Commonwealth v. Luis Angel Torres.

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

23-P-812

COMMONWEALTH

vs.

LUIS ANGEL TORRES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Luis Angel Torres, was convicted of one count of

indecent assault and battery on a child under fourteen years

old, in violation of G. L. c. 265, § 13B. He was acquitted of

one count of forcible rape of a child, in violation of G. L.

c. 265, § 22A. On appeal, the defendant argues that one of the

Commonwealth's expert witnesses improperly vouched for the

credibility of the victim; the prosecutor's closing argument

shifted the burden of proof to the defendant; and his trial

counsel provided ineffective assistance by failing to object to

evidence that the defendant (the victim's father) had a familial

relationship with the victim's mother, and by failing to object
to argument and testimony that the defendant's sister did not

want to leave the victim alone with the defendant. We affirm.

Background. We summarize the relevant facts as the jury

could have found them, leaving some for further discussion. The

victim, the defendant's daughter, was born in 2007. At the time

of the incident, she lived with her mother and other relatives

in Chicopee. There were no formal visitation arrangements

between the victim's parents; when the defendant wanted to spend

time with the victim, he would make arrangements with the mother

and visit the victim at his sister's home in Springfield. In

early 2015, when the victim was seven years old, the defendant

visited her at the sister's home. After the sister left with

her children in the morning, the defendant entered the victim's

bedroom, closed the door, and told her to take off her clothes.

When she refused, he grabbed her wrist and slammed her down to

the floor onto her stomach. As the victim cried, the defendant

pulled off her pants and underwear, and the victim felt his

penis against her back. The defendant touched the victim's

"butt" with his hands and put his penis inside it. The

defendant then dressed and told the victim he would "do it

again" if she did not stop crying.

After the victim's grandfather brought the victim home, her

mother noticed that she appeared sad. The mother asked about

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the visit, the victim told her what happened, and the mother

called the police.

After the victim spoke with the police, she went to the

hospital, where she was examined by Dr. Kimball Prentiss, a

pediatric emergency medicine doctor. Dr. Prentiss administered

a pediatric evidence collection kit, but did not make any

findings after her examination of the victim. Two days later,

the victim was examined by Dr. Steven Boos, a pediatrician with

a subspeciality in child abuse pediatrics, and Dr. Boos's

examination did not show any objective findings of abuse.

The trial took place almost seven years later. The victim,

her mother, the defendant's sister, Dr. Prentiss, Dr. Boos, a

forensic scientist, and two police officers testified for the

Commonwealth. The defendant offered a redacted portion of the

victim's forensic interview transcript into evidence, but did

not call any witnesses. The jury returned a verdict of not

guilty on the charge of forcible rape and a guilty verdict on

the charge of indecent assault and battery.

The defendant filed a motion for a new trial raising a

claim of ineffective assistance of trial counsel, which the

trial judge denied without a hearing. The defendant now appeals

from his conviction and the denial of his motion for a new

trial.

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Discussion. 1. Vouching by the Commonwealth's expert

witness. The defendant argues that Dr. Boos improperly vouched

for the victim's allegations. Dr. Prentiss testified that Dr.

Boos advised her to administer the pediatric evidence collection

kit. Dr. Boos testified that he had treated "several thousand"

children presenting with concerns about suspected child abuse

and that, in his opinion, it was "highly likely" that no injury

would be found in a delayed physical examination following an

alleged sexual assault. When asked when pediatric evidence

collection kits are performed, Dr. Boos testified:

"There's two or three major criteria. One is that
there's enough suggestion that a -- an act has taken
place. The second is the amount of time that has
passed since the act took place and then the third
would be the consent and assent for the collection of
the kit."

The defendant objected and moved to strike this testimony, and

the judge overruled the objection. Dr. Boos then testified that

he examined the victim and found her to be "a normal prepubertal

child" with no "objective findings to indicate abuse."

