Commonwealth v. Torres , 479 Mass. 641 ( 2018 )

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SJC-12374
COMMONWEALTH vs. JOSE TORRES.
Middlesex. December 4, 2017. - June 1, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Stalking. Compensation of Victims of Violent Crimes. Evidence,
Medical record. Practice, Criminal, Discovery, Redaction,
Instructions to jury, Question by jury.
Indictment found and returned in the Superior Court
Department on August 6, 2015.
The case was tried before Heidi E. Brieger, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. In this appeal, we consider whether a
defendant's conviction of stalking should be reversed where, at
his trial, a Superior Court judge denied his motion for access
to records held in the victim compensation file maintained by
2
the Attorney General. The defendant was charged with nine
offenses, including stalking, strangulation or suffocation,
assault and battery causing serious bodily injury, assault by
means of a dangerous weapon, and five counts of assault and
battery on a family or household member. On the eve of his
scheduled trial, the defendant learned that the complainant had
applied for the Attorney General's victim compensation program;
this program provides compensation for damages suffered by some
victims of crime.
The defendant sought access to records of the complainant's
claim for compensation for dental services from the Attorney
General as mandatory discovery, and, in the alternative, as
third-party records, pursuant to Mass. R. Crim. P. 17, 378 Mass.
842 (1979), and the procedures of Commonwealth v. Dwyer, 448
Mass. 122, 145-146 (2006). The judge concluded that the records
could not be produced or disclosed to the defendant because the
Attorney General's regulations mandated that such records be
kept confidential. Before us, the defendant reasserts these
claims. In addition, he challenges the judge's decision to
redact significant portions of the complainant's dental records,
which mentioned that she had applied for compensation. Finally,
the defendant challenges two of the judge's instructions, one on
the Commonwealth's burden to prove stalking, and one on the
complainant's interest in the outcome of the case.
3
We conclude that the defendant's motion for access to the
victim compensation records held by the Attorney General should
have been evaluated as a request for third party records under
rule 17, notwithstanding the regulation requiring
confidentiality of records. In addition, the judge committed
error by redacting the complainant's dental records. We
conclude also that, in responding to a confusing jury question,
the judged erred by not clearly delineating the requirement
that, to prove the offense of stalking, the Commonwealth must
prove three specific incidents of stalking. Accordingly, the
defendant's conviction must be vacated and the matter remanded
for a new trial.
1. Background. a. Facts. We recite the facts from
evidence that was presented at trial. The defendant met the
complainant in March, 2014. They began dating a few weeks
later, and the defendant moved into the complainant's apartment
shortly thereafter. The complainant testified at trial that the
defendant physically and verbally abused her during their
relationship; she said that the defendant threatened to kill her
if he saw her with another man, and that the defendant hit,
choked, and shoved her.
Sometime around August, 2014, after the defendant and the
complainant had separated, the defendant returned to her
condominium and asked to speak with her. They went into her
4
bedroom to talk. While they were talking, the defendant
received a text message from another woman. The complainant
asked the defendant why he wanted to speak with her if he was
speaking to another woman. The complainant testified that the
defendant became angry, grabbed her, pushed her up against a
closet, and head-butted her between her nose and mouth. She
said that her teeth broke as a result of this action. She also
explained that those teeth had held in place a bridge that
supported her false teeth; that she had to use "Super glue" to
keep her bridge in place; and that she had difficulty eating in
public and sleeping because of fear that she would swallow her
bridge.
The complainant testified that she applied for victim
compensation, through the Attorney General's office, to pay for
the cost of having her teeth repaired. She said that she had
applied with the assistance of a victim advocate in the district
attorney's office. She applied after she reported the head-
butting incident to the police, and had not had any knowledge of
the compensation program prior to making her report. The
complainant testified that her application for compensation had
been approved, but that she had not received any funds and no
longer intended to accept any funds because she had obtained
employment.
