Commonwealth v. Bernado Semis.

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

24-P-360

COMMONWEALTH

vs.

BERNADO SEMIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction of indecent

assault and battery and from the denial of his motion for a new

trial. He argues that the trial judge erred in admitting a

video deposition of the victim in lieu of live testimony because

the visual format of the video did not allow the jury to view

the confrontation between the victim and the defendant.

Relatedly, the defendant argues that he is entitled to a new

trial because defense counsel was ineffective for agreeing to

the admission of the video deposition. We affirm.

Background. The victim is originally from Sweden and was

staying with relatives in Revere during the summer of 2017. One

day that summer, the victim met the defendant by chance on the
street. They communicated through a social media application,

Snapchat, for the next two weeks, and the conversations

eventually took on a sexual tone. On the morning of July 23,

2017, the victim accepted the defendant's invitation to come to

his house.

According to the victim's deposition testimony, upon her

arrival, the defendant immediately led her upstairs to his

bedroom. When the victim said that she did not want to do

anything sexual, the defendant responded, "Let's find out," and

got on top of her. The defendant removed the victim's shorts,

kissed her neck, and tried to remove her underwear. The victim

held onto her underwear and told the defendant to stop, and he

initially complied and agreed to watch a movie. After a few

minutes, however, the defendant began touching the victim's

buttocks, rolled on top of her, and took off her shirt. The

victim did not resist when the defendant took off her shirt,

but, when he started kissing her neck again and touching her,

she told him to stop and tried to get off the bed. The

defendant grabbed the victim from behind, pulled her back on the

bed, and put his fingers inside her vagina while she was telling

him to stop and trying to pull his arms away. The defendant

then tried to put his penis inside the victim's vagina, but she

was able to move her body to prevent him from doing so.

Eventually, the victim was able to get away and leave the house.

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According to the defendant's testimony at trial, the victim

said "no" when he first tried to kiss her, but, when he started

to kiss her neck, he could "see she was kind of enjoying it."

The victim helped the defendant take off her shorts and shirt,

and she removed her bra herself. The victim did not resist when

the defendant touched her breast and continued to kiss her neck.

When the defendant touched the victim's vagina, she told him to

stop, and he did. They then watched a movie for ten to twenty

minutes, during which time the defendant became confused because

the victim did not try to get up to put her clothes back on.

Believing she had changed her mind, the defendant started

kissing her again and tried to put his penis inside her vagina.

The victim said "no," and he stopped. As the victim was

leaving, the defendant could tell she was "kind of upset" and

held her hands and apologized to her, saying that he "really

like[d] her" and "[felt] bad for the situation."

Later the same morning, the defendant sent the victim

several Snapchat messages, which were admitted as an exhibit at

trial. In the messages the defendant told the victim that he

was "sorry," it "was stupid of [him]," he had "never done it

before," and he "won't do it again." He further stated, "I

would have been in jail by now if I done those thing [sic]

before," and appeared to acknowledge that he had held the victim

down and did not listen when she told him to stop.

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A transcript of the defendant's police interview was also

admitted as an exhibit at trial. During the interview the

defendant stated that the victim said "no" when he asked if she

wanted to have sex, but he "start[ed] touching her" because he

"wanted to see if she was going to change her mind." The

defendant admitted that the victim "started getting mad" and

told him to stop, but he "ke[pt] touching her." Later in the

interview, the defendant admitted to touching the victim's

vagina and that she told him to stop but he "didn't at first."

He further stated that, when the victim "ke[pt] telling [him] to

stop, that's when [he] stopped, and that's when [he] tried to

put [his] penis inside."

Discussion. 1. Admission of video deposition. At the

defendant's arraignment on July 28, 2017, the Commonwealth filed

a motion to depose the victim pursuant to Mass. R. Crim. P. 35,

378 Mass. 906 (1979), which a judge allowed over the defendant's

objection. The victim was then deposed under oath on August 7,

2017, in a courtroom with the defendant, the trial judge, and

the attorneys present. Several months later, in January 2018,

the Commonwealth moved to admit the video deposition in lieu of

the victim's live testimony, on the ground that she was

unavailable to testify at trial. While initially opposing the

motion, the defendant withdrew his objection at a hearing the

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following month, and the trial judge then endorsed the motion as

allowed by agreement of the parties.

Per the parties' agreement, the video deposition was played

for the jury at trial in September 2018. Before it was played,

the trial judge instructed the jury as follows:

"So, they're going to play this, what we would call a video
deposition. A video deposition is the testimony of a
person given under oath in court on a prior occasion in
response to questions asked by either one of the
attorneys."

