Commonwealth v. Torres

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SJC-12374

COMMONWEALTH vs. JOSE TORRES.

Middlesex. December 4, 2017. - June 1, 2018.

Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

Stalking. Compensation of Victims of Violent Crimes. Evidence,
Medical record. Practice, Criminal, Discovery, Redaction,
Instructions to jury, Question by jury.

Indictment found and returned in the Superior Court
Department on August 6, 2015.

The case was tried before Heidi E. Brieger, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.

GAZIANO, J. In this appeal, we consider whether a

defendant's conviction of stalking should be reversed where, at

his trial, a Superior Court judge denied his motion for access

to records held in the victim compensation file maintained by
 2

the Attorney General. The defendant was charged with nine

offenses, including stalking, strangulation or suffocation,

assault and battery causing serious bodily injury, assault by

means of a dangerous weapon, and five counts of assault and

battery on a family or household member. On the eve of his

scheduled trial, the defendant learned that the complainant had

applied for the Attorney General's victim compensation program;

this program provides compensation for damages suffered by some

victims of crime.

The defendant sought access to records of the complainant's

claim for compensation for dental services from the Attorney

General as mandatory discovery, and, in the alternative, as

third-party records, pursuant to Mass. R. Crim. P. 17, 378 Mass.

842 (1979), and the procedures of Commonwealth v. Dwyer, 448

Mass. 122, 145-146 (2006). The judge concluded that the records

could not be produced or disclosed to the defendant because the

Attorney General's regulations mandated that such records be

kept confidential. Before us, the defendant reasserts these

claims. In addition, he challenges the judge's decision to

redact significant portions of the complainant's dental records,

which mentioned that she had applied for compensation. Finally,

the defendant challenges two of the judge's instructions, one on

the Commonwealth's burden to prove stalking, and one on the

complainant's interest in the outcome of the case.
 3

We conclude that the defendant's motion for access to the

victim compensation records held by the Attorney General should

have been evaluated as a request for third party records under

rule 17, notwithstanding the regulation requiring

confidentiality of records. In addition, the judge committed

error by redacting the complainant's dental records. We

conclude also that, in responding to a confusing jury question,

the judged erred by not clearly delineating the requirement

that, to prove the offense of stalking, the Commonwealth must

prove three specific incidents of stalking. Accordingly, the

defendant's conviction must be vacated and the matter remanded

for a new trial.

1. Background. a. Facts. We recite the facts from

evidence that was presented at trial. The defendant met the

complainant in March, 2014. They began dating a few weeks

later, and the defendant moved into the complainant's apartment

shortly thereafter. The complainant testified at trial that the

defendant physically and verbally abused her during their

relationship; she said that the defendant threatened to kill her

if he saw her with another man, and that the defendant hit,

choked, and shoved her.

Sometime around August, 2014, after the defendant and the

complainant had separated, the defendant returned to her

condominium and asked to speak with her. They went into her
 4

bedroom to talk. While they were talking, the defendant

received a text message from another woman. The complainant

asked the defendant why he wanted to speak with her if he was

speaking to another woman. The complainant testified that the

defendant became angry, grabbed her, pushed her up against a

closet, and head-butted her between her nose and mouth. She

said that her teeth broke as a result of this action. She also

explained that those teeth had held in place a bridge that

supported her false teeth; that she had to use "Super glue" to

keep her bridge in place; and that she had difficulty eating in

public and sleeping because of fear that she would swallow her

bridge.

The complainant testified that she applied for victim

compensation, through the Attorney General's office, to pay for

the cost of having her teeth repaired. She said that she had

applied with the assistance of a victim advocate in the district

attorney's office. She applied after she reported the head-

butting incident to the police, and had not had any knowledge of

the compensation program prior to making her report. The

complainant testified that her application for compensation had

been approved, but that she had not received any funds and no

longer intended to accept any funds because she had obtained

employment.
 5

The complainant acknowledged that she was aware that, in

order to receive victim compensation funds, her injury had to be

related to a crime, she had to cooperate with the prosecutor by

testifying in court, and she could be in trouble if she made a

false statement or filed a false application in the Attorney

General's office.1

At a dentist visit in November, 2014, the complainant's

dentist recommended that she remove her remaining top teeth and

use dentures. At that visit, the complainant did not tell the

dentist that the defendant's head-butt broke her bridge and her

teeth. She testified that she told the dentist about the head

butting incident before she reported it to the police. The

dental records and the dentist's testimony indicated that, at

the office visit in November, 2014, the complainant had advanced

decay under her bridge. The decay was not present in an X-ray

taken during a 2012 visit.

