Opinion
19-P-605
10-27-2020
COMMONWEALTH v. Alvaro CALDERON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of aggravated rape of a child, G. L. c. 265, § 23A, and indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. The convictions were based on evidence that the defendant, then age thirty, sexually assaulted his stepdaughter on divers dates between May 3, 2014, and July 15, 2016, at a time when she was between six and eight years old. The assaults included kissing on the mouth and sexual intercourse. On appeal the defendant claims that the pretrial order denying his motion for the production of the victim's privileged counselling records was an abuse of discretion. The defendant also argues that the trial judge abused her discretion by admitting a photograph depicting the victim as she appeared at the age when the sexual assaults began. Discerning no abuse of discretion, we affirm.
A second count of indecent assault and battery on a child under fourteen was nolle prossed by the Commonwealth. A motion for required finding of not guilty was allowed as to a third count of indecent assault and battery on a child under fourteen.
1. Motion for production of counselling records. The defendant filed a pretrial motion seeking a court order to produce the victim's privileged counselling and therapy records from the North Suffolk Mental Health Association pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979). See G. L. c. 233, § 20B. The defendant claimed that the records were relevant to the victim's credibility and that he could not effectively prepare for trial without them. Trial counsel's affidavit in support of the motion asserted, among other things, that (1) the victim began seeing a counsellor at North Suffolk Mental Health Association after the allegations of sexual assault, (2) the victim's mother believed the victim's allegations were false, (3) a similar allegation by the victim was investigated by the Department of Children and Families and determined to be "unsupported," (4) the victim reported to the police that she heard a loud whistling noise and a voice in her head, and (5) a forensic psychiatrist who had reviewed the discovery materials in the case opined that it was "likely" that a counsellor would have questioned the victim about the sexual assaults.
To compel pretrial production of records pursuant to rule 17 (a) (2), the defendant must
"establish good cause, satisfied by a showing ‘(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general "fishing expedition." ’ "
Commonwealth v. Sealy, 467 Mass. 617, 627 (2014), quoting Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). Here, the motion judge, who was not the trial judge, focused her analysis on the first and fourth requirements for a rule 17 (a) (2) subpoena and concluded, in a comprehensive written decision, that the defendant "failed to show that the requested records are relevant and, thus, to permit their disclosure would authorize a general fishing expedition." We review the order denying the motion for a rule 17 (a) (2) summons for abuse of discretion. Commonwealth v. Jones, 478 Mass. 65, 69 (2017).
"To satisfy the first requirement of Lampron, ... the defendant must make a factual showing that the documentary evidence sought has a rational tendency to prove [or disprove] an issue in the case" (quotation omitted). Id. at 68. If a defendant alleges with particularity that the victim's counselling records include specific information about the victim's complaint of a sexual assault, the records are relevant and should be produced. See Commonwealth v. Labroad, 466 Mass. 1037, 1039 (2014). However, "[p]otential relevance and conclusory statements regarding relevance are insufficient." Lampron, 441 Mass. at 269. Relevance is not established by mere speculation. See Commonwealth v. Alcantara, 471 Mass. 550, 564 (2015). Rule 17 (a) (2) is not a discovery tool. Jones, 478 Mass. at 68.
Here, while it appears that the records were requested in good faith, we are not persuaded that the order denying the request was an abuse of discretion. The fact that the victim sought counselling after the sexual assaults does not require disclosure of her counselling records. See Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433, 437 (2007) (mental health referral at time of allegation insufficient to require disclosure of privileged records). Nor does the defendant's general attack on the victim's credibility based on the victim's report of hearing voices. Id. ("broad claims concerning the victim's lack of credibility [based on] mental health problems are entirely speculative"). Moreover, the forensic psychiatrist's opinion that "it is likely questions would be asked of the patient about the Chief Complaint or reason for the visit," is expressed in the kind of hypothetical language that the Supreme Judicial Court has described as insufficient to meet the defendant's burden of demonstrating the relevance of the records under Lampron. See Sealy, 467 Mass. at 628. For these reasons we see no abuse of discretion in the order denying the motion for a rule 17 (a) (2) summons for the victim's counselling and therapy records.
Defense counsel issued a trial subpoena to the victim's therapist commanding the production of the same counselling records at trial. The Commonwealth asks us to "condemn" the use of an ex parte trial subpoena to seek records where a pretrial motion for the same records has been denied. While we do not condone the use of a trial subpoena in these circumstances, this issue is not properly before us and we decline to address it.
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2. The photograph. At trial the Commonwealth offered in evidence a photograph of the victim as she appeared at age seven when the sexual assaults began. The defendant objected, arguing that the prejudicial effect of the photograph outweighed its probative value and that introduction of the photograph was "designed to invoke sympathy." The trial judge admitted the photograph over the defendant's objection, reasoning that the size of the victim at the time of the assaults was relevant and that there was nothing about the photographic image that was inflammatory. On appeal, the defendant contends that the photograph was unfairly prejudicial to him and that its admission in evidence was an abuse of discretion.
"Evidence is relevant if it has a ‘rational tendency to prove an issue in the case.’ " Commonwealth v. Sicari, 434 Mass. 732, 750 (2001), quoting Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977). The Commonwealth was obligated to prove beyond a reasonable doubt that at the time of the rape the victim was younger than twelve years old. G. L. c. 265, § 23A. The photograph of the victim taken in the year that the sexual assaults began was relevant because it was probative of her age. The fact that there was other evidence of the victim's age does not render the photograph inadmissible. See Commonwealth v. Pena, 455 Mass. 1, 12 (2009) (photograph admissible even though cumulative of other evidence). Further, we agree with the trial judge that there was nothing inflammatory about the photograph itself. In a similar circumstance, we held that the probative value of school portraits of a child sexual assault victim outweighed any prejudicial effect where the photographs depicted the victim at a relevant time. See Commonwealth v. Tarjick, 87 Mass. App. Ct. 374, 379 (2015). Accordingly, we discern no abuse of discretion in the trial judge's admission of the victim's photograph. See Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999) (admissibility of photographs within trial judge's discretion).
Judgments affirmed.