2013 WL 1899776 (Mass.App.Ct.)
For Dockets See 2013-P-0434
Appeals Court Of Massachusetts.
COMMONWEALTH, Appellee,
v.
Donald FRYE, Appellant.
No. 2013-P-0434.
2013.
On appeal from a judgment of the Lynn District Court
Brief, Addendum and Record Appendix for Defendant/Appellant
Denise Dolan, 285 Commandants' Way, Chelsea,
Massachusetts 02150, (617) 336-7250, dolan.denise@gmail.com, B.B.O. 678745.
Page 1
credibility in the presence of the jury violated Frye's
constitutional right to a fair and impartial trial and
constitutes reversible error ... 22
III. The trial judge's failure to properly instruct the
jury on the elements of assault and battery deprived
Frye of his right to a fair trial and constitutes reversible error ... 27
IV. The Commonwealth's failure to timely disclose
that two defense witnesses had potential Fifth
Amendment privileges, a change of substance, defeated Frye's fundamental right to present a defense ...
30
V. The court's failure to inquire into whether Frye's
waiver of the right to conflict-free counsel was intelligent and voluntary constitutes reversible error ... 34
*i TABLE OF CONTENTS
Statement of the issues ... 1
Statement of the case ... 1
*ii VI. The trial judge's failure to preclude the
Commonwealth from eliciting testimony of witnesses'
privileged social worker-client information constitutes
reversible error ... 39
Conclusion ... 44
Statement of facts ... 3
Summary of the argument ... 15
Certificate pursuant to Mass. R. App. P. 16(k) ... 45
ADDENDUM
Argument
I. The trial judge's failure to preclude Donna Hiltz, a
defense witness, from invoking the Fifth Amendment
privilege against self-incrimination, which she waived
by prior testimony, deprived Frye of his right to present a defense and call witnesses and constitutes reversible error ... 17
RECORD APPENDIX
*iii TABLE OF AUTHORITIES
A. Cases
Allison v. United States, 160 U.S. 203 (1985) ... 22
II. The trial judge's commentary on the defendant's
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 1899776 (Mass.App.Ct.)
Board of Reg. in Med. V. Hallmark Health Corp., 454
Mass. 498 (2009) ... 41
Page 2
Commonwealth v. Gilbert, 377 Mass. 887 (1979) ... 31
Brady v. Maryland, 373 U.S. 93 (1963) ... 30
Commonwealth v. Hodge, 386 Mass. 165 (1982) ... 34,
35
Commonwealth V. Borans, 288 Mass. 453 (1983) ...
19
Commonwealth v. Kelleher, 395 Mass. 821 (1985) ...
28, 29
Commonwealth v. Bryant, 390 Mass. 729 (1984) ... 31
Commonwealth v. Knapp, 10 Pick. 477 (1830) ... 29
Commonwealth v. Cobb, 379 Mass. 456 (1980) ... 35
Commonwealth v. Medina, 372 Mass. 722 (1977) ...
31
Commonwealth v. Connor, 381 Mass. 500 (1980) ...
36, 37
Commonwealth v. Corcione, 364 Mass. 611 (1974) ...
29
Commonwealth v. Cundriff, 382 Mass. 137 (1980) ...
31
Commonwealth v. Dagenais, 437 Mass. 832 (2002) ...
18
Commonwealth v. O'Keefe, 48 Mass. App. Ct. 566
(2000) ... 28
Commonwealth v. Oliveira, 438 Mass. 325 (2002) ...
40
Commonwealth v. Olzewsk, 401 Mass. 749 (1988) ...
30
Commonwealth v. Perez, 390 Mass. 308 (1983) ... 24,
25
Commonwealth v. Davis, 376 Mass. 777 (1978) ... 36
*ivCommonwealth v. Dixon, 34 Mass. App. Ct. 653
(1993) ... 27
Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437
(1983) ... 29
Commonwealth v. Epsom, 399 Mass. 254 (1987) ... 35
*v Commonwealth v. Shraiar, 397 Mass. 16 (1986) ...
34, 35
Commonwealth v. Fitzgerald, 380 Mass. 840 (1980) ...
25
Commonwealth v. Sneed, 376 Mass. 867 (1978) ... 23,
25
Commonwealth v. Fogarty, 419 Mass. 456 (1995) ...
34
Commonwealth v. Sylvester, 388 Mass. 749 (1983) ...
24
Commonwealth v. Francis, 375 Mass. 211 (1978) ...
18, 19
Commonwealth v. Vega, 449 Mass. 227 (2007) ... 40
Commonwealth v. Voisine, 414 Mass. 772 (1993) ...
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 1899776 (Mass.App.Ct.)
Page 3
19
ary.reference.com/browse/likely> ... 28
Evans v. O'Connor, 174 Mass. 297 (1899) ... 19
Collins English Dictionary - Complete & Unabridged
10th Edition. Retrieved March 13, 2013, from Dictionary.com
website:
http://
dictionary.reference.com/browse/potential ... 28
Glasser v. United States, 315 U.S. 60, 75 (1942) ... 34
Hicks v. United States, 150 U.S. 442 (1893) ... 22
G.L.c. 112, §135B ... 39
In re Adoption of Saul, 60 Mass. App. Ct. 546 (2004)
... 40
Massachusetts Model Jury Instructions, Instr. 6.140
(2009 Ed.)(Rev. Jan. 2013) ... 27
Malloy v. Hogan, 378 U.S. 1 (1964) ... 19
*1 ISSUES PRESENTED
Nile v. Nile, 432 Mass. 390 (2000) ... 28
Pointer v. Texas, 380 U.S. 400 (1965) ... 18
Quercia v. United States, 289 U.S. 466 (1933) ... 22,
24
Rogers v. United States, 340 U.S. 367 (1951) ... 18
Screws v. United States, 325 U.S. 91 (1945) ... 29
*vi Taylor v. Commonwealth, 369 Mass. 183 (1975) ...
19
United States v. Armedo-Sarmiento, 524 F.2d 591 (2d
Cir. 1975) ... 37
United States v. Lawriw, 568 2d 98 (8th Cir. 1977) ...
37
Weiler v. United States, 323 U.S. 606 (1945) ... 29
B. Other Authorities
Collins English Dictionary - Complete & Unabridged
10th Edition. HarperCollins Publishers. 13 Mar. 2013.
<Dictionary.com
http://
diction-
I. Whether the trial judge's failure to preclude Donna
Hiltz, a defense witness, from invoking the Fifth
Amendment privilege against self-incrimination,
which she waived by prior testimony, deprived Frye of
his right to present a defense and call witnesses and
constitutes reversible error.
II. Whether the trial judge's commentary on the defendant's credibility in the presence of the jury violated Frye's constitutional right to a fair and impartial
trial and constitutes reversible error.
