Commonwealth v. Michalski ( 2019 )

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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
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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
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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.