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SJC-12255

                COMMONWEALTH   vs.   RICHARD JONES.



            Essex.    May 4, 2017. - October 4, 2017.

   Present:   Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
                           Cypher, JJ.1


Child Abuse. Rape. Indecent Assault and Battery. Evidence,
     Medical record, Production on demand, Privileged record,
     Cross-examination, Prior misconduct.



     Indictments found and returned in the Superior Court
Department on March 27, 2009.

     Motions for summonses for the production of records were
heard by Timothy Q. Feeley, J., and the cases were tried before
him.

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


     Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
     David F. O'Sullivan, Assistant District Attorney (Kimberly
Faitella, Assistant District Attorney, also present) for the
Commonwealth.
     Meagen K. Monahan, Anthony D. Mirenda, Madeleine K.
Rodriguez, Jeremy W. Meisinger, Stacy A. Malone, & Lindy L.

     1
       Justice Hines participated in the deliberation on this
case prior to her retirement.
                                                                      2


Aldrich, for Victim Rights Center & others, amici curiae,
submitted a brief.


     LOWY, J.   The defendant appeals from his convictions

stemming from his sexual abuse of his two daughters.    He argues

that (1) a Superior Court judge abused his discretion by

refusing to issue summonses pursuant to Mass. R. Crim. P. 17 (a)

(2), 378 Mass. 885 (1979), regarding the release of the      mental

health and counselling records of the younger of the daughters,

Diane;2 and (2) the judge's restriction of the defendant's cross-

examination of Diane was an abuse of discretion.    We affirm the

convictions.3

     Background.    In 2005 or 2006, when Diane was in the seventh

grade and eleven or twelve years old, she stayed home from

school one day.    She was sitting on a couch watching television

and her father was at a nearby computer when a commercial with

sexual themes came on the air.    After a discussion regarding sex

sparked by the commercial, the defendant sat down next to Diane

and she wound up in his lap.    The defendant then slid his hand

under Diane's pants and underwear and touched her vagina.     Diane

pushed her father's hand away and ran upstairs to her room.




     2
         A pseudonym.
     3
       We acknowledge the amicus brief of the Victim Rights Law
Center; Jane Doe, Inc.; and the Boston Area Rape Crisis Center.
                                                                       3


    In the fall of 2008, when Diane was a fourteen year old

freshman in high school, she started acting out in school.       Due

to her behavior she was referred to a psychiatrist and also met

with a therapist at a counselling center.    At around the same

time, Diane first disclosed to a friend at school that her

father sexually abused her two years earlier.    A high school

counsellor heard about the incident and spoke with Diane in the

counsellor's office.    Diane told the counsellor that "it was all

just a dream."   The counsellor called Diane's mother and on the

way home from school that day Diane told her mother "it was a

dream."   Diane testified that she was not ready to tell anybody

else about the incident at that time because it was around

Christmas and she did not want to break up her family.

    In February, 2009, Diane told her older sister, Beth,4 about

the sexual abuse, and said she was going to tell the counsellor

what happened to her.   Beth then told Diane that the defendant

had been sexually abusive to her when she was younger.    Beth

told Diane that she would take care of it and "would do

something to put a stop to" the defendant's abuse.    Several days

later, Beth took some money from her grandmother's purse.    The

grandmother told the defendant, who became angry and yelled at

Beth.   Beth then left the house with her friend and went to the



    4
        A pseudonym.
                                                                   4


police and reported the sexual abuse.    The Department of

Children and Families (DCF)5 then became involved.

     The defendant was convicted of five of the six charges he

faced stemming from the abuse.6   We granted his application for

direct appellate review.

     Discussion.   1.   Rule 17 (a) (2) motion.   The defendant

argues that the trial judge abused his discretion by denying his

motions requesting rule 17 (a) (2)7 summonses for (a) records



     5
       The events in this case straddle the name change of the
Department of Social Services to the Department of Children and
Families (DCF). St. 2008, c. 176. We refer to the agency as
DCF.
     6
       The defendant was found guilty on indictments charging
three counts of rape of a child with force, G. L. c. 265, § 22A;
and two counts of indecent assault and battery on a child under
the age of fourteen, G. L. c. 265, § 13B. All of the
convictions relate to conduct involving the defendant and Beth,
except one of the indecent assault and battery convictions,
which involved Diane. The judge ordered a required finding of
not guilty on one charge of indecent assault and battery on a
child under the age of fourteen as to Beth.
     7
       Rule 17 (a) (2) of the Massachusetts Rules of Criminal
Procedure, 378 Mass. 885 (1979), provides:

          "A summons may also command the person to whom it is
     directed to produce the books, papers, documents, or other
     objects designated therein. The court on motion may quash
     or modify the summons if compliance would be unreasonable
     or oppressive or if the summons is being used to subvert
     the provisions of Rule 14. The court may direct that
     books, papers, documents, or objects designated in the
     summons be produced before the court within a reasonable
     time prior to the trial or prior to the time when they are
     to be offered in evidence and may upon their production
     permit the books, papers, documents, objects, or portions
                                                                     5


from the psychiatrist and the counselling center and (b)

counselling records from the middle school where Diane was a

student.8

     Where "a defendant seeks pretrial inspection of statutorily

privileged records of any third party," he must satisfy the

protocol established in Commonwealth v. Dwyer, 448 Mass. 122,

145-146 (2006).   Commonwealth v. Sealy, 467 Mass. 617, 627

(2014)   The "protocol is designed to give the fullest possible

effect to legislatively enacted privileges consistent with a

defendant's right to a fair trial that is not irreparably

prejudiced by a court-imposed requirement all but impossible to

satisfy."   Dwyer, supra at 144.   To trigger the protocol, "a

defendant must first comply with the threshold requirements of

[rule] 17 (a) (2), as elucidated in [Commonwealth v. Lampron,

441 Mass. 265, 269 (2004)]."   Sealy, supra.   Under the protocol:

          "[T]he party moving to subpoena documents to be
     produced before trial must establish good cause, satisfied
     by a 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"'" (emphasis added).


     thereof to be inspected and copied by the parties and their
     attorneys if authorized by law."
     8
       The Commonwealth agreed to the production of the records
of the high school counsellor and DCF.
                                                                    6



Dwyer, supra at 140-141, quoting Lampron, supra.

    To satisfy the first requirement of Lampron (i.e., that the

documents sought are "evidentiary and relevant"), the defendant

must make a factual showing "that the documentary evidence

sought has a 'rational tendency to prove [or disprove] an issue

in the case.'"   Lampron, 441 Mass. at 269-270, quoting

Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989).

"Potential relevance and conclusory statements regarding

relevance are insufficient" to satisfy the rule.   Lampron, supra

at 269.   "Relevance is merely one factor in the analysis, and it

is not established by rank speculation."   Commonwealth v.

Alcantara, 471 Mass. 550, 564 (2015).   The requested documentary

evidence must also be "likely to be admissible at hearing or at

trial."   Lampron, supra.

    The fourth requirement of Lampron9 acts as "a reminder that

rule 17 (a) (2) is not a discovery tool" (emphasis in original).

Dwyer, 448 Mass. at 142, citing Lampron, 441 Mass. at 269.

Rather, it is intended to "expedite trial proceedings and to

avoid delays caused when counsel must inspect or examine

documents or objects produced in response to a summons."

Commonwealth v. Mitchell, 444 Mass. 786, 796-797 (2005).


    9
       The second and third requirements of Commonwealth v.
Lampron, 441 Mass. 265, 269 (2004), are neither disputed nor
relevant to this appeal.
                                                                     7


    We review a judge's ruling on rule 17 (a) (2) motions for

abuse of discretion.    Mitchell, 444 Mass. at 791.   "[A] judge's

discretionary decision constitutes an abuse of discretion where

we conclude the judge made 'a clear error of judgment in

weighing' the factors relevant to the decision, such that the

decision falls outside the range of reasonable alternatives"

(citations omitted).    L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).    Here, there was no abuse of discretion.

    a.   Psychiatrist and counselling center records.     In his

motions, the defendant argued that there were two grounds that

made the records of the psychiatrist and from the counselling

center relevant.    The defendant did not advance an argument as

to why the records were likely to be admissible at a hearing or

trial.

    i.   The defendant's first argument was based on the fact

that Diane had received treatment from both the psychiatrist and

the counselling center, in part because of behavioral issues at

school, and that, after having told her friend about the abuse,

she had denied to her mother and to the counsellor that abuse

had occurred.   These records would be relevant to Diane's

credibility, the defendant argued, regardless of whether Diane

disclosed the abuse during them or not.

    The judge disagreed and ruled that, because at the time

Diane was referred to the psychiatrist and the counselling
                                                                      8


center she had not yet disclosed the abuse to anyone, the

requested records would not contain any statements regarding

abuse because both the psychiatrist and the counselling center

were mandatory reporters under G. L. c. 119, § 51A, and neither

had reported abuse.      He also ruled that the defendant's

assertion that the lack of disclosure in the records was

relevant was too speculative where a girl of Diane's age was

referred to a psychiatrist and a counselling center for school

behavior issues.

    In Commonwealth v. Bourgeois, 68 Mass. App. Ct. 433 (2007),

the Appeals Court held that mental health records are not

relevant simply because they exist and a victim is referred to

mental health services at around the time she first revealed the

abuse.   Id. at 437.10    In Commonwealth v. Olivier, 89 Mass. App.