5
The complainant acknowledged that she was aware that, in
order to receive victim compensation funds, her injury had to be
related to a crime, she had to cooperate with the prosecutor by
testifying in court, and she could be in trouble if she made a
false statement or filed a false application in the Attorney
General's office.1
At a dentist visit in November, 2014, the complainant's
dentist recommended that she remove her remaining top teeth and
use dentures. At that visit, the complainant did not tell the
dentist that the defendant's head-butt broke her bridge and her
teeth. She testified that she told the dentist about the head
butting incident before she reported it to the police. The
dental records and the dentist's testimony indicated that, at
the office visit in November, 2014, the complainant had advanced
decay under her bridge. The decay was not present in an X-ray
taken during a 2012 visit.
b. Procedural history. In August, 2015, the defendant was
indicted in the Superior Court on nine counts: stalking,
1 The victim compensation statute, G. L. c. 258C, § 2 (c),
provides:
"A claimant shall be eligible for compensation only if
such claimant cooperates with law enforcement authorities
in the investigation and prosecution of the crime in which
the victim was injured or killed unless the claimant
demonstrates that he possesses or possessed a reasonable
excuse for failing to cooperate."
6
strangulation or suffocation, assault and battery causing
serious bodily injury, assault by means of a dangerous weapon,
and five counts of assault and battery on a family or household
member.
The judge granted the Commonwealth's motion to admit
redacted versions of the complainant's dental records,2 over the
defendant's objection. The redactions were to eliminate any
reference to the complainant's ability to pay and her
application for victim compensation.
On Monday, March 14, 2016, the day scheduled for jury
empanelment and opening statements in the defendant's trial, his
counsel sought access to the Attorney General's file regarding
the complainant's application for victim compensation, of which
counsel had been made aware the previous Friday. On that
Friday, the prosecutor had provided defense counsel with a copy
of the complainant's application for compensation, which had
been held by the victim witness advocate in the district
attorney's office. The defendant argued that the Attorney
General's file was mandatory discovery under Mass. R. Crim. P.
14, as appearing in 442 Mass. 1518 (2004), because the Attorney
General, as the "overarching prosecutor" for the Commonwealth,
2 The Commonwealth originally intended to call the dentist,
but she was called by the defendant.
7
was a party to the criminal case, and because the records showed
an agreement, promise, or inducement between the prosecutor and
the complainant. In the alternative, he argued that the file
should be subject to discovery under rule 17 as the record of a
third party. The judge initially ruled that the records in the
file were discoverable and instructed the prosecutor to acquire
the records.
At the start of the second day of trial, the Commonwealth
reported that the Attorney General objected to producing the
records. The office of the Attorney General argued that 940
Code Mass. Regs. § 14.09 (2014), promulgated under G. L.
c. 258C, § 4, supported this position. The regulation provides:
"All information received, obtained or maintained by
the [d]ivision [of victim compensation in the Attorney
General's office] in connection with any claim for
compensation shall be maintained as confidential
investigative material, and shall not be released or
disclosed to any person or entity whatsoever, except
authorized by the claimant or as otherwise provided by
law."
The judge withheld ruling on the defendant's motion to produce
the records because no party had provided a copy of the
regulation for her review. As the complainant was scheduled to
testify first that morning, and because the records were
relevant to her testimony, the defendant requested a ruling on
the motion to produce before the complainant testified. The
8
judge denied the motion because she did not find the records to
be so material that the trial could not proceed.3
Following the complainant's direct examination, the
defendant renewed his objection to proceeding without a ruling
on whether the victim compensation records were discoverable.
The defendant argued that the complainant's statement during
direct examination that she did not plan to accept any award
from the victim compensation fund was new information that made
the records even more relevant. During the morning break, which
took place in the course of the cross-examination of the
complainant, the judge, without hearing further argument, ruled
that the Attorney General was not required to disclose the
records. The judge found that the exception to the
confidentiality requirement, "as otherwise provided by law," did
not include within its meaning an issued court order. Following
a recess, and after the judge again declined to hear argument,
the defendant moved for a mistrial. The judge denied that
motion.
At the close of the evidence, the defendant requested an
instruction that the jury "examine [the complainant's]
credibility with particular care" because she had applied for
3 The judge also denied the defendant's motions to dismiss
the indictments or to preclude the complainant's testimony for
failure to provide discovery.
9
victim compensation and because that application required that
she cooperate in the prosecution of the defendant. The judge
declined to give this instruction, and instead instructed the
jury that they could "consider whether the witness has any
motive to testify for or against either party, or the interest
or lack of interest the witness may have in the outcome of the
case."
After deliberating for an hour, the jury returned with
questions for the judge; one of those questions was whether the
complainant's payment from the victim compensation fund was
dependent on the defendant's conviction or acquittal. Another
question read, "which one of proofs need only one to be true?"
