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SJC-12312

               COMMONWEALTH   vs.   JONATHAN PICKERING.



             Essex.    December 5, 2017. - May 22, 2018.

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


Practice, Criminal, Probation, Revocation of probation.
     Evidence, Communication between patient and
     psychotherapist, Privileged communication.
     Psychotherapist. Privileged Communication.



     Indictments found and returned in the Superior Court
Department on June 4, 2014.

     A proceeding for revocation of probation was heard by
Timothy Q. Feeley, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Emily A. Cardy, Committee for Public Counsel Services, for
the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.     While serving a probationary term in connection

with two convictions of open and gross lewdness, the defendant
                                                                    2


endeavored to meet a person whom he believed was a thirteen year

old boy so that he could perform sexual acts on him.   Following

a probation violation hearing, a judge in the Superior Court

concluded that the defendant had violated his probation by

committing child enticement in violation of G. L. c. 265, § 26C.

The defendant appealed, claiming that the exclusion of certain

testimony violated his constitutional right to present a

defense, and we granted his application for direct appellate

review.   Specifically, he argues that the judge's sua sponte

ruling to exclude the admission of certain evidence as violative

of the psychotherapist-patient privilege, G. L. c. 233, § 20B,

deprived him of his constitutional right to present a defense.

Without deciding whether the psychotherapist-patient privilege

applies to group therapy, we agree that the judge's evidentiary

ruling that the psychotherapist-patient privilege applied here

was erroneous because there was no evidence that the privilege

would have been applicable in these circumstances.   However, the

defendant was not precluded from presenting the evidence at

issue in this appeal, and he presented other evidence of

arguably more weight on the same issue.   Moreover, the excluded

evidence was of minimal probative value, and the Commonwealth

presented overwhelming evidence that the defendant violated his

probation.   Accordingly, we conclude that the defendant's

constitutional right to present a defense was not violated and
                                                                     3


exclusion of certain statements did not create a substantial

risk of a miscarriage of justice.

     Background.   We recite the facts as they were developed at

the defendant's probation violation hearing.   In 2014, the

defendant pleaded guilty to two counts of open and gross

lewdness in violation of G. L. c. 272, § 16, and received a

suspended term of incarceration and a five-year term of

probation.   The defendant's probation included special

conditions that prohibited him from having unsupervised contact

with children under age sixteen, and required him to undergo sex

offender treatment.   To fulfil this requirement, the defendant

attended weekly group therapy sessions for sex offenders.     These

sessions were facilitated by a therapy "group leader," who

supervised a group of approximately eight sex offenders, some of

whom had been convicted of sexually abusing children.1    In order

to maintain a level of anonymity, the participants would only

refer to each other by first name during the group therapy

sessions.

     Another participant in the defendant's sex offender therapy

group, whom we shall call David Sawyer, attended the same group

therapy sessions as the defendant for approximately six months.


     1 The record before the court is silent concerning the
therapy group leader's qualifications or whether that person
would have met the description of a psychotherapist under
G. L. c. 233, § 20B.
                                                                      4


Sawyer did not speak much during those sessions and described

himself as a "listener," in contrast to the defendant, who spoke

rather often.   Although the two men attended the same group

therapy sessions, they did not have a close relationship, and

they never communicated or met outside those sessions.      Indeed,

Sawyer never used his last name in group therapy and never

provided it to the other group members.    However, there was

evidence that the group therapy participants recorded their

first and last names on a sign-in sheet when they attended the

group therapy, for purposes of keeping attendance and reporting

to the probation department.2

     During the time that Sawyer and the defendant were

attending the same group therapy sessions, Sawyer came across a

personal advertisement that the defendant had posted on the

Internet Web site Craigslist.    The subject of the defendant's

advertisement was, "Naked Driving and more - m4m."    The

advertisement included a message stating that the defendant was

seeking to meet "young guys," under twenty-five years old, to

engage in various sexual acts.   The advertisement did not

include the defendant's name, but Sawyer recognized the

defendant from the photographs included in the advertisement,

one of which depicted the defendant in the nude.

