Commonwealth v. Bourgeois

862 N.E.2d 464, 68 Mass. App. Ct. 433, 2007 Mass. App. LEXIS 267
CourtMassachusetts Appeals Court
DecidedMarch 13, 2007
DocketNo. 05-P-1619
StatusPublished
Cited by14 cases

This text of 862 N.E.2d 464 (Commonwealth v. Bourgeois) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Bourgeois, 862 N.E.2d 464, 68 Mass. App. Ct. 433, 2007 Mass. App. LEXIS 267 (Mass. Ct. App. 2007).

Opinion

Rapoza, CJ.

The defendant was convicted by a Superior Court jury of one count of rape of a child and five counts of assault and battery on the same child, his stepdaughter.1 The sexual abuse occurred between 1993 and 2000, when the victim [434]*434was between seven and thirteen years old and resided with the defendant and the victim’s mother.2 The victim testified at trial in July, 2002, approximately two years after the initial disclosures.

With new counsel, the defendant filed a motion for a new trial in which he argued that his trial counsel was ineffective for his failure to press for the pretrial production of certain privileged treatment records concerning the victim. Along with that motion, the defendant filed another motion for the discovery of additional records that he claimed his attorney should have obtained for use at trial but did not. Both motions were allowed by the same judge who presided over the trial. The judge later denied the Commonwealth’s motion for reconsideration, and this appeal followed.3 Upon careful consideration of the record, we reverse the judge’s orders.

Background. Approximately two months before trial, counsel obtained the victim’s pediatric medical records. Also in his possession prior to trial was a report of the victim’s evaluation performed in October, 2000, at the University of Massachusetts Memorial Children’s Medical Center in the Child Protection Program Clinic (UMass evaluation). These particular records contained references to the victim’s history of mental health issues which, according to the defendant, should have alerted trial counsel to potentially exculpatory evidence.4

In his motion for a new trial, the defendant specifically faulted trial counsel for failing to follow up with a stage two Bishop-Fuller motion requesting all of the victim’s treatment records that related to an October 6, 2000, notation in the pediatric record indicating a referral to “emergency services at Herbert Lipton [Center],” a mental health treatment facility. See Commonwealth v. Bishop, 416 Mass. 169, 181-182 (1993); [435]*435Commonwealth v. Fuller, 423 Mass. 216, 223-227 (1996). The defendant argued further that, had trial counsel sought the production of the Lipton Center records, he would have learned from those records and others referenced therein that, at or about the time of the victim’s disclosures of abuse and also during the period leading up to trial, the victim had attempted suicide, had a history of criminal and impulsive behavior, was failing school, and was abusing both alcohol and drugs.5

The defendant characterized such facts as amounting to “highly relevant and damaging information concerning [the victim’s]” psychiatric and substance abuse history that could have provided “the ammunition he needed to impeach the testimony of both [the victim] and the only fresh complaint witness offered in the case[, the victim’s stepmother].” Moreover, he claimed, as a result of trial counsel’s oversight he was deprived of the opportunity to reveal, through expert testimony, that the victim was “an extremely troubled child struggling with a serious mental illness complicated by hallucinogenic drug use,” in contrast to the Commonwealth’s portrayal of the victim at trial.6

In support of his motion for a new trial, the defendant attached copies of the victim’s pediatric record and the UMass evaluation. He also provided copies of the Lipton Center records and other materials that he apparently obtained from the victim’s mother after the trial of this matter.7 Also attached were several affidavits, including one affidavit that was signed by a board-certified psychiatrist.

Discussion. In order to sustain a claim of ineffective as[436]*436sistance of counsel, the defendant must show both that “there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer” and if so, that “it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, we conclude that the two-prong Saferian test was not met. The defendant did not establish with sufficient particularity how trial counsel could have satisfied the stringent Bishop-Fuller criteria based on information contained in the materials that were properly in the defendant’s possession prior to trial.

The defendant’s Bishop-Fuller proffer, as presented in his motion for a new trial and now restated on appeal, fails in one important aspect that was not addressed in the judge’s memorandum of decision. The defendant essentially concludes, incorrectly, that trial counsel would have prevailed had he tried to obtain the Lipton Center records and other privileged materials referenced therein. Trial counsel cannot be faulted, however, for having failed to obtain such documents where they were not discoverable in the first instance. See Commonwealth v. Oliveira, 431 Mass. 609, 614 (2000), S.C., 438 Mass. 325 (2002).

Under Fuller, to procure a pretrial inspection of privileged records such as those at issue here,8 the defendant is required to show “a good faith, specific, and reasonable basis for believing that the records [would] contain exculpatory evidence [that was] relevant and material to the issue of the defendant’s guilt.” Commonwealth v. Fuller, 423 Mass. at 226. “By ‘material evidence’ we mean evidence which is not only likely to meet criteria of admissibility, but which also tends to create a reasonable doubt that might not otherwise exist.” Ibid. Generalizations and unsubstantiated statements concerning a particular victim’s credibility are not enough. See Commonwealth v. Bishop, 416 Mass. at 182, quoting from People v. Gissendanner, 48 N.Y.2d [437]*437543, 549 (1979) (prohibiting “an unrestrained foray into confidential records in the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness”). See also Commonwealth v. Poitras, 55 Mass. App. Ct. 691, 695-696 (2002).

The motion’s broad claims concerning the victim’s lack of credibility as a result of mental health problems are entirely speculative and lack the specificity and reasonableness required under the heightened Fuller standard.9 See Commonwealth v. Poitras, supra. The mere fact of a victim’s mental health referral at or about the time she first revealed the abuse, without more, does not amount to a “credible showing” under Fuller. Commonwealth v. Fuller, supra. See Commonwealth v. Westbrook, 58 Mass. App. Ct. 692, 698 (2003) (notations in rape victim’s medical record of suicidal ideation properly excluded at trial where they did not imply inability to perceive, recollect, and recall).10

Here, the defendant’s proffer does not provide a factual basis for demonstrating that the privileged materials mentioned in either the victim’s pediatric record or the UMass evaluation were relevant and material to any issue in the case.

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Bluebook (online)
862 N.E.2d 464, 68 Mass. App. Ct. 433, 2007 Mass. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bourgeois-massappct-2007.