Ct. 836, 845 (2016), the Appeals Court held that a defendant's

argument that the records of the victim's appointment with her

therapist after the alleged rape might contain "an inconsistent

account or meaningful silence" was too speculative where there

was "no evidence the victim ever even spoke to her counsellor

about the alleged rape."     Id. at 845-846.   This was so even

    10
       The Appeals Court drew this conclusion under the earlier,
more stringent standard set forth in Commonwealth v. Fuller, 423
Mass. 216, 226 (1996). Commonwealth v. Bourgeois, 68 Mass. App.
Ct. 433, 437 (2007). The court explained in a footnote,
however, that even under Commonwealth v. Dwyer, 448 Mass. 122
(2006), the defendant had not made the required showing.
Bourgeois, supra at 437 n.10.
                                                                    9


though the victim had been encouraged by her doctor to speak to

the counsellor about the incident.   Id.   Contrast Commonwealth

v. Labroad, 466 Mass. 1037, 1039 (2014) (access to complainant's

records allowed because defendant "alleged, with particularity,

that [they] contained specific information regarding her

complaint of sexual assault").

     Here, the defendant provided no factual basis to

demonstrate that the materials sought were relevant or would

likely be admissible at trial.   Although the fact that the

psychiatrist and the counselling center did not file mandated

reports under G. L. c. 119, § 51A, is not dispositive of the

issue, it is a strong indicator that the records sought were not

relevant.11   Without some basis demonstrating the relevance of

the records beyond their mere existence, the defendant's motions

and affidavits submitted by his counsel lacked sufficient

specificity, and were thus too speculative under Lampron.     See

Sealy, 467 Mass. at 628 (defendant failed to establish relevance

of requested records where "all of the allegations contained [in

the affidavit supporting the request] were couched in

hypothetical language").



     11
       The defendant's argument that the counsellor's failure to
report the abuse after first speaking with Diane shows that
mandatory reporters may not always report abuse is unavailing.
Diane never told the counsellor that she was abused. Rather,
she denied it when the counsellor confronted her.
                                                                    10


     Further, were we to accept the defendant's argument that

the records would be relevant both because they might contain

information regarding the alleged assault and because they might

not, certain statutory and common-law privileges would be

rendered meaningless.12    See Olivier, 89 Mass. App. Ct. at 845-

846; Bourgeois, 68 Mass. App. Ct. at 437.

     ii.    The defendant's second argument that the psychiatrist

and the counselling center records were relevant was based on

the fact that the DCF records that had been provided to the

defendant, see note 8, supra, contained statements that

indicated that Diane's allegations may be the result of

repressed memories.   Specifically, counsel's affidavit averred

that the DCF report stated Diane "only recalls one incident but

is unsure if anything else happened that she can't remember" and

that Diane "had a 'flashback' that was triggered by a class mate

[sic] grabbing her leg."    The judge concluded that the

defendant's argument that the allegations "may stem" from

repressed memory was too speculative to satisfy the Lampron

standard.

     The defendant's argument that Diane's allegations may have

been the result of repressed memory was too speculative.    The

     12
       We further note that the acceptance of such an argument
would destroy the rape crisis center counsellor privilege, G. L.
c. 233, § 20J, because presumably any records of confidential
discussion with a rape crisis counsellor would contain
information relevant to sexual assault allegations.
                                                                     11


DCF records do not indicate that Diane ever forgot the alleged

abuse.    Further, the connection between a teenager's description

of coming to terms with abuse (e.g., a "flashback") and

repressed memory is not clear given that repressed memories can

be a symptom of dissociative amnesia, which is a specific

medical diagnosis.    See Commonwealth v. Shanley, 455 Mass. 752,

757 (2010) (discussing dissociative amnesia as defined in

Diagnostic and Statistical Manual of mental disorders).13

     b.    Middle school records.    The defendant also sought

Diane's records from her middle school, including the records of

the guidance counsellor there.      This motion was accompanied by

an affidavit stating that Diane had attended this middle school

and had received a letter of recommendation from a guidance

counsellor there that reflected that she "helps her father

work[] on cars, [and] she shares an interest in cars with her

father."

     The judge denied this motion.      He reasoned that the

requested documents predated Diane's initial disclosure of the

alleged abuse; thus, although a lack of disclosure in the

     13
       On the day of trial, the defendant renewed his motion for
the release of the records of the psychiatrist and the
counselling center because the Commonwealth was planning to call
an abuse expert as a witness. The defendant argued that this
would "open[] the door" to Diane's mental health history, and so
he should have access to her records. The judge denied the
motion for the same reason he rejected the defendant's first
argument regarding these records. There was no abuse of
discretion.
                                                                     12


records "may well be relevant impeachment inquiry,"14 it did not

make them "evidentiary and relevant."

