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Commonwealth v. Michalski

Appeals Court of Massachusetts, Hampshire

June 25, 2019


          Heard. November 15, 2018

         Indictments found and returned in the Superior Court Department on June 30, 2015.

         The cases were tried before Richard J. Carey, J.

          William W. Adams for the defendant.

          Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

          Present: Rubin, Maldonado, & Lemire, JJ.

          RUBIN, J.

         The defendant was convicted on two indictments charging indecent assault and battery on a child under the age of fourteen, see G. L. c. 265, § 13B, four indictments charging rape of a child under twelve years of age aggravated by an age difference of five years or more, see G. L. c. 265, § 23A (a.), and one indictment charging dissemination of matter harmful to a minor, see G. L. c. 272, § 28. The defendant lived with the two victims, to whom we shall refer as the older child and the younger child, but he was not related to them. He now appeals.

         The defendant first argues that a judge of the trial court erred in denying his Dwyer motion, see Commonwealth v. Dwyer, 448 Mass. 122 (2006), seeking records from Head Start, Inc. (Head Start), which had been the older child's preschool. During discovery, the Department of Children and Families (DCF) provided the defendant a G. L. c. 119, § 51A, report (§ 51A report) from 2010, several years before the two victims moved into the defendant's house, written by a staff member of Head Start. According to defense counsel's affidavit, the § 51A report alleged "possible sexual abuse" by "an unknown person" (the § 51A report itself is not before us). There had been no disclosure of any sexual abuse.

         Defense counsel's affidavit stated that the § 51A report "stated that the [licensed social worker] child and family counselor" -- apparently a mandated reporter -- "has been working with [the older child] and is very concerned"; "that [the older child] is expressing sadness, she has talked about not feeling safe, has expressed concern for [the younger child]," "has drawn some concerning pictures [of] children screaming, sad faces, and one with a banana that seems very penis shaped, and another of a worm with hair all over his body, a snake, and talks about feeling scared"; and that Head Start "staff have become increasingly concerned over the past few weeks due to [the older child's] increased sadness and discussion about not feeling safe." (In various trial court motions, the defendant stated that the concerning pictures, which also are not before us, were photocopied and mailed to DCF.) There was also apparently information -- this revealed in a statement by the prosecutor at a motion hearing -- that the older child, when she was five years old, had rubbed against another child.[1]

         Under Dwyer, 448 Mass. at 140-144, before obtaining pretrial inspection of an alleged victim's third-party records, "a defendant must first comply with the threshold requirements of Mass. R. Crim. P. 17 (a) (2), [378 Mass. 885 (1979), ] as elucidated in [Commonwealth v. Lampron, 441 Mass. 265, 269 (2004)]. A defendant must

'establish good cause, satisfied by 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.'"'

Id. at 269, quoting United States v. Nixon, 418 U.S. 683, 699-700 (1974)." Commonwealth v. Sealy, 467 Mass. 617, 627 (2014).

         We see no abuse of discretion in the judge's ruling. See Lampron, 441 Mass. at 271. Defense counsel initially argued that the records were relevant to the origin and cause of a vaginal scar on the older child. With no sexual abuse disclosure, or any information about who might have sexually assaulted the child, or indeed any evidence of sexual assault beyond an incident of a five year old child rubbing against another child, making drawings, and expressing sadness and concern for a younger sister, there is no basis for concluding that anything in the possession of Head Start would be evidentiary and relevant to that question. Nor did the defendant demonstrate that he could not properly prepare for trial without production and inspection of Head Start's records. On a motion for reconsideration, the defendant argued that the records were relevant to the case in that there were no behavioral concerns indicated in the victims' academic records from the time of the charged crimes, whereas, by contrast, there were behavioral concerns regarding the older child several years before at Head Start. However, given that there was no sexual abuse disclosure or any reason to think that the original Head ...

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