42 Mass. App. Ct. 695 | Mass. App. Ct. | 1997
After trial by jury-of-six in the District Court, the defendant was convicted of one count of a two-count criminal complaint for indecent assault and battery on a child under fourteen years of age. G. L. c. 265, § 13B. The judge allowed the defendant’s motion for a required finding of not guilty on the remaining count.
We set forth the necessary background material at some length. In the primary court, a judge ruled that certain records of the Middleboro Counseling Service concerning the complainant and covering the period September, 1994 to early 1995, were privileged and were not relevant to the present trial. The defendant also moved for the production of records of the DSS, about any communications between the complainant and a DSS case worker, Nellie Rivera,
There was testimony from the complainant elicited on cross-examination that during the period in question she met with Rivera. This prompted an objection by the Commonwealth and a lengthy sidebar conference ensued. Trial counsel proffered that Rivera met with the complainant for a
The guardian claimed the privilege on the complainant’s behalf with respect to communications between the complainant and Rivera. The judge then found the conversations privileged. Counsel pressed on, suggesting that the privilege should yield in the interests of the defendant’s constitutional right to cross-examination concerning the allegedly inconsistent statements. The judge then repeated his ruling, observing that in the circumstances there was no necessity for the complainant to say anything to Rivera about the alleged incidents. However, he permitted trial counsel to make one additional offer of proof for the record. That offer of proof, in pertinent part, was as follows: “Nellie Rivera explained to the child her role in the child’s life. That it was her role to keep [the child] safe .... That she would believe the child. That if anyone made her uncomfortable, if anyone made her unsafe, that [the complainant] should report that to [her].” Counsel stated that she had a conversation with Rivera and that Rivera reported that she asked the complainant, “Has anyone touched you” and that the complainant responded, “No, I am safe.” The offer of proof continued: “[T]his is a social worker who explains to all the children she supervises that she specifically is in charge of [their] safety. . . [a]nd time and time again after these alleged incidents, she checked in with the child, at least once a month, to make sure the child was okay . . . [and that the child responded,] . . . ‘I’m happy where I am.’ ”
When cross-examination of the complainant resumed, counsel persisted, asking her if she had spoken with Rivera. The prosecutor’s objection was sustained. Posttrial, the judge issued findings and rulings on the Commonwealth’s motion in limine, which recited that Rivera was “not investigating any charge of sexual abuse. Rather, she consulted periodically with the child relative to the child’s residential placement. The conversations between [Rivera] and the child, which took place after the sexual abuse by the defendant (then unknown to Rivera), were not made in a setting in which the child would be expected to complain. The conversations,
This was not the end of the matter. During the defense case, trial counsel made reference at sidebar to twelve pages of typed notes in her possession that arose from the “relevancy hearing” concerning the DSS records before the primary court judge. There had been a hearing on February 10, 1995, in that judge’s lobby, and the prosecutor was present. The primary court judge determined that the records were privileged but that they might be relevant. He permitted the parties to review the records. Where there was agreement as to lack of relevancy, the papers were sealed and returned to the judge. As to the remaining forty-one pages of documents, the judge apparently concluded that there was relevancy and the parties were then allowed access to them pursuant to a protective order. Before the trial judge, counsel argued that Rivera met with the complainant after the alleged incidents, and there was an absence of a complaint in a setting in which she could be expected to have complained. See and compare Commonwealth v. Rathburn, 26 Mass. App. Ct. 699, 704 n.3 (1988). Counsel noted that during trial preparation, she discovered the records missing, but that at that point she intended to call Rivera to testify at trial as to the communications in question. The prosecutor disputed that the primary court judge had ruled the records or any portion of them relevant, although she agreed that the parties had culled out records which bore Rivera’s signature. The judge thereafter refused to reconsider his ruling disallowing an inquiry as to the communications.
