Commonwealth v. Labroad (Lawyers Weekly No. 10-006-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11421 COMMONWEALTH vs. BERNARD LABROAD. January 13, 2014. Evidence, Privileged communication, Communication between patient and psychotherapist, Right to obtain evidence, Relevancy and materiality. Rape. Practice, Criminal, Record, Subpoena. Due Process of Law, Access to evidence. Privileged Communication. After his first trial ended in a mistrial, the defendant was convicted by a jury at a second trial of rape of a child, in violation of G. L. c. 265, § 23. He appealed, arguing that a Superior Court judge erred in denying his pretrial motion to compel the production of psychological records of the complainant, in accordance with Mass. R. Crim. P. 17 (a) (2), 378 Mass. 886 (1979). The Appeals Court affirmed the judgment of conviction, Commonwealth v. Labroad, 83 Mass. App. Ct. 1104 (2012), and we granted further appellate review.[1] We remand the case to the Superior Court for further proceedings. Background. Prior to trial, pursuant to Mass. R. Crim. P. 17, the defendant moved for the production of records related to the care of the complainant that were in the custody of her psychologist. He alleged that the complainant had been referred to the psychologist by an unidentified physician for potential attention deficit disorder. According to a police report, the psychologist told the police that during his first meeting with the complainant, she disclosed to him an alleged incident regarding the defendant. He referred her to the Middlesex County district attorney’s office, and thereafter was contacted and interviewed by police. Defense counsel’s supporting affidavit stated that a police interview of the psychologist “indicated that the alleged victim disclosed to him that the [d]efendant talked the alleged victim into pulling her pants down and digitally penetrated her.” During a hearing on the motion, defense counsel described the report as including the complainant’s disclosure to the psychologist about the details of the incident, and represented that the psychologist also had notes concerning what the complainant had recounted to him. The motion judge denied the motion, as well as a motion for reconsideration, concluding that statements by the victim to her psychologist concerning the alleged assault, without more, did not meet the threshold requirements of Commonwealth v. Dwyer, 448 Mass. 122, 141-142 (2006), and Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). Discussion. Where, as here, “a defendant seeks pretrial inspection of statutorily privileged records […]