Commw. v. Neumyer, 100199

• Decision Date: 01 October 1999
• Docket Number: No. 98-P-537,98-P-537
• Citation: 48 Mass. App. Ct. 154,718 N.E.2d 869
• Parties: (Mass.App.Ct. 1999) COMMONWEALTH v. CRAIG NEUMYER
• Court: Appeals Court of Massachusetts

718 N.E.2d 869 (Mass.App.Ct. 1999)

COMMONWEALTH v. CRAIG NEUMYER.

No. 98-P-537

MASSACHUSETTS COURT OF APPEALS

Argued February 10, 1999.

October 1, 1999

Essex County

Warner, C.J., Smith, & Brown, JJ.

Due Process of Law, Access to evidence. Rape. Privileged Communication. Evidence, Privileged

communication. Practice, Criminal, In camera inspection. Words, "Confidential communication."

Indictments found and returned in the Superior Court Department on November 6, 1996.

A motion to review certain counseling records was heard by Howard J. Whitehead, J., and an

order to produce records and adjudication of contempt were entered by him on November 21,

1997, and November 24, 1997, respectively.

Elizabeth M. Clague & Wendy J. Murphy 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.

SMITH, J.

On November 24, 1997, a Superior Court judge ruled the Boston Area Rape Crisis

Center (BARCC) to be in contempt as a result of its refusal to comply with an order to provide

the defendant, Craig Neumyer, with a sanitized copy of its hotline log indicating the date and

time of a telephone conversation that the eighteen year old complainant in the case had with a

BARCC counselor and to provide the court with copies of the unsanitized hotline log for an in

camera inspection.¹ The defendant, who was charged in two indictments with rape (G. L. c.

265, § 22) and in a third indictment with indecent assault and battery upon a person over

the age of fourteen years (G. L. c. 265, § 13H), sought the records in preparation of his

defense. We summarize the facts leading up to the adjudication of contempt, including the

complainant's testimony given at the defendant's probable cause hearing in the District Court.

During the first day of the probable cause hearing (which lasted five days), the complainant

testified that the defendant orally and vaginally raped her and indecently assaulted and battered

her during the early morning hours of June 25, 1996, while she and the defendant were in the

back seat of her automobile. The defendant was the boyfriend of one of the complainant's

friends, Jacqueline. The incident occurred after the complainant, the defendant, another of the

complainant's friends (Megan), and three other individuals spent the latter part of the afternoon

and evening consuming alcohol and smoking marijuana. The complainant testified that she was

intoxicated at the time of the incident and that she only remembered bits and pieces of the events

that occurred that evening.

The complainant testified that on the day after the incident she asked Megan how she would

define rape. Megan replied, "if a person tries anything sexually with me after I say no." The

complainant then testified, without objection or a claim of privilege, that later that day she called

BARCC and told the counselor that she "thought [she] had been raped" but she "didn't know

what rape was."² Megan was present during the complainant's telephone conversation with the

counselor.

On the second day of the hearing, the Commonwealth objected to defense counsel's questioning

the complainant regarding her telephone conversation with the counselor on the ground that the

communication was privileged. The District Court judge ruled that Megan's presence during the

complainant's telephone conversation waived any privilege.

The complainant then testified that she told the counselor that she was not sure if she had been

raped. The counselor responded that the complainant had indeed been raped and that she should

go to a hospital and be examined. Two days later, the complainant went to a hospital with

Megan. While she was at the hospital, the complainant telephoned the police to report the

incident.

The complainant did not tell Jacqueline about the incident because she did not want to lose her

friendship. The complainant continued to socialize with the defendant after she reported the

alleged rapes to the police, and on July 3, 1996, she spent the night in the defendant's bedroom

with the defendant, Megan, and Jacqueline.

A police officer also testified at the hearing that the defendant admitted that he had sexual

contact with the complainant in her automobile on June 25, 1996. The defendant, however,

claimed the incident was consensual.

