Com. v. Pelosi

• Decision Date: 10 July 2002
• Docket Number: No. 99-P-1739.,99-P-1739.
• Parties: COMMONWEALTH v. Francis PELOSI.
• Court: Appeals Court of Massachusetts

771 N.E.2d 795

55 Mass. App. Ct. 390

COMMONWEALTH v. Francis PELOSI.

No. 99-P-1739.

Appeals Court of Massachusetts, Suffolk.

Argued October 15, 2001.

Decided July 10, 2002.

COPYRIGHT MATERIAL OMITTED

Douglas J. Beaton, North Andover, for the defendant.

Amanda L. Lovell, Assistant District Attorney (Joshua I. Wall, Assistant District Attorney, with her) for the Commonwealth.

Present: BROWN, CYPHER, & KAFKER, JJ.

CYPHER, J.

A jury convicted the defendant, Francis Pelosi, of two counts of rape of a child and two counts of indecent assault and battery on a child under the age of fourteen. The defendant appeals, claiming that the motion judge erred in denying his request for the children's counseling records, that the prosecutor's closing argument requires reversal and that the jury instructions on fresh complaint were erroneous. We affirm.

The Commonwealth's proof consisted of the testimony of the defendant's children, "James," age 9, and "Sarah," age 8,¹ their mother, three fresh complaint witnesses, and a psychiatrist experienced in dealing with victims of childhood sexual abuse. The defense attempted to establish through cross-examination that the children had been subjected to a series of suggestive interviews. Defense counsel argued in her closing argument that the suggestive interview techniques, combined with the mother's hatred of the father, distorted the children's memories.

The jury could have found that the defendant touched Sarah indecently and engaged in unnatural sexual intercourse with her, and that the defendant had caressed James's buttocks and inserted his finger in his rectum on more than one occasion. James and Sarah testified that James had been in the room when his father had licked Sarah's private parts. According to James, these incidents of sexual abuse happened when he was in the first grade and a "little bit in the second grade."

Their mother testified that she left the defendant on August 18, 1994. On September 15, 1994, she brought the children to a Harvard Community Health facility, where they met, together and separately, with a licensed social worker, Fred Moder.² Her children had not told her of any sexual abuse by their father, and she had never seen any such abuse. She learned of the allegations when she was later contacted by the Department of Social Services (DSS).

Moder testified that the mother did not give him any information about the defendant sexually or physically abusing the children. While meeting alone with Moder, James disclosed to Moder that his father would lie in bed with him and rub his buttocks under his pajamas. During a follow up visit on September 20, Moder asked James whether his father had inserted his finger into his rectum and James said, "maybe a little bit."

At her first meeting with Moder, Sarah told him that her father would tickle her. Moder asked her whether the area her father tickled included her private parts. Sarah replied that it did.

After meeting with the children, Moder advised the mother that he would be contacting DSS.³ Moder filed a report pursuant to G.L. c. 119, § 51A.⁴

Upon receiving Moder's § 51A report, Sean Carleton, an investigator for DSS, met with the defendant and advised him of the allegations. The defendant stated that he was physically affectionate with his children and that he had tickled James on his upper back and buttocks, but that the touching had not been sexual.⁵

Carleton interviewed the children. James told Carleton that his father had tickled and rubbed his back and buttocks on more than one occasion and that he did not like it. Carleton did not ask James whether his father had inserted his finger in his rectum.

Sarah cried and would not talk to Carleton alone. She was permitted to sit on her mother's lap and whisper her answers to her mother. Carleton asked her whether her father had touched her in a way that she did not like. Sarah's crying intensified and she buried her head in her mother's shoulder. Carleton could hear her whisper to her mother that her father had licked her private parts. Sarah refused to answer any more questions.

Elizabeth Schon Vainer, an employee of the district attorney's office, testified that she conducted separate videotaped interviews of the children on October 28, 1994. She stated that in response to her questions, James told her that his father would "take him into his mother's bedroom and lie him on the bed and rub his bum and stick his finger up his bum a little." She testified further that James told her it was difficult for him to tell her this. She asked him how he knew that the finger went in his bottom and he said because it hurt a little. James told her that it happened at two different places they had lived and that the first person he had told was Moder.

Sarah told Schon Vainer that the defendant spread her legs and kissed and licked her "down there" on one occasion. Sarah told her that James was also in the room.

