Commonwealth v. Zoilo Bracero.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-677
COMMONWEALTH
vs.
ZOILO BRACERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant
stands convicted of aggravated rape of a child with a ten-year
age difference, rape of a child with force, assault with intent
to rape a child, indecent assault and battery on a child under
the age of fourteen, and assault and battery by means of a
dangerous weapon on a child under the age of fourteen. The jury
acquitted the defendant on one charge of indecent assault and
battery on a child under the age of fourteen. On appeal, the
defendant claims for the first time that the trial judge erred
by admitting hearsay testimony that the defendant beat the
complainant, and by admitting testimony that unfairly
corroborated the complainant's credibility. We discern no error
and affirm.
Background. The Commonwealth presented its case through
four witnesses: Amanda1 (the complainant), Amanda's mother, a
Department of Children and Families (DCF) investigator, and a
police detective.
Amanda testified about her home life and the charged
offenses. Amanda initially lived with her mother, father, and
four siblings. DCF became involved with Amanda's family several
years before the sexual abuse began. Amanda's parents were
constantly fighting. Despite DCF involvement in the home, the
children learned that the family motto was "everything that
happened in the house, stays in the house." Amanda's parents
separated, and the defendant, Amanda's uncle, became
"practically the person who ruled everything" in the home. With
the approval of Amanda's mother, the defendant administered
physical punishment to the children by striking them with a belt
or making them kneel on a sharp object. Amanda's mother also
struck the children using her hand. The defendant began
sexually abusing Amanda when she was nine and continued to do so
until she reached the age of thirteen, when she disclosed the
abuse.
Amanda testified about the process of her disclosure. She
told her best friend about the physical abuse, "the hitting, the
1 A pseudonym.
2
disrespect, the discipline" from her mother and the defendant,
and she told another friend "about the physical abuse." She
told these two friends that the defendant "disciplines her."
The next day, Amanda told her school counselor and a DCF
investigator "about the physical abuse." Two weeks after first
speaking with the DCF investigator, Amanda contacted the DCF
investigator and revealed "the sexual assault" and "[g]enerally"
what happened.
The DCF investigator also testified. She became involved
in the case to investigate alleged physical abuse by Amanda's
mother and father and the defendant. After meeting with Amanda,
the DCF investigator received a telephone call from Amanda. At
this point, the trial judge appropriately provided a limiting
instruction on first complaint testimony. The investigator then
related Amanda's report that the defendant had been sexually
abusing her since she was nine years old and threatened to "hurt
her if she told anybody."
Discussion. On appeal, the defendant claims the trial
judge erred by admitting (1) hearsay evidence that the defendant
physically abused Amanda, (2) evidence that DCF took Amanda into
custody, (3) evidence that the DCF investigator assessed the
credibility of Amanda, and (4) evidence of investigative steps
that buttressed Amanda's credibility. After a review of the
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record, we discern no error and no substantial risk of a
miscarriage of justice.
The defendant asserts that the trial judge admitted hearsay
testimony about physical abuse "over objection" by counsel, but
we read the record differently. When testifying about
disclosures to friends about physical abuse in the home, Amanda
started to relate statements that her friends made in response.
Defense counsel objected, and the judge sustained the objection.
A short time later, Amanda once again started to testify to what
her friends said in response to her disclosures, and the judge
sustained an objection. These objections were limited to the
hearsay statements of the friends and not to Amanda's statements
that are now the subject of this appeal. Because there was no
objection to Amanda's statements, our review is limited to
determining if there was an error that resulted in a
"substantial risk of a miscarriage of justice." Commonwealth v.
Freeman, 352 Mass. 556, 564 (1967).
There was no error here regarding hearsay testimony. The
challenged testimony was admitted as part of the first complaint
doctrine. The purpose of the first complaint doctrine "is to
give the jury as complete a picture as possible of how the
accusation of sexual assault first arose." Commonwealth v.
King, 445 Mass. 217, 246-247 (2005). A complainant may testify
"to the details of the first complaint" as well as "why the
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complaint was made at that particular time." Id. at 245.
Similarly, a first complaint witness may testify to the
"circumstances surrounding the initial complaint" as well as
"the events or conversations that culminated in the complaint."
Id. at 246. The testimony of Amanda and the DCF investigator
fell within the range of admissible evidence by outlining the
brief chain of events that led to the ultimate disclosure of
sexual abuse: Amanda told two friends about the physical abuse;
the next day, Amanda told her school counselor and a DCF
investigator about the physical abuse; and two weeks later
Amanda contacted the DCF investigator and revealed "the sexual
assault" and "[g]enerally" what happened. The limiting
instruction cautioned jurors on the use of this evidence and
obviated any potential prejudice. Notably, the disclosure of
physical abuse did not mention details and did not focus on the
defendant. Instead, according to Amanda's testimony, her report
of physical abuse mentioned her mother as well as the defendant.
According to the DCF investigator's testimony, she became
involved in the case due to allegations of physical abuse
perpetrated by Amanda's mother and father and the defendant. On
cross-examination of the DCF investigator, the defense
established that Amanda initially accused only her mother and
father of striking all the children with a belt. Given the
context and limited use of this testimony, as well as the
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defense use of this evidence to impeach Amanda, there was no
error and no substantial risk of a miscarriage of justice.
Freeman, 352 Mass. at 564.