     2 It was unclear whether and to what extent the therapy
group participants could see each other's full names on the
sign-in sheet.
                                                                    5


     Sawyer testified that he was concerned that the defendant's

advertisement indicated that the defendant was seeking to meet

underage people in order to engage in sexual conduct.    To

determine whether Sawyer's concern was well founded, Sawyer

responded by electronic mail (e-mail) message to the defendant's

advertisement, claiming to be a thirteen year old boy who was

interested in meeting the defendant.3   The ensuing e-mail

exchange involved the defendant sending multiple sexually

explicit messages seeking to meet the boy and perform sexual

acts on him.    Moreover, on multiple occasions the defendant

sought to confirm his understanding that the person he was

communicating with was a thirteen year old boy.    In one such e-

mail message, the defendant requested a photograph of the boy so

that he could verify that he was communicating with a thirteen

year old boy and "[n]ot a cop or someone else."    Sawyer

responded by sending the defendant a photograph of a young boy

that he found as a result of searching for "cute young boy" on

the Internet.   After receiving that photograph, the defendant

made the additional request that the boy send a nude photograph

of himself.    Sawyer declined, stating, "Absolutely not. . . .

For your own good."    The defendant responded, stating his




     3 Although we describe the electronic mail exchange (e-mail)
as the defendant communicating with a child for the sake of
clarity, no children were involved in the correspondence.
                                                                     6


approval, "Good answer. . . .   I await your next contact. . . .

You seem concerned about me . . . and you."

     Throughout the course of this correspondence, Sawyer took

precautions to conceal his identity and maintain the illusion

that he was a thirteen year old boy.   Sawyer did this by using a

privacy setting on the Craigslist Web site.   When this setting

is applied, the recipient of an e-mail message can see only a

generic alpha-numeric address and not the sender's personal e-

mail address.   Moreover, Sawyer steadfastly maintained that he

was a thirteen year old boy throughout the exchange; the

defendant never indicated that he was aware that he was

communicating with anyone other than a thirteen year old boy.

     Sawyer eventually sent the sexually explicit e-mail

exchange between him and the defendant to the therapy group

leader.   He did so anonymously and under the guise of a

"concerned friend."4   The therapy group leader forwarded the

messages to the State police, and an investigation ensued.

Because Sawyer did not reveal that he was the author of the

messages, the investigation proceeded with the understanding

that the defendant had been communicating with a child.    Shortly

after the investigation began, the defendant's probation officer

     4 Sawyer testified that he identified himself as a
"concerned friend" to obscure his identity from the group leader
and make it seem like a friend of the defendant's had discovered
the e-mail exchange. He further testified that he and the
defendant were not friends.
                                                                    7


issued a notice of probation violation to him, stating that the

defendant had violated his probation by having unsupervised

contact with a child under sixteen years old.   The defendant was

detained without bail pending his probation violation hearing.

     The defendant does not contest that he was the author of

the advertisement or that he used his personal e-mail address to

post the advertisement on Craigslist.   Furthermore, the e-mail

address that he used to post the personal advertisement at issue

here is the same address that the defendant had used to post a

similar personal advertisement in 2009, which led to his prior

conviction of enticement of a child.5

     At some point during the investigation, the police

discovered that Sawyer had been the person corresponding with

the defendant, not a thirteen year old boy.   A State police

trooper interviewed Sawyer, and Sawyer admitted to authoring the

e-mail messages.   During this interview, the trooper also

inquired into Sawyer's criminal background.   Sawyer acknowledged


     5 In the prior case, the defendant had posted a personal
advertisement on the Internet Web site Craigslist. An
undercover police officer replied to the defendant's
advertisement and pretended to be a thirteen year old boy. The
defendant and the person whom he believed was a thirteen year
old boy engaged in a sexually explicit e-mail exchange. The
defendant set up a meeting with the purported child at a
restaurant, and he was subsequently arrested when he arrived.
As discussed infra, this was properly admitted, not for
propensity purposes but to rebut the defendant's defense that he
was aware that he was speaking with an adult when he attempted
to meet the purported thirteen year old boy in this case.
                                                                      8


that he had been charged with statutory rape and pleaded guilty

to the lesser charges of indecent assault and battery on a child

and child enticement.   Sawyer explained that when he was

eighteen years old, he began dating a person whom he believed to

be sixteen years old.   Eventually, that individual revealed to

Sawyer that he was actually only thirteen years old; Sawyer

immediately ended the relationship.     Sawyer was adamant that the

situation was a misunderstanding.     Moreover, Sawyer stated that

he has no sexual interest in children.

