Com. v. Berrio

• Decision Date: 15 March 1990
• Parties: COMMONWEALTH v. Richard F. BERRIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 496

551 N.E.2d 496

407 Mass. 37

COMMONWEALTH v. Richard F. BERRIO.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Dec. 6, 1989.

Decided March 15, 1990.

Walter H. Underhill, Jr. and Constance L. Rudnick, Boston, for defendant.

Michael Fabbri, Asst. Dist. Atty. (Rosemary D. Mellor, Asst. Dist. Atty., with him), for the Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

After a trial by jury, the defendant was convicted on indictments charging him with indecent assault and battery on a child under fourteen, incest, and assault with intent to rape a child under the age of sixteen. Also, on an indictment charging him with rape of a child under the age of sixteen by force, the defendant was convicted of the lesser-included offense of statutory rape. On appeal, the defendant argues that his motion to suppress incriminating statements that he had made to two social workers and to a psychologist should have been allowed. He also contends that the trial judge erred by admitting in evidence for substantive purposes portions of the grand jury testimony given by the alleged victim, who was the defendant's daughter, and that, without such evidence, the proof at trial was inadequate as a matter of law to sustain the convictions. We transferred the case to this court on our own motion. We affirm the convictions.

We shall deal first with the question whether the defendant's admissions to the social workers and the psychologist should have been suppressed. We begin by outlining certain relevant statutorily mandated procedures, after which we summarize the most significant findings made by the motion judge, who also was the trial judge, which findings, we are satisfied, were supported by adequate evidence. Pursuant to G.L. c. 119, §§ 51A and 51B (1988 ed.), upon receiving a report of sexual abuse of a child, the Department of Social Services (department) conducts an investigation to see whether the report may be substantiated. If a report is substantiated, the department forwards a so-called 51B report to the office of the district attorney, and the department assigns a social worker to the case to assist family members in dealing with the situation.

The judge found that, on November 16, 1986, the department received a report of the defendant's sexual abuse of his children. As a result, the department assigned Carole Bull, a department social worker, to investigate the report for substantiation. In the course of her investigation, Bull interviewed the defendant on November 18, 1986. Sally Hajjar, another department social worker, was present at the interview as an observer. The defendant "appeared depressed and upset at the interview and, although he had been drinking, he was sober." The defendant made several incriminating statements. He also spoke of having suicidal thoughts, which led Bull to refer him to a physician at the Center for Mental Health in Waltham.

The judge found that "[o]n November 21, 1986 the abuse was substantiated," and Hajjar was the social worker assigned to the case. Over the following six weeks Hajjar had four personal interviews and two telephone conversations with the defendant. The defendant made several admissions concerning the charges.

According to the judge's findings, the department referred the defendant's wife, the children, and the defendant to Children's Charter, Inc., a counseling and treatment center. The purpose of referring the defendant to Children's Charter was "to aid in the [department] assessment process which was ultimately intended to assist in a family service plan which would address the needs of all of the family members." The defendant's first visit to Children's Charter was on December 2, 1986, at which time Dr. William J. Purcell, a psychologist and the clinical director of Children's Charter, told the defendant that "a notice of [a] client's rights which promised confidentiality," which had been given to the defendant, did not apply to him. Dr. Purcell told the defendant that "he was offering no confidentiality." According to the findings, the defendant "was not told of the existence of the patient/psychotherapist privilege.... [The defendant] was told that the purpose of the evaluation was to help the family, protect the children, and find a treatment program for him." At that first interview, the defendant made several damaging admissions. Subsequently, in mid-January, 1987, Dr. Purcell for the first time asked the defendant "to sign written releases for all information for transmittal to the [department] and to the District Attorney's office." The defendant signed such releases.

The judge concluded his findings with the following statement: "It appears ... that the [d]efendant elected to cooperate with the investigator Ms. Bull, the social worker Ms. Hajjar, and the evaluating therapist Dr. Purcell for a number of reasons including: discouraging publicity which would affect his job; encouraging eventual reintegration with the family; minimizing the possibility of the filing of criminal charges; and once charges were filed minimizing the likelihood of a disposition other than outpatient treatment."

Based on his findings and his view of the applicable law, the judge denied the motion to suppress. Before discussing the judge's reasoning and expressing our own views, we set forth the relevant statutory provisions. General Laws c. 112, § 135 (1988 ed.), provides with respect to social workers as follows: "No social worker in any licensed category ... and no social worker employed in a state, county or municipal governmental agency, shall disclose any information he may have acquired from a person consulting him in his professional capacity or whom he has served in his professional capacity except: ... (b ) that a licensed certified social worker ... licensed social worker ... or a social worker employed in a state, county, or municipal agency, shall not be required to treat as confidential a communication that reveals the contemplation or commission of a crime or harmful act; ... (f ) where the social worker has acquired the information while conducting an investigation pursuant to section fifty-one B of chapter one hundred and nineteen...." The other relevant statute pertains not to social workers but to psychotherapists. General Laws c. 233, § 20B (1988 ed.), provides in relevant part that, "in any court proceeding ... a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient's mental or emotional condition."

The judge reasoned that the information obtained from the defendant by Bull and Hajjar during Bull's investigation was disclosable under G.L. c. 112, § 135(f ), and the information subsequently acquired by Hajjar relative to the defendant's criminal acts was disclosable under § 135(b ). The judge also concluded that "[t]here [was] nothing in the actions of the [department] investigator [Bull], the observing social worker [Hajjar], or the [d]efendant himself that raises a reasonable doubt as to the voluntariness of his [November 18, 1986] statement to Ms. Bull." We agree with the judge that the defendant's incriminating statements to Bull and Hajjar were disclosable under § 135(b ) and (f ). Also, we perceive no reason to disturb the judge's conclusion as to the voluntariness of the defendant's statements to Bull and Hajjar during Bull's investigation. Although there was conflicting testimony at the suppression hearing, the judge's subsidiary findings set forth above were warranted by the evidence, and the judge's conclusion from those findings that the statements were not coerced, and therefore were voluntary in the due process sense, was likewise warranted. Also, the judge was correct when he said that the defendant was not entitled to Miranda warnings before making admissions during Bull's investigatory interview, because the defendant was not in custody at that time.

The defendant correctly points out that, in his conclusions set forth in his memorandum dealing with the suppression motion, the judge neglected to discuss the voluntariness of the defendant's statements to Hajjar after the investigation had been concluded and the initial report to the department had been substantiated. We do not agree, however, that it follows either that the motion to suppress was erroneously denied or that it is necessary to remand the case for further findings. It is apparent from the judge's memorandum, including his subsidiary findings, that he was aware of the importance of the question whether the defendant's statements to the social workers had been voluntarily given. It is also apparent, not only from the memorandum but also from the judge's denial of the suppression motion, that the judge was satisfied that the numerous statements sought to be suppressed were prompted not by coercion but by the defendant's decision that his cooperation would best serve his own interests.

We turn now to the question whether the judge rightly denied the defendant's motion to suppress his inculpatory statements to the psychotherapist, Dr. Purcell. The judge decided that the defendant's disclosures to Dr. Purcell were privileged pursuant to G.L. c. 233, § 20B, and that the only question, therefore, was whether the defendant voluntarily agreed to the disclosure of those communications, "and, if so, whether [the agreement] constituted the type of waiver that would authorize Dr. Purcell to testify at trial." The judge concluded that, at the first meeting between the defendant and...