The defendant was convicted of stalking, in violation of
G. L. c. 265, § 43 (a), and was acquitted of the other eight
charges. He appealed from the conviction, and we allowed his
petition for direct appellate review.
2. Discussion. The defendant challenges his conviction on
four grounds. He argues that the judge's decision not to order
the Attorney General to provide the defendant access to the
victim compensation records violated his due process rights; the
judge abused her discretion by allowing the introduction of
redacted versions of the complainant's dental records and
restricting the dentist's testimony on the topics of the cause
of the complainant's dental problems, and her application for
10
victim compensation; the judge's decision not to instruct the
jury to weigh the complainant's testimony with particular care
was prejudicial error requiring a new trial; and the judge's
response to a jury question likely caused confusion about the
number of incidents the Commonwealth was required to prove to
support a conviction of stalking, creating a substantial risk of
a miscarriage of justice.
a. Victim compensation records. The defendant argues that
the records in the Attorney General's file are mandatory
discovery under Mass. R. Crim. P. 14 because they are in the
possession of the Commonwealth and because the records show an
agreement, promise, or inducement between the prosecutor and the
complainant. The defendant argues, alternatively, that the
records held by the Attorney General are third-party records
subject to discovery under rule 17, and that he satisfied his
burden for discovery. The Commonwealth contends that the
records of the victim compensation fund are not subject to
mandatory discovery, because the Attorney General is not a party
to the criminal case, and because there was no agreement,
promise, or inducement between the complainant and the district
attorney. The Commonwealth also argues that the judge properly
determined that the records were confidential under 940 Code
Mass. Regs. § 14.09, and that the defendant had sufficient
opportunity to probe bias on cross-examination.
11
This court "uphold[s] discovery rulings 'unless the
appellant can demonstrate an abuse of discretion that resulted
in prejudicial error.'" Commissioner of Revenue v. Comcast
Corp., 453 Mass. 293, 302 (2009), quoting Buster v. George W.
Moore, Inc., 438 Mass. 635, 653 (2003). "'Mixed questions of
law and fact[, however,] generally receive de novo review.'"
McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190 (2012),
quoting Commissioner of Revenue, supra at 303.
i. Rule 14. A. Whether the Attorney General was a party
to the case. "Rule 14 (a) (1) [(A) (iii)] of the Massachusetts
Rules of Criminal Procedure, requires, among other things, that,
on motion, the prosecution must disclose any facts of an
exculpatory nature within the possession, custody, or control of
the prosecutor" (quotations omitted). Commonwealth v. Wanis,
426 Mass. 639, 643 (1998). The victim witness advocate is a
member of the prosecution team and, accordingly, subject to the
same duty to disclose as is a prosecutor. See Commonwealth v.
Bing Sial Liang, 434 Mass. 131, 136–137 (2001). Therefore, the
witness's application for compensation, held by the victim
witness advocate in the district attorney's office, was properly
disclosed to the defendant because it was subject to mandatory
disclosure under rule 14. See id.
The records related to the complainant's application that
are held by the Attorney General, however, fall outside the
12
scope of rule 14. Rule 14 adopts a practical test for
determining what information must be disclosed: information
that is "in the possession, custody, or control of the
prosecutor." See Mass. R. Crim. P. 14 (a) (1) (A). "The
prosecutor's duty [to disclose exculpatory information] does not
extend beyond information held by agents of the prosecution
team." Commonwealth v. Beal, 429 Mass. 530, 532 (1999).
"Rule 14 does not apply here because the records sought are not
within the control of the prosecution, or someone under the
'control of the prosecutor.'" Commonwealth v. Lampron, 441
Mass. 265, 268 n.4 (2004).