    After police discovered that Sawyer was the author of the

messages purporting to be from a child, the Commonwealth amended

the defendant's notice of probation violation to reflect that he

violated his probation by committing the crime of child

enticement.   At the defendant's probation violation hearing, the

defendant's theory of defense was that he knew that he had been

communicating with Sawyer, not a thirteen year old boy, and the

two men were engaging in a fantasy role play.    The defendant

argued that he did not have the requisite intent to commit the

crime of child enticement because he knew that he was not

communicating with a child.   In support of this theory, the

defendant presented testimony from a digital forensic analyst,

who examined the messages at issue, which had been recovered

from the defendant's cellular telephone.    The analyst opined

that it was possible, despite the e-mail privacy setting, that
                                                                    9


"David Sawyer" may have appeared as the sender of the messages.

Based on the way they were saved, the analyst conceded that he

could not determine whether the defendant actually saw Sawyer's

name or the anonymized e-mail address when the defendant

received the messages.

     Throughout the probation violation hearing, the

Commonwealth and defense counsel sought to elicit testimony

concerning the substance of discussions that had occurred in the

course of the sex offender group therapy sessions.    On numerous

occasions the judge expressed concern that statements made

during group therapy sessions were protected by the

psychotherapist-patient privilege.   Defense counsel agreed with

the judge that the privilege applied, but nevertheless sought to

elicit testimony that Sawyer had told the therapy group about

Sawyer's own convictions of indecent assault and battery on a

child and child enticement.   The judge ruled that he would not

allow the defendant to testify about what Sawyer had said in

group therapy without a waiver from Sawyer, the presumed

privilege holder.6




     6 On the first day of the hearing, the judge initially
stated that he would not allow Sawyer to testify about what was
said during the group therapy sessions. However, as discussed
infra, on the second day of the hearing the judge stated that he
would allow Sawyer to testify about Sawyer's own statements
during group therapy.
                                                                  10


     On the second day of the probation violation hearing,

defense counsel began by reaffirming her belief, and the judge's

concern, that the conversations that occurred during group

therapy were privileged.    Defense counsel again sought to admit

testimony that Sawyer had told the therapy group about his own

convictions for purposes of showing the defendant's state of

mind.    Defense counsel argued that although the privilege

applied, Sawyer had waived it by speaking with the police and

independently discussing his convictions.    Defense counsel

proffered that the testimony she intended to elicit from Sawyer

would be consistent with what Sawyer told police about his

convictions.7    The judge reaffirmed his prior ruling that the

defendant could not testify about what Sawyer had said during

group therapy.    However, the judge concluded that if Sawyer

wanted to testify about his own statements during group therapy,

that evidence would be admissible.    Despite this ruling, defense

counsel did not question Sawyer about what Sawyer had said

during group therapy.

     Based on the evidence presented, the judge concluded that

the defendant had violated his probation by committing child

enticement and sentenced the defendant to serve the balance of

his remaining sentence.

     7 Defense counsel presented a transcript of the pertinent
portion of Sawyer's interview with police in support of the
proffer.
                                                                    11


     Discussion.   Although this case appears to raise the issue

whether the psychotherapist-patient privilege applies to group

therapy, the record here does not provide an adequate basis for

this court's determination whether, and to what extent, the

psychotherapist-patient privilege applies in that context.8

Assuming, without deciding, that the psychotherapist-patient

privilege applies to group therapy, no evidence was presented to

establish that the privilege would have been applicable here.

The psychotherapist-patient privilege only applies where the

therapy is administered by a "psychotherapist," as that term is

defined by G. L. c. 233, § 20B.   Here, there was no evidence

concerning the group leader's qualifications or whether that

person met the statutory definition of a psychotherapist.     See

     8 The course of the proceedings and the discussion of the
potential application of the privilege during the hearing
clearly illustrate why the record before us is inadequate to
address the applicability of the privilege. Most notably,
defense counsel represented to the judge on several occasions
that the privilege indeed applied in this case, despite the fact
that the privilege had not been invoked, but defense counsel
nevertheless sought to admit this testimony, arguing that Sawyer
had waived any such privilege. Simply stated, the legal
argument advanced by the defendant at the hearing concerning the
contours of the psychotherapist-patient privilege cuts against
the defendant's personal interest and his argument now on
appeal. Even setting aside that substantial hurdle, as
discussed infra, the record is inadequate for this court to
consider whether, and to what extent, the psychotherapist-
patient privilege applies to group therapy. We further note
that here it was the defendant who assumed that the privilege
applied while simultaneously arguing against it. Given these
peculiarities, we leave for another day whether the
psychotherapist-patient privilege proscribed by G. L. c. 233,
§ 20B, applies to group therapy.
                                                                    12


id.   Moreover, similar to other statutory and common-law

privileges that are not self-executing, the psychotherapist-

patient privilege must be invoked or asserted by the privilege

holder.   See Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002)

("some action by the patient or client is necessary to

'exercise' the privilege"); Mass. G. Evid. § 503 (2018).     The

potential privilege holder in this case, Sawyer, did not invoke

the privilege.   Instead, the judge was concerned that the

privilege applied here and ruled that the defendant could not

testify about what Sawyer had said during group therapy.     Even

if we were to assume that the privilege applied to group

therapy, the judge erred in concluding that the privilege

required the exclusion of certain evidence because these

prerequisites were not satisfied.