Because the defendant objected to this testimony, "we

review to determine whether the error, if any, prejudiced the

defendant[]." Commonwealth v. DePina, 476 Mass. 614, 624

(2017). "An error is not prejudicial if it 'did not influence

the jury, or had but very slight effect'; however, if we cannot

find 'with fair assurance, after pondering all that happened

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without stripping the erroneous action from the whole, that the

judgment was not substantially swayed by the error,' then it is

prejudicial." Commonwealth v. Cruz, 445 Mass. 589, 591 (2005),

quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).

An expert witness may not present testimony that "a

reasonable jury would think . . . implicitly vouch[es] for the

credibility of the complainant." Commonwealth v. Quinn, 469

Mass. 641, 647 (2014). The defendant argues that Dr. Boos

engaged in vouching by asserting that pediatric evidence

collection kits are performed only if there has been "enough

suggestion" that "an act has taken place." We acknowledge that

this testimony was potentially confusing to the jury. Before an

evidence collection kit is administered, there will presumably

be some suspicion or concern that "an act has taken place," yet

presenting that concern as a criterion creates a risk that the

jury will conflate the reason for the kit's administration with

the forensic purpose it is intended to serve.

Nevertheless, we do not believe that the testimony amounted

to prejudicial error. First, Dr. Boos's use of the term

"suggestion" indicated, at most, an allegation of abuse, not a

finding that Dr. Prentiss or he confirmed by administering the

kit. Second, neither Dr. Prentiss nor Dr. Boos offered an

opinion as to whether the victim was abused. Third, the judge

instructed the jury that they alone would determine the

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credibility of the witnesses, including the credibility of

expert witnesses, and that it was "entirely within [their] role

as a jury to decide who and what to believe and how much [they]

believe it and what weight to give it." Fourth, the fact that

the jury acquitted the defendant of forcible rape of a child

indicates that they parsed the evidence carefully and that this

testimony "did not have a prejudicial effect on the jury."

Commonwealth v. Hampton, 91 Mass. App. Ct. 852, 855 (2017).

Accordingly, even if we were to assume error, we are confident

that the testimony "did not influence the jury or had but very

slight effect." Flebotte, 417 Mass. at 353.1

1 As the Supreme Judicial Court has recognized, "[A] medical
expert may be able to assist the jury by informing them that the
absence of evidence of physical injury 'does not necessarily
lead to the medical conclusion that the child was not abused,'"
Commonwealth v. Alvarez, 480 Mass. 299, 314 (2018), quoting
Commonwealth v. Federico, 425 Mass. 844, 851 (1997), "because
'[t]he jury may be under the mistaken understanding that certain
types of sexual abuse always or nearly always causes physical
injury or scarring in the victim.'" Alvarez, supra, quoting
Federico, supra at 851 n.13. Such testimony does not amount to
vouching for the victim, Commonwealth v. Quincy Q., 434 Mass.
859, 872 (2001), and where such testimony is offered "to negate
the inaccurate inference that a child who was sexually abused
would have sustained some genital injury," the Commonwealth is
not required "to call a nontreating physician expert to offer
such an opinion." Alvarez, supra. Nevertheless, the potential
for confusion that arose from Dr. Boos's testimony in this case
shows why we have "long and frequently . . . cautioned" against
percipient witnesses also testifying as expert witnesses,
particularly in sexual assault cases. Commonwealth v.
Velazquez, 78 Mass. App. Ct. 660, 667 (2011). Prosecutors can
minimize the risk of error by utilizing "sexual abuse experts
who have no connection with and make no references to the child

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2. The prosecutor's closing argument. The defendant

argues that the Commonwealth committed prejudicial error by

improperly shifting the burden of proof to him during closing

argument. After defense counsel challenged the credibility of

the victim's testimony and the consistency of the prosecution's

witnesses' testimony, the prosecutor responded by asking a

series of questions that cast doubt on the defendant's argument,

eventually asking, "What is their theory of why and who made it

up?" The defendant objected to this statement and requested a

curative instruction that the defendant did not have the burden

to prove anything. The judge denied the defendant's request,

stating that the defendant "opened the door to it" and that the

prosecutor's statement did not "create any burden shifting."