There is no indication in this case that the Attorney
General participated in the investigation or prosecution of the
defendant. The district attorney does not have access to the
Attorney General's files. As the practical indicia of the
prosecutor's "possession, custody, or control" are absent, the
records in the Attorney General's files are not subject to
mandatory disclosure under rule 14. See Commonwealth v. Ira I.,
439 Mass. 805, 809–811 (2003) (information in possession of
assistant principal was not subject to rule 14 disclosure
because official did not act "as an agent of the prosecution or
of the police"); Wanis, 426 Mass. at 643 (police internal
affairs documents were not subject to mandatory discovery under
rule 14 because department officers were not "participants in
13
the investigation and presentation of the case [or] police
officers who regularly report to the prosecutor or did so in
reference to a given case"). See also Commonwealth v. Donahue,
396 Mass. 590, 596 (1986) ("The prosecutor cannot be said to
suppress that which is not in his possession or subject to his
control," and thus "[o]rdinarily the prosecutor's obligation to
disclose information is limited to that in the possession of the
prosecutor or police" [quotations and citation omitted]);
Commonwealth v. Campbell, 378 Mass. 680, 702 (1979) (declining
to hold that prosecutor must disclose information held by
Department of Corrections because "prosecutor has no duty to
investigate every possible source of exculpatory information").
Contrast Commonwealth v. Woodward, 427 Mass. 659, 679 (1998)
(medical examiner who conducted autopsy on murder victim was
Commonwealth agent for purposes of Commonwealth's duty to
preserve exculpatory evidence because medical examiner
"participate[s] in the investigation or evaluation of the case
and . . . either regularly report[s] or with reference to the
particular case ha[s] reported to [prosecutor's] office"
[citation omitted]).
Relying on G. L. c. 12, §§ 6, 27, the defendant argues that
the Attorney General is the "overarching prosecutorial
authority" for the Commonwealth and, therefore, a party to the
14
case.4 This argument, however, would render all files held by
the Attorney General subject to disclosure under rule 14 in
every criminal case. It also would require us to depart from
rule 14's instruction to make a practical determination about a
prosecutor's "possession, custody, or control" when determining
disclosure requirements. Moreover, we previously have declined
to hold that possession of documents by one government agency is
sufficient to require mandatory discovery, absent control by the
prosecutor or contribution by that agency to the prosecutor's
investigation. See Commonwealth v. Daye, 411 Mass. 719, 733
(1992) (no mandatory disclosure where Essex County "prosecutor
[did not have] access to the Boston police department files");
4 The defendant relies on G. L. c. 12, § 6 ("[The Attorney
General] shall consult with and advise district attorneys in
matters relating to their duties; and, if in his judgment the
public interest so requires, he shall assist them by attending
the grand jury in the examination of a case in which the accused
is charged with a capital crime, and appear for the commonwealth
in the trial of indictments for capital crimes. [The Attorney
General] shall also consult with and advise district attorneys
in all civil actions brought pursuant to [G. L. c. 258], and may
assist them in the defense of such actions"), and G. L. c. 12,
§ 27 ("District attorneys within their respective districts
shall appear for the commonwealth in the superior court in all
cases, criminal or civil, in which the commonwealth is a party
or interested, and in the hearing, in the supreme judicial
court, of all questions of law arising in the cases of which
they respectively have charge, shall aid the attorney general in
the duties required of him, and perform such of his duties as
are not required of him personally; but the attorney general,
when present, shall have the control of such cases. They may
interchange official duties").
15
Campbell, 378 Mass. at 702 (prosecutor not required to disclose
material held by Department of Corrections). We therefore
decline the defendant's invitation to depart from our well-
established practice with respect to determinations whether a
government agency is subject to the control of the district
attorney for purposes of mandatory discovery under rule 14.
B. Whether the victim compensation program served as a
promise or inducement. We turn to the defendant's argument that
the Attorney General's file must be disclosed because it is
evidence of a promise or inducement offered for the
complainant's testimony. "Understandings, agreements, promises,
or any similar arrangements between the government and a
significant government witness is exculpatory evidence that must
be disclosed . . . . [A]ny communication that suggests
preferential treatment to a key government witness in return for
that witness's testimony is a matter that must be disclosed by
the Commonwealth." Commonwealth v. Hill, 432 Mass. 704, 715–716
(2000). See Mass. R. Crim. P. 14 (a) (1) (A) (ix), as amended,
444 Mass. 1501 (2005).
Here, however, the file is not evidence of an agreement,
inducement, or reward between the prosecutor and a witness;
rather, the victim compensation program is a government benefit
program administered by an entity distinct from the district
16
attorney's office.5 In addition, testimony is not an explicit
statutory requirement to receive compensation. See G. L.
c. 258C, § 2 (c) ("A claimant shall be eligible for compensation
only if such claimant cooperates with law enforcement
authorities in the investigation and prosecution of the crime in
which the victim was injured or killed unless the claimant
demonstrates that he possesses or possessed a reasonable excuse
for failing to cooperate").
