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Commonwealth v. Torres

Supreme Judicial Court of Massachusetts, Middlesex

June 1, 2018

COMMONWEALTH
v.
JOSE TORRES

          Heard: December 4, 2017.

         Indictment found and returned in the Superior Court Department on August 6, 2015.

         The case was tried before Heidi E. Brieger, J. The Supreme Judicial Court granted an application for direct appellate review.

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

          Timothy Ferriter, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

          GAZIANO, J.

         In this appeal, we consider whether a defendant's conviction of stalking should be reversed where, at his trial, a Superior Court judge denied his motion for access to records held in the victim compensation file maintained by the Attorney General. The defendant was charged with nine offenses, including stalking, strangulation or suffocation, assault and battery causing serious bodily injury, assault by means of a dangerous weapon, and five counts of assault and battery on a family or household member. On the eve of his scheduled trial, the defendant learned that the complainant had applied for the Attorney General's victim compensation program; this program provides compensation for damages suffered by some victims of crime.

         The defendant sought access to records of the complainant's claim for compensation for dental services from the Attorney General as mandatory discovery, and, in the alternative, as third-party records, pursuant to Mass. R. Crim. P. 17, 378 Mass. 842 (1979), and the procedures of Commonwealth v. Dwyer, 448 Mass. 122, 145-146 (2006). The judge concluded that the records could not be produced or disclosed to the defendant because the Attorney General's regulations mandated that such records be kept confidential. Before us, the defendant reasserts these claims. In addition, he challenges the judge's decision to redact significant portions of the complainant's dental records, which mentioned that she had applied for compensation. Finally, the defendant challenges two of the judge's instructions, one on the Commonwealth's burden to prove stalking, and one on the complainant's interest in the outcome of the case.

          We conclude that the defendant's motion for access to the victim compensation records held by the Attorney General should have been evaluated as a request for third party records under rule 17, notwithstanding the regulation requiring confidentiality of records. In addition, the judge committed error by redacting the complainant's dental records. We conclude also that, in responding to a confusing jury question, the judged erred by not clearly delineating the requirement that, to prove the offense of stalking, the Commonwealth must prove three specific incidents of stalking. Accordingly, the defendant's conviction must be vacated and the matter remanded for a new trial.

         1. Background.

         a. Facts.

         We recite the facts from evidence that was presented at trial. The defendant met the complainant in March, 2014. They began dating a few weeks later, and the defendant moved into the complainant's apartment shortly thereafter. The complainant testified at trial that the defendant physically and verbally abused her during their relationship; she said that the defendant threatened to kill her if he saw her with another man, and that the defendant hit, choked, and shoved her.

         Sometime around August, 2014, after the defendant and the complainant had separated, the defendant returned to her condominium and asked to speak with her. They went into her bedroom to talk. While they were talking, the defendant received a text message from another woman. The complainant asked the defendant why he wanted to speak with her if he was speaking to another woman. The complainant testified that the defendant became angry, grabbed her, pushed her up against a closet, and head-butted her between her nose and mouth. She said that her teeth broke as a result of this action. She also explained that those teeth had held in place a bridge that supported her false teeth; that she had to use "Super glue" to keep her bridge in place; and that she had difficulty eating in public and sleeping because of fear that she would swallow her bridge.

         The complainant testified that she applied for victim compensation, through the Attorney General's office, to pay for the cost of having her teeth repaired. She said that she had applied with the assistance of a victim advocate in the district attorney's office. She applied after she reported the headbutting incident to the police, and had not had any knowledge of the compensation program prior to making her report. The complainant testified that her application for compensation had been approved, but that she had not received any funds and no longer intended to accept any funds because she had obtained employment.

          The complainant acknowledged that she was aware that, in order to receive victim compensation funds, her injury had to be related to a crime, she had to cooperate with the prosecutor by testifying in court, and she could be in trouble if she made a false statement or filed a false application in the Attorney General's office.[1]

         At a dentist visit in November, 2014, the complainant's dentist recommended that she remove her remaining top teeth and use dentures. At that visit, the complainant did not tell the dentist that the defendant's head-butt broke her bridge and her teeth. She testified that she told the dentist about the head butting incident before she reported it to the police. The dental records and the dentist's testimony indicated that, at the office visit in November, 2014, the complainant had advanced decay under her bridge. The decay was not present in an X-ray taken during a 2012 visit.

         b. Procedural history.

         In August, 2015, the defendant was indicted in the Superior Court on nine counts: stalking, strangulation or suffocation, assault and battery causing serious bodily injury, assault by means of a dangerous weapon, and five counts of assault and battery on a family or household member.

         The judge granted the Commonwealth's motion to admit redacted versions of the complainant's dental records, [2] over the defendant's objection. The redactions were to eliminate any reference to the complainant's ability to pay and her application for victim compensation.

         On Monday, March 14, 2016, the day scheduled for jury empanelment and opening statements in the defendant's trial, his counsel sought access to the Attorney General's file regarding the complainant's application for victim compensation, of which counsel had been made aware the previous Friday. On that Friday, the prosecutor had provided defense counsel with a copy of the complainant's application for compensation, which had been held by the victim witness advocate in the district attorney's office. The defendant argued that the Attorney General's file was mandatory discovery under Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004), because the Attorney General, as the "overarching prosecutor" for the Commonwealth, was a party to the criminal case, and because the records showed an agreement, promise, or inducement between the prosecutor and the complainant. In the alternative, he argued that the file should be subject to discovery under rule 17 as the record of a third party. The judge initially ruled that the records in the file were discoverable and instructed the prosecutor to acquire the records.

         At the start of the second day of trial, the Commonwealth reported that the Attorney General objected to producing the records. The office of the Attorney General argued that 940 Code Mass. Regs. § 14.09 (2014), promulgated under G. ...


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