b. Procedural history. In August, 2015, the defendant was

indicted in the Superior Court on nine counts: stalking,

1 The victim compensation statute, G. L. c. 258C, § 2 (c),
provides:

"A claimant shall be eligible for compensation only if
such claimant cooperates with law enforcement authorities
in the investigation and prosecution of the crime in which
the victim was injured or killed unless the claimant
demonstrates that he possesses or possessed a reasonable
excuse for failing to cooperate."
 6

strangulation or suffocation, assault and battery causing

serious bodily injury, assault by means of a dangerous weapon,

and five counts of assault and battery on a family or household

member.

The judge granted the Commonwealth's motion to admit

redacted versions of the complainant's dental records,2 over the

defendant's objection. The redactions were to eliminate any

reference to the complainant's ability to pay and her

application for victim compensation.

On Monday, March 14, 2016, the day scheduled for jury

empanelment and opening statements in the defendant's trial, his

counsel sought access to the Attorney General's file regarding

the complainant's application for victim compensation, of which

counsel had been made aware the previous Friday. On that

Friday, the prosecutor had provided defense counsel with a copy

of the complainant's application for compensation, which had

been held by the victim witness advocate in the district

attorney's office. The defendant argued that the Attorney

General's file was mandatory discovery under Mass. R. Crim. P.

14, as appearing in 442 Mass. 1518 (2004), because the Attorney

General, as the "overarching prosecutor" for the Commonwealth,

2 The Commonwealth originally intended to call the dentist,
but she was called by the defendant.
 7

was a party to the criminal case, and because the records showed

an agreement, promise, or inducement between the prosecutor and

the complainant. In the alternative, he argued that the file

should be subject to discovery under rule 17 as the record of a

third party. The judge initially ruled that the records in the

file were discoverable and instructed the prosecutor to acquire

the records.

At the start of the second day of trial, the Commonwealth

reported that the Attorney General objected to producing the

records. The office of the Attorney General argued that 940

Code Mass. Regs. § 14.09 (2014), promulgated under G. L.

c. 258C, § 4, supported this position. The regulation provides:

"All information received, obtained or maintained by
the [d]ivision [of victim compensation in the Attorney
General's office] in connection with any claim for
compensation shall be maintained as confidential
investigative material, and shall not be released or
disclosed to any person or entity whatsoever, except
authorized by the claimant or as otherwise provided by
law."

The judge withheld ruling on the defendant's motion to produce

the records because no party had provided a copy of the

regulation for her review. As the complainant was scheduled to

testify first that morning, and because the records were

relevant to her testimony, the defendant requested a ruling on

the motion to produce before the complainant testified. The
 8

judge denied the motion because she did not find the records to

be so material that the trial could not proceed.3

Following the complainant's direct examination, the

defendant renewed his objection to proceeding without a ruling

on whether the victim compensation records were discoverable.

The defendant argued that the complainant's statement during

direct examination that she did not plan to accept any award

from the victim compensation fund was new information that made

the records even more relevant. During the morning break, which

took place in the course of the cross-examination of the

complainant, the judge, without hearing further argument, ruled

that the Attorney General was not required to disclose the

records. The judge found that the exception to the

confidentiality requirement, "as otherwise provided by law," did

not include within its meaning an issued court order. Following

a recess, and after the judge again declined to hear argument,

the defendant moved for a mistrial. The judge denied that

motion.

At the close of the evidence, the defendant requested an

instruction that the jury "examine [the complainant's]

credibility with particular care" because she had applied for

3 The judge also denied the defendant's motions to dismiss
the indictments or to preclude the complainant's testimony for
failure to provide discovery.
 9

victim compensation and because that application required that

she cooperate in the prosecution of the defendant. The judge

declined to give this instruction, and instead instructed the

jury that they could "consider whether the witness has any

motive to testify for or against either party, or the interest

or lack of interest the witness may have in the outcome of the

case."

After deliberating for an hour, the jury returned with

questions for the judge; one of those questions was whether the

complainant's payment from the victim compensation fund was

dependent on the defendant's conviction or acquittal. Another

question read, "which one of proofs need only one to be true?"

