Martin v. Com.

• Decision Date: 09 April 2008
• Docket Number: SJC-09833.
• Citation: 451 Mass. 113,884 N.E.2d 442
• Parties: Anthony MARTIN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

884 N.E.2d 442

451 Mass. 113

Anthony MARTIN v. COMMONWEALTH.

SJC-09833.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 10, 2008.

Decided April 9, 2008.

Beth L. Eisenberg, Committee for Public Counsel Services, Boston, for the defendant.

Kevin J. Curtin, Assistant District Attorney, for the Commonwealth.

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

MARSHALL, C.J.

Anthony Martin (defendant) petitioned a single justice of this court for relief pursuant to G.L. c. 211, § 3, challenging an order of a judge in the Superior Court denying his motion for pretrial production of privileged records of the Department of Social Services (department) concerning the complainant. See Mass. R. Crim. P. 17(a)(2), 378 Mass. 885 (1979). While recognizing that the social worker-client and psychotherapist-patient privileges applied to the records, see G.L. c. 112, § 135A, and G.L. c. 233, § 20B, the judge concluded that, although relevant to the defense, the records were not subject to Commonwealth v. Fuller, 423 Mass. 216, 667 N.E.2d 847 (1996), and Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (1993) (Bishop-Fuller protocol), because they concerned what the judge described as the "absolutely protected" subjects of child custody and adoption placement. The single justice stayed the proceedings in the Superior Court and reserved the case and reported the matter to the full court.

While the defendant's petition was pending, we replaced the Bishop-Fuller protocol with a protocol set forth in Commonwealth v. Dwyer, 448 Mass. 122, 859 N.E.2d 400 (2006) (Dwyer). The Dwyer protocol is applicable to all criminal cases tried after issuance of the rescript in that case, id. at 124, 859 N.E.2d 400, and therefore applies to this case. We vacate the Superior Court judge's order. Records privileged pursuant to G.L. c. 112, § 135B, G.L. c. 233, § 20B, or any other statute, were subject to the Bishop-Fuller protocol, and are subject to the Dwyer protocol, regardless of their subject matter. The single justice will remand the case to the Superior Court for further proceedings consistent with this opinion.

1. Background. On July 16, 2005, a grand jury returned several indictments charging the defendant with aggravated rape, kidnapping, assault and battery by means of a dangerous weapon, and assault and battery.¹ The Commonwealth's "statement of the facts"² asserts, in relevant part, that in November, 2004, the complainant, who had a history of drug addiction and prostitution and a "lengthy" criminal record, had been "clean" for approximately ten months. That month she encountered the defendant outside a convenience store; she knew the defendant because she previously had purchased drugs from him, and she had on occasion agreed to have sexual intercourse with him in exchange for drugs. At the complainant's request, the defendant agreed to drive her home. Instead, however, he brought her to a motel, where he held her captive for two months until she finally escaped. During her captivity, the defendant subjected the complainant to brutal physical and sexual assaults and forced her to ingest heroin, causing her to become readdicted.

On July 31, 2006, on completion of discovery, the defendant moved pursuant to rule 17(a)(2) for the production of the complainant's treatment records from the department and other record holders.³ Following the procedures required under Commonwealth v. Lampron, 441 Mass. 265, 270-271, 806 N.E.2d 72 (2004) (Lampron), and the Bishop-Fuller protocol, the defendant sought a subpoena⁴ for the production of nonprivileged records or an assertion of privilege against the production of privileged records. The motion was accompanied by an eleven-page affidavit of defense counsel.⁵

The affidavit sought the records as relevant to the motive of the complainant, a mother of two young children, to "fabricate" her allegations and to make the defendant "a scapegoat" in order to convince the department and the Probate and Family Court, where cases involving custody of her two children were purportedly pending, that she was blameless for her two-month absence from drug treatment programs, her missed probation appointments and court appearances, and her relapse into heroin use. The affidavit contained numerous excerpts from a videotaped interview of the complainant by the Massachusetts Bay Transportation Authority (MBTA) police. See Lampron, supra at 270-271, 806 N.E.2d 72 (hearsay in affidavit supporting rule 17(a)(2) motion is permitted provided source of hearsay is identified and hearsay is reliable). In the interview, the complainant maintained that, for the ten months prior to November, 2004, she had been "clean" and had kept all probation and court appointments. She expressed concern that her missed probation and court appointments and heroin readdiction would adversely affect her attempts to convince the department that she should have access to and custody of her children. The complainant told the MBTA police that she was residing in a shelter because the department would not allow her to live with her nine year old son and that she was involved in a "full-blown custody trial for my [five year old] daughter."

