Commonwealth v. Dwyer

Majority - By the Court.

Yes, a new protocol for pretrial access to a third party’s statutorily privileged records is established, replacing the Bishop-Fuller protocols, as those prior standards imposed an unconstitutionally high and difficult burden on defendants and led to practical difficulties. Furthermore, the trial court did commit reversible error by allowing excessive testimony about uncharged prior bad acts, permitting improper cross-examination regarding a codefendant's coerced admission, and denying a new trial despite counsel's ineffective assistance. The court acknowledged the defendant's challenge to the Bishop-Fuller protocols, noting the difficulties defendants faced in meeting the "stringent" Fuller standard for accessing privileged records, even when such records might contain exculpatory evidence. The old protocols also forced judges into an advocate's role during in camera review and contributed to trial delays. In light of these concerns, and recent jurisprudential developments, the court adopted a new protocol based on Mass. R. Crim. P. 17(a)(2) and Commonwealth v. Lampron (2004). This new protocol requires, after a judge determines that the Lampron requirements (relevance, admissibility, necessity, specificity) for a summons are met, that presumptively privileged records be produced to the court under seal. Defense counsel, and only defense counsel initially, may inspect these records after signing a stringent protective order prohibiting copying or disclosure to anyone, including the defendant, unless a further motion for specific, need-based modification is allowed. This shift aims to balance a defendant's due process rights to a fair trial with the protection of statutory privileges. Separately, the court identified several errors at trial that, in combination, required a new trial. First, the judge abused her discretion by admitting excessive and detailed testimony from the complainant about seven uncharged sexual assaults, which "overwhelmed" the evidence of the two charged incidents and carried a high risk of prejudice, despite limiting instructions. The probative value of this detailed testimony was outweighed by its prejudicial effect, drawing the jury's attention away from the charged acts, as per Commonwealth v. Barrett. Second, the prosecutor improperly cross-examined the defendant about his knowledge of codefendant Lomberto's coerced admission. While Bruton v. United States did not directly apply due to severed trials, the court found that the "contextual incrimination" from linking the defendant to an involuntary and unreliable admission, especially without informing the jury of its coerced nature, undermined fundamental fairness and the effect of limiting instructions. Finally, the defendant received ineffective assistance of counsel in two respects: (1) counsel promised the jury exculpatory testimony from a witness (Daniel LaBonte) he had not interviewed, and then failed to call the witness, leading to a prejudicial missing witness instruction; and (2) counsel agreed to the admission of an unredacted medical report that contained inadmissible hearsay statements concerning the complainant's sister and direct conclusions about the defendant's liability, which should have been redacted under G. L. c. 233, § 79. Under the Commonwealth v. Saferian standard, these errors fell measurably below expected competence and likely deprived the defendant of a substantial ground of defense. The court concluded that the cumulative effect of these errors created a substantial risk of a miscarriage of justice, necessitating a new trial. The new protocol for privileged records applies prospectively to all criminal cases tried after the rescript in this case, meaning the defendant will benefit from it at his new trial.