COMMONWEALTH v. STONE (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his convictions of one count of indecent assault and battery of a child under fourteen, and two counts of assault and battery. The victim was the defendant's son, who was between six and ten years old when the various events occurred. Less than one week before trial, the defendant served the Attorney General with a subpoena for records concerning an application by the victim's mother for victim compensation benefits pursuant to G. L. c. 258C. The judge quashed the subpoena, but offered the defendant a trial continuance so that he could pursue the records via Mass. R. Crim. P. 17, 378 Mass. 885 (1979). The defendant declined the continuance and was thereafter convicted.

On appeal, the defendant argues that he was prejudiced by the quashing of the subpoena, because he was unable to use the victim compensation records to impeach the victim's mother -- the first complaint witness. The defendant further argues that the judge abused his discretion when he allowed the Commonwealth to introduce evidence of prior bad acts, including testimony of the defendant's abuse of the victim's mother. We affirm.

Background. In spring of 2012, the defendant brought the victim, his six year old son, to his bedroom and touched the victim's genitals. Several years later, on Christmas day,² the defendant got into an argument with his wife, the victim's mother, because she had gotten the victim a gaming console as a Christmas gift, and began choking the victim's mother. The victim -- then nine years old -- attempted to intervene, but the defendant punched him in the stomach. Finally, in April 2016, the defendant pushed the victim's mother until she fell down the stairs in their home. When the victim again tried to intervene to protect his mother, the defendant punched the victim in the nose. After this last incident, the defendant was arrested and charged with one count of indecent assault and battery of a child, and two counts of assault and battery, as to his assaults on the victim.³

a. Victim compensation fund. In February of 2019, three months before the scheduled trial date, the prosecutor emailed defense counsel to notify him that the victim's mother had “requested assistance from the victim's compensation fund.” Defense counsel replied later that day, requesting further information regarding the nature of the assistance provided, and the source of that assistance. He received no response. Defense counsel sent a follow-up email three months later in May of 2019 -- less than one week before the scheduled trial date. A different prosecutor responded the next day that “[t]he victim did not fill out the application with our office,” but promised to forward relevant communications between the district attorney's office and the Attorney General's office.

The following day, defense counsel served a subpoena on the Attorney General's office seeking “[a]ny and all applications, letters, emails, or proof of payments to/for or on behalf of [the victim's mother or the victim] in the last three years.” The Attorney General filed a motion to quash, arguing that “[t]he defendant has failed to establish a good faith, specific, and reasonable basis for believing” the requested materials would assist him, and that the requested documents were “confidential and shielded by the work product doctrine.”

The judge heard the motion to quash on the first day of trial. During argument, the judge noted that a rule 17 motion and the “Dwyer protocol” would be the proper procedure to seek victim compensation records, rather than the trial subpoena the defendant had issued. The judge accordingly granted the motion to quash, but offered the defendant a continuance to pursue the records by way of a rule 17 motion. After consulting with his client, defense counsel told the judge the defendant wished to proceed to trial that day, and declined the continuance.

b. Trial evidence of prior bad acts. In April of 2019, the defendant moved to exclude evidence regarding his prior bad acts, and the Commonwealth later filed a competing motion to introduce evidence of the same -- specifically, evidence regarding uncharged sexual abuse of the victim, and abuse of the victim's mother. The judge granted the Commonwealth's motion to introduce the evidence.

At trial, the victim testified to the three charged assaults by the defendant -- the 2012 sexual assault, the 2014/2015 punch in the stomach, and the 2016 punch in the nose. The prosecution, however, also elicited testimony regarding the relationship between the defendant, the victim's mother, and the victim. The victim and the victim's mother testified that the defendant was regularly abusive, and that they were afraid of the defendant. They also testified that the defendant often threatened to kill them if they attempted to leave. The judge provided limiting instructions at the time the evidence was admitted, and in the final jury charge. The jury found the defendant guilty of all three counts, and this appeal followed.

