Commonwealth v. Luis Ortiz.

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-185

COMMONWEALTH

vs.

LUIS ORTIZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After jury trial in the District Court, the defendant was

convicted of indecent assault and battery on G.M. On appeal,

the defendant argues that the judge erred in (1) admitting in

evidence unduly prejudicial medical records, and (2) precluding

him from impeaching G.M. with a prior inconsistent statement.

We vacate the defendant's conviction.

Background. In the light most favorable to the

Commonwealth, the jury could have found the following facts.

G.M. went to visit her friend, Marissa, in New Bedford. There,

G.M. met Marissa's boyfriend -- the defendant -- and the

defendant's cousin. The four started drinking at Marissa's

home. G.M. became drunk and vomited, before passing out in

Marissa's mother's bedroom.
Later on, at 4 A.M., G.M. woke up to the realization that

the defendant was in the bed, had vaginally penetrated her while

she slept, and was inside of her. G.M. jumped out of bed and

asked the defendant what he was doing. The defendant said he

thought G.M. was Marissa, his girlfriend. Thereupon, the

defendant quietly slipped out of the bedroom and shut the door.

G.M. got her things together to leave and came across the

defendant in the dining room. The defendant started

apologizing, and G.M. slapped him. G.M. called her father, who

lived nearby, and went to see him to tell him what had happened.

While at her father's home, G.M. and her father called the

police, and G.M. later went to a hospital to be examined. The

police then went to Marissa's home and arrested the defendant.

The defendant told the police that the victim came on to him.

Discussion. 1. Medical records. The Commonwealth moved

to admit medical records and use the statements within them as

substantive evidence. The Commonwealth argued that the

statements within the medical records were substantively

admissible as an exception to the hearsay rule. See G. L.

c. 233, § 79. The defendant objected on the ground that the

evidence was irrelevant and unfairly prejudicial, especially

since the sole contested issue was consent and the records had

no bearing on that issue. Without specifically addressing

relevance or prejudice, the judge ruled that information within

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the records was admissible as an exception to the hearsay rule,

provided that it was part of the victim's diagnosis and

treatment.

After the judge denied the defendant's motion to exclude

the records in toto, the judge went through each page of the

records with the parties, entertaining objections as to

individual portions of the records. The defendant specifically

objected to the use of the word "assailant" on the forms.

Defense counsel renewed his objection to the records in their

entirety before the four-page redacted medical records were

introduced at trial. The defendant's objection to the medical

records was preserved. See Commonwealth v. Grady, 474 Mass.

715, 719-720 (2016). See also Mass. R. Crim. P. 22, 378 Mass.

892 (1979). We therefore review for prejudicial error. See

Commonwealth v. Brum, 492 Mass. 581, 587 (2023).

On appeal, the defendant argues that, despite the

redactions that the judge made, the medical records that went to

the jury still contained more than twenty references reinforcing

the concept that a sexual assault took place. Particularly

since the defense was consent, the defendant argues, the failure

to make sufficient redactions was prejudicial error. We agree.

In Commonwealth v. Dargon, 457 Mass. 387, 394-397 (2010),

the Supreme Judicial Court considered the impact of language in

medical records that appeared to assume that a sexual assault in

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fact took place where that was the ultimate issue for the jury.

That case involved the inclusion of a form filled out by a

Sexual Assault Nurse Examiner (SANE) based on answers provided

by the alleged victim, see id. at 390; the form sought details

of the "assault" and the "assailant." Id. at 396. The court

held that failure to redact such references was error. See id.

Because the defendant had failed to preserve the objection at

trial, however, the court reviewed the error for a substantial

risk of a miscarriage of justice and determined that there was

no such risk. See id. at 398.

This case involves the same sexual assault references found

problematic in Dargon; more than twenty such references were

included in the four pages of medical records that went to the

jury in this case. The failure to redact was error. Since the

objection was preserved, the question remains whether the error

was prejudicial. See Commonwealth v. Lugo, 104 Mass. App. Ct.

309, 317 (2024), quoting Commonwealth v. Cruz, 445 Mass. 589,

591 (2005) (error not prejudicial if it "did not influence the

jury, or had but very slight effect"). See also Kotteakos v.

United States, 328 U.S. 750, 764-765 (1946).

As the courts have recognized, a statement in a medical

record "enhanced with a cloak of professional and institutional

authority, that the very crime which the prosecution is bound to

prove has occurred, acquires considerable potency" (citation

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omitted).1 Commonwealth v. DiMonte, 427 Mass. 233, 242 (1998).

