Commonwealth v. Diony Ramirez.

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-954

COMMONWEALTH

vs.

DIONY RAMIREZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Diony Ramirez, appeals from judgments,

entered after a jury trial in Superior Court, of conviction on

indictments for aggravated rape of a child and indecent assault

and battery of a child under the age of fourteen. The defendant

argues, first, that a detective's testimony concerning the

defendant's postarrest silence violated the protections set

forth in Doyle v. Ohio, 426 U.S. 610, 611, 616-619 (1976), and

constituted error that was not harmless beyond a reasonable

doubt. The defendant also argues that evidence relating to

statements that she made during a postarrest telephone call in

the police station was improperly admitted. Because we agree

that the detective's testimony on the defendant's postarrest
silence constituted error that was not harmless beyond a

reasonable doubt, we vacate the defendant's convictions and

remand the case for a new trial should the Commonwealth choose

to pursue one.

1. Background. We summarize the facts as the jury could

have found them, unless otherwise noted. We reserve certain

details for later discussion.

a. Alleged incidents and disclosure. The child, Travis, 1

lived with his mother, stepfather, grandmother, and younger

sister. In October of 2019, the defendant -- a cousin -- moved

into the attic of Travis's house for several weeks.

The alleged rape and indecent assault and battery occurred

at the home during one night during that period, when the

defendant babysat Travis (who was then eleven or twelve years

old) and his sister.

In August of 2020, months after the alleged incidents,

Travis's mother took Travis to a tattoo shop, where they both

intended to get an eyebrow piercing. As part of the intake,

Travis was presented with a form asking whether he had a

sexually-transmitted infection (STI). After reading this

question, Travis told his mom that he no longer wanted to get

the piercing. Travis's mother, realizing "something was off,"

prompted Travis to talk to her in private, whereupon Travis told

1 A pseudonym.

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his mother that he and the defendant "had sex" months earlier

and he thought he had an STI. Travis's mother called the police

to report the incidents, and later, they filed a report with the

police. Travis and his mother also went to the hospital to get

Travis tested for an STI. He tested negative.

b. Defendant's postarrest telephone call. The following

facts, which closely mirror those at trial, could have been

found from the on hearing the defendant's motion for sanctions.

On August 11, 2020, the defendant turned herself in to the

Revere police station and was placed into custody. Revere

Police Detective Sasha Arana served as an English language

interpreter between the defendant and Sergeant Stacey Bruzzese.

Per the booking process, Arana read the defendant her Miranda

rights in Spanish and then asked the defendant if she understood

said rights, to which the defendant stated that she did. Arana

then asked the defendant whether she wanted to speak to the

police, to which the defendant said no. Arana handed the

defendant a form listing the Miranda rights in English, and

explained to the defendant that rights listed therein were the

same rights Arana had just verbally enumerated, and which the

defendant had acknowledged that she understood. The defendant

then signed the form, indicating that she understood her Miranda

rights, and that she did not want to speak to the police. Arana

informed the defendant that she was permitted to make a

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telephone call using the booking room's telephone. Located

above the telephone, a sign read, in English, that the telephone

line was recorded. The defendant placed a telephone call, and

Arana, who was standing about three feet away, overheard the

defendant's conversation, and reported it to Bruzzese. Bruzzese

memorialized what Arana had heard from the defendant in a

"supplemental narrative report," which read,

"While [the defendant] was on the phone she explained to
the person on the other end where she was and her charges.
She told the individual that she didn't do anything to the
victim but that 'you know how I get when I take those blue
pills.' 'I can't remember anything I do.'"

On January 4, 2021, the defendant was indicted for

aggravated rape of a child, in violation of G. L. c. 265, § 23A,

and indecent assault and battery on a child under the age of

fourteen, in violation of G. L. c. 265, § 13B. On January 26,

2021, the Commonwealth presented defendant's counsel with

discovery, including Bruzzese's supplemental narrative report.

In July of 2021, the Commonwealth notified the defendant's

counsel that, although the defendant's postarrest telephone call

had been recorded, the recording had been destroyed. The

defendant filed a motion for sanctions for the Commonwealth's

failure to preserve the recording, requesting exclusion of the

evidence of the defendant's statements made during the telephone

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call. 2 After a hearing, the motion judge denied the defendant's

motion for sanctions, stating that the defendant would "be given

the opportunity to thoroughly cross-examine" Arana and Bruzzese

on the contents of the telephone call, and that an instruction

would be provided, if requested. The defendant filed a second

motion to exclude this evidence just before trial, and the trial

judge denied the motion.