The defendant was convicted of stalking, in violation of

G. L. c. 265, § 43 (a), and was acquitted of the other eight

charges. He appealed from the conviction, and we allowed his

petition for direct appellate review.

2. Discussion. The defendant challenges his conviction on

four grounds. He argues that the judge's decision not to order

the Attorney General to provide the defendant access to the

victim compensation records violated his due process rights; the

judge abused her discretion by allowing the introduction of

redacted versions of the complainant's dental records and

restricting the dentist's testimony on the topics of the cause

of the complainant's dental problems, and her application for
 10

victim compensation; the judge's decision not to instruct the

jury to weigh the complainant's testimony with particular care

was prejudicial error requiring a new trial; and the judge's

response to a jury question likely caused confusion about the

number of incidents the Commonwealth was required to prove to

support a conviction of stalking, creating a substantial risk of

a miscarriage of justice.

a. Victim compensation records. The defendant argues that

the records in the Attorney General's file are mandatory

discovery under Mass. R. Crim. P. 14 because they are in the

possession of the Commonwealth and because the records show an

agreement, promise, or inducement between the prosecutor and the

complainant. The defendant argues, alternatively, that the

records held by the Attorney General are third-party records

subject to discovery under rule 17, and that he satisfied his

burden for discovery. The Commonwealth contends that the

records of the victim compensation fund are not subject to

mandatory discovery, because the Attorney General is not a party

to the criminal case, and because there was no agreement,

promise, or inducement between the complainant and the district

attorney. The Commonwealth also argues that the judge properly

determined that the records were confidential under 940 Code

Mass. Regs. § 14.09, and that the defendant had sufficient

opportunity to probe bias on cross-examination.
 11

This court "uphold[s] discovery rulings 'unless the

appellant can demonstrate an abuse of discretion that resulted

in prejudicial error.'" Commissioner of Revenue v. Comcast

Corp., 453 Mass. 293, 302 (2009), quoting Buster v. George W.

Moore, Inc., 438 Mass. 635, 653 (2003). "'Mixed questions of

law and fact[, however,] generally receive de novo review.'"

McCarthy v. Slade Assocs., Inc., 463 Mass. 181, 190 (2012),

quoting Commissioner of Revenue, supra at 303.

i. Rule 14. A. Whether the Attorney General was a party

to the case. "Rule 14 (a) (1) [(A) (iii)] of the Massachusetts

Rules of Criminal Procedure, requires, among other things, that,

on motion, the prosecution must disclose any facts of an

exculpatory nature within the possession, custody, or control of

the prosecutor" (quotations omitted). Commonwealth v. Wanis,

426 Mass. 639, 643 (1998). The victim witness advocate is a

member of the prosecution team and, accordingly, subject to the

same duty to disclose as is a prosecutor. See Commonwealth v.

Bing Sial Liang, 434 Mass. 131, 136–137 (2001). Therefore, the

witness's application for compensation, held by the victim

witness advocate in the district attorney's office, was properly

disclosed to the defendant because it was subject to mandatory

disclosure under rule 14. See id.

The records related to the complainant's application that

are held by the Attorney General, however, fall outside the
 12

scope of rule 14. Rule 14 adopts a practical test for

determining what information must be disclosed: information

that is "in the possession, custody, or control of the

prosecutor." See Mass. R. Crim. P. 14 (a) (1) (A). "The

prosecutor's duty [to disclose exculpatory information] does not

extend beyond information held by agents of the prosecution

team." Commonwealth v. Beal, 429 Mass. 530, 532 (1999).

"Rule 14 does not apply here because the records sought are not

within the control of the prosecution, or someone under the

'control of the prosecutor.'" Commonwealth v. Lampron, 441

Mass. 265, 268 n.4 (2004).