III. Whether the trial judge's failure to properly instruct the jury on the elements of assault and battery
deprived Frye of his right to a fair trial and constitutes
reversible error.
IV. Whether the Commonwealth's failure to timely
disclose that two defense witnesses had potential Fifth
Amendment privileges, a change of substance, defeated Frye's fundamental right to present a defense.
V. Whether the court's failure to inquire into whether
Frye's waiver of the right to conflict-free counsel was
intelligent and voluntary constitutes reversible error.
VI. Whether the trial judge's failure to preclude the
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 1899776 (Mass.App.Ct.)
Commonwealth from eliciting testimony of witnesses'
privileged social worker-client information constitutes
reversible error.
STATEMENT OF THE CASE
On July 27, 2012, the defendant, Donald Frye, was
arraigned in the Lynn District Court. [R.A. 1, 2]. He
was charged with one count of assault and battery in
*2 violation of G.L.c. 265, §13(A)(a). [R.A. 1]. The
complainant sought and the court issued a G.L.c.
209A abuse prevention order. [Tr. 08/01/2012: 113].
On August 1, 2012, a G.L.c. 276, §58A dangerousness
hearing was held before Fortes-White, J. [R.A. 2, 4].
The court found that no conditions of release would
reasonably assure the safety of any other person or the
community and ordered detention prior to trial for a
period not to exceed 90 days. [Tr. 08/01/2012: 115].
On August 30, 2012, a pre-trial conference was held.
[R.A. 2, 4]. On that date, Frye submitted and subsequently withdrew a tender of plea. [R.A. 8].
From October 11-12, 2012, trial was held before
Flatley, J. and a jury. [R.A. 2, 4]. On October 12,
2012, the jury returned a guilty verdict. [R.A. 3][Tr.
10/12/2012: 260]. Frye was sentenced to two and one
half years in the house of correction, with 18 months
to be served (credit for time served) and the balance
suspended for three years. [R.A. 3][Tr. 10/12/2012:
264].
*3 On October 15, 2012, Frye filed a timely notice of
appeal. [R.A. 7].
STATEMENT OF FACTS
Frye, a UMass Boston-trained community support
worker, and Russell, a United States Postal Service
employee, met on a social website in 2011 and moved
into a Stoneham residence together approximately 90
Page 4
days later. [Tr. 10/11/2012: 74, 75; 10/12/2012:
170-71, 172-73]. Frye testified that he began to notice
“jealousies” in Russell while living with her in
Stoneham. [Tr. 10/12/2012: 173]. For instance, Russell would access Frye's social networks and telephone, and Frye began to feel as though his privacy
was being invaded. [Tr. 10/12/2012: 173].
During 2011, the couple got into two altercations
involving text messages sent to Frye's phone. Russell
testified that in August 2011, Frye grabbed her throat
after she accessed his phone and saw a text message
that she “didn't like” from another woman. [Tr.
10/11/2012: 94-95]. The text message made Russell
angry and jealous, and she reacted. [Tr. 10/11/2012:
118]. Russell testified that Frye did not squeeze her
throat and that she had no difficulty breathing. [Tr. *4
10/11/2012: 95]. Russell was not scared during this
incident and did not contact the police. [Tr.
10/11/2012: 96, 95]. Frye did not recall the August
2011 incident. [Tr. 10/12/2012: 178]. Russell testified
that Frye grabbed her throat in October of 2011. [Tr.
10/11/2012: 96]. Frye testified that, at that time,
Russell appeared to be angry, screaming and grabbing
Frye, because he had not answered a text message sent
to him by her. [Tr. 10/12/2012: 179-80]. Frye then
began packing a bag and attempted to leave. [Tr.
10/12/2012: 180]. When Russell would not move from
his way, Frye put out his hand. [Tr. 10/12/2012: 180].
Again, Russell had no difficulty breathing and did not
contact the police. [Tr. 10/11/2012: 96-97].
The couple separated in December of 2011. [Tr.
10/11/2012: 175].
About two weeks after the separation, in January
2012, Frye and Russell resumed seeing each other
approximately two to three times per week. [Tr.
10/12/2012: 177, 176]. Frye and Russell were “still
trying to hash things out” from January to approximately mid-May. [Tr. 10/12/2012: 177, 176]. Russell
described her relationship with Frye during *5 this
period as an “off and on,” “unresolved relationship.”
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2013 WL 1899776 (Mass.App.Ct.)
[Tr. 10/11/2012: 122].
Frye began a romantic relationship with Donna Hiltz
around February. [Tr. 10/11/2012: 83, 125]. Russell
did not “agree” with Frye's relationship with Hiltz,
though she and Hiltz developed a “love-hate kind of
thing.” [Tr. 10/11/2012: 99]. Frye also dated other
women, including one woman named Christine. [Tr.
10/11/2012: 102]. Russell denied being jealous,
though she did not like Frye's dating relationships with
other women. [Tr. 10/11/2012: 102]. Tremayne Ellison, a Lynn landscaper and Frye's friend of a few
years, testified that Russell's interactions with Hiltz
indicated that Russell was jealous. [Tr. 10/11/2012:
137, 140]. Frye knew that Russell was jealous of Hiltz
because she referred to Hiltz as “that skinny bitch.”
[Tr. 10/12/2012: 198].
Frye and Russell resumed a live-in relationship beginning in May 2012 and continuing to July 2012. [Tr.
10/11/2012: 75]. During July of 2012, Frye and Russell were living together in Lynn. [Tr. 10/11/2012:
76]. Their Lynn apartment had a living room, dining
room, kitchen, and bathroom. [Tr. 10/11/2012: 80].
The *6 kitchen was visible from the living room. [Tr.
10/11/2012: 80, 145]. In order to pay for rent, utilities,
food, and gas, Frye gave Russell his severance check,
and she deposited it into her account. [Tr. 10/11/2012:
119] [Tr. 10/12/2012: 194]. Russell testified that the
check was in the amount of $3200. [Tr. 10/11/2012:
119]. Frye testified that the check was in the amount of
$4600. [Tr. 10/12/2012: 194]. Frye's understanding
was that Russell was using the money to pay his bills.
[Tr. 10/12/2012: 194].
On July 25, 2012, Frye, having had a couple of drinks,
left the car he was using with another person so that he
could walk home. [Tr. 10/12/2012: 182]. The car was
a rental, as his own car had been rear-ended and in
“the shop” for approximately two months. [Tr.
10/12/2012: 181].
Page 5
During the afternoon of July 26, 2012, Frye picked up
his car from the shop and went to find the rental car.
[Tr. 10/12/2012: 180, 182]. He discovered that the
rental car, which was on Russell's insurance, was
missing. [Tr. 10/12/2012: 182].
*7 On that same date, Russell called Hiltz and
threatened to “get Donald [Frye] into trouble.” [Tr.