The defendant next contends that the judge erred by
allowing evidence that "the Commonwealth (through DCF) took
[Amanda] into its custody" and placed her "ultimately into
foster care." Given the context of the testimony about DCF's
role in Amanda's care, we discern no error.2 On direct
examination of Amanda, the prosecutor elicited testimony tending
to show Amanda's bias. Amanda testified that DCF "put" her in
"different programs" and "helped" her stay in college by
"paying" for her education. Amanda also testified that she had
not been back to her house since she disclosed the sexual abuse.
This testimony was proper. So as to avoid the "dramatic impact"
of having evidence of potential bias extracted from its witness
on cross-examination, the Commonwealth may, on direct
examination, inquire into possible bias of the witness.
Commonwealth v. Young, 10 Mass. App. Ct. 410, 412 (1980).
"Otherwise it might appear the prosecution is trying to conceal
damaging information from the jury." Id.2 On cross-examination of the DCF investigator, defense counsel
said, "I want to ask you some questions about foster care," but
the investigator testified, "I'm not comfortable speaking to
that, because that's not the type of job that I do."
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Defense counsel did not object to this testimony, which was
entirely consistent with the defense strategy of focusing on
Amanda's credibility. In her opening statement, defense counsel
suggested the motive for Amanda to contrive a story about the
defendant. Amanda had a difficult home life, but after accusing
the defendant, "she got to leave and she hasn't had to come back
since." In her closing argument, counsel once again emphasized
that Amanda was unhappy in a dysfunctional home and "was able to
walk out of [that] home after she made this accusation."
Contrast Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 595
(2006) (improper for social worker to testify about steps
department took to "seek custody of the victim"). Thus, there
was no error or "substantial risk of a miscarriage of justice."
Freeman, 352 Mass. at 564.
We also discern no error related to the DCF investigator's
testimony about her general duties. The defendant argues that
he was prejudiced by testimony that investigators "try to
determine if the report is actually true." The referenced
testimony is taken out of context from a larger narrative. The
witness was not referring to Amanda's allegations as the defense
now suggests but was referring to general procedures about
reports of "child abuse and neglect": "As an investigator, you
get a report. The report has, there's allegations of child
abuse and neglect. It has to involve a caretaker most times.
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And it's our job to talk to collaterals –- meaning doctors,
schools -– meet with the children, meet with the parents, see
the home, and try to determine if the report is actually true or
not. . . . [O]ur job is to gather information to either support
the allegations of child abuse and neglect, or we gather
information to unsupport the allegations of abuse and neglect."
When read in context, the investigator testified to general
duties concerning reports of abuse and neglect, not to a
conclusion about whether Amanda had been sexually abused. See
Calderon, 65 Mass. App. Ct. at 595 (permissible for witness to
provide "background information about the social worker's duties
and how she became involved in the case"). Therefore, the
testimony did not create the "imprimatur of official belief in
the complainant." Commonwealth v. Stuckich, 450 Mass. 449, 457
(2008).3
Finally, we disagree with the defendant's contention that
the judge erred by admitting testimony of the DCF investigator
and the lead police detective about the "investigative process."
Citing language in Commonwealth v. Stuckich, 450 Mass. 449(2008), the defendant contends that the testimony about the
investigative process "unfairly corroborated" Amanda's testimony
"by repeatedly telling the jury that the Commonwealth believed
3 We note that defense counsel elicited testimony from the police
detective that the defendant was "arrested on these charges."
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her." Contrary to the defense claim on appeal, neither the DCF
investigator nor the police detective testified that they
believed Amanda. The DCF investigator testified that she
attended an interview with Amanda and spoke with the defendant.
The police detective testified that he was contacted by the DCF
investigator, spoke to the defendant, and attended an interview
with Amanda. We discern no impropriety in the admission of this
evidence about investigative steps, especially where the
interaction of these two witnesses with the defendant was
critical to establishing a foundation for identifying him in
court.4 See Commonwealth v. Arana, 453 Mass. 214, 226 (2009)
("We did not intend in Stuckich to imply that, unless a police
officer is the first complaint witness, testimony concerning the
circumstances giving rise to the police involvement in a sexual
assault case will never be admissible as part of the
Commonwealth's case-in-chief").
Also, testimony about the police investigation is entirely
appropriate to answer defense claims of an inadequate
investigation. See Arana, 453 Mass. at 226-227 (steps in police
investigation admissible and relevant where defense theory
implied police incompetent and biased). Here, in her opening
4 Neither Amanda nor her mother could identify the defendant in
court during trial in 2019, five years after the indictments
issued.
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statement, defense counsel pointed to the lack of physical,
medical, and eyewitness testimony as a weakness in the
Commonwealth's case against the defendant. Through an extensive
cross-examination of the police detective, defense counsel also
established the police failed to question witnesses, collect
physical evidence, prepare search warrants, and subject evidence
to scientific testing. To rebut the suggestion this was
inadequate investigation, the Commonwealth was permitted to
produce evidence about the investigative process to explain why
such evidence might not have been gathered. Arana, 453 Mass. at
227. The evidence about the investigative steps taken here was
proper as "an integral piece of the Commonwealth's response to
the defendant's theory." Id.Judgments affirmed.
By the Court (Henry, Shin &
Hodgens, JJ.5),
Clerk
Entered: April 13, 2023.
5 The panelists are listed in order of seniority.
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