Because the defendant objected to the prosecutor's statement, we

review for prejudicial error. See Commonwealth v. Alvarez, 480

Mass. 299, 305 (2018).

"We consider remarks made during closing 'in the context of

the whole argument, the evidence admitted at trial, and the

judge's instructions to the jury.'" Commonwealth v. Andre, 484

Mass. 403, 417-418 (2020), quoting Commonwealth v. Felder, 455

Mass. 359, 368 (2009). At closing, a prosecutor is "entitled to

point out the weaknesses of the defendant's case and 'make a

victim." Commonwealth v. McCaffrey, 36 Mass. App. Ct. 583, 593-
594 (1994).

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fair reply to the defendant's closing argument.'" Commonwealth

v. Fernandes, 478 Mass. 725, 741 (2018), quoting Commonwealth v.

Smith, 404 Mass. 1, 7 (1989). In so doing, however, the

prosecutor "may not shift the burden of proof or argue that the

defendant has any affirmative duty to prove his innocence."

Fernandes, supra, citing Commonwealth v. Johnson, 463 Mass. 95,

112 (2012). For this reason, as a general rule, "rhetorical

questions should not be used in closing argument where they

could be perceived by the jury as shifting the Commonwealth's

burden of proof to the defendant." Commonwealth v. Habarek, 402

Mass. 105, 111 (1988).

Although we believe that the prosecutor's rhetorical

question, "What is their theory of why and who made it up?" was

better left unsaid, this statement did not amount to prejudicial

error in the context in which it was made. Most of the

prosecutor's statements in this part of the argument were

unobjectionable responses to the defense's theory that the

victim's accusation was "made up" and that her and her mother's

testimony was not consistent or credible. See Commonwealth v.

Rakes, 478 Mass. 22, 45 (2017); Commonwealth v. Rogers, 43 Mass.

App. Ct. 782, 785-786 (1997). Further, although the judge

denied the defendant's request for a curative instruction, he

instructed the jury in his final charge that the defendant "did

not have to explain anything," that "[t]he burden of proof rests

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entirely on the Commonwealth[,] and that burden never shifts."

See Johnson, 463 Mass. at 114; Commonwealth v. Bregoli, 431

Mass. 265, 279 (2000). We presume that jurors follow a judge's

clear instructions. Commonwealth v. Helfant, 398 Mass. 214, 228

(1986).

3. Ineffective assistance of trial counsel. The defendant

argues that the judge abused his discretion in denying his

motion for a new trial based on ineffective assistance of

counsel. We review the denial of a motion for a new trial "to

determine whether there has been a significant error of law or

other abuse of discretion." Commonwealth v. Grace, 397 Mass.

303, 307 (1986). "A defendant has a heavy burden to establish

ineffective assistance of counsel sufficient to warrant a new

trial." Commonwealth v. Lao, 450 Mass. 215, 221 (2007). The

defendant must establish that counsel's performance fell

"measurably below that which might be expected from an ordinary

fallible lawyer" and "likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

a. Evidence of the familial relationship between the

defendant and the victim's mother. The defendant argues that

trial counsel was ineffective in failing to object to evidence

that the defendant engaged in a sexual relationship with his

half-sister, the victim's mother, when she was sixteen years

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old, and in failing to request a specific limiting instruction

when this evidence was introduced. The Commonwealth introduced

this fact during its opening statement, telling the jury that

"it's important for you to know that [the victim's mother] and

the defendant are half siblings," the victim was born when the

mother "was just [sixteen] years old [and the] defendant was

[twenty] years old, and they have the same father." The

Commonwealth elicited testimony about the relationship from both

the victim's mother and the defendant's sister. The defendant

argues that this evidence was unfairly prejudicial because it

suggested that he was inclined toward incestuous relationships

with young women. In an affidavit, trial counsel stated that he

considered filing a motion in limine to preclude this evidence

but decided not to "because [he] thought that this relationship

was background information that would be admitted whether or not

[he] objected." In denying the motion for a new trial, the

judge stated that "the challenged evidence was probative" and

"relevant background evidence," and "[t]o suggest that the jury

was inflamed or was subjected to unduly prejudicial evidence and

acted accordingly is absurd."