There is no indication in this case that the Attorney

General participated in the investigation or prosecution of the

defendant. The district attorney does not have access to the

Attorney General's files. As the practical indicia of the

prosecutor's "possession, custody, or control" are absent, the

records in the Attorney General's files are not subject to

mandatory disclosure under rule 14. See Commonwealth v. Ira I.,

439 Mass. 805, 809–811 (2003) (information in possession of

assistant principal was not subject to rule 14 disclosure

because official did not act "as an agent of the prosecution or

of the police"); Wanis, 426 Mass. at 643 (police internal

affairs documents were not subject to mandatory discovery under

rule 14 because department officers were not "participants in
 13

the investigation and presentation of the case [or] police

officers who regularly report to the prosecutor or did so in

reference to a given case"). See also Commonwealth v. Donahue,

396 Mass. 590, 596 (1986) ("The prosecutor cannot be said to

suppress that which is not in his possession or subject to his

control," and thus "[o]rdinarily the prosecutor's obligation to

disclose information is limited to that in the possession of the

prosecutor or police" [quotations and citation omitted]);

Commonwealth v. Campbell, 378 Mass. 680, 702 (1979) (declining

to hold that prosecutor must disclose information held by

Department of Corrections because "prosecutor has no duty to

investigate every possible source of exculpatory information").

Contrast Commonwealth v. Woodward, 427 Mass. 659, 679 (1998)

(medical examiner who conducted autopsy on murder victim was

Commonwealth agent for purposes of Commonwealth's duty to

preserve exculpatory evidence because medical examiner

"participate[s] in the investigation or evaluation of the case

and . . . either regularly report[s] or with reference to the

particular case ha[s] reported to [prosecutor's] office"

[citation omitted]).

Relying on G. L. c. 12, §§ 6, 27, the defendant argues that

the Attorney General is the "overarching prosecutorial

authority" for the Commonwealth and, therefore, a party to the
 14

case.4 This argument, however, would render all files held by

the Attorney General subject to disclosure under rule 14 in

every criminal case. It also would require us to depart from

rule 14's instruction to make a practical determination about a

prosecutor's "possession, custody, or control" when determining

disclosure requirements. Moreover, we previously have declined

to hold that possession of documents by one government agency is

sufficient to require mandatory discovery, absent control by the

prosecutor or contribution by that agency to the prosecutor's

investigation. See Commonwealth v. Daye, 411 Mass. 719, 733

(1992) (no mandatory disclosure where Essex County "prosecutor

[did not have] access to the Boston police department files");

4 The defendant relies on G. L. c. 12, § 6 ("[The Attorney
General] shall consult with and advise district attorneys in
matters relating to their duties; and, if in his judgment the
public interest so requires, he shall assist them by attending
the grand jury in the examination of a case in which the accused
is charged with a capital crime, and appear for the commonwealth
in the trial of indictments for capital crimes. [The Attorney
General] shall also consult with and advise district attorneys
in all civil actions brought pursuant to [G. L. c. 258], and may
assist them in the defense of such actions"), and G. L. c. 12,
§ 27 ("District attorneys within their respective districts
shall appear for the commonwealth in the superior court in all
cases, criminal or civil, in which the commonwealth is a party
or interested, and in the hearing, in the supreme judicial
court, of all questions of law arising in the cases of which
they respectively have charge, shall aid the attorney general in
the duties required of him, and perform such of his duties as
are not required of him personally; but the attorney general,
when present, shall have the control of such cases. They may
interchange official duties").
 15

Campbell, 378 Mass. at 702 (prosecutor not required to disclose

material held by Department of Corrections). We therefore

decline the defendant's invitation to depart from our well-

established practice with respect to determinations whether a

government agency is subject to the control of the district

attorney for purposes of mandatory discovery under rule 14.

B. Whether the victim compensation program served as a

promise or inducement. We turn to the defendant's argument that

the Attorney General's file must be disclosed because it is

evidence of a promise or inducement offered for the

complainant's testimony. "Understandings, agreements, promises,

or any similar arrangements between the government and a

significant government witness is exculpatory evidence that must

be disclosed . . . . [A]ny communication that suggests

preferential treatment to a key government witness in return for

that witness's testimony is a matter that must be disclosed by

the Commonwealth." Commonwealth v. Hill, 432 Mass. 704, 715–716

(2000). See Mass. R. Crim. P. 14 (a) (1) (A) (ix), as amended,

444 Mass. 1501 (2005).

Here, however, the file is not evidence of an agreement,

inducement, or reward between the prosecutor and a witness;

rather, the victim compensation program is a government benefit

program administered by an entity distinct from the district
 16

attorney's office.5 In addition, testimony is not an explicit

statutory requirement to receive compensation. See G. L.

c. 258C, § 2 (c) ("A claimant shall be eligible for compensation

only if such claimant cooperates with law enforcement

authorities in the investigation and prosecution of the crime in

which the victim was injured or killed unless the claimant

demonstrates that he possesses or possessed a reasonable excuse

for failing to cooperate").