       The motion regarding the middle school records was entirely

speculative, and the defendant failed to provide a factual basis

as to why the records may be relevant.     See Sealy, 467 Mass. at

628.    That a middle school student made neutral (or mildly

positive) statements regarding her father for the purpose of a

recommendation letter for entrance into a high school is

unsurprising, even where the child alleges abuse by her parent.

The defendant's request to receive these records was a

prohibited fishing expedition.    See Lampron, 441 Mass. at 269.15

       2.   Limitation on cross-examination.   Prior to trial, the

Commonwealth filed a motion in limine to limit the defense from

referencing "bad character" or "bad acts" of Diane.     Defense

counsel opposed the motion and argued that the evidence the

Commonwealth wanted to preclude went both to Diane's bias or

motive to fabricate and to her ability to provide a reliable

story, and therefore should be admissible.     The judge precluded

inquiry into alleged specific instances of "bad acts" because

they went to character and were not tied to a motive to



       14
       Indeed, Diane was cross-examined on her delayed
disclosure and recantations at trial.
       15
       We decline the invitation of the defendant to alter the
Dwyer protocol.
                                                                  13


fabricate.16   The judge also ruled that the defense's inquiry

into Diane's mental and emotional health was not relevant to

"either a motive to fabricate or some sort of inability to

recall properly."   Rather, the judge ruled that the proposed

inquiry constituted impermissible character evidence.

     On appeal, the defendant argues that this ruling by the

judge was an abuse of discretion and violated his right to

confront witnesses against him under the Sixth and Fourteenth

Amendments to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights.

     A defendant has a well-established constitutional right "to

cross-examine a prosecution witness to show the witness's bias,

and hence to challenge the witness's credibility."   Commonwealth

v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861

(1995).   "A judge may not restrict cross-examination of a

material witness by foreclosing inquiry into a subject that

could show bias or prejudice on the part of the witness."

Commonwealth v. Aguiar, 400 Mass. 508, 513 (1987).

     In order to pursue a subject in an attempt to demonstrate

bias, a defendant "must make a plausible showing that the

     16
       Massachusetts does not have a rule of evidence similar to
Fed. R. Evid. 608(b), which "permits the scope of permissible
cross-examination to include evidence and inquiry relating to
the facts of specific instances of prior misconduct on the part
of a witness, for the purpose of attacking or supporting the
witness's character for truthfulness." Commonwealth v. Almonte,
465 Mass. 224, 241 (2013).
                                                                    14


circumstances existed on which the alleged bias is based."       Tam

Bui, 419 Mass. at 401.    "Determining whether the evidence

demonstrates bias, however, falls within the discretion of the

trial judge."    Commonwealth v. LaVelle, 414 Mass. 146, 153

(1993).    In addition, "[a] witness may 'be impeached by evidence

challenging his testimonial facilities (e.g., ability to

perceive the events or remember them accurately).'"       Alcantara,

471 Mass. at 564, quoting Commonwealth v. Daley, 439 Mass. 558,

564 (2003).    The scope of such impeachment is also a matter of

the judge's discretion.    Alcantara, supra at 564-565.

    Here, the defendant's argument that Diane was biased was

too tenuous because it depended on a showing that Diane so

wanted to escape discipline by her father that she concocted a

false story of abuse to have him removed from the family home.

The defendant hoped to show bias by questioning Diane about,

among other things, an allegation that she had stabbed another

student at school; a dirt-covered doll that had no legs that she

owned; and her desire to "do séances" and use a Ouija board.

The defendant offered nothing that tied this evidence of conduct

-- and the inquiry into Diane's mental and emotional health --

to Diane's motive to lie, bias, or inability to perceive

reality.   See Alcantara, 471 Mass. at 564-565 (no error to

exclude evidence where no nexus between mental health issues and

ability to perceive and recall); Commonwealth v. Parent, 465
                                                                   15


Mass. 395, 406 (2013) (no error to exclude evidence where "there

was no plausible inference of bias or a motive to lie arising"

from the proffered evidence).    See also Tam Bui, 419 Mass. at

401.

       The excluded evidence and Diane's mental health history had

minimal, if any, probative value and created a strong risk of

misuse by the jury.    If this evidence was admitted it may have

caused the jury to discount Diane's testimony, not because of

bias or inability to perceive and recall, but because of her

mental and emotional health.    See Commonwealth v. Weichel, 403

Mass. 103, 106 (1988).    The judge did not abuse his discretion

in excluding this evidence.

                                     Judgments affirmed.