Because the judge who denied the motion for a new trial

also presided at trial, we defer to his view that trial

counsel's "overall strategy and effectiveness [was] sound." See

Commonwealth v. Barnett, 482 Mass. 632, 638 (2019), citing

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Grace, 397 Mass. at 307. We do not agree, however, with the

judge's conclusion that the evidence at issue was probative or

necessary to explain the "complicated" family dynamic. Rather,

it would have been appropriate for defense counsel to object to

the admission of this evidence and seek to resolve any confusion

about the family members' shared surname and living arrangements

through either a narrow stipulation of facts or a limiting

instruction.

Assuming without deciding that defense counsel was

deficient in failing to object to this evidence or request a

limiting instruction when it was introduced, we conclude that

the defendant cannot satisfy the second prong of Saferian, i.e.,

that he was deprived of a substantial ground of defense. As the

judge found, "[T]he evidence was not emphasized." The

prosecutor did not argue that the defendant had a propensity to

engage in incestuous relationships; the term "incest" was never

spoken at trial. During the charge conference, defense counsel

acknowledged that, while the evidence of the familial

relationship could have "a very kind of unique prejudicial

effect," the Commonwealth had not "focused on it" during its

case. Finally, the fact that the jury acquitted the defendant

of forcible rape shows that they were not swept away by the

prejudicial impact of this evidence.

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b. Evidence that the defendant's sister did not want to

leave the victim alone with the defendant. The defendant also

argues that trial counsel was ineffective in failing to object

to testimony and argument that the defendant's sister would not

let the victim be alone around "her own father." The sister

testified that when the victim visited the defendant at her

house, she was certain that she never left the two of them

alone. Apparently skeptical of the sister's testimony, the

prosecutor asked the sister repeatedly to affirm that, when the

victim was under her care, she never left "her alone with

anybody including her own father." Trial counsel did not object

to the substance of these questions. Later, during closing

argument, the prosecutor argued, without objection by defense

counsel, that the sister, "who loved [the victim] so much[,]

. . . testified to you she didn't want to leave her alone ever.

[The sister] testified that she didn't want to leave [the

victim] alone with her own father. Think about that. But she

did leave her alone. She did."

The defendant contends that the prosecutor's line of

questions elicited improper character evidence because it

"communicated to the jury that [the sister] did not trust that

[the victim] would be safe in [the defendant's] care," and that

trial counsel's failure to object to the testimony and argument

prejudiced the defendant by providing corroboration of the

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victim's allegations. We disagree. Although "[e]vidence of a

person's bad character is generally not admissible for the

purpose of proving that he acted in conformity with it,"

Commonwealth v. Daley, 439 Mass. 558, 562 (2003), the sister did

not testify about the defendant's bad character but rather her

general practice of not leaving the victim alone with anyone,

including the defendant. See Mass. G. Evid. § 404 (a) (1)

(2021). Furthermore, the testimony was relevant to whether the

defendant had an opportunity to commit the alleged crimes. See

Commonwealth v. West, 487 Mass. 794, 805 (2021). In fact, the

sister's testimony arguably supported the defendant's position,

and at closing argument the prosecutor sought to undermine her

testimony by arguing that the sister did in fact leave the

victim alone with the defendant. Accordingly, trial counsel was

not ineffective in failing to object to this testimony and

argument, and the judge did not err or abuse his discretion by

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denying the defendant's motion for a new trial without an

evidentiary hearing.

Judgment affirmed.

Order denying motion for new
trial affirmed.

By the Court (Vuono, Shin &
Toone, JJ.2),

Clerk

Entered: August 2, 2024.

2 The panelists are listed in order of seniority.

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