      In the defendant's view, the erroneous exclusion of

evidence concerning what Sawyer had said to the therapy group

about his own convictions violated the defendant's due process

right to present a defense at his probation violation hearing.

See Commonwealth v. Kelsey, 464 Mass. 315, 322 (2013) ("right to

present a defense in probation revocation proceedings . . . is

parallel to, but not coextensive with, the right to present a

defense at trial").   However, we are mindful that a "defendant

is not necessarily deprived of the right to present his theory

of defense simply because the judge excludes a piece of evidence
                                                                     13


supporting such theory."     Commonwealth v. White, 475 Mass. 724,

743 (2016), quoting Commonwealth v. Jones, 464 Mass. 16, 19 n.5

(2012).     Accordingly, a claim that evidence was erroneously

excluded does not constitute a per se violation of the

defendant's constitutional right to present a defense.    See

Commonwealth v. Vardinski, 438 Mass. 444, 449 n.11 (2003),

quoting Commonwealth v. McAfee, 430 Mass. 483, 491 n.3 (1999)

("Evidentiary rules of exclusion do not abridge an accused's

right to present a defense so long as they are not 'arbitrary'

or 'disproportionate to the purposes that they are designed to

serve'").    Because the defendant did not object to the judge's

conclusion that the psychotherapist-patient privilege applied

here, and in fact argued that the privilege did apply, we review

the defendant's claimed error to determine whether exclusion of

certain evidence created a substantial risk of a miscarriage of

justice.    Commonwealth v. Freeman, 352 Mass. 556, 563-564

(1967).

    The core of the defendant's argument is that testimony

about what Sawyer said in group therapy about his own

convictions would have been probative of the defendant's state

of mind.    According to the defendant, evidence of his state of

mind -- that the defendant was aware of Sawyer's sexual

proclivities -- would have supported the theory that the

defendant knew he was exchanging e-mail messages with Sawyer,
                                                                   14


rather than a thirteen year old boy.   This argument fails for a

number of reasons.

     First, the defendant was not foreclosed from eliciting the

testimony.   The record shows that, although the judge ruled that

the defendant could not testify about what he had heard Sawyer

say in group therapy, the judge did not foreclose the defendant

from questioning Sawyer on cross-examination about what Sawyer

had said in group therapy sessions.    Indeed, on several

occasions the judge stated that Sawyer would be permitted to

testify about what he had told the group concerning his

convictions.   However, defense counsel chose not to question

Sawyer about what he had said in group therapy.9   This may have

been a strategic decision by defense counsel, who stated that


     9 Rather, the defendant took the position that since Sawyer
disclosed to the State police trooper similar information to
what he had said in group therapy, the privilege was waived.
This is not our law. See Mass. G. Evid. § 523 (c) (1). The
fact that Sawyer reiterated factual information that he
previously had discussed during group therapy, and which existed
independent of the group therapy, would not have undermined the
psychotherapist-patient privilege had it applied here. See
Robinson v. Commonwealth, 399 Mass. 131, 135 (1987) (that some
information patient communicated to psychiatrist was later
repeated to others is irrelevant for purposes of waiver
analysis). We have held that the mere fact "[t]hat a client
tells a friend what he also tells his attorney in no way
undermines the attorney-client privilege as to what was
communicated to the attorney." Id. See generally Commonwealth
v. Goldman, 395 Mass. 495, 499-500, cert denied, 474 U.S. 906
(1985) (witness who testifies as to specific content of
privileged communication may waive privilege, but witness does
not waive privilege by testifying as to events which may have
been topic of privileged communication).
                                                                  15


she expected that Sawyer would testify consistently with what he

had told the trooper about his own convictions.   However, much

of Sawyer's statement to the trooper did not inure to the

defendant's benefit or support the defendant's theory of

defense, where Sawyer said that his convictions arose from a

misunderstanding and that he did not have any sexual interest in

children.