10/11/2012: 109]. Russell testified that she was referring to “trouble with his [Frye's] job [as a community
support worker].” [Tr. 10/11/2012: 122]. Russell testified that Hiltz was Frye's former client in his capacity
as a community support worker and that she didn't
think that the relationship was appropriate. [Tr.
10/11/2012: 100, 121-22]. Russell understood that the
CSP worker-client relationship between Frye and
Hiltz terminated in January and that their romantic
relationship did not begin until February. [Tr.
10/11/2012: 125].
Later during the afternoon of July 26, 2012, Frye
agreed to babysit Ellison's 5-year-old son, as Ellison
wished to visit his terminally- ill mother at a nursing
home. [Tr. 10/11/2012: 138] [Tr. 10/12/2012:
182-83]. Frye later asked Ellison for help when the
child started to misbehave. [Tr. 10/11/2012: 139].
Frye wanted to look for the missing rental car but
couldn't do so while babysitting the child. [Tr.
10/12/2012: 184]. Ellison sent his son to a different
friend, a case worker, who picked up the child. [Tr. *8
10/11/2012: 139] [Tr. 10/12/2012: 184 Frye, then,
explained the situation of the missing rental car to
Ellison. [Tr. 10/11/2012: 139].
Frye proceeded to drive around the area of Hanover
Street, an area he knew to be frequented by the woman
with whom he left the rental car. [Tr. 10/12/2012: 184.
He eventually made contact with the woman by telephone. [Tr. 10/12/2012: 184]. Though the woman
assured Frye that she was “on [her] way,” she never
arrived. [Tr. 10/12/2012: 184-85].
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2013 WL 1899776 (Mass.App.Ct.)
During the evening of July 26, 2012, sometime between 8 p.m. and 10 p.m., Frye met with Ellison, and
eventually, the pair went to the apartment shared by
Frye and Russell. [Tr. 10/12/2012: 185]. At this point,
Frye did not know what to do about the missing rental
car, and he wanted to explain the situation to Russell.
[Tr. 10/12/2012: 185]. They arrived at the apartment
between the hours of 10 p.m. and 11:00 p.m. [Tr.
10/11/2012: 76] [Tr. 10/11/2012: 140].
Russell was watching television alone when Frye and
Ellison arrived. [Tr. 10/11/2012: 76]. She invited the
pair inside. [Tr. 10/12/2012: 185]. Frye had a can *9 of
beer and Ellison had bottles of beer. Frye was arguing
on his cell phone in the living room. [Tr. 10/11/2012:
78]. Russell testified that, although she was in the
living room with Frye while he was yelling on the
phone, she could not hear what he was saying because
the television was loud. [Tr. 10/11/2012: 104-05]. She
denied having knowledge of the missing rental car
until the following Friday night. [Tr. 10/11/2012:
104]. Ellison and Frye testified that, upon arriving at
the apartment, Frye explained to Russell that the rental
car was missing. [Tr. 10/11/2012: 141][Tr.
10/12/2012: 187].
Frye told Russell to remain calm and suggested that
the group “think this through” and weigh some options. [Tr. 10/11/2012: 141-42] [Tr. 10/12/2012:
186-87]. Ellison and Frye testified that Ellison and
Russell agreed that the group should call the police
about the missing car. [Tr. 10/11/2012: 142] [Tr.
10/12/2012: 188]. Frye wanted to wait before contacting the police because he did not want to get the
young woman who had the car into trouble, as he
understood that young people “do stupid things
sometimes.” [Tr. 10/11/2012: 189]. Ellison and Frye
*10 testified that Russell was “angry” and “irate”
about the missing car and punched Frye in the face.
[Tr. 10/11/2012: 141, 143] [Tr. 10/12/2012: 187.
Russell testified that she did not punch Frye in the
living room. [Tr. 10/11/2012: 105]. Ellison described
the punch as “a hard one” to the jaw, which she in-
Page 6
flicted with her left hand. [Tr. 10/11/2012: 143, 151].
Russell then went to the kitchen. [Tr. 10/11/2012:
143] [Tr. 10/12/2012: 189].
Russell returned to the living room from the kitchen
with a knife in hand and said that she was going to kill
Frye, Ellison and Frye testified. [Tr. 10/11/2012:
143-44] Tr. 10/12/2012: 190. Russell testified that she
did not threaten Frye with a knife. [Tr. 10/11/2012:
105]. Frye described the knife as a butcher knife, one
that Russell always used. [Tr. 10/12/2012: 191]. Ellison described the knife as “one of them long like
chef knives.” [Tr. 10/11/2012: 153]. Frye testified that
she “waived it around and looked at us Frye and Ellison] crazy first.” [Tr. 10/12/2012: 191. Ellison testified that Russell returned to the kitchen and put the
knife away at his urging. [Tr. 10/11/2012:143-44]. He
testified that the *11 group resumed discussion of the
missing rental car in the living room. [Tr. 10/11/2012:
144]. Frye and Russell went to the bathroom, off of the
kitchen, to speak privately. [Tr. 10/11/2012: 78] [Tr.
10/12/2012: 192].
Frye and Russell discussed money, and the discussion
“aggravated” and “disgusted” Russell, she testified.
[Tr. 10/11/2012: 78-79] [Tr. 10/12/2012: 193-94].
Frye asked Russell for pocket money for the night.
[Tr. 10/11/2012: 79] [Tr. 10/12/2012: 194]. Frye understood that he was asking Russell to give him some
of his own money, as he had previously signed his
severance check over to her. [Tr. 10/12/2012: 194-95].
Russell testified that she got her pocketbook from the
living room, went back into the kitchen, and threw $40
at Frye. [Tr. 10/11/2012: 79].
Frye described Russell's reaction to his asking for
money as “irate,” “a tantrum” during which she hit
him a number of times in the face, chest, hands and
arms and grabbed the knife again. [Tr.
10/12/2012:195]. Ellison testified that, while Frye and
Russell were in the kitchen together, he could see
Russell throwing punches. [Tr. 10/11/2012: 145. Frye
*12 testified that he told Russell to put the knife away.
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2013 WL 1899776 (Mass.App.Ct.)
[Tr. 10/12/2012: 195]. Ellison heard Frye say, “You
better put that damn knife away,” he testified. [Tr.
10/11/2012: 145-46]. Ellison was in the living room,
and the kitchen was right in front of him. [Tr.
10/11/2012: 145]. The door frame was blocking his
view of Frye, but he could see Russell. [Tr.
10/11/2012: 145]. Frye testified that Russell told him
to “get the F out of the house” after throwing the
money onto the floor. [Tr. 10/12/2012: 196].
Frye and Ellison left the apartment together. [Tr.
10/11/2012: 79, 80, 146] [ [Tr. 10/12/2012: 196].