"You are to treat the video deposition in the same way as
if the testimony had been given here in court."

"As with all witnesses, it is for you to determine how
believable and how significant that testimony is. So, this
is what we call a video deposition."

The defendant did not ask for any further instruction.

Despite his agreement below, the defendant argues on appeal

that the trial judge erred in admitting the video deposition

because its format did not allow the jury to see the

confrontation between the victim and the defendant, as the

defendant was not depicted on the screen. The defendant further

argues that the trial judge erred by not explaining to the jury

who was present during the deposition. Because these objections

were not preserved, we review only to determine whether any

error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Robinson, 480 Mass. 146, 154 (2018). We

discern no such risk.

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In arguing that the video deposition was inadmissible, the

defendant relies principally on Commonwealth v. Bergstrom, 402

Mass. 534, 539-540, 553 (1988), which held that allowing child

victims to testify from a separate room, while the defendant and

the jury watched from the courtroom by one-way video

transmission, violated the defendant's right to confrontation

under art. 12 of the Massachusetts Declaration of Rights. But

the procedure used in Bergstrom suffered from multiple

infirmities not present in this case. Most fundamentally, the

defendant there was literally denied his right to face-to-face

confrontation because he was not allowed to be in the room while

the child victims testified. See id. at 541-548. Moreover, the

child victims were not made aware that they were giving

testimony against the defendant in a court of law, see id. at

540, 553, and there were multiple deficiencies with the

technical aspects of the video, including distorted color and

sound, loud background noises, and occasions when "the screen

went blank." Id. at 549. In contrast, here, the defendant was

in the room when the victim was deposed under oath, and the

quality of the video, which we have viewed, did not suffer from

the same technical deficiencies.

To be sure, the Bergstrom court also noted its concern that

the judge and the attorneys were not shown on the screen and

held that going forward, "[a]bsent compelling circumstances, a

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jury ought to be able to view the interaction between a witness

and others who are present." Bergstrom, 402 Mass. at 550. In

Commonwealth v. Tufts, 405 Mass. 610, 617 (1989), the court

reiterated that it is "expect[ed] that, in trials having the

benefit of the Bergstrom opinion, videotapes will show all

persons present in the room as the jury would perceive them in

open court." At the same time, however, the court suggested in

Tufts that a deficiency of this kind would not, standing alone,

give rise to a constitutional violation. See id. ("It would

have been better if jurors could have observed the reactions of

the defendants to the child witness's testimony during the

videotaping, but the fact that the defendants in this case were

not visible on the videotape is not a fatal flaw to an otherwise

satisfactory videotape"). The court suggested likewise in

Commonwealth v. Amirault, 404 Mass. 221, 242-243 (1989)

(Amirault I). 1 See also Vazquez Diaz v. Commonwealth, 487 Mass.

336, 347-349 (2021) ("Although Zoom [an Internet-based video

conferencing platform] does not allow for physical, face-to-face

confrontation, the technology creates a close approximation of

the court room setting that can sufficiently safeguard the

defendant's right to confrontation").

1 We acknowledge that the trials in both Tufts and Amirault
occurred prior to the court's decision in Bergstrom. See Tufts,
supra at 617; Amirault I, supra at 242 n.9.

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Ultimately, we need not reach the merits of the issue

because we conclude that any deficiency in the format of the

video did not give rise to a substantial risk of a miscarriage

of justice. Where, as here, a defendant has waived his claim of

infringement of his right to confrontation, that "right drops

out as a constitutional absolute." Commonwealth v. Amirault,

424 Mass. 618, 651 (1997) (Amirault II). "The defendant must

then show that, taking the proceedings as a whole, the purpose

and value of confrontation have not been sufficiently served and

that as a result there is a substantial risk that the outcome of

the trial would have been different." Id. at 651-652.

The defendant has not met that burden. The victim here

testified under oath, in the physical presence of the defendant,

and was subject to cross-examination. The jury were able to

observe the victim's demeanor as she testified, as well as the

defendant's demeanor in the courtroom while the video was

playing, and they knew that the defendant was present at the

deposition because the victim identified him during her

testimony. 2 In these circumstances, assuming it was error not to

depict the other people in the room on the screen, the error was

2 Also, after the playing of the video concluded, the trial
judge instructed the jury that "the record shall reflect that
the witness had identified the defendant in the context of her
testimony. . . . Bernado Semis . . . was the defendant in the
deposition."

