Commonwealth v. Pelosi

771 N.E.2d 795, 55 Mass. App. Ct. 390, 2002 Mass. App. LEXIS 920

• Court: Massachusetts Appeals Court
• Decided: July 10, 2002
• Docket: No. 99-P-1739
• Status: Published

Opinions

Cypher, J.

A júry 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 informa-tian 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, § 51 A.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 Brant 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 § 5 IB 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 (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 (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 (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 [(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 [(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 insufficienfcy] of relevance.”

Review on appeal is limited to whether the judge abused her discretion. See Commonwealth v. Pare, 43 Mass. App. Ct. 566, 572 (1997), S.C., 427 Mass. 427 (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 (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 (parties proceeded on the assumption that the records were privileged); Commonwealth v. Oliveira, 431 Mass. 609, 616 (2000) (same). See also Commonwealth v. Ramos, 47 Mass. App. Ct. 792, 795-796 (1999) (court reviewed a Bishop determination despite a lack of written findings); Commonwealth v. Zane Z., 51 Mass. App. Ct. 135, 143-145 (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 of its discovery obligations, of the § 51A report, the § 51B report, and the videotape did not constitute a waiver of any of the children’s privileges.¹⁰ See Commonwealth v. Pratt, 42 Mass. App. Ct. 695, 697 n.4, 700 (1997) (although a defendant is entitled to a § 5 IB report, that fact does not necessarily lead to the conclusion that documents supporting the § 5 IB report lose their privilege or confidentiality). See also Commonwealth v. Jones, 404 Mass. 339, 341 (1989) (defendant entitled to § 51B report); Corn-monwealth v. O’Brien, 27 Mass. App. Ct. 184, 186-187 & n.2 (1989); Commonwealth v. Arthur, 31 Mass. App. Ct. 178, 182 n.7 (1991).

Nor did the mother’s consensual release of Moder’s Harvard Community Health progress notes operate as a waiver of the social worker privilege in the children’s counseling records from the MSPCC, an entirely separate entity. First, there is nothing in the record to suggest that the mother was aware of the privilege at the time she signed the release. Compare Commonwealth v. Neumyer, 432 Mass. 23, 36 n.16 (2000) (no valid waiver of privilege where record did not indicate that an un-counseled eighteen year old had been informed of her rights with regard to the privilege). See also rule 511 of the Proposed Massachusetts Rules of Evidence (disclosure does not create a waiver of a privilege if the privileged matter is disclosed under compulsion or if the disclosure was made without an opportunity to assert the privilege).

Second, the privilege protects communications. The fact that Moder’s notes contained, perhaps, the same subject matter as the counseling records does not create a waiver of the children’s privilege in other protected communications. See Commonwealth v. Goldman, 395 Mass. 495, 499-500 (1985) (where a witness testifies about the underlying topic of a privileged communication there is no waiver, but where the witness testifies to the specific privileged communication, there may be a waiver)¹¹; Commonwealth v. Clancy, 402 Mass. 664, 669 (1988) (witness who testified regarding mental health treatment did “not relinquish all protection by merely testifying to events falling within the subject matter of a privilege”).

Neither the case law nor the rules of criminal procedure supports the dissent’s assumption that a defendant is automatically entitled to receive material that is not privileged or for which a privilege has been waived. The defendant still would be required to comply with the rules of criminal procedure concerning discovery or production of evidence from third parties. Any criminal discovery or production motion, whether brought under Mass.R.Crim.P. 14, 378 Mass. 874 (1979), or Mass.R.Crim.P. 17, 378 Mass. 885 (1979), or characterized as a Bishop-Fuller motion, must meet a threshold standard of relevance.¹²

Relevance is a requirement for access to even non-privileged records. Nothing in Bishop is to the contrary. Rather, Bishop prescribes a protocol for dealing with records which may contain relevant information and which may be subject to a privilege. The statement in Bishop that “[i]f the judge rules that the undisclosed clinic records are not privileged, then the judge shall release the records to the parties,” Bishop, 416 Mass. at 184, was not intended to do away with the threshold relevance inquiry which precedes application of the Bishop protocol itself. That this is so is apparent from the Bishop court’s handling of the defendant’s claimed entitlement to school records, which were not privileged. Citing Mass.R.Crim.P. 14, the court determined that the sought-after school records were not relevant and denied the defendant access to these records. See Bishop, supra at 186-187.