    Second, even if this testimony had been admitted, it had

minimal probative value.   "Evidence is relevant if (a) it has

any tendency to make a fact more or less probable than it would

be without the evidence and (b) the fact is of consequence in

determining the action."   Mass. G. Evid. § 401 (2018).   See

Commonwealth v. Gerhardt, 477 Mass. 775, 782 (2017).   Relevant

evidence "need not establish directly the proposition sought; it

must only provide a link in the chain of proof" (citation

omitted).   Commonwealth v. Sicari, 434 Mass. 732, 750 (2001),

cert. denied, 534 U.S. 1142 (2005).

    Defense counsel sought to elicit testimony that Sawyer had

told the sex offender therapy group that he had been convicted

of indecent assault and battery on a child and child enticement.

The defendant claims that this testimony was relevant to show

the defendant's state of mind because evidence that Sawyer had

told the therapy group about his convictions was indicative of

Sawyer's sexual proclivities.   According to the defendant, his
                                                                   16


presumed knowledge of Sawyer's sexual proclivities would have

been relevant to establish the defendant's knowledge that he was

corresponding with Sawyer, not a thirteen year old boy,

throughout the e-mail exchange.

     The nexus between the defendant's knowledge of Sawyer's

convictions and the contention that he knew he was communicating

with Sawyer throughout the e-mail exchanges is attenuated at

best, and depends on multiple unsupported inferential leaps.

Indeed, the defendant has failed to articulate clearly how

evidence of Sawyer's convictions would have informed the

defendant that he was communicating with Sawyer.    Critically,

Sawyer's convictions did not involve the solicitation of an

underage person on the Internet or role playing, particularly

role playing where Sawyer assumed the role of a child .

Moreover, as stated supra, defense counsel expected that

Sawyer's statement in group therapy would be consistent with

what he had told police:    that he had no sexual interest in

children.

     Third, the defendant's claim of an infringement on his

right to present a defense is further belied by the fact that he

presented other compelling evidence that was more probative of

his theory of defense.     The defendant submitted evidence that

supported an inference that he knew Sawyer's full name, because

the sign-in sheet at the group therapy meetings listed each
                                                                    17


participant's full name and was open for each of the people to

see.   This evidence, coupled with the defense expert's opinion

that it was possible that the defendant saw the name "David

Sawyer" as the sender of the e-mail messages, permitted the

inference that the defendant knew it was Sawyer from the therapy

group who had sent him the messages.    Although these potential

inferences did not ultimately carry the day, they were more

probative of the defendant's theory of defense than the

testimony that is the subject of this appeal.    Accordingly, not

only was the defendant not prevented from presenting a defense,

he likely presented the best defense available to him, so

exclusion of the evidence at issue did not create a substantial

risk of a miscarriage of justice.

       We are further convinced that the erroneous application of

the psychotherapist-patient privilege did not create a

substantial risk of a miscarriage of justice because the

Commonwealth presented overwhelming evidence to establish that

the defendant committed the crime of child enticement.     Sawyer

testified that he and the defendant had never communicated

outside group therapy sessions, and that he never used his full

name in those sessions or provided it to any member of the

group.    There also is nothing in the substance of the sexually

explicit e-mail exchange indicating that the defendant was

cognizant that he was speaking with anyone other than a thirteen
                                                                   18


year old boy.    The defendant confirmed on multiple occasions

that he was communicating with a thirteen year old boy,

expressed a desire to perform sexual acts on the boy, and

requested a nude photograph of the boy.     Furthermore, the

defendant's expert conceded that he could not determine

conclusively whether the defendant actually saw Sawyer's full

name when he received the e-mail messages or whether that was

merely a function of how the cellular telephone saved the

messages.

    To show the defendant's intent and rebut his contention

that he was engaged in a role play, the Commonwealth also

submitted evidence that the defendant had been convicted of a

prior act of enticing a child through a Craigslist personal

advertisement.   See note 5, supra.   Similar to the circumstances

here, the defendant had been communicating with an adult (an

undercover police officer) who pretended to be an underage

child.    This evidence was properly admitted for the purpose of

establishing the defendant's state of mind and to rebut the

defendant's claim that he was aware that he was not

communicating with a child.    See Mass. G. Evid. § 404 (b)

(2018).

    Conclusion.     We affirm the judge's conclusion that the

defendant violated his probation.

                                      So ordered.