c. Trial. At trial, Arana testified that the defendant

"mentioned something about, you know how I get when I take these

pills. . . . I don't remember." On cross-examination,

defendant's counsel asked Arana if the defendant had also stated

during the telephone call that "she didn't touch [Travis]," to

which Arana responded that she could not recall. After having

her recollection refreshed by Bruzzese's written narrative,

Arana confirmed that the defendant "told the person on the other

end" of the telephone call that "she didn't do anything to

[Travis]." Additionally, in the final jury charge, the judge

instructed the jury that, based on the Commonwealth's failure to

preserve the recording of the defendant's telephone call, the

2The defendant also filed a motion to suppress the
defendant's alleged statement made during the telephone call "on
constitutional grounds." The motion judge, who also denied the
motion for sanctions, denied this motion, and the defendant does
not challenge the judge's denial on appeal.

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jury "may, but need not, infer that the recording would have

been unfavorable to the Commonwealth."

The jury deliberated for three days before finding the

defendant guilty on both counts. 3

2. Discussion. a. Direct examination of Arana. The

defendant asserts that her right to remain silent was violated

when the prosecutor elicited from Arana statements that

indicated the defendant's choice not to speak to the police

after being Mirandized. On direct examination, Arana testified

that the defendant, upon being put into custody, was read her

Miranda rights, after which the following exchange and

objections occurred:

THE PROSECUTOR: "Okay. . . . And did [the defendant] say if
she wanted to speak to the police?"

DETECTIVE ARANA: "She did not."

DEFENSE COUNSEL: "Objection."

THE JUDGE: "Overruled. . . . We have the answer to the
question. Next question."

THE PROSECUTOR: "Okay. So what did you do at that point?"

DETECTIVE ARANA: "After she did not want to speak to police,
she was allowed to make a phone call."

3 On the second day of deliberations, the jury reported that
they "don't seem to be able to reach consensus" and, later that
afternoon, that they were not making any progress. The judge
responded to the second note by giving the jury a "Tuey-
Rodriguez" instruction. See Commonwealth v. Rodriguez, 364
Mass. 87, 101-102 (1973); Commonwealth v. Tuey, 8 Cush. 1, 8
(1851).

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THE JUDGE: "I'm sorry, the objection is sustained and the
answer will be stricken."

"There is no question that, under the fundamental

principles of jurisprudence, evidence of a criminal defendant's

postarrest, post-Miranda silence cannot be used for the

substantive purpose of permitting an inference of guilt. . ."

Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983). Furthermore,

"[t]estimony regarding a defendant's statements indicating his

or her intention to remain silent are 'equally unacceptable.'"

Commonwealth v. Beneche, 458 Mass. 61, 73 (2010), quoting Mahdi,

supra at 694-695. "This is true regardless of whether the judge

struck the improper reference, as was done here." Commonwealth

v. Chase, 70 Mass. App. Ct. 826, 833 (2007). Here, Arana's

testimony that the defendant declined to speak to the officers

following being read her Miranda rights clearly violates these

principles.

The Commonwealth does not contest that Arana's reference to

the defendant's post-Miranda silence was admitted in error.

Rather, it contends that this error was not harmless beyond a

reasonable doubt. See Commonwealth v. Tiscione, 482 Mass. 485,

493 (2019) ("A constitutional error preserved by a timely

objection . . . is reviewed to determine whether it was harmless

beyond a reasonable doubt"). We are not persuaded.

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In considering whether a Doyle error is harmless beyond a

reasonable doubt, we consider the following factors: "(1) the

relationship between the evidence and the premise of the

defense; (2) who introduced the issue at trial; (3) the weight

or quantum of evidence of guilt; (4) the frequency of the

reference; and (5) the availability or effect of curative

instructions" (footnotes omitted). Mahdi, 388 Mass. at 696-697.

"These factors are not exclusive or exhaustive," id. at 697, nor

are they necessarily to be accorded equal weight. See id. at

698. Also, notably, the Supreme Judicial Court in Mahdi noted

that "[t]he nature of a Doyle error is so egregious that

reversal is the norm, not the exception." Id.

First, the defendant's decision not to speak to the police

inherently undercut the defense's premise, i.e., that Travis and

his mother fabricated their account of the events. By

indicating to the jury that the defendant remained silent,

Arana's testimony invited an inference that undermined the

defense and improperly bolstered Travis's credibility as to his

account of the events.

