Supreme Judicial Court of Massachusetts, Middlesex
Heard: December 4, 2017.
found and returned in the Superior Court Department on August
case was tried before Heidi E. Brieger, J. The Supreme
Judicial Court granted an application for direct appellate
A. Dolberg, Committee for Public Counsel Services, for the
Timothy Ferriter, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker,
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.
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.
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.
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
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.
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.
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.
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.
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.
judge granted the Commonwealth's motion to admit redacted
versions of the complainant's dental records,
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.
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.
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. ...