They went to Ellison's house, where they discussed the
problem of the missing rental car. [Tr. 10/11/2012:
146] [Tr. 10/12/2012: 196]. Frye left Ellison's house
and walked down Washington Street toward Stop &
Shop, continuing his search for the missing car. [Tr.
10/12/2012: 196-97, 198]. Along the way, he called
Russell and asked that she pick him up from the Stop
& Shop, and Russell agreed to do so. [Tr. 10/11/2012:
82] [Tr. 10/12/2012: 198]. Russell arrived at the Stop
& Shop, and Frye got into the car. [Tr. 10/11/2012:
*13 82-83] [Tr. 10/12/2012: 199]. He then received a
call from Donna Hiltz. [Tr. 10/12/2012: 199].
Hiltz' car was out of gas, and it was stuck in the middle
of the street. [Tr. 10/11/2012: 83] [Tr. 10/12/2012:
199]. Frye asked Russell to drive to Essex Street, and
Russell knew Hiltz to live on Essex Street. [Tr.
10/11/2012: 83]. Russell drove from the Stop & Shop
to Essex Street, where Frye pushed Hiltz' car to the
side of the road. [Tr. 10/11/2012: 83, 84] [Tr.
10/12/2012: 200]. Russell testified that she was upset
that Frye told her to drive to Essex Street to help Hiltz.
[Tr. 10/11/2012: 108]. Frye described Russell's reaction as follows: “She [Russell] blew up at me saying
she's not spending her money on no gas . for the
B[itch]...” [Tr. 10/12/2012: 200].
Around this time, Ellison found the missing car and
called Frye. [Tr. 10/11/2012:147]. Ellison got into the
rental car and agreed to meet Frye on Hanover Street.
[Tr. 10/11/2012: 147]. Russell drove Frye to Hanover
Page 7
Street and stopped the car. [Tr. 10/11/2012: 85] [Tr.
10/12/2012: 201]. Frye testified that he and Russell
were still arguing about his helping Hiltz when they
arrived. [Tr. 10/12/2012: 201]. “She was *14 telling
me that I would do anything for that B (inaudible)
you'll do anything for her [Hiltz],” he testified. [Tr.
10/12/2012: 201].
Frye testified that Russell hit him seven or eight times
after saying something to the effect of “you're just
going to drive over there to that B's [Hiltz'] house...”
[Tr. 10/12/2012: 203]. Frye testified that he tried to get
out of the car, but the door was locked and he was
wearing his seatbelt. [Tr. 10/12/2012: 203]. Russell
claimed that the doors were unlocked. [10/11/2012:
90]. Frye testified that Russell was swinging at him,
and he could not get out of the seatbelt. [Tr.
10/12/2012:203]. Russell denied hitting Frye first and
denied that Frye was wearing a seatbelt. [Tr.
10/11/2012: 113]. Frye testified that he hit Russell
twice when she reached down into her pocketbook.
[Tr. 10/12/2012:203-04]. Russell agreed that she
reached into her pocketbook. [Tr. 10/11/2012: 111].
Frye did not know where he hit her because he “just
swung.” [Tr. 10/12/2012: 204]. Frye testified that he
thought Russell was going to pull out the butcher knife
that she had brandished twice earlier in *15 the
evening and that he was afraid. [Tr. 10/12/2012: 24].
Russell drove home and called 911. [Tr. 10/11/2012:
91]. Police responded to her house within approximately five minutes, and Russell was transported to
Union Hospital where she was diagnosed with a
fractured nose. [Tr. 10/11/2012: 91-92]. The responding Lynn police officer, Officer Albert DiVirgilio, did not take any pictures of Russell. [Tr.
10/11/2012: 131]. Officer DiVirgilio spoke with Frye
by telephone while on the scene with Russell and
described Frye as “very” cooperative. [Tr.
10/11/2012: 130].
SUMMARY OF THE ARGUMENT
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 1899776 (Mass.App.Ct.)
I.The trial judge permitted Hiltz, a defense witness
who would have testified that Russell left her a
voicemail days before the incident threatening that she
would “get the defendant in trouble,” to invoke the
Fifth Amendment privilege against self-incrimination.
The basis of the privilege was alleged witness intimidation reported by Russell involving allegations that
Hiltz approached Russell on August 1, *16 asking
Russell to “drop the charges.” Under the “continuing
waiver” theory applied in Massachusetts, Hiltz waived
the privilege by previously testifying to approaching
Russell on August 1.
II.The trial judge expressed an opinion on Frye's
credibility in the presence of the jury where, after Frye
explained that he did not understand her instruction,
she retorted “Yes, you do, sir. You're very intelligent,
as you've already told us...”
III.The trial judge failed to properly instruct the jury
on the elements of assault and battery where she
charged that Commonwealth may prove assault and
battery by proof of “potential” to cause physical harm
as opposed to a “likelihood” of causing physical harm.
IV. The Commonwealth's failure to disclose until the
first day of trial that two defense witnesses, Hiltz and
Ellison, had potential Fifth Amendment privileges
deprived Frye of his right to present a defense, even
though such disclosure may not have been required by
Brady. The Commonwealth's misconduct deprived
defense counsel of the opportunity to argue that Hiltz
waived *17 the privilege against self-incrimination by
her August 1 testimony.
V. Defense counsel, a former Essex County assistant
district attorney, had prosecuted Ellison, a defense
witness who remembered him, in the recent past. The
court failed to inquire into whether Frye's right to
conflict-free counsel was intelligent and voluntary.
Page 8
VI. Frye, a community support worker, had assisted
both Ellison and Hiltz in that capacity. Through a
motion in limine, which was denied, Frye attempted
assert the social worker-client privilege on behalf of
these former clients. The court erred in its failure to
preclude the Commonwealth from eliciting testimony
pertaining to privileged social worker-client communicative conduct.
ARGUMENT
I. The trial judge's failure to preclude Donna Hiltz,
a defense witness, from invoking the Fifth
Amendment privilege against self-incrimination,
which she waived by prior testimony, deprived
Frye of his right to present a defense and call witnesses and constitutes reversible error.
*18 Both the Sixth Amendment to the United States
Constitution and article 12 of the Massachusetts
Declaration of Rights guarantee a defendant's right to
present a defense, including the right to call witnesses
on the behalf of the defense. Commonwealth v. Dagenais, 437 Mass. 832, 839 (2002). While the right is
not absolute and may be tempered, it has long been
recognized as “an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.” Commonwealth v. Francis,
375 Mass. 211, 213-14 (1978) quoting Pointer v.
Texas, 380 U.S. 400, 405 (1965).
Any denial or dimunition of the right to offer the testimony of witnesses calls into question the integrity of
the fact-finding process. Id. at 214. Though a witness'
invocation of the Fifth Amendment privilege against
self-incrimination is one limitation on a defendant's
right to call a witness, the claim of privilege must be
timely made. Francis, 375 Mass. at 216. Disclosure of
a fact waives the privilege as to details. Rogers v.