The second and third factors also weigh in favor of the

defendant, as (1) it was the prosecutor who elicited Arana's

testimony, and (2) the evidence against the defendant was not

overwhelming, as conceded by the Commonwealth. Contrast Chase,

70 Mass. App. Ct. at 835 (reference to defendant's post-Miranda

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silence harmless beyond reasonable doubt where quantum of

evidence of guilt was strongly in Commonwealth's favor). For

example, while not "required to support a conviction of rape or

sexual assault where the victim testified as a witness at the

trial," Commonwealth v. Santos, 100 Mass. App. Ct. 1, 3 (2021),

the Commonwealth did not present forensic evidence or

independent corroboration of the alleged crimes. 4 Further, the

jury deliberated for three days, during which they twice

indicated that they were not "making progress." They came to a

decision after being given a Tuey-Rodriguez instruction.

The fourth factor favors the Commonwealth, albeit slightly,

as only Arana's second answer clearly implicated the defendant's

post-Miranda silence. Although, at first, the judge overruled

defense counsel's objection to Arana's first answer,

interpreting her testimony to be indicating that the defendant

remained silent when asked by Arana if she wanted to talk to the

police -- and not that the defendant had affirmatively declined

to speak to the police -- the judge ultimately struck both of

4 Additionally, the defense identified inconsistencies
between Travis's testimony at trial and his initial interview
with police regarding his clothing, the location of the alleged
incidents within the home, and how the alleged rape had occurred
and concluded.

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Arana's answers. 5 Additionally, the prosecutor did not reference

the defendant's silence in his opening or closing statements.

Lastly, although the judge instructed the jury to disregard

any statements struck throughout the course of the trial, this

instruction cannot be said to have completely alleviated the

impact of Arana's reference, especially here, where the record

does not readily indicate which of Arana's answers the judge

intended to strike, and the instruction was given during the

final jury charge, a day after the testimony, and not

immediately after Arana's reference to the defendant's post-

Miranda silence.

In sum, we cannot conclude that admission of Arana's

testimony was harmless beyond a reasonable doubt, where the

reference both undermined the defense's central premise and was

elicited by the prosecutor, and the evidence was not

overwhelming in the Commonwealth's favor. We, therefore, vacate

the defendant's convictions.

b. Admission of evidence related to defendant's postarrest

telephone call. The defendant also asserts that the motion

5 After Arana's second answer, where she clearly referenced
the defendant's post-Miranda silence, the parties went to
sidebar where defense counsel moved for a mistrial. After the
sidebar conference, the judge instructed the jury that "the last
answer given by the police officer" was struck. Because Arana's
second answer was "the last answer given" before the sidebar
conference, we interpret the judge to have struck Arana's second
answer.

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judge and the trial judge erred in denying her motions to

exclude the evidence of the defendant's postarrest telephone

call. We review the judges' rulings for abuse of discretion or

other error of law. See Commonwealth v. Carney, 458 Mass. 418,

425 (2010).

When faced with allegations of lost or destroyed

exculpatory evidence, a judge must first consider whether a

defendant satisfied "the initial burden of demonstrating the

exculpatory nature of that evidence." 6 Commonwealth v. Williams,

455 Mass. 706, 718 (2010). To do so, the defendant must

"establish[] a reasonable possibility, based on concrete

evidence rather than a fertile imagination" that the lost

evidence would be favorable to his case (quotation and citation

omitted). Commonwealth v. Neal, 392 Mass. 1, 12 (1984). If a

defendant meets their initial burden, the judge then balances

"the Commonwealth's culpability, the materiality of the lost

evidence, and the prejudice to the defendant." Williams, supra

at 718.

Here, the defendant points to Bruzzese's supplemental

narrative as the "concrete evidence" of the recording's

exculpatory nature. Specifically, the defendant argues that the

6 Notwithstanding whether the defendant seeks remedy for the
Commonwealth's loss or destruction of exculpatory evidence in
the form of suppression, dismissal, or, as here, sanctions, the
burden on the defendant remains substantially the same. See
Commonwealth v. Sanford, 460 Mass. 441, 446-447 (2011).

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portion of the narrative where she is alleged to have said that

she "didn't do anything to the victim" leads to the inference

that the entirety of the telephone call would have been

favorable to her case. The defendant did not, however, identify

how the entire recording of the telephone call differed from the

portions of the narrative that were introduced through Arana's

testimony, and further, how any undisclosed portions would have

been otherwise exculpatory. See Commonwealth v. Seino, 479

Mass. 463, 477 (2018) (initial burden not met where defendant

[1] failed to demonstrate how officer's notes, written in

preparation of police report and destroyed before trial,

differed from report itself, and [2] defendant had opportunity

to cross-examine officer). See also Commonwealth v. Kater, 432

Mass. 404, 420-421 (2000). Moreover, the premise that the

recording would have revealed the context surrounding the

defendant's statements (as well as her tone and demeanor while

uttering them) does not necessarily lead to the conclusion that

such would have been favorable to the defendant's case, as

posited by the defendant. See Williams, 455 Mass. at 717

(defendant must show, beyond "speculation or surmise," that lost

evidence was exculpatory).

