Ruby Mcdonough, Petitioner.

• Decision Date: 11 August 2010
• Docket Number: SJC-10609.
• Citation: 930 N.E.2d 1279,457 Mass. 512
• Parties: Ruby McDONOUGH, petitioner.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 512

930 N.E.2d 1279

Ruby McDONOUGH, petitioner.

SJC-10609.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 6, 2010.

Decided Aug. 11, 2010.

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Wendy J. Murphy, for the petitioner.

Casey E. Silvia, Assistant District Attorney(Marian T. Ryan, Assistant District Attorney, with her) for the Commonwealth.

Richard B. Klibaner, for Kofi Agana.

Martha Coakley, Attorney General, & Adam Hollingsworth, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Susan Stefan and Robert D. Fleischner, for National Aphasia Association & others, amici curiae, submitted a brief.

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

MARSHALL, C.J.

A prospective witness for the Commonwealth in a criminal trial, the alleged victim Ruby McDonough, seeks interlocutory appellate review of an order of a District Court judge finding her not “competent” to testify because of her impaired capacity to communicate orally.McDonough's disability is the result of a stroke, which causes her to suffer from “expressive aphasia.”¹Before trial, on motion of the defendant, McDonough's “competency” was evaluated by a court-appointed expert.Focusing “primarily” on McDonough's “intact mental capacity,” the expert opined that McDonough was competent to testify, noting that certain methods of questioning McDonough facilitated her communications.The judge's contrary finding rested in substantial part on his own observation that although McDonough can respond to “yes” or “no” questions, she is, in the judge's words, “incapable of providing any narrative.”He concluded that permitting her to testify would infringe the defendant's right to cross-examination.

The Commonwealth did not seek appellate review of the judge's order.²Represented by new counsel, McDonough then filed a petition in the county court pursuant to G.L. c. 211, § 3,³ claiming that conducting the hearing on her “competency” to testify without accommodating her stroke-induced disability and the judge's ruling that she could not testify at trial violated her rights under Title II of the Americans with Disabilities Act (ADA),42 U.S.C. §§ 12131 et seq.(2006);⁴ the Massachusetts Equal Rights Act (MERA), G.L. c. 93, § 103;⁵andart. 114 of the Amendments to the Massachusetts Constitution.⁶A single justice reserved and reported the case to the full court, staying the underlying criminal trial pending further order.

Because of the “pervasive unequal treatment” of individuals with disabilities Tennessee v. Lane,541 U.S. 509, 524, 124 S.Ct. 1978, 158 L.Ed.2d 820(2004), the Massachusetts Constitution, Massachusetts statutes, and Federal statutes now impose on State courts certain affirmative obligations to accommodate an individual with disabilities in order to provide her with access to the courts, including providing her with the “same rights as other persons” to “give evidence.”G.L. c. 93, § 103( a ).Nevertheless, for the reasons we explain below, we conclude that McDonough has no standing to seek appellate review of the decision of the judge in the District Court that precluded her from testifying in the defendant's criminal trial.Accordingly, we deny her petition.⁷

However, because there is “considerable doubt” as to the proper appellate procedure in these circumstances, we exercise our general superintendence power pursuant to G.L. c. 211, § 3, “to resolve the doubt” and set forth the appellate procedure to be used in future cases.Commonwealth v. Silva,448 Mass. 701, 705 n. 5, 864 N.E.2d 1(2007), quotingOttaway Newspapers, Inc. v. Appeals Court,372 Mass. 539, 551, 362 N.E.2d 1189(1977).Last, while we recognize that in many circumstances witnesses (and other court users) with disabilities routinely are provided with accommodations, all without controversy, see, e.g., G.L. c. 221, § 92A(court must appoint “qualified interpreter” in “any proceeding” in which “deaf or hearing-impaired person is a party or a witness”), because of the absence of adequate existing guidance in this important area, we also exercise our superintendence power to offer guidance for trial judges for those few cases where a witness with a disability seeks accommodation in order to testify and the proper resolution of the request is disputed.⁸

1.Background.We summarize the relevant undisputed facts from the record.⁹The defendant was charged in a complaint issued by the Framingham Division of the District Court Department with two counts of indecent assault and battery and one count of assault and battery on a person sixty years of age or older or a person with a disability, G.L. c. 265, §§ 13H and 13K( a1/2 ).The charges stem from an incident that allegedly occurred on January 28, 2009.¹⁰Before trial the defendant moved for an evaluation of McDonough's competency to testify.Acting pursuant to G.L. c. 123, § 19,¹¹ the judge appointed a psychologist, Dr. Rosemary Klein, to examine McDonough; Dr. Klein subsequently filed a written report, which necessarily focused primarily on McDonough's “intact mental capacity.”After interviewing McDonough and reviewing her medical records, as well as the complaint in this case, Dr. Klein opined in her written report that McDonough was mentally competent to testify.¹²Her opinion is consistent with the opinion of McDonough's primary care physician that McDonough “is not mentally incompetent.”¹³