The Commonwealth argues that the improper references in the

medical records did not likely influence the jury in light of

G.M.'s testimony, her father's first complaint testimony, and

the defendant's statement to the police that G.M. came on to

him. But all of that evidence still reduces to a contest

between two differing accounts, with G.M.'s account obtaining

added weight from conclusory language in the medical records.

Where the defense was consent and the medical records had the

effect of assuming a sexual assault, we cannot say that failure

to redact was not prejudicial.

2. Impeachment by prior inconsistent statement. At trial,

G.M. testified that, on the night she stayed at Marissa's home,

she awoke to find the defendant having sex with her. The

defendant attempted to impeach this testimony by eliciting

testimony from Marissa that G.M. had previously told her that,

As the Commonwealth acknowledged at oral argument, the
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medical records had marginal relevance. The records simply
confirmed that G.M. had sexual intercourse, a fact not disputed
at trial. However, the numerous references to "assault" and
"assailant" had the effect of transforming the sexual
intercourse into sexual assault, and thereby perhaps adding an
impermissible additional first complaint. See Dargon, 457 Mass.
at 399-400 (if independently admissible evidence serves no
purpose other than to repeat fact of complaint and thereby
corroborate complainant's accusations, it is inadmissible unless
specifically designated as first complaint evidence). Given the
minimal probative value of the medical records and the risk of
undue prejudice, it may have been prudent to allow the
defendant's motion to exclude the records in their entirety.
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when she awoke, she thought that the person having sex with her

was the defendant's cousin. When the Commonwealth objected, the

judge stated that defense counsel was attempting to elicit

evidence of G.M.'s sexual conduct with someone other than the

defendant.2 The defendant explained that he was attempting to

impeach G.M.'s credibility by showing that on a prior occasion,

G.M. made a statement about the alleged sexual assault that was

inconsistent with her trial testimony. The judge sustained the

objection. On appeal, the defendant claims that this was error.

A prior inconsistent statement is one where "either by what

it says or by what it omits to say, affords some indication that

the fact was different from the testimony of the witness whom it

is sought to contradict." Commonwealth v. Ortiz, 39 Mass. App.

Ct. 70, 72 (1995), quoting Commonwealth v. West, 312 Mass. 438,

440 (1942). "Extrinsic evidence of a prior inconsistent

statement by a witness . . . is admissible." Mass. G. Evid.

§ 613(a)(2) (2024). When extrinsic evidence touches only on a

collateral issue, a judge has the discretion to exclude it. See

Commonwealth v. Farley, 443 Mass. 740, 751 (2005); Mass. G.

Evid. § 613(a)(4) (2024). See also Commonwealth v. Hesketh, 386

2 The Commonwealth had previously moved in limine to exclude
evidence in violation of the rape shield statute, G. L. c. 233,
§ 21B, which prohibits evidence of specific instances of a
victim's sexual conduct in certain sexual assault prosecutions.
See Commonwealth v. Jacques, 494 Mass. 739, 744 (2024).
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Mass. 153, 161 (1982). Where the evidence goes to a central

issue in the case, however, a judge has no discretion to exclude

it. See Commonwealth v. Niemic, 483 Mass. 571, 580-581 (2019)

(statements that would impeach credibility of key witness and

which went to key issue in case were properly admitted). See

also Commonwealth v. McGowan, 400 Mass. 385, 390 (1987).

The defendant contends that the judge had no discretion to

deny his attempt to impeach G.M. because the prior inconsistent

statement went not only to the credibility of a key Commonwealth

witness, G.M., but also to a key issue in the case, the alleged

sexual assault. However, the record is less than clear on

whether the statement sought to be elicited was in fact

inconsistent. In the transcript capturing the defendant's offer

of proof on this issue, there is an "inaudible" portion, making

it difficult to discern the complete argument presented to the

judge. Additionally, the remaining offer of proof seems to

suggest alternative scenarios -- one is that G.M. said she

actually had sex with the defendant's cousin and the other is

that G.M. said she only initially assumed the person was the

defendant's cousin until she found out it was the defendant.

The former theory would seem to conflict with the defendant's

consent defense, instead offering an identity defense, and the

latter theory would seem to have no bearing on consent.

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On appeal, the defendant argues that G.M.'s statement that

she thought it was the defendant's cousin penetrating her did go

to the issue of consent, because the jury could have considered

that G.M. initially consented to sexual intercourse when she

thought it was the defendant's cousin but withdrew the consent

when she realized it was the defendant. We cannot say that the

offer of proof made this theory clear to the judge. On any

retrial, the theory may, of course, be raised and considered

anew.

Judgment vacated.

Verdict set aside.

By the Court (Sacks, Singh &
Walsh, JJ.3),

Clerk

Entered: January 6, 2025.

3 The panelists are listed in order of seniority.
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