Commonwealth v. Pickering ( 2018 )

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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.