Opinion
14-P-875
07-16-2015
COMMONWEALTH v. DAVID P. HALPIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of assault and battery. He argues that hearsay statements elicited on cross-examination by his defense counsel were improperly admitted. On direct examination, a child protective social worker for the Department of Children and Families testified that she arrived at the victim's apartment on the day of the incident to visit the victim and her children. The social worker further testified to her observations on that day. None of the child's statements to the social worker was elicited on direct examination.
On cross-examination, defense counsel asked the social worker if she was aware of any other reasons, aside from an impending move, why the victim was under stress at the relevant time. The social worker answered, "Yes." Defense counsel then asked why the victim was under stress. The social worker testified that the victim's child told her that the defendant had threatened the victim. After this, defense counsel asked questions concerning the social worker's report to the police. The following exchange occurred:
The statement was truncated by the defendant's objection. The judge overruled the objection because defense counsel asked the question. The judge then gave an instruction on hearsay. However, when the social worker began to answer the question again, there was another objection and the judge decided to exclude the answer.
Q: "And you never told the police officer that [the victim] had told you that [the defendant] had pushed her, did you?"
A: "Yes, I did."
Q: "You told the police officer that?"
A: "Yes."
Q: "Okay. What else did you tell the police officer while he was present that day?"
A: "Um, I explained to the police officer why I had contacted SafeLink, which is a mechanism for helping a family get into a domestic violence shelter. I explained that I had arrived at the home in the morning uh, and that um, [the victim] and her daughter had --"
Defense Counsel: "Objection, Your Honor."
Judge: "Overruled. You asked the question, counsel. Continue."
Witness: "I had explained to the -- when I called the police department, um, we called the nonemergency number typically, and they take the information over the phone and then they dispatch a police officer, and the person I spoke to over the phone, I explained that I had a [nine] year old who told me that -- "
Defense Counsel: "Objection, Your Honor."
Judge: "You asked the question. Overruled. There's no objection -- basis for your objection. Go ahead."
Witness: "-- that the nine year old daughter of [the victim] had told me that [the defendant] would frequently chase her around and push her and threaten to kill her and [the victim] had said that he had choked her, and that he
had physically assaulted her. And so I needed to get her assistance to get into a safe house with her children."
The defendant argues that the admission of the child's statement to the social worker was error. Defense counsel objected to the witness's answer to his own question. As the judge properly noted, the answer was responsive to the question defense counsel asked. These objections did not preserve appellate rights. Cf. Commonwealth v. Fanara, 47 Mass. App. Ct. 560, 564 (1999) ("His claim, in other words, is that counsel should have objected to his own questions, a claim tantamount to saying that the questions should not have been posed at all"); Commonwealth v. Grant, 49 Mass. App. Ct. 169, 171 (2000) ("Where the error was invited by the defendant, our review is limited to whether a substantial risk of a miscarriage of justice occurred"). We review this claim to determine whether there is a substantial risk of a miscarriage of justice.
The defendant also asserts that the admission was a violation of his confrontation clause rights. However, "[a] defendant . . . cannot reasonably claim that his right to confront the witnesses against him is violated by the admission of evidence that he elicits on cross-examination." Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010). See Mass. G. Evid. § 8(a) (2015) ("[I]f [hearsay is] offered by the Commonwealth, the statement must satisfy the requirements of the confrontation clause").
There is no such risk here. The child's statements were only referenced twice in the testimony. Neither the Commonwealth nor the defendant mentioned the statements in their closing arguments. The judge gave a hearsay instruction close in time to both statements being elicited. Finally, the conflicting testimony of the victim and the defendant was not the only evidence. The jury had photographs of the victim's injuries to evaluate.
The defendant also argues that it was an abuse of discretion to deny his motion for access to the victim's medical records. See Commonwealth v. Mitchell, 444 Mass. 786, 791 (2005) ("The issuance of a summons pursuant to a [Mass.R.Crim.P.] 17[a][2][, 378 Mass. 885 (1979),] motion is reserved to the sound discretion of the judge"). Before defense counsel will be given a reasonable opportunity to inspect "presumptively privileged records produced by a third party," the defendant has to make a threshold showing. Commonwealth v. Sealy, 467 Mass. 617, 627 (2014), quoting from Commonwealth v. Dwyer, 448 Mass. 122, 145 (2006).
"A 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."'"Ibid., quoting from Commonwealth v. Lampron, 441 Mass. 265, 269 (2004).
"[R]ule 17(a)(2) is not a discovery tool to be 'invoked merely for the exploration of potential evidence.' . . . To that end, '[p]otential relevance and conclusory statements regarding relevance are insufficient' to meet the rule 17 standard." Ibid., quoting from Lampron, supra.
Here, the motion provided in the record before us stated that it was seeking "[a]ny and all photos, x-rays, video, documents, letters, memos, emails, notes, memorandum, telephone messages, computer records, and any other documents regarding [the victim]." The motion later specified that the defendant was seeking dental, medical, and mental health records. Contrary to the defendant's assertion here, this was a broad request that the judge could have determined was a fishing expedition. The affidavit and motion also lacked the required particularity to establish the relevance of all the records the defendant sought.
Furthermore, the defendant has not supplied this court with an adequate record of the hearing where this motion was discussed. See Commonwealth v. Woody, 429 Mass. 95, 99 (1999) ("If the appellant determines that an incomplete transcription of an electronically recorded proceeding is adequate for appellate review of his claims, the appellate court may nevertheless decline to consider his claims if it determines, in its judgment, that the transcript is not adequate"). There was some discussion on the record concerning insufficient notice to the relevant parties and inappropriate discovery methods used by the defendant. However, neither party discussed this issue on appeal. In addition, the portions of the record after the Commonwealth indicated it objected to a summons of the victim, and after the judge's statement that the motion was denied, are inaudible. There is no indication that the motion was denied with prejudice or that the defendant raised the issue of requiring the victim's dental records later in the proceeding. On this record, we cannot reasonably conclude that it was an abuse of discretion to deny this broad motion.
Judgment affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: July 16, 2015.