Dr. Renee Brandt testified that when children tell about having experienced child sexual abuse, it is not usually "a one-time, straight forward event," but rather, a process of gradual, tentative, disclosure.

1. The children's counseling records. After discovery was completed, the defendant moved to compel production of his children's records from DSS, and counseling records from the Massachusetts Society for the Prevention of Cruelty to Children (MSPCC), generated after the children's disclosure. The defendant was in possession of the "51A" report, the "51B" report, the videotape, and Moder's notes. The defendant's motion set forth facts which he alleged supported his claim that the records contained relevant information.⁶ The salient portions of the defendant's affidavit in support of the motion made pursuant to Commonwealth v. Bishop, 416 Mass. 169, 617 N.E.2d 990 (1993) (Bishop), stated:

"Since the allegations, the children have been seen regularly by counselors at the Massachusetts Society for the Prevention of Cruelty to Children.... A review of these records by the Court is essential because the allegations first were made in the troubled environment of a recent separation of the parents. Such situations are likely to give rise to false or exaggerated allegations. The records are likely to contain evidence of bias by the mother of the children. Given the children's reluctance to speak during the taped interview, the records may show evidence of coaching or inconsistent statements."

A hearing was conducted on the motion in which the Commonwealth argued that the records were subject to the social worker privilege. See Pare v. Commonwealth, 420 Mass. 216, 218, 648 N.E.2d 1277 (1995) (Commonwealth is entitled to protect privileged records not required by Bishop to be disclosed). During the hearing, the judge discussed with counsel whether the more stringent standard of Commonwealth v. Fuller, 423 Mass. 216, 226, 667 N.E.2d 847 (1996), applied to the children's counseling records. The judge issued a decision the next day:

"Certain of the children's confidential psychiatric[⁷] records have already been provided to defense counsel including the medical records prepared by the psychiatrist to whom the children originally made their disclosures. This prior disclosure of records suggests that concerns as to the confidentiality of the records requested have less urgency than the confidentiality concerns raised in [Commonwealth] v. Fuller, 423 Mass. 216, 667 N.E.2d 847 [(1996)]. Moreover, confidentiality was almost certainly not a motivating factor behind any participation in therapy by the children at issue.[⁸] Nevertheless, this court feels compelled to deny the defendant's motion based on the precepts articulated in [Commonwealth] v. Bishop, 416 Mass. 169, 617 N.E.2d 990 [(1993),] as amplified by more recent judicial pronouncements on the general topic. [Citation to Single Justice opinion omitted] Cf. [Commonwealth] v. Fuller, supra. In short, the motion is denied based on an insufficien[cy] of relevance."

Review on appeal is limited to whether the judge abused her discretion. See Commonwealth v. Pare, 43 Mass.App. Ct. 566, 572, 686 N.E.2d 1025 (1997), S.C., 427 Mass. 427, 693 N.E.2d 1002 (1998).

a. Privilege determination. The defendant reads the first and second sentences of the motion judge's decision to mean that the motion judge believed that any privilege the children had in their counseling records may have been waived by the mother's consent to the assistant district attorney's disclosure of Moder's notes, and that he was, therefore, entitled to the records. At the motion hearing, the defendant did not raise the issue of waiver; he argues it for the first time on appeal. An issue not raised below generally will not be considered on appeal. See Commonwealth v. Garcia, 409 Mass. 675, 678, 569 N.E.2d 385 (1991); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).

In any event, we do not construe the language of the motion judge as a finding that the children's privilege in their counseling records may have been waived. Rather, it appears that the parties and the judge proceeded on the assumption that the records were privileged under G.L. c. 112, §§ 135A and 135B (delineating the social worker privilege).⁹ In appropriate cases, we may proceed to conduct appellate review where the privilege determination is implied. See Bishop, supra at 174 n. 2, 617 N.E.2d 990 (parties proceeded on the assumption that the records were privileged); Commonwealth v. Oliveira, 431 Mass. 609, 616, 728 N.E.2d 320 (2000) (same). See also Commonwealth v. Ramos, 47 Mass.App.Ct. 792, 795-796, 716 N.E.2d 676 (1999) (court reviewed a Bishop determination despite a lack of written findings); Commonwealth v. Zane Z., 51 Mass.App.Ct. 135, 143-145, 743 N.E.2d 867 (2001) (judge did not reduce stage one findings to writing, but no reason to remand for written findings without some showing of what might be accomplished).

The Commonwealth's release, as part...