The complainant's application for victim compensation is
unlike the plea agreement struck between the prosecutor and a
cooperating witness in Hill, 432 Mass. at 715-716. In Hill, the
court concluded that the Commonwealth and the witness had a
"'loose' agreement that 'consideration be shown'" in exchange
for the witness's testimony. Id. at 709. The witness in that
case pleaded guilty to a lesser included charge that carried a
term of incarceration of two and one-half years, rather than the
mandatory minimum of fifteen years that the witness had faced.
Id. In this case, unlike in Hill, the complainant was not
herself charged with any crimes and there was not issue of an
5See G. L. c. 12, § 11K ("there shall be established within
the department of the attorney general a division of victim
compensation and assistance"); G. L. c. 258C, § 4 ("[t]he
division of victim compensation and assistance shall administer
the provisions of this chapter. Subject to appropriation, the
attorney general shall designate a program director of said
division").
17
effort to negotiate a lesser sentence in exchange for testimony
at trial. In addition, the complainant's efforts to secure
victim compensation were processed through the office of the
Attorney General, rather than being submitted through the office
of the district attorney, i.e., the office that is responsible
for prosecuting the defendant.
ii. Rule 17. As stated, the defendant moved under rule 17
for the production of records from the Attorney General, and the
judge denied the motion. The judge found that 940 Code Mass.
Regs. § 14.09, which provides, "[a]ll information received,
obtained or maintained by the [d]ivision [of victim compensation
in the Attorney General's office] in connection with any claim
for compensation shall be maintained as confidential
investigative material, and shall not be released or disclosed
to any person or entity whatsoever, except authorized by the
claimant or as otherwise provided by law," required her to deny
the defendant's motion. In particular, the judge found that the
phrase "otherwise provided by law" did not include a court order
for discovery.
We conclude that the judge erred in finding that the
Attorney General's regulation ended the inquiry; whether records
are confidential does not affect whether they are discoverable.
See Wanis, 426 Mass. at 642 ("A defendant's right of access to
information gathered by an internal affairs division does not
18
turn on whether the investigatory materials are or are not
subject to disclosure as public records"). Rather, confidential
records, such as those in a victim compensation fund file, are
subject to normal discovery rules. See id. at 644. At any
potential retrial, the trial judge should consider the
defendant's rule § 17 motion for access to the complainant's
records under the Dwyer-Lampron standard for confidential, third
party records. See Dwyer, 448 Mass. at 145-146; Lampron, 441
Mass. at 269.
The denial of the defendant's request for records under
rule 17, prejudiced him. The defendant established that the
records related to the complainant's application for
compensation were relevant to her truthfulness. Moreover, the
complainant's credibility and potential bias were likely
significant questions for the jury. The jurors asked two
questions that show the topic of the complainant's compensation
was on their minds: "Is payment from the victim fund to [the
complainant] dependent on conviction or acquittal? How much is
the compensation?"6 The defendant has a due process right to
cross-examine a witness about a request for financial
6 The judge instructed the jury to "rely on the collective
memory of the evidence to answer those questions." Although
defense counsel was consulted and agreed with the judge's
response, the instruction was incorrect. The judge should have
instructed that a conviction is not required in order for a
victim to recover compensation.
19
compensation. See Commonwealth v. Miranda, 458 Mass. 100, 109–
110 (2010), cert. denied, 565 U.S. 1013 (2011). The judge's
rejection of the defendant's motion for access to the records
under rule 17 hampered his ability to conduct that cross-
examination and protect his rights.
b. Jury instructions. Approximately one hour after
beginning deliberations, the jury asked the following question:
"Which one of proof need only one to be true?" The judge
interpreted the jury's question as being about whether the
Commonwealth needed to prove that the charged offense occurred
on a specific date. The judge instructed that the specific date
was not an element of the crime and that the jury "may find him
guilty only if you unanimously agree that the Commonwealth has
proved beyond a reasonable doubt that he committed the offense
on at least one specific occasion." The defendant argues that
this instruction created a substantial risk of a miscarriage of
justice, because it obliterated the distinction between the
offense of stalking, which requires three specific incidents to
support a conviction, and the five charged offenses of assault,
which each required only a single incident. The Commonwealth
contends that there was no error because jury instructions are
evaluated as a whole and there is no risk of injustice where the
judge was clear throughout that stalking required a finding that
the defendant engaged in a series of acts over a period of time.