On April 30, 1997, the defendant filed a motion and affidavit in the Superior Court, asking the

court to review certain records from BARCC concerning counseling received by the complainant

in regard to the alleged rape. On June 13, 1997, a Superior Court judge³ ordered BARCC to

produce the records unless it claimed a privilege and, if it claimed a privilege, to state in writing

the nature of that privilege. In a letter dated July 2, 1997, BARCC responded to the order, stating

that all BARCC counselors are certified rape crisis counselors and that the records were

absolutely privileged under G. L. c. 233, § 20J, the statute protecting from disclosure the

records of a victim's counseling sessions with a sexual assault counselor.

BARCC was not notified of the subsequent hearing that took place in the Superior Court on

August 15, 1997, during which the judge heard arguments from the defendant and the

Commonwealth regarding the defendant's motion. In a subsequent written memorandum and

order, the judge concluded that the records were indeed privileged, but he nevertheless ordered

their production for in camera review.⁴

On November 3, 1997, defense counsel informed the court that although BARCC had claimed

that the records were privileged, it now claimed that no such records existed. As a result, the

judge summoned BARCC's keeper of the records to appear on November 17, 1997, for the

purpose of giving testimony regarding BARCC's responses to the June 13, 1997, and August 15,

1997, orders.

On November 17, 1997, BARCC's executive director appeared with counsel and informed the

judge that there were no treatment records pertaining to the complainant.⁵ However, upon

further questioning, it became apparent that BARCC did possess log entries documenting the

complainant's calls to its counselors. BARCC maintained that the logs were "merely for

statistical and funding purposes" and did not record the substance of the calls. Defense counsel

then requested production of the logs. BARCC thereupon informed the court that although the

logs did not contain substantive communications, they may contain information about possible

referrals that may have been made and, in any event, BARCC believed that any record of a

communication, including a log entry indicating only the date and time of the call, was

privileged. The judge continued the case to November 21, 1997, and instructed BARCC to

review the log entries to determine whether they contained any information other than the date

and time of the communication.

On November 21, 1997, BARCC reported that it had a single log entry documenting the

complainant's call to BARCC, which contained information regarding the substance of that

conversation. The judge ruled that the fact of the communication, i.e., the date and time of the

call, was not privileged under G. L. c. 233, § 20J, and ordered BARCC to provide the

defendant with copies of the sanitized log entry indicating only the date and time of the

complainant's communication with BARCC. The judge then ruled that for the reasons stated in

his order of August 15, 1997, the defendant's proffer satisfied the requirements of

Commonwealth v. Fuller, 423 Mass. 216 (1996),⁶ and ordered BARCC to produce the

unsanitized log entry for an in camera review.⁷ BARCC refused to produce either set of

documents. On November 24, 1997, in a written memorandum and order, the judge

memorialized his findings and orders made at the November 21, 1997, hearing and ruled

BARCC to be in contempt.

On appeal, BARCC claims that the judge erred in ordering it to provide the defendant with the

sanitized hotline log and in ordering production of the unsanitized hotline log for in camera

review by the judge for the following reasons: (1) the complainant's and BARCC's due process

rights were violated; (2) the order violated G. L. c. 233, § 20J, as interpreted by Fuller; and

(3) even if the sanitized hotline log is not privileged, the judge erred in ordering BARCC to

provide the defendant with the information because Mass.R.Crim.P. 14(a), 378 Mass. 874

(1979), does not permit the production of evidence from private third parties.

1. The due process claims. BARCC claims that the complainant's due process rights were

violated because the judge's order was based upon information obtained as a result of an

erroneous evidentiary ruling at the probable cause hearing in the District Court.

BARCC, however, fails to acknowledge that the complainant's initial testimony at the hearing

about her conversation with BARCC counselors was given without any objection or claim of

privilege having been made. This testimony was sufficient to support the judge's finding that the

complainant was unsure about whether she had been raped until after the telephone call. Thus,

we conclude that BARCC's claim must fail.⁸

BARCC also claims that its own due process rights were violated by (1) the judge's August 15,

1997, order requiring it to produce records for in camera review when it was not present or even

notified of the hearing, and (2) the judge's refusal to require that the defendant make the required

showing pursuant to Commonwealth v. Fuller, 423 Mass. at 226.

As a threshold matter, we note that the adjudication of contempt did not arise from BARCC's

failure to produce records in response to the order arising from the hearing on August 15, 1997;

rather, it arose from BARCC's refusal to produce the hotline logs requested by the court at the

hearing on November 21, 1997. Any...