Commonwealth v. Emmanuel Rivera.

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-818

COMMONWEALTH

vs.

EMMANUEL RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Emmanuel Rivera, was indicted on charges of

rape and abuse of a child, aggravated by a ten-year age

difference, see G. L. c. 265, § 23A, and intimidation of a

witness, see G. L. c. 268, § 13B. After a bench trial in the

Superior Court, the judge found the defendant guilty of the

lesser-included offense of indecent assault and battery of a

child and acquitted the defendant of witness intimidation. On

appeal, the defendant claims that the substitution of the

Commonwealth's first complaint witness amounted to reversible

error. We affirm.

In certain circumstances judges may permit "someone other

than and 'in lieu of, the very "first" complaint witness' to
testify." Commonwealth v. Murungu, 450 Mass. 441, 445 (2008),

quoting Commonwealth v. King, 445 Mass. 217, 243 (2005), cert.

denied, 546 U.S. 1216 (2006). One such circumstance is when the

first complaint witness "has an obvious bias or motive to

minimize or distort the victim's remarks." Murungu, supra at

446. To apply this exception, the judge must make a preliminary

determination of the witness's bias. See id. "Generally, a

voir dire will be the appropriate mechanism for such a

determination." Id. We review a judge's decision regarding the

admissibility of first complaint evidence for abuse of

discretion. See Commonwealth v. Aviles, 461 Mass. 60, 73

(2011).

Although the judge did not conduct a voir dire, the

Commonwealth provided the judge with screenshots of text

messages that the true first complaint witness, the victim's

mother, had sent to the defendant after the victim disclosed the

assault. The text messages clearly showed the mother's bias.

Not only did she express frustration that the victim would

testify in a manner "that could put [the defendant] in jail,"

she also offered to testify in his defense. The text messages

signaled a disbelief of the victim's disclosure in light of "how

she acted the next day and the whole fucking month in between"

and "how much and often she lies now." On this showing, the

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judge allowed substitution of the mother with the next-in-time

fresh complaint witness, the victim's grandmother.

The defendant argues on appeal that it was error to exclude

the mother's first complaint testimony based on her bias prior

to trial, and that the judge should have conducted a voir dire

to determine if the mother remained biased on the day of trial.

However, the defendant did not ask the judge to conduct a voir

dire. To the contrary, defense counsel withdrew a previously-

filed motion for voir dire of the first complaint witness,

stating that it was unnecessary in a bench trial. In any event,

the Commonwealth's motion did not present the type of a

contested factual issue that can only be resolved with an

evidentiary hearing. Contrast Commonwealth v. Stuckich, 450

Mass. 449, 455 (2008). The judge could reasonably conclude that

evidence of the mother's bias at any time after receiving the

first complaint was sufficient to taint her testimony. See

Davis v. Alaska, 415 U.S. 308, 317 n.5 (1974) ("[a] partiality

of mind at some former time may be used as the basis of an

argument to the same state at the time of testifying" [citation

and emphasis omitted]). Additionally, the record provides no

indication that the request for substitution was prompted by an

impermissible motive, such as the Commonwealth's desire to

present a stronger version of the first complaint. See

Commonwealth v. McGee, 75 Mass. App. Ct. 499, 501 (2009).

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Rather, the request was based on a legitimate concern that the

mother's version of the first complaint would be distorted into

a weaker or inaccurate version of what the victim told her. On

this record, we discern no abuse of discretion in the judge's

determination that the mother was biased and that substitution

of the grandmother as the first complaint witness was

appropriate.

In any event, the substitution did not create a substantial

risk of a miscarriage of justice.1 In a jury-waived trial, "we

presume that the judge was not affected, as a jury might be, by

the testimony of two complaint witnesses." Murungu, 450 Mass.

at 448. Here, the judge made clear in his ruling that any first

complaint testimony must "come in through the grandmother, and

not through the mother." The prosecutor was cautious to adhere

this instruction throughout her questioning of the victim's

mother. At one point, for example, she expressly avoided the

risk of eliciting first complaint testimony from the mother by

1 Because the defendant did not request a voir dire and did
not argue that the judge should determine whether the mother was
still biased on the day of trial, we review his claim under the
substantial risk of a miscarriage of justice standard. See
Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). The
defendant's arguments during the hearing on the Commonwealth's
motion in limine, which did not raise the same grounds that he
raises on appeal, did not preserve the issue. See Commonwealth
v. Belnavis, 104 Mass. App. Ct. 798, 801 (2024). In any event,
we would reach the same result if we were to review for
prejudicial error.

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prefacing a question with, "I don't want to ask you what she

said to you." Moreover, the judge acquitted the defendant of

the more serious rape charge and of the witness intimidation

charge, demonstrating he was not unduly swayed by the first

complaint testimony. See Commonwealth v. Sosnowski, 43 Mass.

App. Ct. 367, 372 (1997). We are confident that any error did

not create a substantial risk of a miscarriage of justice.

Judgment affirmed.

By the Court (Massing,
Walsh & Brennan, JJ.2),

Clerk

Entered: January 7, 2025.

2 The panelists are listed in order of seniority.

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