United States, 340 U.S. 367, 373 (1951). “It has long
been the law in Massachusetts that if an ordinary
witness...voluntarily testifies to a *19 fact of an in-
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 1899776 (Mass.App.Ct.)
criminating nature, he waives his privilege as to subsequent questions seeking related facts.” Francis, 375
Mass. at 216 quoting Taylor v. Commonwealth, 369
Mass. 183, 189 (1975). Once a witness testifies to one
matter tending to incriminate herself, she must testify
in all respects relative to that matter. Id. at 216-17
citing Evans v. O'Connor, 174 Mass. 297, 291 (1899).
Massachusetts courts apply the “continuing waiver”
theory to claims of the privilege against
self-incrimination. See Taylor, 369 Mass. at 191. The
“continuing waiver” theory applies to prior testimony.
Id. The testimony need not provide all elements required for conviction, and it is enough that the testimony furnishes a “link in the chain of evidence needed
to prosecute the claimant [of the privilege].” Commonwealth v. Borans, 288 Mass. 453, 456-57 (1983);
Malloy v. Hogan, 378 U.S. 1, 11-12 (1964); Commonwealth v. Voisine, 414 Mass. 772, 784-85 (1993).
In this case, Frye was deprived of his right to present a
defense and call witnesses where the trial judge permitted Donna Hiltz to invoke the Fifth Amendment
privilege against self-incrimination, even *20 though
any such privilege was waived by prior testimony. On
the first day of trial, the Commonwealth notified the
court of Hiltz' potential privilege. [Tr. 10/11/2012:
18]. The Commonwealth indicated that Russell informed the district attorney's office and possibly filed
a report with the Lynn Police Department that Hiltz
and Ellison had approached Russell prior to the 58A
hearing on August 1 and asked Russell to “drop the
charges.” [Tr. 10/11/2012: 19]. Defense counsel had
not been informed. [Tr. 10/11/2012: 19]. The court
advised Hiltz that her alleged attempt to get the case
“dropped” could be considered witness intimidation
such that she would not have to give evidence. [Tr.
10/11/2012: 31].
Hiltz told the court, “But that was brought up last time
I testified, that I talked to her, and that was brought
up.” [Tr. 10/11/2012: 33]. The court advised Hiltz,
“you have a separate right not to give evidence in this
Page 9
case.” [Tr. 10/11/2012: 33]. After conferring with
counsel, Hiltz invoked the privilege. [Tr. 10/11/2012:
44-45].
Hiltz was correct that the issue had been “brought up,”
as she testified on August 1 to speaking *21 with
Russell in the courthouse on that date. [Tr.
08/01/2012: 78]. On August 1, the Commonwealth
asked Hiltz, “And you spoke with Angela [Russell] in
the courthouse today, right?” [Tr. 08/01/2012: 78].
Hiltz answered, “Yeah. I said ‘hi,’ yeah.” [Tr.
08/01/2012: 78]. The Commonwealth asked, “And
you spoke with her with Tremayne [Ellison] too,
right?” [Tr. 08/01/2012: 78]. Hiltz answered affirmatively. [Tr. 08/01/2012: 78].
Hiltz waived the claim of Fifth Amendment privilege
by voluntarily testifying to this fact of a potentially
incriminating nature on August 1. Disclosure of the
fact that Hiltz and Ellison approached and spoke with
Russell on August 1 waived the privilege as to subsequent questions relative to the details of the encounter and any related facts. Under the “continuing
waiver” theory, Hiltz' August 1 testimony need not
have provided all of the elements required for conviction. That Hiltz' testimony furnished a “link in the
chain of evidence” constituted waiver of the privilege.
The court's error in allowing Hiltz to invoke the privilege, which had been waived, deprived Frye of his
*22 right to present a defense and call witnesses on his
behalf. Hiltz would have testified that Russell left
Hiltz' a voicemail days before the incident threatening
to “get the defendant in trouble.” [Tr. 10/11/2012: 27].
Denial of the right to offer such testimony compromised the integrity of the fact-finding process and
violated both the Sixth Amendment and article 12.
The trial judge committed reversible error causing a
substantial risk of a miscarriage of justice in permitting Hiltz to invoke the Fifth Amendment privilege
and excusing her.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 1899776 (Mass.App.Ct.)
II. The trial judge's commentary on the defendant's credibility in the presence of the jury violated
Frye's constitutional right to a fair and impartial
trial and constitutes reversible error.
A judge's hostile comments must not render vain a
defendant's privilege to testify on his own behalf.
Quercia v. United States, 289 U.S. 466, 470 (1933)
citing Hicks v. United States, 150 U.S. 442, 452
(1893). A judge must not invade the province of the
jury to test the credibility of the defendant as a witness. Allison v. United States, 160 U.S. 203,209-10
(1985).
*23 The influence of a trial judge on a jury “is necessarily and properly of great weight” and “his lightest
word or intimation is received with deference, and
may prove controlling.” Quercia, 289 U.S. at 470. A
judge may neither directly express an opinion on the
credibility of particular witnesses nor adopt the role of
an advocate. Commonwealth v. Sneed, 376 Mass. 867,
870 (1978).
A defendant may suffer a violation of his constitutional right to a fair and impartial trial where a trial
judge's comments suggest that the judge does not
believe a defense witness or a defendant. In Sneed, the
Supreme Judicial Court concluded that a trial judge
deprived a defendant of a fair trial where “the circumstances were such that the jury were probably
aware that the judge did not believe” the sole defense
witness. Id. at 869. In that case, the judge addressed
questions to the witness concerning her “failure” to
testify at prior District Court proceedings and admonished her, outside the hearing of the jury, as to
perjury. Id. In Sylvester, the Supreme Judicial Court
observed that “the jury could well have concluded
from the judge's remark that the defendant's *24 testimony was not worthy of belief” where the judge, in
the jury's presence, characterized the defendant's testimony as “self-serving.” Commonwealth v. Sylvester,
Page 10
388 Mass. 749, 752 (1983). In Quercia, the Supreme
Court reversed a defendant's conviction where the trial
judge informed the jury of his belief that the defendant
was lying. Quercia, 289 U.S. at 468-69. In that case,
the trial judge charged the jury as follows:
“And now I am going to tell you what I think of the
defendant's testimony. You may have noticed, Mr.
Foreman and gentlemen, that he wiped his hands
during his testimony. It is rather a curious thing, but
that is almost always an indication of lying. Why it
should be so we don't know, but that is the fact. I think
that every single word that man said, except when he
agreed with the Government's testimony, was a
lie...Now, that opinion is an opinion of evidence and is
not binding on you, and if you don't agree with it, it is
your duty to find him not guilty.” Id.
In Quercia, the Court noted that “...the judge put his
own experience, with all the weight that could be
attached to it, in the scale against the accused.” Id. at
471.
