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Commonwealth v. Jones

Supreme Judicial Court of Massachusetts, Essex

October 4, 2017


          Heard: May 4, 2017.

         Indictments found and returned in the Superior Court Department on March 27, 2009. Motions for summonses for the production of records were heard by Timothy Q. Feeley, J., and the cases were tried before him.

         The Supreme Judicial Court granted an application for direct appellate review.

          Nancy A. Dolberg, Committee for Public Counsel Services, for the defendant.

          David F. O'Sullivan, Assistant District Attorney (Kimberly Faitella, Assistant District Attorney, also present) for the Commonwealth.

          Meagen K. Monahan, Anthony D. Mirenda, Madeleine K. Rodriguez, Jeremy W. Meisinger, Stacy A. Malone, & Lindy L. Aldrich, for Victim Rights Center & others, amici curiae, submitted a brief.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [1]

          LOWY, J.

         The defendant appeals from his convictions stemming from his sexual abuse of his two daughters. He argues that (1) a Superior Court judge abused his discretion by refusing to issue summonses pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), regarding the release of the mental health and counselling records of the younger of the daughters, Diane;[2] and (2) the judge's restriction of the defendant's cross-examination of Diane was an abuse of discretion. We affirm the convictions.[3]


         In 2005 or 2006, when Diane was in the seventh grade and eleven or twelve years old, she stayed home from school one day. She was sitting on a couch watching television and her father was at a nearby computer when a commercial with sexual themes came on the air. After a discussion regarding sex sparked by the commercial, the defendant sat down next to Diane and she wound up in his lap. The defendant then slid his hand under Diane's pants and underwear and touched her vagina. Diane pushed her father's hand away and ran upstairs to her room.

         In the fall of 2008, when Diane was a fourteen year old freshman in high school, she started acting out in school. Due to her behavior she was referred to a psychiatrist and also met with a therapist at a counselling center. At around the same time, Diane first disclosed to a friend at school that her father sexually abused her two years earlier. A high school counsellor heard about the incident and spoke with Diane in the counsellor's office. Diane told the counsellor that "it was all just a dream." The counsellor called Diane's mother and on the way home from school that day Diane told her mother "it was a dream." Diane testified that she was not ready to tell anybody else about the incident at that time because it was around Christmas and she did not want to break up her family.

         In February, 2009, Diane told her older sister, Beth, [4] about the sexual abuse, and said she was going to tell the counsellor what happened to her. Beth then told Diane that the defendant had been sexually abusive to her when she was younger. Beth told Diane that she would take care of it and "would do something to put a stop to" the defendant's abuse. Several days later, Beth took some money from her grandmother's purse. The grandmother told the defendant, who became angry and yelled at Beth. Beth then left the house with her friend and went to the police and reported the sexual abuse. The Department of Children and Families (DCF)[5] then became involved.

         The defendant was convicted of five of the six charges he faced stemming from the abuse.[6] We granted his application for direct appellate review.


         1. Rule 17 (a) (2) motion.

         The defendant argues that the trial judge abused his discretion by denying his motions requesting rule 17 (a) (2)[7] summonses for (a) records from the psychiatrist and the counselling center and (b) counselling records from the middle school where Diane was a student.[8]

         Where "a defendant seeks pretrial inspection of statutorily privileged records of any third party, " he must satisfy the protocol established in Commonwealth v. Dwyer, 448 Mass. 122, 145-146 (2006). Commonwealth v. Sealy, 467 Mass. 617, 627 (2014) The "protocol is designed to give the fullest possible effect to legislatively enacted privileges consistent with a defendant's right to a fair trial that is not irreparably prejudiced by a court-imposed requirement all but impossible to satisfy." Dwyer, supra at 144. To trigger the protocol, "a defendant must first comply with the threshold requirements of [rule] 17 (a) (2), as elucidated in [Commonwealth v. Lampron, 441 Mass. 265, 269 (2004)]." Sealy, supra. Under the protocol:

"[T]he party moving to subpoena documents to be produced before trial 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 ...

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