Discussion. 1. Victim compensation records. The defendant first argues that the judge erred in granting the motion to quash. The defendant argues that the victim compensation records were necessary for impeachment of the victim's mother. He suggests that the records, which he never obtained, would provide opportunities to undermine the victim's mother's credibility on cross-examination (in particular about her financial resources). We disagree that the judge erred in his rulings on the motion.

The Supreme Judicial Court addressed discovery of victim compensation records in Commonwealth v. Torres, 479 Mass. 641 (2018). Pursuant to G. L. c. 258C, §§ 2 (a) and (c), victim compensation may be available to a victim of a crime who has suffered “personal physical or psychological injury ․ or death,” and who, among other things, “cooperates with law enforcement ․ in the investigation and prosecution of the crime.” The victim compensation funds are disbursed by the Attorney General's office. G. L. c. 258C, § 7. In Torres, supra at 647, the Court reasoned that victim compensation records in the possession of the Attorney General were not subject to mandatory discovery, because the Attorney General did not “participate[ ] in the investigation or prosecution of the defendant.” Rather, the Court held that victim compensation records held by the Attorney General, while confidential,⁴ were discoverable under rule 17 after applying the Dwyer-Lampron standard for discovery of confidential, third-party records. Id. at 651. See Commonwealth v. Dwyer, 448 Mass. 122, 145-147 (2006); Commonwealth v. Lampron, 441 Mass. 265, 269 (2004).

It is undisputed that here the defendant did not follow the rule 17 procedure. The defendant argues, however, that the judge ought to have treated his trial subpoena as a rule 17 motion, and analyzed it under the Dwyer-Lampron standard.⁵ We do not agree. As the judge correctly observed, the defendant's trial subpoena did not comply with the procedural protections of rule 17 and the Dwyer-Lampron process. For example, there was no accompanying affidavit describing the necessity for the records, or the defendant's efforts to obtain the information by other means.⁶ Dwyer, 448 Mass. at 147 (Appendix); Lampron, 441 Mass. at 265. Those protections are in place to “guard against intimidation, harassment, and fishing expeditions for possibly relevant information,” Dwyer, 448 Mass. at 145, and the judge did not abuse his discretion by requiring adherence to those protections.⁷

In any event, a discovery ruling, such as a decision on a motion to quash, will be upheld “unless the appellant can demonstrate an abuse of discretion that resulted in prejudicial error” (citation omitted). Torres, 479 Mass. at 647. Here, we are not persuaded that the defendant was prejudiced by the judge's decision. Despite the procedural deficiencies of the defendant's subpoena, the judge did not foreclose the defendant from seeking the records. Rather, the judge offered a continuance to seek the records under rule 17, which the defendant declined. See Commonwealth v. Burgos, 470 Mass. 133, 148 & n.16 (2014) (no prejudice where defendant declined continuance to review documents stemming from procedurally improper subpoena). The defendant's suggestion that he would suffer undue prejudice from continuing the trial is not supported by facts in the record. Moreover, the defendant did not take steps to obtain the records through a motion for new trial either, so even now, we have no information as to what the records say.⁸

2. Bad acts. The defendant next argues that the judge abused his discretion by allowing evidence of the defendant's prior bad acts -- in particular, testimony regarding the defendant's assaults of the victim's mother.⁹ Again, we disagree.

We review the trial judge's evidentiary determinations for abuse of discretion. Commonwealth v. McDonagh, 480 Mass. 131, 140 (2018). “Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crimes charged.” Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). Such evidence may be admitted, however, “where it is not unduly prejudicial and is relevant to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation” (quotation and citation omitted). Commonwealth v. Walker, 460 Mass. 590, 613 (2011).