The complainant's application for victim compensation is

unlike the plea agreement struck between the prosecutor and a

cooperating witness in Hill, 432 Mass. at 715-716. In Hill, the

court concluded that the Commonwealth and the witness had a

"'loose' agreement that 'consideration be shown'" in exchange

for the witness's testimony. Id. at 709. The witness in that

case pleaded guilty to a lesser included charge that carried a

term of incarceration of two and one-half years, rather than the

mandatory minimum of fifteen years that the witness had faced.

Id. In this case, unlike in Hill, the complainant was not

herself charged with any crimes and there was not issue of an

5See G. L. c. 12, § 11K ("there shall be established within
the department of the attorney general a division of victim
compensation and assistance"); G. L. c. 258C, § 4 ("[t]he
division of victim compensation and assistance shall administer
the provisions of this chapter. Subject to appropriation, the
attorney general shall designate a program director of said
division").
 17

effort to negotiate a lesser sentence in exchange for testimony

at trial. In addition, the complainant's efforts to secure

victim compensation were processed through the office of the

Attorney General, rather than being submitted through the office

of the district attorney, i.e., the office that is responsible

for prosecuting the defendant.

ii. Rule 17. As stated, the defendant moved under rule 17

for the production of records from the Attorney General, and the

judge denied the motion. The judge found that 940 Code Mass.

Regs. § 14.09, which provides, "[a]ll information received,

obtained or maintained by the [d]ivision [of victim compensation

in the Attorney General's office] in connection with any claim

for compensation shall be maintained as confidential

investigative material, and shall not be released or disclosed

to any person or entity whatsoever, except authorized by the

claimant or as otherwise provided by law," required her to deny

the defendant's motion. In particular, the judge found that the

phrase "otherwise provided by law" did not include a court order

for discovery.

We conclude that the judge erred in finding that the

Attorney General's regulation ended the inquiry; whether records

are confidential does not affect whether they are discoverable.

See Wanis, 426 Mass. at 642 ("A defendant's right of access to

information gathered by an internal affairs division does not
 18

turn on whether the investigatory materials are or are not

subject to disclosure as public records"). Rather, confidential

records, such as those in a victim compensation fund file, are

subject to normal discovery rules. See id. at 644. At any

potential retrial, the trial judge should consider the

defendant's rule § 17 motion for access to the complainant's

records under the Dwyer-Lampron standard for confidential, third

party records. See Dwyer, 448 Mass. at 145-146; Lampron, 441

Mass. at 269.

The denial of the defendant's request for records under

rule 17, prejudiced him. The defendant established that the

records related to the complainant's application for

compensation were relevant to her truthfulness. Moreover, the

complainant's credibility and potential bias were likely

significant questions for the jury. The jurors asked two

questions that show the topic of the complainant's compensation

was on their minds: "Is payment from the victim fund to [the

complainant] dependent on conviction or acquittal? How much is

the compensation?"6 The defendant has a due process right to

cross-examine a witness about a request for financial

6 The judge instructed the jury to "rely on the collective
memory of the evidence to answer those questions." Although
defense counsel was consulted and agreed with the judge's
response, the instruction was incorrect. The judge should have
instructed that a conviction is not required in order for a
victim to recover compensation.
 19

compensation. See Commonwealth v. Miranda, 458 Mass. 100, 109–

110 (2010), cert. denied, 565 U.S. 1013 (2011). The judge's

rejection of the defendant's motion for access to the records

under rule 17 hampered his ability to conduct that cross-

examination and protect his rights.

b. Jury instructions. Approximately one hour after

beginning deliberations, the jury asked the following question:

"Which one of proof need only one to be true?" The judge

interpreted the jury's question as being about whether the

Commonwealth needed to prove that the charged offense occurred

on a specific date. The judge instructed that the specific date

was not an element of the crime and that the jury "may find him

guilty only if you unanimously agree that the Commonwealth has

proved beyond a reasonable doubt that he committed the offense

on at least one specific occasion." The defendant argues that

this instruction created a substantial risk of a miscarriage of

justice, because it obliterated the distinction between the

offense of stalking, which requires three specific incidents to

support a conviction, and the five charged offenses of assault,

which each required only a single incident. The Commonwealth

contends that there was no error because jury instructions are

evaluated as a whole and there is no risk of injustice where the

judge was clear throughout that stalking required a finding that

the defendant engaged in a series of acts over a period of time.
 20

In her final charge, the judge properly instructed on the

elements of stalking: "In order to prove [the defendant] guilty

of stalking, the Commonwealth must prove five things beyond a

reasonable doubt. First, that over a period of time, the

defendant knowingly engaged in a pattern of conduct or a series

of acts involving at least three incidents, directed at [the

complainant]." The subsequent instruction, that the

Commonwealth was required to prove that the defendant "committed

the offense on at least one specific occasion," created

ambiguity and the potential for confusion as to the

Commonwealth's burden for the stalking charge, because the judge

did not make clear the requirement for three separate incidents

to support a guilty verdict on the charge of stalking; indeed,

the instruction misinformed the jury concerning a critical

element of the offense. "The fact that some of the instructions

were correct is not determinative in this case, since we cannot

know whether the jury were guided by the correct or the

incorrect portion of the instructions" (quotation and citation

omitted). Commonwealth v. Richards, 384 Mass. 396, 403 (1981).

The jury question shows a fundamental confusion about the

Commonwealth's burden of proof, increasing the risk created by

an incorrect instruction.7 As "the issue of burden of proof goes

7 Although a judge is not required "specifically [to]
 21

to the very heart of the truth-finding function," Commonwealth

v. Collins, 374 Mass. 596, 599 (1978), the inconsistent

instructions on the Commonwealth's burden went to the core of

the question for the jury. The conflicting instructions about

an essential element of the Commonwealth's case, where the jury

question revealed a fundamental confusion about the nature and

extent of the Commonwealth's burden, created a substantial risk

of a miscarriage of justice.

c. Redaction of dental records. Prior to trial, the

parties agreed that the complainant's dental records were

admissible, but disagreed on the extent to which redactions were

necessary. The defendant argued that the records should be

admitted without redaction. The judge adopted the

Commonwealth's view and ordered the records redacted to remove

the dentist's conclusion that the complainant's bridge broke

because of decay and not because of spousal abuse. The judge

also ordered redacted all references to the complainant's plan

to use the compensation fund to pay for dental services.

Specifically, the judge ordered the following redacted in full:

"The xray show[s] that she has decay under the bridge . . . the

address [the jury's] confusion," see Commonwealth v. Monteagudo,
427 Mass. 484, 488 (1998), where "the judge [is] unclear what
the jurors [are] asking, the judge [may seek] further
clarification of the question which concerned the jurors.
[That] decision [is] well within the judge's discretion."
Commonwealth v. Scott, 428 Mass. 362, 367 (1998).
 22

bridge probably was loose because [of] the decay not because her

husband hit her." The judge ordered that the dentist would not

be permitted to testify about matters redacted in the dental

records.8

General Laws c. 233, § 79, " permits the admission in

evidence, in the judge's discretion, of certified hospital

records 'so far as such records relate to the treatment and

medical history' with the proviso that 'nothing therein

contained shall be admissible as evidence which has reference to

the question of liability.'" Commonwealth v. Dube, 413 Mass.

570, 573 (1992), quoting G. L. c. 233, § 79. See Mass. G. Evid.

§ 803(6)(B) (2017). "The statute has long been construed to

permit the admission of a record that relates directly and

primarily to the treatment and medical history of the patient,

'even though incidentally the facts recorded may have some

bearing on the question of liability.'" Dube, supra, quoting

Leonard v. Boston Elevated Ry., 234 Mass. 480, 482–483 (1920).

8 Other redacted notes include, "she doesn't have money";
"mail copy of records [and] FMR Plan to Middlesex District
Att[orney]"; "with victim's comp[ensation]"; a reference to the
district attorney; "[r]ecord review. This [patient] has
victim's comp[ensation]. After review of comp[lete]
exam[ination], dental problems are not caused by spousal abuse,
and will not be covered by victim's comp[ensation] insurance";
and "[e]xplain to patient that I talk[ed] to DA about her xray.
I did no[t] send a letter. The xray show[s] that she has decay
under the bridge . . . the bridge probably was loose because
[of] the decay [not] because her husband hit her."
 23

The court construes G. L. c. 233, § 79, liberally to allow the

admission of medical records. Commonwealth v. Dargon, 457 Mass.