At a hearing in July, 2009, both McDonough and Dr. Klein testified.Although the judge expressed some skepticism concerning McDonough's memory, in his findings he focused primarily on McDonough's ability to communicate.The judge found that McDonough “ does understand the difference between truth and falsehood, and her obligation to tell the truth”(emphasis added), but that she is “easily” confused “by the phrasing of a question.”The judge made no reference to Dr. Klein's testimony or to her written report.¹⁴He did not address Dr. Klein's conclusion as to McDonough's difficulty with communication (as opposed to her mental competency) or Dr. Klein's suggestions that McDonough could benefit from specific methods of questioning, the timing of the questions, and the use of gestures or other physical expressions.See, e.g., note 12 supra.Rather, he said that it “became apparent” to him that McDonough “could not recount any of the details” of the defendant's alleged touching other than by answering “mainly leading questions ‘Yes' or ‘No.’ ”The judge found that McDonough was not “competent” to testify, concluding that were McDonough permitted to testify, the defendant's “rights to a meaningful cross examination would be adversely affected and he could not get a fair trial.”

McDonough claims that she was required to testify at the hearing “without interpretive assistance,” and that her family members asked to be able to “provide communicative assistance” to her during the hearing, but “were not allowed to participate.”The defendant points out that there is no record concerning whether, and if so how, such an offer of “assistance” was made.See note 9 supra.It is, however, undisputed that neither McDonough, her attorney, nor the Commonwealth specifically framed any offer to help interpret McDonough's communications as a request for reasonable accommodation under MERA, art. 114, or the ADA, and that the judge was not asked to, and did not, appoint any expert in communication disorders to evaluate McDonough.

The defendant opposed McDonough'sG.L. c. 211, § 3, petition, arguing before the single justice that McDonough did not have standing to challenge the judge's order.The Commonwealth sent a letter to the clerk in the county court to the effect that it did not intend to seek relief pursuant to G.L. c. 211, § 3, and stating that it took “no position” on McDonough's petition.After what it terms “further consideration,” the Commonwealth has filed a brief in this appeal and now generally supports McDonough's arguments.¹⁵

2. Discussion. a. Standing.Our discretionary power of review pursuant to G.L. c. 211, § 3, is “extraordinary,” and will be exercised “only in ‘the most exceptional circumstances.’ ”Hagen v. Commonwealth,437 Mass. 374, 377, 772 N.E.2d 32(2002), quotingCostarelli v. Commonwealth,374 Mass. 677, 679, 373 N.E.2d 1183(1978).SeePlanned Parenthood League of Mass., Inc. v. Operation Rescue,406 Mass. 701, 706, 550 N.E.2d 1361(1990).Parties seeking relief pursuant to G.L. c. 211, § 3, must demonstrate both a “violation of their substantive rights” and the absence of another “adequate or effective avenue of relief.”Hagen v. Commonwealth, supra,quotingVictory Distribs., Inc. v. Ayer Div. of the Dist. Court Dep't,435 Mass. 136, 137, 755 N.E.2d 273(2001).

McDonough acknowledges that as an alleged victim of a crime, she has no legally cognizable interest in the prosecution of the defendant that would permit her to seek review of the judge's order.SeeManning v. Municipal Court of the Roxbury Dist.,372 Mass. 315, 317, 361 N.E.2d 1274(1977)(victim of alleged crime has “no right” to challenge judicial determination “which forecloses further prosecution of that alleged crime”).See alsoHagen v. Commonwealth, supra at 381-382, 772 N.E.2d 32(victim lacks standing to file motion to revoke postconviction stay of criminal sentence);Tarabolski v. Williams,419 Mass. 1001, 1002, 642 N.E.2d 574(1994), quotingLinda R.S. v. Richard D.,410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536(1973)(private person “lacks a judicially cognizable interest in the prosecution or nonprosecution of another”).Rather, McDonough claims, she seeks to vindicate a violation of her own substantive right to “give evidence”“with reasonable accommodation” to the same extent as other persons, G.L. c. 93, § 103( a ), and her right not to be “excluded” from “participation in” the programs or activities of the court by “reason of” her disability,...