Commonwealth v. Callahan

799 N.E.2d 113, 440 Mass. 436, 2003 Mass. LEXIS 825
CourtMassachusetts Supreme Judicial Court
DecidedNovember 26, 2003
StatusPublished
Cited by34 cases

This text of 799 N.E.2d 113 (Commonwealth v. Callahan) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Callahan, 799 N.E.2d 113, 440 Mass. 436, 2003 Mass. LEXIS 825 (Mass. 2003).

Opinion

Ireland, J.

A Superior Court judge determined there was probable cause to believe the defendant was a sexually dangerous person as defined by G. L. c. 123A, § 1. On the Commonwealth’s motion, the judge ordered McLean Hospital and the Departments of Social Services and Youth Services (departments) to produce documents pertaining to the defendant. The judge stayed the proceedings, and pursuant to G. L. c. 231, § 111,1 and Mass. R. Civ. P. 64 (a), as amended, 423 Mass. [437]*4371403 (1996), reported four questions concerning the propriety of his orders. The reported questions asked whether the judge’s orders were proper, whether in camera review of the documents is necessary, and if so, what standards and time limits should apply to the review.* 2 We granted the defendant’s application for direct appellate review. After oral argument before this court, we requested that the parties submit supplemental briefs.3 Because the documents are privileged and we conclude that the judge had no authority under the statute to order their production, the answer to the first reported question is that it was improper for the judge to order the production of the records. Accordingly, we need not address the remainder of the reported questions.4

Background. The defendant pleaded guilty in 1997 to rape and abuse of a child, indecent assault and battery on a child, assault with intent to rape, and two counts of rape, and was [438]*438sentenced to concurrent terms of from three to five years in a State prison for two of the crimes, to be followed by concurrent probationary terms of ten years. In April, 2001, approximately two months prior to the defendant’s anticipated release from prison, the Commonwealth brought a petition for commitment under G. L. c. 123A, § 12 (b), alleging that the defendant was a sexually dangerous person.

In June, 2001, the Commonwealth filed an amended petition based on the crimes for which the defendant was then incarcerated, his behavior in prison, and his criminal history. The defendant’s criminal history consisted of an adjudication of delinquency for murdering his stepmother in 1982, when he was fifteen years old. While the defendant was in the custody of the Department of Youth Services, he was sent to McLean Hospital for mental health treatment for a period of five to six years. The Commonwealth has no information regarding the defendant’s diagnosis or treatment there.

After finding probable cause to believe that the defendant was a sexually dangerous person, the judge committed him to the treatment center for examination and diagnosis by two qualified examiners, pursuant to G. L. c. 123A, § 13 (a). The Commonwealth then filed motions seeking orders for the production of records pertaining to the defendant from McLean Hospital and the departments. The defendant opposed the motions, arguing, inter alla, that the documents were privileged and the court had no authority under G. L. c. 123A, § 13 (b), to order their production. The judge allowed the motions and provided for an initial in camera review pursuant to Commonwealth v. Bishop, 416 Mass. 169 (1993).5 6 With the agreement of the parties, the judge stayed the evaluation of the defendant at the treatment center and reported the four questions. As stated, we need address only the first reported question.

Discussion. General Laws c. 123A, § 13 (b), inserted by St. 1999, c. 74, § 8, reads:

[439]*439“The court shall supply to the qualified examiners copies of any juvenile and adult court records which shall contain, if available, a history of previous juvenile and adult offenses, previous psychiatric and psychological examinations and such other information as may be pertinent or helpful to the examiners in making the diagnosis and recommendation. The district attorney or the attorney general shall provide a narrative or police reports for each sexual offense conviction or adjudication as well as any psychiatric, psychological, medical or social worker records of the person named in the petition in the district attorney’s or the attorney general’s possession. The agency with jurisdiction over the person named in the petition shall provide such examiners with copies of any incident reports arising out of the person’s incarceration or custody.”6

The defendant argues both that the documents are privileged and that it was improper for the judge to order the production of the documents because of the privilege. The Commonwealth agrees that the documents are privileged.7

We conclude that G. L. c. 123A, § 13 (b), contains no authority for a judge to order the production of privileged documents for use by the qualified examiners. We find support for our decision in principles of statutory construction, legislative intent, and case law.

General Laws c. 123A, § 13 (b), requires that certain materials be given to the qualified examiners. However, the statute is silent regarding whether the statute covers privileged documents. At issue here are privileges protected by G. L. c. 233, § 20B (testimonial privilege for communications between “patient and a psychotherapist relative to the [patient’s] diagnosis or treatment’’), and G. L. c. 112, § 135B (testimonial privilege for communications between “client and a social worker . . . relative to the diagnosis or treatment of the client’s mental or emotional condition”) (privilege statutes). Where possible, a [440]*440statute should be “interpreted in harmony with prior enactments to give rise to a consistent body of law.” Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994), quoting Hadley v. Amherst, 372 Mass. 46, 51 (1977). Therefore, G. L. c. 123A, § 13 (b), must be reconciled with the protections the privilege statutes afford.

The earliest version of the current § 13 (b) was enacted in 1958.8 In 1968, the Legislature established the patient-psychotherapist privilege. G. L. c. 233, § 20B, inserted by St. 1986, c. 418. In Commonwealth v. Lamb, 365 Mass. 265 (1974), this court concluded that the psychotherapist-patient privilege applied to a sexually dangerous person proceeding. The court stated that communications between a court-appointed psychiatrist and a person in custody at a treatment center undergoing a court-ordered examination were privileged, subject to exception (b) of c. 233, § 20B (communications admissible “only on issues involving the patient’s mental or emotional condition” if made “after having been informed that the communications would not be privileged”). Id. at 266-267 & n.l, 269-270. The case was remanded to the Superior Court for a hearing.

In 1977, this court heard Lamb’s appeal from the Superior Court’s holding that he was a sexually dangerous person. Commonwealth v. Lamb, 372 Mass. 17 (1977). The court held that there was no error in allowing the Commonwealth to introduce a psychiatrist’s opinion, where that opinion was not based on privileged communications. Id. at 20-22.

In 1985, the Legislature rewrote G. L. c. 123A. St. 1985, c. 752, § 1. When the Legislature enacts legislation “[w]e assume . . . that [it is] aware of existing statutes,” Charland v. Muzi Motors, Inc., supra at 582, quoting

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Bluebook (online)
799 N.E.2d 113, 440 Mass. 436, 2003 Mass. LEXIS 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-callahan-mass-2003.