In any event, even had the defendant met her initial

burden, she was not prejudiced at trial by the unavailability of

the recording, where defense counsel was permitted to, and in

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fact did, cross-examine Arana on the contents of the telephone

call eliciting evidence that the defendant said she did not

assault Travis, and the jury was instructed that they may infer

that the telephone call would have been unfavorable to the

Commonwealth. Contrast Commonwealth v. Heath, 89 Mass. App. Ct.

328, 338-339 (2016) (defendant was prejudiced where judge

declined to give missing evidence instruction). Thus, despite

the Commonwealth's culpability in failing to preserve the

recording, and the materiality of its contents, we discern no

prejudice as a result of the recording's destruction.

We also conclude that the defendant did not establish that

the Commonwealth destroyed the recording "'in bad faith or

recklessly,'" and thus, cannot "take advantage of the analysis

more favorable to the defendant for such cases, which would

require the Commonwealth to show that 'the lost or destroyed

evidence was not potentially exculpatory.'" Seino, 479 Mass. at

477 n.21, quoting Commonwealth v. Sanford, 460 Mass. 441, 450

(2011).

Although Arana testified at the hearing on the motion for

sanctions to knowing that "all the phones in the station are

recorded," she also testified that she did not know how long the

recordings were preserved. Likewise, at that same hearing,

Bruzzese testified that she did not know whether the recording

system was working, and, at trial, she testified that she had

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not noticed the sign indicating that the defendant's call would

be recorded. Put together, the judges acted within their

discretion in concluding that such evidence was insufficient to

establish that the police acted recklessly or in bad faith in

failing to preserve the recording. See Seino, 479 Mass. at 477

n.21; Commonwealth v. Gonsalves, 99 Mass. App. Ct. 638, 642-643

& 643 n.3 (2021) (judge acted within discretion in finding

victim's testimony that officer had told her to delete texts

from defendant did not establish that police acted recklessly or

in bad faith).

Lastly, the defendant argues that the probative value of

the portions of the telephone call overheard by Arana was

substantially outweighed by the risk that the statements,

introduced without the context of the recording, would mislead

the jury. 7 See Commonwealth v. Rosa, 422 Mass. 18, 25 (1996)

(when determining whether evidence is admissible, judge must

consider, inter alia, risk of "prejudice, including confusion of

the jury"); Mass. G. Evid. § 403 (2021). As discussed above,

where Arana was subject to cross-examination regarding her

7 The defendant moved to exclude the evidence on these
grounds in a pretrial motion, and thus, we review its admission
for an abuse of discretion. See Commonwealth v. Fan, 490 Mass.
433, 444 (2022) ("A determination whether the risk of prejudice
substantially outweighs the probative value of the evidence is
for the trial judge, who is in the best position to evaluate the
effect of the evidence and therefore enjoys broad discretion in
the matter").

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recollection of the defendant's statements, and the jury was

instructed that it was able to infer that the recording would

have been unfavorable to the Commonwealth, we discern no abuse

of discretion in admitting the statements, as they were relevant

to whether the defendant had committed the alleged conduct. See

Commonwealth v. Bryant, 482 Mass. 731, 735 (2019) ("The

effectiveness of limiting instructions in minimizing the risk of

unfair prejudice should be considered in balancing prejudice and

probative value"). Contrast Heath, 89 Mass. App. Ct. at 339

("In the absence of any instruction from the judge about how to

consider the missing evidence, the potential for juror confusion

was substantial").

c. Sufficiency of the evidence. Finally, we note that the

Commonwealth's ability to, on remand, reprosecute the defendant

depends on whether the evidence at trial was sufficient to

convict her of the offenses. See Commonwealth v. Lester, 70

Mass. App. Ct. 55, 66 (2007). Considering the evidence

introduced -- chiefly, Travis's testimony -- in a light most

favorable to the Commonwealth, we conclude that "a rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt." Commonwealth v. Oberle, 476

Mass. 539, 547 (2017). See Commonwealth v. Rarick, 87 Mass.

App. Ct. 349, 353 (2015) (weight of evidence is not

determination of sufficiency of evidence).

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Accordingly, we vacate the judgments, set aside the

verdicts, and remand the case for a new trial should the

Commonwealth elect to pursue one. 8

So ordered.

By the Court (Rubin,
Desmond & Allen, JJ. 9),

Clerk

Entered: June 3, 2026.

8 Because we vacate the judgments on the grounds discussed
above, we do not reach the other issues raised by the defendant
on appeal.

9 The panelists are listed in order of seniority.

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