Where a defendant seeks access to confidential or sensitive material, a balancing test is employed. See Commonwealth v. Tripolone, 425 Mass. 487, 489 (1997) (court concluded that the Bishop-Fuller protocol applied to communications which were considered by statute “confidential” but not privileged); Commonwealth v. Wanis, 426 Mass. 639, 644-645 (1998) (citing Fuller, the court held that where a motion for production of internal affairs records is opposed, the defendant must advance a specific, good faith reason for believing that the information is relevant to a material issue in the criminal proceedings and could be of real benefit to the defense before personal information about a police officer is disclosed); Commonwealth v. Neu- ■ myer, 48 Mass. App. Ct. 154, 162 (1999), S.C., 432 Mass. 23 (2000) (where the judge concluded that a hotline log was not privileged and that the defendant’s proffer was sufficient under Fuller for in camera review, it was proper for the judge to order production of the hotline records through use of a rule 17(a)(2) subpoena duces tecum). See also G. L. c. 214, § IB; Ritchie v. Pennsylvania, 480 U.S. 39, 52-56 & n.9 (1987) (the confrontation clause and the compulsory process clause do not create a constitutionally compelled rule of pretrial discovery; the appropriate analysis is conducted under the Fourteenth Amendment due process clause).

b. Relevancy determination. The motion judge concluded that the defendant’s proffer on relevance was insufficient under Bishop. As we have stated, appellate review is limited to whether the judge abused her discretion. See Commonwealth v. Pare, 43 Mass. App. Ct. at 572; Commonwealth v. Stephens, 44 Mass. App. Ct. 940, 943-944 (1998).

Relevancy determinations are case and fact specific. The defendant argues that his affidavit satisfied the relevancy standard, at least, for in camera review.¹³ The defendant’s proffer was comprised of three discemable theories of relevance: first, that the children had been subjected to suggestive interview techniques by Moder, Carleton, and Schon Vainer; second, that the mother’s ill will toward the father influenced the children to make false accusations; and third, that a troubled environment due to family separation was likely to lead to exaggeration and false charges.¹⁴

The defendant’s first theory, that the counseling records “may” show that the children were subjected to additional suggestive interview techniques, fails. While it is true that the children disclosed gradually, first to Moder and then to Carleton, they did so before receiving counseling. The post-disclosure counseling records sought by the defendant were unlikely to demonstrate that the children’s initial disclosures were the subject of later suggestive interviewing techniques. Compare Commonwealth v. Zone Z., 51 Mass. App. Ct. at 146 (concluding that the juvenile did not establish a factual basis for review where counseling was “post event” and therefore less likely to be relevant); Commonwealth v. Pare, 427 Mass. at 428 (children’s allegations came out in the counseling process). Moreover, to the extent that Moder, Carleton, or Schon Vainer used suggestive interviewing techniques, the defendant was already in possession of that information, as he was in possession of their reports, the videotape, and a transcript of the videotape.¹⁵

The defendant’s second theory, that the “troubled environment” of a recent separation is likely to give rise to false or exaggerated allegations, was not supported in any way, either by generalized statistics, studies, expert opinion, or by any specific factual references to the children’s situation. Cf. Commonwealth v. Syrafos, 38 Mass. App. Ct. 211, 215-216 (1995) (defendant’s claim that victims of childhood incest have flashbacks of prior rapes was not supported by record).