The bulk of the challenged testimony concerns the defendant's contemporaneous abuse of the victim's mother. We note that “[t]he prosecution was entitled to present as full a picture as possible of the events surrounding the incident itself.” Commonwealth v. Bradshaw, 385 Mass. 244, 269-270 (1982). In particular, evidence of the defendant's other acts is admissible “to explain the sequence of events that took place on the day the defendant was arrested.” Commonwealth v. DelValle, 443 Mass. 782, 791 (2005). On both occasions here, the defendant argued with the victim's mother, assaulted her, and then assaulted the victim when the victim tried to intervene to protect his mother. Without the testimony regarding the assault on the victim's mother, the assault on the victim “could have appeared to the jury as an essentially inexplicable act of violence.” Bradshaw, 385 Mass. at 269.

The defendant also challenges testimony by the victim and the victim's mother that described the defendant more generally -- for example, testimony that he was “abusive,” “violent,” and that he “threaten[ed]” them. “It is well established that in appropriate cases, a defendant's prior acts of domestic violence may be admitted for the purpose of showing a ‘defendant's motive and intent and to depict the existence of a hostile relationship between the defendant and the victim’ ” (citation omitted). Commonwealth v. Oberle, 476 Mass. 539, 550 (2017). Such is the case here, where the evidence in question was relevant to the defendant's criminal intent, and also to provide context to the defendant's actions through evidence of his relationship with the victim and the first complaint witness. We also note that the judge repeatedly gave contemporaneous instructions to the jury that such evidence was admitted only for a limited purpose -- “to show motive, opportunity, state of mind, intent, preparation, plan, or pattern of operation or common scheme,” but not as a “substitute for proof that the defendant committed the crimes that he's charged with.” The risk of prejudice was therefore “mitigated by the multiple limiting instructions,” and the judge did not abuse his discretion by admitting the testimony. Commonwealth v. Lowery, 487 Mass. 851, 868 (2021).

Judgments affirmed.

FOOTNOTES

2.   The victim testified this incident occurred on Christmas 2014 or Christmas 2015.

3.   The defendant was separately charged and convicted for assault and battery of the victim's mother.

4.   By regulation, the records concerning victim compensation are “confidential investigative material” that may not be disclosed “except authorized by the claimant or as otherwise provided by law.” 940 Code Mass. Regs. § 14.09 (2019).

5.   The defendant argues that Torres stands for this proposition, but it does not. The defendant in Torres did not seek the records via a trial subpoena. See Torres, 479 Mass. at 644-645. Rather, the defendant in Torres sought the records through mandatory discovery, and in the alternative, under rule 17. Id. The Supreme Judicial Court directed the trial court to consider the motion under rule 17 “[a]t any potential retrial.” Id. at 651.

6.   Dwyer-Lampron establishes a procedure for the inspection of third-party records that are “statutorily privileged.” Dwyer, 448 Mass. at 139. To obtain those records, counsel must first file a rule 17 motion accompanied by an affidavit that addresses the several factors set forth in Lampron, 441 Mass. at 269, including:“(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’ ” (citation omitted).Id. See Dwyer, 448 Mass. at 147 (Appendix).

7.   Although the prosecutor should have responded more promptly to defense counsel after the initial disclosure in February, defense counsel should have been aware that the documents would be with the Attorney General. The Attorney General's office is designated by statute as the source of payment for victim compensation awards, G. L. c. 258C, § 7, and Torres, 479 Mass. at 642, which had been released nearly two years prior to the trial, clearly states that the Attorney General's office maintains files regarding applications for victim compensation.

8.   The victim's mother testified that the defendant controlled her finances and forced her to quit her job. Although the defendant argues that the victim compensation records “would have provided additional grounds to impeach” the victim's mother's testimony regarding her finances, such an argument is entirely speculative.

9.   The victim also testified to uncharged sexual conduct -- that the defendant had sexually assaulted him previously, “like once a month, throughout ․ childhood.” In particular, he testified to an occasion where the defendant took off his clothes and told the victim to touch the defendant's penis. The defendant makes no argument on appeal regarding this testimony, and therefore we do not address it.