387, 394 (2010).

The judge abused her discretion by requiring redaction of

the dentist's statement that "the bridge probably was loose

because [of] the decay." The statement "relates directly and

mainly to the treatment and medical history of the patient . . .

even though incidentally the facts recorded may have some

bearing on the question of liability" (citation omitted). See

Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998). Indeed, the

statement reflects the core role of a medical professional:

diagnosing the cause of a physical ailment. The dentist's note,

therefore, is a "physical observation[] from which [exculpatory]

inferences [may] flow," rather than a "conclusory fact central

to the jury's inquiry." See id. at 242, quoting Commonwealth v.

Baldwin, 24 Mass. App. Ct. 200, 202 (1987), overruled on other

grounds by Commonwealth v. Pagan, 445 Mass. 161 (2005).

Notably, the statement was made for purposes of medical

diagnosis, and does not reflect any legal conclusions.9 In

addition, the reason for creating the records was entirely for

9 Some notes in the dental records, such as "[treatment]
will not be covered by victim's comp[ensation] insurance," are
legal conclusions, and properly may be redacted, without
removing the dentist's medical conclusions.
 24

medical diagnosis and treatment, rather than having been

prepared as part of a criminal investigation. See DiMonte,

supra. Therefore, the statement is admissible evidence under

G. L. c. 233, § 79, and it was error to order the records be

redacted.10

d. Instruction on witness credibility. The defendant

argues that the judge erred by not instructing the jury that

they should scrutinize the complainant's testimony with

"particular care" because of an agreement she had reached with

the government. The Commonwealth contends that there was no

cooperation agreement between the complainant and the

government, and there was no reward for her testimony. We agree

with the judge that the defendant was not entitled to a

"particular care" instruction.

"Because of the possible improper influences on a jury that

could develop from hearing testimony given pursuant to a written

plea agreement that offers substantial benefits to a witness but

10If this had been the only error, it would be harmless.
Although the judge stated that the dentist would not be
permitted to testify concerning from matters that had been
redacted from the dental records, the dentist, in fact, did
testify without objection that she believed the bridge was loose
because of "advanced decay," and that teeth which show decay are
weak and more prone to breaking. Defense counsel relied on this
testimony in her closing. Cf. Commonwealth v. Elliot, 393 Mass.
824, 831–832 (1985), and cases cited (error in preventing
impeachment harmless, where equivalent information was
communicated to jury).
 25

only if the witness tells the truth . . . the judge must

specifically and forcefully tell the jury to study the witness's

credibility with particular care." Commonwealth v. Ciampa, 406

Mass. 257, 266 (1989). Here, there was neither a plea agreement

nor any type of written agreement that required the complainant

to testify truthfully, and so the Ciampa instruction was not

required. See Commonwealth v. Felder, 455 Mass. 359, 369

(2009). The prosecutor did not enter into an agreement with the

complainant; rather, the complainant pursued a separate,

statutory benefit, related to her report that she was the victim

of a crime. The opportunity to pursue a statutory benefit does

not rise to the level of a written agreement with a prosecutor

that requires a Ciampa instruction. Cf. Commonwealth v. Sealy,

467 Mass. 617, 625 (2014) (defendant must have opportunity to

impeach witness with evidence that she applied for visa that

grants work authorization to noncitizen victims of crime who

report crime to police, but visa application in this case was

not "clearly . . . relevant to a motive to lie"). Additionally,

as discussed, the Commonwealth had not offered a reward or

inducement for the complainant's testimony. Given the lack of a

nexus between the potential benefit to the complainant and her

testimony, the pending application to the program does not rise

to the level of a reward or inducement. The complainant's

perception of the application process may create a motive to
 26

lie, but the judge properly instructed the jury that they "may

also consider whether the witness has any motive to testify for

or against either party, or the interest or lack of interest the

witness may have in the outcome of the case." Such an

instruction is sufficient, where the judge specifically

highlighted the complainant's potential interest in the outcome

of the case; a "particular care" instruction is not required.

3. Conclusion. The defendant's conviction is vacated and

set aside. The matter is remanded to the Superior Court for

further proceedings consistent with this opinion.

So ordered.