With regard to the third theory of relevance, the mother’s purported ill will toward the father, again the defendant offered no specific factual references in support of this theory. Moreover, there is nothing in Moder’s notes or the DSS reports to support the claim that the mother had manipulated the disclosure.¹⁶

In our view, the judge did not abuse her discretion when she determined that the defendant’s motion failed to establish sufficient relevance to warrant an in camera review. Here, the defendant’s theory, that the records might contain evidence of the mother’s bias or evidence that the children were led by suggestive interview techniques during counseling sessions, was based on “the hope that the unearthing of some unspecified information would enable [the defendant] to impeach the witness.” Bishop, 416 Mass. at 182, quoting from People v. Gissendanner, 48 N.Y. 2d 543, 549 (1979). This is exactly the sort of fishing expedition Bishop was designed to prohibit. Were such allegations sufficient to overcome the privilege, the counseling records of any child who received counseling after a substantiation of abuse and whose parents were divorcing would be subject to court inspection. Although inspection by a judge may be less of an intrusion than inspection by an attorney and subsequent disclosure at trial, Bishop intended that even at this early stage, the moving party must clear a hurdle that is more than just a pleading requirement. See Commonwealth v. Fuller, supra at 224-225; Commonwealth v. DeMaria, 46 Mass. App. Ct. 114, 120-121 (1999).

In cases in which the privilege has been pierced by a sufficient showing of relevance, the theory of relevance has been grounded in specific facts related to the case, rather than generalizations or unsubstantiated allegations. See, e.g., Commonwealth v. Oliveira, 431 Mass. at 615 (affidavit reciting facts surrounding the victim’s suicide attempt nine months after her disclosure, which led to the disintegration of her family, when coupled with the failure to report the incident to police, demonstrated that the records surrounding the incident were likely to contain information relevant to the victim’s credibility). Cf. Commonwealth v. Neumyer, 432 Mass. at 32-33 (affidavit set forth sufficient factors to establish that the victim’s conversation with a rape counselor was the “turning point” in the case, thus meeting the Fuller standard).

The defendant also failed to establish that the information he sought was not otherwise available. See Commonwealth v. Bishop, 416 Mass. at 183 n.9; Commonwealth v. Zane Z., 51 Mass. App. at 146. There is no indication in the defendant’s affidavit that he made any effort to obtain this information in his capacity as the children’s parent. Compare 110 Code Mass. Regs. § 12.08(4) (1993) (noncustodial parent has the same right of access to § 51A and § 5 IB reports as a custodial parent) with 110 Code Mass. Regs. § 12.09(5) (1993) (if DSS “has reason to believe that disclosure ... of all or a portion of the social service file would be contrary to the child’s best interest, the Department shall deny access and shall bring to the court’s attention the reason(s) for denying access”).

As noted above, the decision of the motion judge is reviewed under an abuse of discretion standard. See Commonwealth v. DeMaria, 46 Mass. App. Ct. at 120. Considering the lack of detail in the defendant’s proffer, we cannot say the judge abused her discretion.

Finally, the defendant was able to cross-examine Moder, Carleton, and Schon Vainer about their interviewing techniques.¹⁷ The defendant had the opportunity to cross-examine the mother to determine whether she harbored such ill will against the father that she would manipulate the children to cultivate the allegation of abuse. The defendant also had the opportunity to cross-examine the children and explore the circumstances of their disclosure. As a member of the family, the defendant likely had access to information or other family and friends who could have substantiated his theory. The defendant was not precluded from arguing his theory of the case to the jury in closing argument. This case does not present a reasonable risk that nondisclosure of the victim’s treatment records could have resulted in prejudice to the defendant or produced an erroneous conviction. See Commonwealth v. Bishop, 416 Mass. at 177; Commonwealth v. Fuller, 423 Mass. at 226.

2. Other issues. The defendant raised two additional arguments in his brief: alleged defects in the prosecutor’s closing argument and the trial judge’s instructions on fresh complaint. We conclude that the defendant’s arguments are without merit. Examination of the record reveals that the prosecutor was within the bounds of proper argument and that the instructions adequately conveyed to the jury that fresh complaint evidence may be used only for corroboration.

Judgments affirmed.

1 The names are fictitious.

2 Moder testified that the mother’s stated reason for bringing the children to counseling was because she had recently separated from the defendant and was concerned that the children would feel forced to take sides.