20
In her final charge, the judge properly instructed on the
elements of stalking: "In order to prove [the defendant] guilty
of stalking, the Commonwealth must prove five things beyond a
reasonable doubt. First, that over a period of time, the
defendant knowingly engaged in a pattern of conduct or a series
of acts involving at least three incidents, directed at [the
complainant]." The subsequent instruction, that the
Commonwealth was required to prove that the defendant "committed
the offense on at least one specific occasion," created
ambiguity and the potential for confusion as to the
Commonwealth's burden for the stalking charge, because the judge
did not make clear the requirement for three separate incidents
to support a guilty verdict on the charge of stalking; indeed,
the instruction misinformed the jury concerning a critical
element of the offense. "The fact that some of the instructions
were correct is not determinative in this case, since we cannot
know whether the jury were guided by the correct or the
incorrect portion of the instructions" (quotation and citation
omitted). Commonwealth v. Richards, 384 Mass. 396, 403 (1981).
The jury question shows a fundamental confusion about the
Commonwealth's burden of proof, increasing the risk created by
an incorrect instruction.7 As "the issue of burden of proof goes
7 Although a judge is not required "specifically [to]
21
to the very heart of the truth-finding function," Commonwealth
v. Collins, 374 Mass. 596, 599 (1978), the inconsistent
instructions on the Commonwealth's burden went to the core of
the question for the jury. The conflicting instructions about
an essential element of the Commonwealth's case, where the jury
question revealed a fundamental confusion about the nature and
extent of the Commonwealth's burden, created a substantial risk
of a miscarriage of justice.
c. Redaction of dental records. Prior to trial, the
parties agreed that the complainant's dental records were
admissible, but disagreed on the extent to which redactions were
necessary. The defendant argued that the records should be
admitted without redaction. The judge adopted the
Commonwealth's view and ordered the records redacted to remove
the dentist's conclusion that the complainant's bridge broke
because of decay and not because of spousal abuse. The judge
also ordered redacted all references to the complainant's plan
to use the compensation fund to pay for dental services.
Specifically, the judge ordered the following redacted in full:
"The xray show[s] that she has decay under the bridge . . . the
address [the jury's] confusion," see Commonwealth v. Monteagudo,
427 Mass. 484, 488 (1998), where "the judge [is] unclear what
the jurors [are] asking, the judge [may seek] further
clarification of the question which concerned the jurors.
[That] decision [is] well within the judge's discretion."
Commonwealth v. Scott, 428 Mass. 362, 367 (1998).
22
bridge probably was loose because [of] the decay not because her
husband hit her." The judge ordered that the dentist would not
be permitted to testify about matters redacted in the dental
records.8
General Laws c. 233, § 79, " permits the admission in
evidence, in the judge's discretion, of certified hospital
records 'so far as such records relate to the treatment and
medical history' with the proviso that 'nothing therein
contained shall be admissible as evidence which has reference to
the question of liability.'" Commonwealth v. Dube, 413 Mass.
570, 573 (1992), quoting G. L. c. 233, § 79. See Mass. G. Evid.
§ 803(6)(B) (2017). "The statute has long been construed to
permit the admission of a record that relates directly and
primarily to the treatment and medical history of the patient,
'even though incidentally the facts recorded may have some
bearing on the question of liability.'" Dube, supra, quoting
Leonard v. Boston Elevated Ry., 234 Mass. 480, 482–483 (1920).
8 Other redacted notes include, "she doesn't have money";
"mail copy of records [and] FMR Plan to Middlesex District
Att[orney]"; "with victim's comp[ensation]"; a reference to the
district attorney; "[r]ecord review. This [patient] has
victim's comp[ensation]. After review of comp[lete]
exam[ination], dental problems are not caused by spousal abuse,
and will not be covered by victim's comp[ensation] insurance";
and "[e]xplain to patient that I talk[ed] to DA about her xray.
I did no[t] send a letter. The xray show[s] that she has decay
under the bridge . . . the bridge probably was loose because
[of] the decay [not] because her husband hit her."
