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17-P-890                                            Appeals Court

             COMMONWEALTH    vs.   STANLEY MICHALSKI.


                            No. 17-P-890.

       Hampshire.     November 15, 2018. - June 25, 2019.

           Present:   Rubin, Maldonado, & Lemire, JJ.


Indecent Assault and Battery. Rape. Child Abuse. Obscenity,
     Dissemination of matter harmful to minor. Practice,
     Criminal, Voir dire. Evidence, Relevancy and materiality,
     School records, Sexual conduct, First complaint.


     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.


    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),
                                                                     2


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
                                                                     3


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.'"'

     1 DCF found the suspicion of sexual abuse to be unsupported
and "screen[ed] it out," concluding that it did not warrant a
formal investigation under G. L. c. 119, § 51B.
                                                                   4



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

Start records would have provided any more information than was
                                                                     5


provided in the § 51A report, the defendant failed to

demonstrate either that there were evidentiary and relevant

documents in the Head Start file, or that he could not properly

prepare for trial without production and inspection of those

records.

    The defendant next argues that the trial judge abused his

discretion in denying a motion under Commonwealth v. Ruffen, 399

Mass. 811, 815-816 (1987), for a voir dire to question the older

child about prior sexual abuse and to question both children

about prior exposure to pornography, both allegedly at the hands

of their mother's former boyfriend.

    To begin with, neither the terminology utilized by the

older child, who was twelve years old at trial, nor that

utilized by the younger child, who was ten years old, indicates

"knowledge of sexual matters beyond [her] years."     Commonwealth

v. Walker, 426 Mass. 301, 306 (1997) ("Before any [evidence of

prior sexual abuse] is admitted, the judge should determine both

that the past abuse is factually similar to the abuse in the

case on trial and that the child victim displays knowledge of

sexual matters beyond his or her years").     For instance, both

victims referred to the defendant's penis as his "private spot,"

which the older child referred to as his "penis" only after

being prompted for another term for it, and the older child

referred to his semen as "white stuff."     Therefore, had the
                                                                    6


judge abused his discretion in declining to grant the voir dire,

any error would have been nonprejudicial because the

prerequisites for admitting evidence of prior abuse would not

have been met.   Further, the older child testified at trial that

she had not been exposed to pornography while living with her

mother's former boyfriend.   This moots the argument that a

Ruffen voir dire might have been useful to the defendant with

respect to the question of her prior exposure to pornography.

    As to the request for voir dire of the older child about

sexual abuse and of the younger child about viewing pornography,

before being afforded a voir dire defense counsel must first

demonstrate "a reasonable suspicion and a good faith basis for

the inquiry."    Walker, 426 Mass. at 306.   Given the limited

evidence in the § 51A report of the older child's sadness,

drawings, and feeling unsafe several years before the acts that

formed the basis of these criminal charges, the trial judge did

not abuse his discretion in concluding that the defendant lacked

a reasonable suspicion and a good faith basis for asking about

prior sexual abuse.   Contrast Commonwealth v. Owen, 57 Mass.

App. Ct. 538, 545 (2003) (voir dire justified where police

reports alleged, inter alia, that relative had "touched sexual

parts of the victim's body and inserted his penis into her

mouth"); Commonwealth v. Scheffer, 43 Mass. App. Ct. 398, 399

(1997) (voir dire justified where victim reported to her mother
                                                                      7


that she had been digitally penetrated).     Nor, in the absence of

some other evidence, was there any basis for thinking that the

act described by the younger child of the defendant on one

occasion sticking his hand "in his private spot" and then into

her mouth could have reflected knowledge obtained from seeing a

pornographic video while her mother's former boyfriend lived

with them.2

     Finally, the defendant argues that the testimony of an

examining physician should not have been admitted because it was

"cumulative first complaint" testimony.    The first complaint

doctrine does not prohibit the admission of evidence that,

although "barred by that doctrine, is otherwise independently

admissible."   Commonwealth v. Aviles, 461 Mass. 60, 69 (2011),

quoting Commonwealth v. Arana, 453 Mass. 214, 220-221 (2009).

Hearsay statements made for purposes of medical diagnosis or

treatment are admissible in Massachusetts.     See Commonwealth v.

DeOliveira, 447 Mass. 56, 62 (2006).   The defendant argues that

the statements made by the older child to the doctor were "for

the purpose of enabling him to testify as an expert witness on

the Commonwealth's behalf."   The defendant says that the

"statements were elicited at the behest of State actors in the


     2 The only basis for seeking the voir dire was defense
counsel's assertion that the defendant and members of his family
told counsel that the victims' mother told them that her former
boyfriend watched pornography in the victims' presence.
                                                                     8


course of a criminal investigation and, on these facts, did not

qualify as a hearsay exception," and were thus otherwise

inadmissible.

    The doctor testified that he was a pediatrician and the co-

medical director of the Family Advocacy Center (center) at

Baystate Children's Hospital.   He described the center as "a

center where children come when there are concerns that they may

have been abused in some way to have evaluations, various sorts.

They have forensic interviews there.    They come for medical

assessments there.   But it's also a treatment center.     We have

therapists there."   He testified that he had undertaken

thousands of examinations of children under the age of eighteen,

about seventy-five percent of them cases in which there had been

"allegations of some sort of sexual abuse."   He testified that

he had testified in court in Massachusetts approximately thirty

times.   With respect to the medical assessment that he

undertook, he said that the value in taking a medical history is

that he could consider it in reaching a conclusion about what

"has happened with the child" because it provides "something to

compare and correlate with physical findings[,] [a]nd then it

provides some guidance on what I need to think about in terms of

ordering additional testing, if I'm testing for sexually

transmitted infections and the like."
                                                                     9


    In Commonwealth v. Dargon, 457 Mass. 387 (2010), the

Supreme Judicial Court held admissible statements of medical

history given by a sexual assault nurse examiner (nurse)

notwithstanding the fact that the role of the nurse in part was

to collect "swabs, fingernail scrapings, and other evidence" and

place them in a "Commonwealth of Massachusetts Sexual Assault

Evidence Collection Kit."   Id. at 390.   We think that, as there,

the dual purpose served by the examination here does not alter

the character of the medical history given by the older child as

statements made for purposes of diagnosis or treatment.    Nor,

finally, do we see any merit in the defendant's argument that

the trial judge abused his discretion in admitting these

statements because they were more unfairly prejudicial than

probative.

                                   Judgments affirmed.