Pursuant to G. L. c. 112, § 135A, a report which contains communications between a social worker and a client is confidential. See Commonwealth v. O’Brien, 21 Mass. App. Ct. 184, 186 (1989) (DSS investigatory report, because it includes statements made by the victim and others to the investigatory social worker while she was serving in a professional capacity, is privileged). The Legislature has carved out certain exceptions to the statutory privilege. See generally Commonwealth v. Collett, 387 Mass. 424, 431-436 (1982). One of the exceptions is where “the social worker has acquired the information while conducting an investigation pursuant to [G. L. c. 119, § 51B].” G. L. c. 112, § 135B(f), inserted by St. 1993, c. 339, § 2. See Commonwealth v. Jones,
Nevertheless, in addition to the statutory exceptions, the social worker-client privilege in some instances may yield in a criminal case to a defendant’s constitutional right to use privileged communications in his own defense. See, e.g., Commonwealth v. Stockhammer, 409 Mass. 867, 883 (1991).
The complainant testified that she did not report the first alleged incident because “it was my grandmother’s son, and she . . . wouldn’t believe me over him.” She gave a similar explanation for failing to report the second alleged incident. The complainant eventually told her “Aunt Penny!’ and her maternal grandmother of the alleged incidents while visiting the latter’s home in Middleborough on February 26, 1994. She indicated at that time that she did not want to go home. However, there was testimony elicited from the complainant on
It is true that counsel was unable to provide specific dates for the privileged communications appearing in the DSS records. However, as an officer of the court, she stated that she compiled detailed notes after examination of the records and a conference with the primary court judge, and she represented that the records showed that Rivera was unaware that the alleged incidents had taken place and that the complainant had not told Rivera about them. Furthermore, she made reference to a specific conversation between the complainant and Rivera in which the complainant had been asked if she had been touched and had responded in the negative. We think the defendant made a sufficient offer of proof and that had such a conversation surfaced at trial, testimony concerning it might have had a significant effect on the trial’s outcome, particularly so when Rivera apparently had told the complainant on more than one occasion that it was her job to protect the complainant’s safety. We observe that in ruling on the Commonwealth’s motion in limine the judge specifically found that the conversations took place after the alleged instances of abuse. In these circumstances, it would have been natural for the complainant to have disclosed the incidents. The judge’s finding to the contrary was unwarranted on the record. See and compare Commonwealth v. O’Brien, 27 Mass. App. Ct. at 187-188 (inconsistencies between version of events told to the investigating social worker and the victim’s trial testimony might have affected the victim’s credibility, which was crucial to the outcome of the case). We think that the judge should have permitted the veil of confidentiality to be pierced in the interests of a fair trial for the defendant, and that he should either have allowed the complainant to be cross-examined on
Judgment reversed'. Verdict set aside.
The judge sentenced the defendant to a term of two years in a house of correction.
The transcript and the defendant’s brief carry the spelling of the case worker’s name as “Reveira.” The trial judge used the name “Miranda,” we presume incorrectly. We will employ the spelling used in the Commonwealth’s brief.
See Commonwealth v. Bishop, 416 Mass. 169 (1993).
General Laws c. 112, § 1358(f), inserted by St. 1993, c. 339, § 2, which creates an exception with respect to the statutory privilege for communications to social workers, and G. L. c. 119, § 518, read together, allow a criminal defendant to obtain the investigation and evaluation reports which ultimately led to his indictment and criminal prosecution. See Commonwealth v. Jones, 404 Mass. 339, 341 (1989). See also Commonwealth v. Arthur, 31 Mass. App. Ct. 178, 182 n.6 (1991). However, the “underlying raw file” of DSS remains confidential. Commonwealth v. Hyatt, 31 Mass. App. Ct. 488, 492-493 (1991).
By St. 1989, c. 535, § 1, approved November 17, 1989, the Legislature rewrote G. L. c. 112, § 135, and transferred the substance of that section, as it then existed, to G. L. c. 112, §§ 135A and 1358, which were enacted at the same time. In that original 1989 version, § 135A contained subsection (f), which provided as follows, “where the social worker has acquired the information while conducting an investigation pursuant to section fifty-one 8 of chapter one hundred and nineteen.” In 1993, the Legislature deleted § 135A(f), and re-inserted it as § 1358(f).
The present trial in November of 1995, was conducted under the regime of Commonwealth v. Bishop, 416 Mass. 169 (1993).