23
The court construes G. L. c. 233, § 79, liberally to allow the
admission of medical records. Commonwealth v. Dargon, 457 Mass.
387, 394 (2010).
The judge abused her discretion by requiring redaction of
the dentist's statement that "the bridge probably was loose
because [of] the decay." The statement "relates directly and
mainly to the treatment and medical history of the patient . . .
even though incidentally the facts recorded may have some
bearing on the question of liability" (citation omitted). See
Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998). Indeed, the
statement reflects the core role of a medical professional:
diagnosing the cause of a physical ailment. The dentist's note,
therefore, is a "physical observation[] from which [exculpatory]
inferences [may] flow," rather than a "conclusory fact central
to the jury's inquiry." See id. at 242, quoting Commonwealth v.
Baldwin, 24 Mass. App. Ct. 200, 202 (1987), overruled on other
grounds by Commonwealth v. Pagan, 445 Mass. 161 (2005).
Notably, the statement was made for purposes of medical
diagnosis, and does not reflect any legal conclusions.9 In
addition, the reason for creating the records was entirely for
9 Some notes in the dental records, such as "[treatment]
will not be covered by victim's comp[ensation] insurance," are
legal conclusions, and properly may be redacted, without
removing the dentist's medical conclusions.
24
medical diagnosis and treatment, rather than having been
prepared as part of a criminal investigation. See DiMonte,
supra. Therefore, the statement is admissible evidence under
G. L. c. 233, § 79, and it was error to order the records be
redacted.10
d. Instruction on witness credibility. The defendant
argues that the judge erred by not instructing the jury that
they should scrutinize the complainant's testimony with
"particular care" because of an agreement she had reached with
the government. The Commonwealth contends that there was no
cooperation agreement between the complainant and the
government, and there was no reward for her testimony. We agree
with the judge that the defendant was not entitled to a
"particular care" instruction.
"Because of the possible improper influences on a jury that
could develop from hearing testimony given pursuant to a written
plea agreement that offers substantial benefits to a witness but
10If this had been the only error, it would be harmless.
Although the judge stated that the dentist would not be
permitted to testify concerning from matters that had been
redacted from the dental records, the dentist, in fact, did
testify without objection that she believed the bridge was loose
because of "advanced decay," and that teeth which show decay are
weak and more prone to breaking. Defense counsel relied on this
testimony in her closing. Cf. Commonwealth v. Elliot, 393 Mass.
824, 831–832 (1985), and cases cited (error in preventing
impeachment harmless, where equivalent information was
communicated to jury).
25
only if the witness tells the truth . . . the judge must
specifically and forcefully tell the jury to study the witness's
credibility with particular care." Commonwealth v. Ciampa, 406
Mass. 257, 266 (1989). Here, there was neither a plea agreement
nor any type of written agreement that required the complainant
to testify truthfully, and so the Ciampa instruction was not
required. See Commonwealth v. Felder, 455 Mass. 359, 369
(2009). The prosecutor did not enter into an agreement with the
complainant; rather, the complainant pursued a separate,
statutory benefit, related to her report that she was the victim
of a crime. The opportunity to pursue a statutory benefit does
not rise to the level of a written agreement with a prosecutor
that requires a Ciampa instruction. Cf. Commonwealth v. Sealy,
467 Mass. 617, 625 (2014) (defendant must have opportunity to
impeach witness with evidence that she applied for visa that
grants work authorization to noncitizen victims of crime who
report crime to police, but visa application in this case was
not "clearly . . . relevant to a motive to lie"). Additionally,
as discussed, the Commonwealth had not offered a reward or
inducement for the complainant's testimony. Given the lack of a
nexus between the potential benefit to the complainant and her
testimony, the pending application to the program does not rise
to the level of a reward or inducement. The complainant's
perception of the application process may create a motive to
26
lie, but the judge properly instructed the jury that they "may
also consider whether the witness has any motive to testify for
or against either party, or the interest or lack of interest the
witness may have in the outcome of the case." Such an
instruction is sufficient, where the judge specifically
highlighted the complainant's potential interest in the outcome
of the case; a "particular care" instruction is not required.
3. Conclusion. The defendant's conviction is vacated and
set aside. The matter is remanded to the Superior Court for
further proceedings consistent with this opinion.
So ordered.