An issue is treated as if an objection had been made,
even in the absence of an objection, where it concerns
a judge's action. *25Commonwealth v. Perez, 390
Mass. 308, 315-16 (1983). This is due to the “delicate
problem that objections to a judge's actions present to
defense counsel.” Id. quoting Commonwealth v.
Fitzgerald, 380 Mass. 840, 849 (1980). Prejudice may
arise where a judge's comments have the effect of
impeaching a defendant or a defense witness. Fitzgerald, 380 Mass. at 847. Indeed, in certain circumstances, a judge's improper commentary may convert
a defendant's constitutional privilege to testify on his
own behalf into a detriment. See Sneed, 376 Mass, at
872.
In this case, Frye was deprived of his right to a fair
trial where the trial judge commented on Frye's credibility in the presence of the jury. As Frye was testifying on direct examination, he said “I don't understand” in response to the court's instruction to limit his
answers to the questions before him. [Tr. 10/12/2012:
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2013 WL 1899776 (Mass.App.Ct.)
187-188]. The judge then expressed her opinion that
Frye was lying in his statement that he did not understand, responding “Yes, you do [understand] sir.
You're very intelligent, as you've already told us, and
wait for your lawyer's questions. [Tr. 10/12/2012:
188]. The judge's comment likely had *26 a significant impact on the jury, as it suggested that the judge,
with all of the weight attached to her experience, did
not believe Frye.
Not only did the judge directly contradict Frye with
the retort, “Yes you do, sir,” but with her comment on
Frye's intelligence she also suggested that Frye was
deliberately feigning ignorance or innocence. The
remark “You're very intelligent, as you've already told
us,” in this context, was nothing other than a more
artful way of saying “Don't play dumb with me.” It
was an expression, in front of the jury, of the judge's
apparent belief that Frye was being deceptive. As in
Sneed and Sylvester, where the juries were probably
aware that the judge did not believe the defendant, this
jury was likely aware, based on this comment, that the
judge did not believe Frye and carried hostility towards him. As in Quercia, where the judge put his
own experience into the scale against the accused, this
judge inserted her opinion on Frye's credibility into
the scale against him. The trial judge, through her
improper commentary, converted Frye's right to testify into a detriment. The effect of the judge's comments, while *27 unquantifiable, undoubtedly impressed the jury with the idea that the judge disfavored
the defendant.
Page 11
tentional assault and battery, G.L.c. 265, §13A(a),
provide that the Commonwealth must prove beyond a
reasonable doubt “[t]hat the touching was either likely
to cause bodily harm to [alleged victim], or was done
without his (her) consent.” Massachusetts Model Jury
Instructions, Instr. 6.140 (2009 Ed.) (Rev. Jan.
2013)(emphasis supplied).
The word “likely” is not defined in applicable statutory or case law. Where the legislature has not defined
a term, the court construes the term as it is commonly
understood, according to its plain and *28 ordinary
meaning. Nile v. Nile, 432 Mass. 390, 394 (2000). The
court derives such meaning from sources presumably
known...such as dictionary definitions and accepted
meanings in other legal contexts. Commonwealth v.
One 1987 Mercury Cougar Automobile, 413 Mass. at
537-38; Commonwealth v. O'Keefe, 48 Mass. App. Ct.
566, 567 (2000). The ordinary and accepted meaning
of the word “likely” is “probably or presumably.” E.g.
Collins English Dictionary Complete - Unabridged
10th Edition. HarperCollins Publishers. 13 Mar. 2013.
<Dictionary.com
http://
dictionary.reference.com/browse/likely>. Thus, “likely”
is distinguishable from “potential[lly],” which ordinary means “possible” or “capable of being or becoming.” E.g. Collins English Dictionary Complete &
Unabridged 10th Edition. Retrieved March 13, 2013,
from Dictionary.com website: http:// dictionary.reference.com/browse/potential.
III. The trial judge's failure to properly instruct
the jury on the elements of assault and battery
deprived Frye of his right to a fair trial and constitutes reversible error.
Failure by a judge to properly instruct the jury on the
elements of the crime charged deprives a defendant of
his right to a fair trial apart from a showing of actual
prejudice. *29Commonwealth v. Kelleher, 395 Mass.
821, 828 (1985) (Liacos, J. concurring); Screws v.
United States, 325 U.S. 91, 106-07 (1945).
“An assault and battery is the intentional, unprivileged, unjustified touching of another with such violence that bodily harm is likely to result.” Commonwealth v. Dixon, 34 Mass. App. Ct. 653, 654 (1993)
(emphasis supplied). Model jury instructions on in-
The appellate court's appraisal of “harmlessness”
should never substitute for a defendant's right to a trial
by jury.
[Appellate judges] are not authorized to look at the
printed record, resolve conflicting evidence, and reach
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2013 WL 1899776 (Mass.App.Ct.)
the conclusion that the error was harmless because the
[appellate judges] think that the defendant is guilty.
That would be to substitute [appellate judges'] judgment for that of the jury and, under our system of
justice, juries alone are entrusted with that responsibility. Commonwealth v. Peruzzi, 15 Mass. App. Ct.
437, 446 (1983) quoting Weiler v. United States, 323
U.S. 606, 611 (1945) .
Even where defense counsel does not register an objection to jury instructions, “the trial judge has the
duty to state the applicable law to the jury clearly and
correctly.” Commonwealth v. Corcione, 364 Mass.
611, 618 (1974) citing Commonwealth v. Knapp, 10
Pick. 477, 495 (1830).
In this case, the court erred in instructing the jury that
the Commonwealth may prove assault and battery by
proof of “potential” to cause physical harm *30 as
opposed to a “likelihood” of physical harm. The court
charged, “...the Commonwealth must prove... that the
touching either caused physical harm or had the potential to cause physical harm, or was an offensive
touching done without her consent.” [Tr. 10/12/2012:
251](emphasis supplied). The court again charged, “a
touching that was either physically harmful or a
touching that had the potential to cause physical harm
or was an offensive touching done without the other
person's consent.” [Tr. 10/12/2012: 251-52] (emphasis
supplied). Frye need not show actual prejudice because, as articulated above, a judge's failure to
properly instruct the jury on the elements deprives a
defendant of his right to a fair trial apart from a
showing of actual prejudice.
IV. The Commonwealth's failure to timely disclose
that two defense witnesses had potential Fifth
Amendment privileges, a change of substance,
defeated Frye's fundamental right to present a
defense.
Prosecutorial misconduct, which includes lack of
Page 12
disclosure by the Commonwealth and its agents, may
defeat a defendant's right, protected by the Sixth
Amendment and article 12, to present a defense.
*31Commonwealth v. Olzewski, 401 Mass. 749, 753,
756 (1988) Massachusetts courts recognize claims of
grievance that a defense was handicapped by the
Commonwealth's lack of disclosure, even where the
government disclosure was not required by Brady v.
