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SJC-11817

                EUNICE FIELD   vs.   COMMONWEALTH.

                        December 1, 2015.


Supreme Judicial Court, Superintendence of inferior courts.
     Practice, Criminal, Assistance of counsel, Admissions and
     confessions, Voluntariness of statement. Mental Health.
     Witness, Expert, Privilege. Privileged Communication.
     Evidence, Expert opinion, Medical record, State of mind,
     Voluntariness of statement, Communication between patient
     and psychotherapist.


     Eunice Field appeals from a judgment of a single justice of
this court denying, without a hearing, her petition for relief
under G. L. c. 211, § 3. We affirm.

     After a trial in the Superior Court, Field was convicted of
murder in the first degree. Her appeal from that conviction is
pending in this court and has been stayed pending resolution of
her motion for a new trial. In that motion, Field argued that
trial counsel deprived her of effective assistance by failing to
consult with a psychiatric expert. In a supplemental motion,
she argued that she was further deprived of effective assistance
when trial counsel failed to move to suppress her statements to
the police, in part on the ground that her mental state rendered
her statements involuntary. On the Commonwealth's motions, the
trial judge ordered that trial counsel be summonsed to testify
at the hearing on Field's motion1 and that Field provide the
Commonwealth with certain discovery, including any of her mental
health treatment records that were considered by her posttrial
mental health expert in preparing his report. Field's G. L.

    1
       In doing so, the judge stated that any action on
assertions of the attorney-client privilege would be taken on a
question-by-question basis.
                                                                   2


c. 211, § 3, petition followed, seeking relief from these
orders.

     The case is before us pursuant to S.J.C. Rule 2:21, as
amended, 434 Mass. 1301 (2001), which requires an appellant
seeking relief from interlocutory rulings of the trial court to
"set forth the reasons why review of the trial court decision
cannot adequately be obtained on appeal from any final adverse
judgment in the trial court or by other available means." Field
asserts that requiring trial counsel to testify would violate
her attorney-client privilege and that production of her mental
health treatment records would violate her psychotherapist-
patient privilege. Field has an adequate alternative remedy; if
any evidence is admitted at the hearing in violation of Field's
privileges, the error can be remedied on appeal from any adverse
ruling on the motion for a new trial.2 Claims of privilege are
routinely addressed in the ordinary appellate process. See
Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 329 (2010)
(defendant's prior attorney's testimony violated attorney-client
privilege); Murray v. Karzon, 423 Mass. 1007, 1008 (1996)
(extraordinary relief under G. L. c. 211, § 3, not warranted
despite claim that disclosure would cause irreparable breach of
confidentiality of records). The single justice neither erred
nor abused her discretion by denying extraordinary relief.

                                   Judgment affirmed.

     The case was submitted on the papers filed, accompanied by
a memorandum of law.

    Elizabeth Caddick for the petitioner.




    2
       If the motion for a new trial is denied, Field's appeal
therefrom presumably will be consolidated with her direct appeal
from her conviction.
