Heard: May 4, 2017.
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
Supreme Judicial Court granted an application for direct
A. Dolberg, Committee for Public Counsel Services, for the
F. O'Sullivan, Assistant District Attorney (Kimberly
Faitella, Assistant District Attorney, also present) for the
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. 
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; and (2) the judge's restriction of the
defendant's cross-examination of Diane was an abuse of
discretion. We affirm the convictions.
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
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.
February, 2009, Diane told her older sister, Beth,
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) then became involved.
defendant was convicted of five of the six charges he faced
stemming from the abuse. We granted his application for direct
Rule 17 (a) (2) motion.
defendant argues that the trial judge abused his discretion
by denying his motions requesting rule 17 (a)
summonses for (a) records from the psychiatrist and the
counselling center and (b) counselling records from the
middle school where Diane was a student.
"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
"[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 ...