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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth
v. Callahan. 440
Hampshire.
Present:
Civil action commenced in the Superior Court
Department on
Motions for the production of records were heard by
Judd J. Carhart, J., and questions of law were
reported by him to the
Peter M. Onek, Committee for
Public Counsel Services, for the defendant.
Steven Greenbaum, Assistant District Attorney, for
the Commonwealth.
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
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 sentenced 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
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
Discussion. General Laws c. 123A, § 13 (b), inserted by
"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 statute should be "interpreted in harmony
with prior enactments to give rise to a consistent body of law." Charland v. Muzi Motors, Inc.,
417
§ 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
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
In 1985, the Legislature rewrote G. L. c. 123A.
In 1986, in Department of Youth Servs. v. A Juvenile,
398 Mass. 516, 526 (1986), this court, citing Commonwealth v. Lamb, 365 Mass.
265 (1974), held that the patient-psychotherapist privilege applied where the
Commonwealth, absent a court order, chose to have a psychiatrist interview a
juvenile in custody and where the psychiatrist did not precede those
conversations with the Lamb warnings. This court held that it was reversible
error to use the conversations at the proceeding to extend the juvenile's
commitment.[10]
In 1999, the Legislature again revised G. L. c.
123A. As in 1985, the revisions did not alter or amend the language now
appearing in § 13 (b) to remove the application of privilege in light of
Department of Youth Servs. v. A Juvenile, supra.[11]
Given our assumption that the Legislature is aware of both the decisions of
this Court and previous legislation, and yet has done nothing either to alter
the language of G. L. c. 123A, § 13 (b), or to amend the privilege
statutes to add another exception to take into account § 13 (b),[12]
it is clear that we must conclude, as the parties concur, that the Legislature
did not intend to abrogate existing privileges.[13] Our conclusion is
further supported by the fact that, in other instances, the Legislature has
acted to abrogate privileges. For example, the Legislature has abrogated
privilege where child abuse or the abuse of a patient or resident of a medical
facility may be present. See G. L. c. 119, § 51A (abrogating privileges in
G. L. c. 112, §§ 135A and 135B), and G. L. c. 111, § 72G (abrogating
privileges in G. L. c. 233, §§ 20 and 20B).
The documents are privileged under G. L.
c. 112, § 135B, and G. L. c. 233, § 20B, and the
Legislature did not abrogate those privileges in enacting the amendments to G.
L. c. 123A, § 13 (b). The judge, therefore, did not have the authority to
order the production of such documents. We are aware this interpretation may,
in some cases, deprive the qualified examiners (and ultimately the fact finder)
of highly relevant evidence. Where the respondent has a significant psychiatric
history (here, a period of many years of observation, testing, and treatment at
a psychiatric hospital), a qualified examiner would undoubtedly want to review
records pertaining to that history before rendering an opinion as to the nature
of any "mental abnormality or personality disorder" suffered by the
respondent. G. L. c. 123A, § 1. However, it is up to the
Legislature to decide whether privileges that it created in G. L. c. 112,
§ 135B, and G. L. c. 233, § 20B, should apply in
proceedings for the commitment of an allegedly sexually dangerous person. We
are constrained by the language and history of the current statute, which
indicate that the privileges are not to be abrogated. "We will not add
words to a statute that the Legislature did not put there, either by
inadvertent omission or by design," Commonwealth v. McLeod, 437
The answer to the first reported question is "No," and in light of
this conclusion, we need not answer the remaining reported questions. The case
is remanded to the Superior Court for further proceedings consistent with this
opinion.
So ordered.
FOOTNOTES:
[1] General Laws c. 231, § 111, states in
relevant part: "If a justice of the superior court is of the opinion that
an interlocutory finding or order made by him so affects the merits of the
controversy that the matter ought to be determined by the appeals court before
any further proceedings in the trial court, he may report such matter to the
appeals court, and may stay all further proceedings except such as are
necessary to preserve the rights of the parties."
[2] The reported
questions were as follows:
"1. Whether the orders of the court, dated
June 29 and
"2. Is in camera review prior to release
of records to the qualified examiners required?
"3. What is the proper standard to be
applied in the determination whether particular records or portions of records
are to be supplied to the qualified examiners?
"4. If the court conducts in camera review, what time limits, if any,
apply to that review and how does the review effect or modify the time limits
set out in G. L. c. 123A, §§ 13 and 14?"
[3] The parties were asked to address the issue
whether the Legislature, in its 1999 amendments to the sexually dangerous
person statute (G. L. c. 123A), intended to abrogate the
patient-psychotherapist privilege or any other privileges.
[4] We address only the issue of a judge's authority
to order the production of privileged documents pursuant to G. L. c. 233,
§ 20B, and G. L. c. 112, § 135B. We do not decide whether a
judge may order the production of nonprivileged
documents. Cf. Commonwealth v. Markvart, 437 Mass.
331, 336-337 (2002) (General Laws c. 123A, § 13 [b], allows nonprivileged material -- police reports and witness
statements -- to be turned over to qualified examiners, provided the
requirements set out in Department of Youth Servs. v.
A Juvenile, 398
[5] The principles of Commonwealth v. Bishop, 416
Mass. 169 (1993), are inapposite. A criminal defendant has a right to due
process that will, in some circumstances, require production of otherwise
privileged materials, and the procedures of Bishop were designed to identify
those specific circumstances. The Commonwealth, however, has no comparable due
process right that would potentially trump the restrictions imposed by its own
laws.
[6] General Laws, c. 123A, §§ 12-16, inserted by
[7] In light of our decision in this case, we
acknowledge, but see no need to address directly, each argument the defendant and
the Commonwealth have raised.
[8] The language was codified at G. L. c. 123A,
§ 4, as appearing in
[9] "The court shall supply to the qualified
examiners copies of the juvenile record and adult court records, and the
probation officer shall supply them with them the juvenile and adult probation
record of the person committed for examination. The probation record shall
contain a history, where available, of such person's previous adult and
juvenile offenses and previous psychiatric and psychological examinations and
such other information as may be helpful to the examiners in making their
diagnosis. The district attorney shall provide the examiners with a narrative
summary of the facts, where available, of each sexual offense of which the
person has been convicted as an adult or a juvenile." G. L. c. 123A,
§ 4, as appearing in
[10] The proceeding was conducted pursuant to G. L.
c. 120, § 18, where the juvenile was determined to be "physically
dangerous to the public" and ordered held by the Department of Youth
Services beyond his eighteenth birthday. Department of Youth Servs. v. A Juvenile, 398
[11] The text of the 1999 version of G. L. c. 123A,
§ 13 (b), is presented supra.
[12] The most recent amendments to G. L. c. 233,
§ 20B, were in 2000 (
[13] In contrast, for example, a