Maryland, 373 U.S. 93 (1963) and its progeny. See
Commonwealth v. Bryant, 390 Mass. 729, 747 (1984);
Commonwealth v. Medina, 372 Mass. 722, 779
(1977).
The Commonwealth must report to defense counsel
changes of substance damaging to the defense. Bryant,
390 Mass, at 747 citing Medina, 372 Mass. at 894. The
prosecution cannot subvert the purposes of discovery,
minimization of surprise and allowance for preparation, by failing to divulge information that materially
alters information justifiably relied upon by the defense. See Commonwealth v. Gilbert, 377 Mass. 887,
893-94 (1979). Relief must be granted where a belated
disclosure is grounded in a showing of prejudice.
Commonwealth v. Cundriff, 382 Mass. 137, 150
(1980); Medina, 372 Mass. at 780.
In this case, the Commonwealth's failure to disclose
until the first day of trial that two defense witnesses
may have had Fifth Amendment privileges deprived
Frye of his fundamental right to present a *32 defense.
[Tr. 10/11/2012: 18-19]. The Commonwealth did not
notify defense counsel of its position that both Donna
Hiltz and Tremayne Ellison had Fifth Amendment
privileges until the first day of trial. [Tr. 10/11/2012:
18-19]. Until that time, defense counsel had no notice
that Russell reported that Hiltz and Ellison approached
Russell on August 1, 2012, asking Russell to “drop the
charges in the case.” [Tr. 10/11/2012: 19]. Defense
counsel was unable to respond, as he had not seen the
report and had no knowledge of the substance of the
allegations. [Tr. 10/11/2012: 19]. The court advised
Hiltz and Ellison that they could be subject to charges
of intimidation of a witness and to consult with ap-
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2013 WL 1899776 (Mass.App.Ct.)
pointed counsel. [Tr. 10/11/2012: 31, 34, 36]. Hiltz
agreed to speak with counsel, though Ellison declined
and elected to testify. [Tr. 10/11/2012: 34, 35-37].
Hiltz invoked the privilege after conferring with
counsel. [Tr. 10/11/2012: 44-45]. Again, Hiltz would
have testified that Russell left Hiltz a voicemail days
before the incident threatening to “get the defendant in
trouble.” [Tr. 10/11/2012: 27].
*33 The Commonwealth's failure to disclose that two
defense witnesses had potential Fifth Amendment
privileges handicapped Frye's defense, and this claim
must be recognized even though the disclosure may
not have been required by Brady. This constituted a
change of substance that materially altered information upon which the defense relied. The defense
expected to call both Hiltz and Ellison. [Tr.
10/11/2012: 18-19]. The Commonwealth's failure to
notify the defense of its position that Hiltz and Ellison
had potential privilege issues deprived defense counsel of the ability to adequately respond. [Tr.
10/11/2012: 19]. Had defense counsel been notified,
he could have been prepared to argue that Hiltz
waived the privilege by her incriminating August 1
testimony, but he was deprived of that opportunity by
the Commonwealth's failure to disclose the substance
of the reports. See [Tr. 10/11/2012: 19].
The defense was prejudiced as a result of this surprise,
and relief must be granted. Hiltz' expected testimony
relative to the voicemail left by Russell would have
been valuable to defense, particularly where Russell
testified that she had no memory of the *34 message
and that the “trouble” to which she was referring was
trouble with his job. [Tr. 10/11/2012: 19, 109].
The Commonwealth's belated disclosure of information relative to potential Fifth Amendment privileges of Hiltz and Ellison deprived Frye of his fundamental right to present a defense and created a
substantial risk of a miscarriage of justice.
Page 13
V. The court's failure to inquire into whether
Frye's waiver of the right to conflict-free counsel
was intelligent and voluntary constitutes reversible
error.
Under the Sixth and Fourteenth Amendments to the
United States Constitution and article 12 of the Declaration of Rights, criminal defendants have a right to
the assistance of counsel unimpaired by conflicts of
interest. Commonwealth v. Fogarty, 419 Mass. 456,
458 (1995); Glasser v. United States, 315 U.S. 60, 75
(1942).
Under article 12, a defendant need not demonstrate
that an actual conflict of interest resulted in prejudice
or adversely affected his attorney's performance. See
Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986);
*35Commonwealth v. Hodge, 386 Mass. 165, 169-70
(1982). Massachusetts courts require no further
showing because the effect of the conflict on the attorney's representation is likely to be pervasive and
unpredictable, while the difficulty of proving it may
be substantial. Hodge, 386 Mass. at 170. Where the
defendant's counsel has labored under an actual or
genuine conflict, Massachusetts courts are unwilling
to put a defendant “to the burden, perhaps insuperable,
of probing the resolve and the possible mental conflict
of counsel.” Commonwealth v. Cobb, 379 Mass. 456,
461 (1980).
An actual or genuine conflict of interest is one in
which prejudice is inherent in the situation. See
Commonwealth v. Epsom, 399 Mass. 254, 262 (1987);
Shraiar, 397 Mass. at 20. Even where no genuine
conflict exists, an attorney's personal interests may
still give rise to a “potential” conflict of interest, the
resulting material prejudice of which is to be established by the defendant. Shraiar, 387 Mass. at 20;
Cobb, 379 Mass. at 459.
In all criminal actions since Davis, the trial court's
obligation to ensure a fair and impartial trial has in-
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2013 WL 1899776 (Mass.App.Ct.)
Page 14
cluded an affirmative duty to assure that *36 each
defendant is adequately informed of the risks and
potential dangers of representation of a conflicted or
potentially conflicted attorney. See Commonwealth v.
Davis, 376 Mass. 777, 784-785 (1978).
attorney, given what he's indicated to you.” [Tr.
08/01/2012: 4]. Frye responded, “Yes, Your Honor. I
don't see no problem with it.” [Tr. 08/01/2012: 4].
That was the extent of the “inquiry,” if it could even be
characterized as such.
While a defendant may waive the right to assistance of
an attorney unhindered by a conflict of interest, the
judge must adequately interrogate the defendant to
inform the defendant of the “risks and potential dangers” of conflicts, and the defendant's responses must
be “clear cut.” See Commonwealth v. Connor, 381
Mass. 500, 505 (1980). In Connor, the Supreme Judicial Court concluded that the record was “too meager” to draw a conclusion that a defendant's waiver of
the right to a conflict-free attorney was voluntary and
intelligent, even where it revealed that the judge engaged in “extended colloquies” with the defendant. Id.