3 The mother testified that at the end of her meeting she did not understand that Moder planned to contact DSS.

4 Certain persons (including, but not limited to, physicians, social workers, and teachers) are mandated to report suspected child abuse to DSS. See G. L. c. 119, § 51 A. The 51A report of suspected abuse triggers an investigation and evaluation by DSS pursuant to G. L. c. 119, § 51B (the 51B report). If that investigation reveals “reasonable cause to believe” that there has been abuse or neglect, then DSS must notify the “district attorney for the county in which the child resides ... by transmitting ... a copy of the report required under section fifty-one A and this section.” G. L. c. 119, § 5IB(4).

5 Carleton also testified that the defendant denied ever hitting his son. Moder’s notes indicated that James told Moder that his father also slapped his face “about a thousand times.” At trial, James denied that his father had slapped him.

6 Commonwealth v. Bishop, 416 Mass. 169 (1993), and its progeny state that the defendant should first move to compel records. See Commonwealth v. Bishop, 416 Mass. at 181. See also Commonwealth v. Fuller, 423 Mass. 216 (1996). While any discovery motion must, as a threshold matter, satisfy the relevancy, or in some cases, materiality, requirements of Mass.R.Crim.P. 14, 378 Mass. 874 (1979), a defendant is not required by the Bishop-Fuller protocol to detail his theory of relevance until the judge has determined that the records in question are privileged. As will be discussed later, Bishop did not eliminate the need for motions to conform to the rules of criminal procedure.

7 The mistaken reference to Moder as a psychiatrist rather than a licensed social worker does not affect our analysis.

8 This reasoning was expressly rejected in Commonwealth v. Pare, 427 Mass. 427, 432-433 (1998) (“The public policy rationale supporting protection of records in the case of adult victims applies with equal force to the records of juvenile victims”).

9 The motion judge’s written decision combined the privilege determination stage with the relevancy determination stage. See Commonwealth v. Pare, 427 Mass. at 429-430. When the decision is read in context with the hearing on the motion, however, it is apparent that the motion judge was expressing her resolution of the question whether the heightened standard in the recently decided Fuller case applied to the children’s counseling records. See Commonwealth v. Fuller, 423 Mass. at 225-226 & n.9. That the Fuller standard applied to records other than those protected by the rape counseling privilege had not yet been resolved by the Supreme Judicial Court. See Commonwealth v. Oliveira, 431 Mass. 609, 617 (2000).

In Fuller, the court discussed at length the “confidentiality” expected by the person receiving rape crisis counseling and considered how liberal disclosure of records could erode that expectation to the detriment of those in need of counseling. See Commonwealth v. Fuller, 423 Mass. at 221. Here, the motion judge’s decision shows she wrestled with the degree to which there was an expectation of “confidentiality” in the children’s counseling records and how that expectation affected the relevancy standard. She concluded that, in these circumstances (which included the fact that Moder’s notes had been disclosed), the more stringent Fuller standard did not apply and that the defendant had failed to meet the Bishop standard.

10 In fact, one exception to the social worker privilege, contained in G. L. c. 112, § 135(f), applies to information the social worker acquires while conducting a § 5IB investigation. “Sections 135(f) and 5 IB [of c. 119], read together, allow a criminal defendant to obtain the investigation and evaluation reports which ultimately led to his indictment and criminal prosecution.” Commonwealth v. Jones, 404 Mass. 339, 341 (1989). DSS regulations further contemplate such disclosure. Title 110 Code Mass. Regs. § 4.53(3) (1994) explicitly provides that: “Any documents provided to a District Attorney in accordance with 110 CMR 4.00, which are thereafter subpoenaed from the District Attorney or otherwise requested from the District Attorney by any party to any pending criminal matter, shall be released or not released by the District Attorney solely in accordance with the applicable rules or procedures governing the District Attorney, and no notice to or consent from the Department shall be required.”

