Heard. November 15, 2018
found and returned in the Superior Court Department on June
cases were tried before Richard J. Carey, J.
William W. Adams for the defendant.
H. Townsend, Assistant District Attorney, for the
Present: Rubin, Maldonado, & Lemire, JJ.
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.
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
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.
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
Id. at 269, quoting United States v. Nixon,
418 U.S. 683, 699-700 (1974)." Commonwealth v.
Sealy, 467 Mass. 617, 627 (2014).
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 ...