These extended though inadequate colloquies involved: informing the defendant that conflicts might
arise during trial and that the uncertainties of trial
made it unclear how conflicts might affect the defense
strategy; interrogating the defendant to determine the
defendant's understanding that continuing with conflict-burdened counsel could have adverse *37 consequences; and inquiring as to whether the defendant
understood his right to other counsel. Id. citing United
States v. Lawriw, 568 F.2d 98, 104 (8th Cir. 1977),
cert. denied, 435 U.S. 969 (1978); United States v.
Armedo-Sarmiento, 524 F.2d 591, 592 (2d Cir. 1975).
*38 Defense counsel's conflict was an actual and
genuine conflict in which prejudice was inherent in the
situation. Even if defense counsel did not personally
feel as though it was a conflict, as he expressed to the
court, it is clear that Ellison, a defense witness, may
well have harbored hostility toward the attorney who
prosecuted him in the recent past. As the conflict was
genuine, Frye need not establish prejudice.
In this case, defense counsel was impaired by a genuine conflict of interest where he had prosecuted a
defense witness, and the court's failure to conduct
adequate inquiry into Frye's waiver of the right to
conflict-free counsel constituted reversible error. On
August 1, 2012, defense counsel, a former prosecutor,
disclosed that he prosecuted Tremayne Ellison in 2008
and that Ellison remembered him. [Tr. 08/01/2012: 4].
The court told Frye, “Mr. Frye, I want you to indicate
for the record, sir, based on what your counsel has just
informed the court, that you don't have any problems
and see no conflicts with counsel proceeding as your
Here, the judge's instruction to Frye to waive the right
to conflict-free counsel was inadequate, and Frye's
response was far from “clear cut.” The judge did not
engage in any real inquiry at all, telling Frye “I want
you to indicate [waiver] for the record,” rather than
asking Frye any question relative to intelligent and
voluntary waiver. [Tr. 08/01/2012: 4]. The judge
failed to advise Frye that conflicts might arise at trial
due to the history between defense counsel and Ellison. The judge failed to advise Frye that the uncertainties of trial made it unclear how the conflict might
affect his defense strategy. The judge failed to ask
Frye whether he understood that there could be adverse consequences to continuing with *39 conflict-burdened counsel. The judge failed to ask Frye
whether he understood his right to other counsel.
These inadequacies make the “colloquy” even more
deficient than the inadequate colloquy at issue in
Connor, cited above. Furthermore, Frye's response,
the double negative “I don't see no problem,” was far
from clear. While the court may have interpreted it as
colloquial speech or slang for “I don't see a problem, it
is improper to engage in such guesswork when the
issue is waiver of a constitutional right. [08/01/2012:
4].
The court's failure to inquire into whether Frye's
waiver of the right to conflict-free counsel was intel-
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2013 WL 1899776 (Mass.App.Ct.)
ligent and voluntary constituted reversible error
causing a substantial risk of a miscarriage of justice.
VI. The trial judge's failure to preclude the
Commonwealth from eliciting testimony of witnesses' privileged social worker-client information
constitutes reversible error.
Communications between social workers and their
clients are made confidential by *40General Laws c.
112, §135A and privileged by General Laws c. 112,
§135B. Commonwealth v. Vega, 449 Mass. 227, 230
(2007).
The social worker-client privilege protects from
compelled disclosure not only conversations but also
“communicative conduct,” including “actions” and
“occurrences.” G.L.c. 112, §135B; In re Adoption of
Saul, 60 Mass. App. Ct. 546, 549-55 (2004). Information that reveals or conveys communicative content, even where such communication is implicit, is
protected by the privilege. See Id. at 551-52, 552 n. 7.
A social worker may have standing to assert the privilege on the client's behalf. See Commonwealth v.
Oliveira, 438 Mass. 325, 335 (2002)( health care
providers that maintain records as to which the patient
may assert a privilege have standing to assert that
privilege on behalf of a patient). Where a statutory
privilege requires that a patient affirmatively assert the
privilege, a social worker may assert the privilege as
“a temporary precaution pending confirmation of the
patient's own intentions.” Id. at 332, n. 8.
*41 Information necessary for the court to determine
whether a person qualifies as -a social worker under
the statute is required where one asserts the social
worker-client privilege. In re Adoption of Saul, 60
Mass. App. Ct. at 555. A court cannot assess communications and applicability of the privilege at issue
without sufficient information upon which the privilege is based. See Board of Reg. in Med. V. Hallmark
Page 15
Health Corp., 454 Mass. 498, 510 (2009).
In this case, the court's failure to preclude the prosecution from eliciting testimony of witnesses' privileged social worker-client information was reversible
error where the judge, having insufficient information
and making no findings as to whether Frye qualified as
a social worker, concluded that any privilege would
apply only to “conversations.” See [Tr. 10/11/2013:
28, 38].
This court must not consider whether Frye, a community support worker, was indeed a qualifying social
worker, as the trial judge made no findings as to
whether Frye was qualified as a social worker for the
purposes of the statute. [Tr. 10/11/2013: 38]. Rather,
the trial judge “assume[d] that there was” a *42 statutory privilege without deciding that issue. [Tr.
10/11/2013: 28].
The trial judge repeatedly stated that the privilege
applies only to “communications,” “conversations,”
failing to acknowledge that communicative actions
and occurrences are also protected from compelled
disclosure under G.L.c. 112, §135B. [Tr. 10/11/2012:
28-29, 38].
The Commonwealth, over the defendant's objection,
proceeded to elicit testimony from Ellison involving
privileged communicative conduct. The Commonwealth asked Ellison whether Frye was his case
worker because Ellison struggled with a substance
abuse problem. [Tr. 10/11/2012: 155]. Ellison explained that Frye was not assisting him with a substance abuse problem but that Frye was providing
support, therapy and help with issues involving his son
in the Family and Probate Court. [Tr. 10/11/2012:
155]. This constitutes compelled disclosure of communicative actions and occurrences protected by the
social worker-client privilege. Testimony to providing
and receiving assistance in Family and Probate Court
matters involving one's child discloses communica-
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2013 WL 1899776 (Mass.App.Ct.)
tion of a *43 familial difficulty. It goes beyond mere
questioning about the existence of a relationship and
into questioning as to the reason for the relationship.
Questioning as to the communicative conduct, the
reasons underlying the relationship between Ellison
and Frye, created prejudice, as the suggestion was that
Frye was engaging in inappropriate behavior while in
a position of trust and support. Frye had standing to
assert the privilege on behalf of Ellison pending confirmation of Ellison's own intentions, and he did so by
way of a motion in limine, which was improperly
denied. [R.A. 8]. Permitting the Commonwealth to
elicit such testimony constitutes reversible error.
44CONCLUSION
For the reasons set forth above, Donald Frye respectfully requests that this Court allow this appeal and
reverse judgment of conviction.
COMMONWEALTH, Appellee, v. Donald FRYE,
Appellant.
2013 WL 1899776 (Mass.App.Ct. ) (Appellate Brief )
END OF DOCUMENT
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