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not sufficiently significant in the context of the trial that we

are left "with a serious doubt that the [defendant's] guilt

[was] fairly adjudicated." Amirault II, 424 Mass. at 647. This

is especially so where the Commonwealth's evidence -- which

included the defendant's inculpatory statements in his police

interview and Snapchat messages to the victim -- was strong, and

defense counsel made a reasonable tactical decision to agree to

the admission of the video deposition, as discussed below. For

these reasons we discern no substantial risk of a miscarriage of

justice. See id. at 651-652.

2. Ineffective assistance of counsel. In his motion for a

new trial, the defendant claimed that defense counsel was

ineffective for failing to properly consult with the defendant

before agreeing to the admission of the video deposition, and

for not objecting to its admission based either on its format or

on the Commonwealth's insufficient efforts to secure the

victim's presence at trial. The motion judge, who was not the

trial judge, rejected both claims without an evidentiary

hearing. Exercising de novo review, see Commonwealth v. Mazza,

484 Mass. 539, 547 (2020), we reach the same result as the

motion judge.

With regard to defense counsel's alleged failure to consult

with the defendant, this is belied both by the trial record and

by counsel's affidavit. At the hearing on the Commonwealth's

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motion to admit the video deposition, defense counsel informed

the trial judge, "I discussed this matter with my client. We

decided . . . we are not going to oppose the motion." This

representation is consistent with counsel's affidavit, in which

he stated, "I explained to [the defendant] that in my opinion

[the victim's] absence was good for him, and trying this case

without live witness testimony would be good for his case. [The

defendant] agreed with my decision." The defendant cites no

authority to support his contention that counsel was required to

do more. A defendant's right to confrontation is not on "the

very short list of rights . . . that must be waived personally

by a defendant and cannot be waived by his counsel." Amirault

II, 424 Mass. at 651 n.23. The trial judge was thus "entitled

to rely on trial counsel's representations made in the presence

of his client, and to which his client did not object."

Commonwealth v. Smith, 456 Mass. 476, 481 (2010). See

Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) (judge

properly denied claim that counsel was ineffective for failing

to advise defendant of right to testify, where counsel made

"specific statements, . . . during the trial, that he had

advised the defendant of his rights and discussed the option of

testifying with both the defendant and the defendant's mother,

and that the defendant chose not to testify").

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With regard to defense counsel's decision not to object to

the admission of the video deposition, his affidavit

demonstrates that the decision was a tactical one. The

defendant thus has the burden of showing that the decision "was

manifestly unreasonable when made" (quotations omitted).

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015). He has

not met that burden. Counsel averred in his affidavit that he

chose not to oppose the Commonwealth's motion because he "did

not think that a jury would convict [the defendant] in this type

of case with an absent witness and without the sole accuser

being physically present in court." He further averred that,

after discussing the case with the prosecutor, he "believed that

if [he] insisted on the witness's presence at trial then she

would indeed come back for trial in the summer and that she

would provide compelling testimony." This was not manifestly

unreasonable. To the contrary, counsel -- who attended the

deposition and conducted the cross-examination of the victim --

could reasonably have concluded that it would be better strategy

to proceed with the victim's known testimony, rather than

risking that she might provide more compelling testimony at

trial. Indeed, in his closing argument, counsel capitalized on

the victim's demeanor during the deposition, noting that she was

"laughing" and "smirk[ing]," and then used that to argue, "But

you know what's not funny, this man is on trial today." Counsel

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also capitalized on the victim's statements that she had "a

conflict in her mind," arguing that it supported the defense of

consent because if "she doesn't know, . . . how is [the

defendant] supposed to know?" We see nothing unreasonable, let

alone manifestly unreasonable, about this strategy. See id. at

674-675 ("The manifestly unreasonable test . . . is essentially

a search for rationality in counsel's strategic decisions,

taking into account all the circumstances known or that should

have been known to counsel in the exercise of his duty to

provide effective representation to the client and not whether

counsel could have made alternative choices").

In addition, the defendant has not shown that counsel's

performance deprived him of a substantial ground of defense.

Whether a defense is substantial for purposes of an ineffective

assistance claim is essentially the same as whether an

unpreserved trial error created a substantial risk of a

miscarriage of justice. See Commonwealth v. Millien, 474 Mass.

417, 432 (2016). For the reasons discussed above, the defendant

has failed to demonstrate a substantial risk of a miscarriage of

justice. His argument that the case would have been dismissed

if the victim did not appear at trial is not just speculative,

but contradicts counsel's averment in his affidavit that, based

on his discussions with the prosecutor, he believed that the

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victim "would indeed come back for trial" and "would provide

compelling testimony."

Judgment and order denying
motion for new trial
affirmed.

By the Court (Blake, C.J.,
Shin & Walsh, JJ. 3),

Clerk

Entered: June 4, 2025.

3 The panelists are listed in order of seniority.

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