The Commonwealth responded to the defendant's motion by filing a "complaining witness assertion of statutory and common law privileges and confidentiality rights," in which the complainant specifically invoked the psychotherapist-patient privilege, G.L. c. 233, § 20B, and the social worker-client privilege, G.L. c. 112, §§ 135A and 135B.⁶

Although no Lampron hearing was held, on August 11, 2006, a court summons signed by the judge was issued to the department ordering it to deliver to the clerk's office any nonprivileged records it possessed relating to services provided to or concerning the complainant for the period January, 2002, to March, 2005. The summons also ordered the department to withhold any privileged records, but required the department to identify any withheld privileged document by title or general description, and to state in writing each privilege claimed and the factual basis for the claim. On August 21, 2006, the department responded that its record check indicated no history for the complainant.

On August 30, 2006, the defendant moved for a further order for the complainant's department records in which he asserted that the department's reply to the first court summons was erroneous. That same day, the judge signed an order directed to the keeper of the records of the department. This order required delivery of all nonprivileged records "relating to the parental fitness" of the complainant, including records of all communications between the complainant and her caseworker.⁷ The order again required the department's keeper of the records not to produce privileged records, but to identify them in the same manner as previously ordered.

On September 8, 2006, the department delivered both nonprivileged and privileged records to the clerk, together with an affidavit of counsel for the department identifying the records regarding the complainant that the department claimed were privileged.⁸ Specifically, counsel identified the social worker's case notes, letters, clinical team reports, and department service plans as privileged pursuant to G.L. c. 112, § 135A, drug treatment records as prohibited from disclosure pursuant to G.L. c. 111E, § 18, and records of Juvenile Court proceedings as prohibited from disclosure pursuant to G.L. c. 119, § 65.⁹

On September 11, 2006, the defendant filed two motions concerning any records the department claimed to be privileged: a motion for privilege determination¹⁰ (Bishop-Fuller stage 1) and a motion for a "determination of relevancy" (Bishop-Fuller stage 2).¹¹ In support of the latter motion, the defendant relied on the previously filed affidavit of his counsel.

On September 12, 2006, the judge held a nonevidentiary hearing on the motions. Prior to the hearing and during a break in the proceedings, the judge reviewed in camera the records that counsel for the department had filed with the clerk and identified as privileged.¹² Following her review, the judge stated that the records concerning conversations among the complainant and the department social workers on the subjects of child custody, adoption, or adoption consent were "privileged." However, the judge declined to apply the Bishop-Fuller protocol on the theory that their subject matter made them "absolutely protected" from disclosure; she ruled, over the defendant's objection, that she would not make a relevancy determination as required by Bishop-Fuller stage 2.¹³ Notwithstanding, the judge stated that the records she had reviewed were in her view relevant, informing defense counsel: "I would consider [some of these records] relevant given what you've told me. And even, I think there are a couple that I think would be relevant for other reasons."

The defendant's petition for relief to the single justice followed.

2. Discussion. a. Relief under G.L. c. 211, § 3. Although the Commonwealth does not challenge the defendant's claim for relief under G.L. c. 211, § 3, we consider whether the case is properly before us. Here, the judge's determination that the department records pertaining to adoption and child custody are "absolutely protected," and therefore could not be made available to a defendant in a criminal trial even if "relevant" to his defense, is a question of significant importance that affects the fair administration of criminal justice. See, e.g., Commonwealth v. Mitchell, 444 Mass. 786, 790 n. 8, 831 N.E.2d 890 (2005). Where the single justice has, in his discretion, reserved and reported the case to the full court, we grant full appellate review of the issues reported. See, e.g., Pare v. Commonwealth, 420 Mass. 216, 218 n. 1, 648 N.E.2d 1277 (1995), citing Burke v. Commonwealth, 373 Mass. 157, 158-159, 365 N.E.2d 811 (1977). W...