11 The dissent overstates the majority’s application of the principles of Commonwealth v. Goldman, 395 Mass. 495 (1985), and Commonwealth v. Clancy, 402 Mass. 664 (1988), to the facts of this case. Commonwealth v. Goldman, 395 Mass. at 500, resolved a conflict in the law regarding waiver of attorney client privilege. The court rejected the proposition that testifying about an event would waive the attorney-client privilege and expressly adopted the position that only testimony about the content of the privileged communication would result in a waiver. Although this is not a case of “waiver by testimony,” but rather of alleged waiver by consent, the reasoning is analogous. The dissent relies on rule 510 of the Proposed Massachusetts Rules of Evidence as support for the conclusion that the privilege may have been waived by the mother’s consent to the release of Moder’s notes. Proposed Rule 510 states: “A person upon whom these rules confer a privilege against disclosure waives the privilege, if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter.” The privileged matter refers to the communication, not the topic of the communication. See Liacos, Brodin, & Avery, Massachusetts Evidence § 13.4.8, at 788-789 & n.5 (7th ed. 1999). In Commonwealth v. Clancy, supra at 668, the Supreme Judicial Court determined that the reasoning in Goldman was equally applicable to situations involving the patient-psychotherapist privilege.

12 Regardless of whether a Bishop-Fuller request is brought as a discovery motion under Mass.R.Crim.P. 14(a)(2), or as a production request under Mass. R.Crim.P. 17(a), the motion should be accompanied by an affidavit which (1) identifies the records with as much specificity as possible; (2) states that pretrial discovery is otherwise complete; (3) states that the material sought is not available elsewhere; and (4) states the reason the material is likely to be relevant to a live issue in the case. See Commonwealth v. Fuller, 423 Mass. at 226. See generally Smith, Criminal Practice and Procedure § 1559 (2d ed. 1983 & Supp. 2001) (discussing the requirements which must be met before a defendant may use Mass.R.Crim.P. 17).

13 During trial, before a different judge, the defendant renewed his motion for production of the counseling records on three occasions. On appeal, the defendant focuses only on the motion judge’s decision and does not argue that the trial judge erred in denying his motion. Examination of the defendant’s proffer at trial does not assist his appellate argument.

At the start of the trial, the trial judge ruled that the defendant’s second motion for records was essentially the same as the pretrial motion and that he agreed with the motion judge’s disposition of the issue. The defendant argued that Schon Vainer used suggestive interviewing techniques in the videotaped interview and that if counsel could see the DSS records of the children’s counseling sessions, perhaps there would be additional evidence of suggestiveness. The judge denied the motion.

Before Schon Vainer testified, the defendant again argued that Moder, Carleton, and Schon Vainer used suggestive interviewing techniques and that if DSS had used suggestive techniques in between Carleton’s interview and Schon Vainer’s interview, then he would be better able to challenge Schon Vainer’s testimony. The trial judge denied the motion, observing that there was no link between DSS and Schon Vainer.

After the Commonwealth presented all of its evidence, the defendant renewed his motion for the counseling records, arguing that if defense counsel were able to have access to the DSS records, that she “probably would be able to present to the Court a much stronger case to present to the jury, a much stronger case that these children were seriously influenced by the suggestive investigation process.” The judge again denied the motion.

14 The defendant also argued at the motion hearing that in the past she had two cases in which young children had recanted in counseling records, and that the children were under pressure because of the defendant’s bad fathering while struggling with alcohol and drug abuse, and that the “mother was suffering from depression and stress from all of this. . . . And there could be something in these records.”

15 The children did not testify at trial to any details or incidents that they had not previously related to Moder, Carleton, or Schon Vainer.

16 Moder testified that the mother had not made any reference to physical or sexual abuse. Moder’s notes corroborate his testimony, indicating that the mother’s reason for bringing the children to see him was her concern that the children would feel pressured to take sides and that she did not report a history of “actual assault by the husband toward wife or children.” Nor did she report the abuse to DSS. James testified that the first person he told was Moder, because he thought Moder “could do something more about it, because I knew he was a counselor .... I didn’t like telling my mother.”

17 The defendant had a transcript and a copy of the videotape of Schon Vainer’s interview of the children. Nothing prevented the defendant from requesting funds to hire an expert to review and evaluate the defendant’s theory that the interview was suggestive.