disturbances, more anger and aggressiveness, fear, and bed-wetting). Although the reports do indicate that these problems were due to the alleged rape and did not occur before it, the records...