Commonwealth v. Heroildo Candelario.

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-507

COMMONWEALTH

vs.

HEROILDO CANDELARIO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Heroildo Candelario (Heroildo), 1 appeals from

convictions stemming from, among other things, the sexual

assaults of his four nieces. His codefendant, Gilbert

Candelario, also known as Gilberto Candelario (Gilberto), was

also convicted of sexually assaulting the same four nieces, and

his own daughter, Nancy. 2 On appeal, Heroildo claims that the

judge abused her discretion by denying, in part, his motion to

sever and allowing, in part, the Commonwealth's motion for

1As they share a surname, we refer to the defendant and the
codefendant by their first names.

2 We use pseudonyms to refer to the victims.
joinder. He also contends that the evidence of intimidation of

a witness was insufficient. We affirm.

Procedural history. Heroildo was indicted on twenty-six

charges related to his four nieces, Ann, Julie, Mandy, and

Regan, under Superior Court Docket No. 1777CR00500 (docket no.

500). Gilberto was indicted on seventeen charges related to

these same four victims under Superior Court Docket No.

1777CR00501 (docket no. 501), and eight charges related to two

additional victims, his daughter Nancy, and his sister-in-law

Mary, under Superior Court Docket No. 1777CR00659 (docket no.

659). As will be discussed in more detail below, the

Commonwealth moved to join for trial Gilberto's new case (docket

no. 659) with the already joined cases against Gilberto and

Heroildo (dockets no. 500 and 501). Heroildo filed a motion to

sever docket no. 659 only. 3 He did not move to sever docket nos.

501 and 500, and defense counsel conceded that those two dockets

"involve the same alleged victims and the same sort of set of

factual circumstances."

In support of its argument for joinder, the Commonwealth

argued that the "conduct took place in a similar manner, was

perpetrated against victims around the same age and around the

3 Gilberto filed a motion to sever docket no. 501 from
docket no. 659 and opposed the Commonwealth's motion for
joinder.

2
same time and at the same location." In addition, the

Commonwealth noted that Nancy made similar observations to those

of the other four victims regarding their grandmother, the

"comings and goings" of Heroildo and Gilberto, and the

defendants' access to Ann, Julie, Mandy, and Regan during the

relevant timeframe. As to Mary, 4 the Commonwealth acknowledged

that the argument for joinder of docket no. 659 was "weaker,"

but that Gilberto's similar pattern of behavior with all the

victims was the "link." Finally, it argued that joinder was in

the "best interests of justice." See Mass. R. Crim. P.

9 (a) (3), 378 Mass. 859 (1979).

In moving to sever and in opposing the motion for joinder

of docket no. 659, Heroildo stressed that different victims were

involved, and it would be "too prejudicial" and "too confusing

for the jury." He focused on the fact that the allegations in

docket no. 659 took "place in a different time frame" with

different victims. Again, Heroildo did not move to sever and

did not oppose the motion for joinder of docket no. 501. After

a hearing, the judge allowed the Commonwealth's motion to join

docket no. 501 and so much of docket no. 659 relating to crimes

allegedly committed against Nancy. The judge denied the

4 Gilberto's abuse of Mary involved touching, not
penetration, at different points in time than the other victims,
and in a different location.

3
Commonwealth's motion to join so much of docket no. 659 relating

to crimes allegedly committed against Mary. The rulings

operated to deny, in part, Heroildo's motion to sever.

Discussion. 1. Joinder. "The decision whether to join

offenses for trial is a matter left to the sound discretion of

the judge, . . . and will not be reversed unless there has been

'a clear abuse of discretion'" (citation omitted). Commonwealth

v. Pillai, 445 Mass. 175, 179-180 (2005). "Severance . . .

should be ordered when (1) the prejudice resulting from a joint

trial is so compelling that it prevents a defendant from

obtaining a fair trial, or (2) the defenses are antagonistic to

the point of being mutually exclusive" (quotations and citations

omitted). Commonwealth v. Watson, 487 Mass. 156, 168 (2021).

Here, the defenses were consistent: the victims were

inconsistent and incredible, and thus under the second basis,

severance was not warranted. See Commonwealth v. Sosa, 493

Mass. 104, 113 (2023) (example of defenses that were not

mutually antagonistic).

Heroildo did not meet his burden to demonstrate prejudice

where he objected to the joinder of docket no. 659, but not to

the joinder of docket no. 501. Other than describing the nature

of Nancy's testimony as "inflammatory," Heroildo does not

explain how he was prejudiced, particularly where Nancy did not

make any allegations against Heroildo, and the only mention of

4
Heroildo in her testimony was confirmatory of where Heroildo

lived and where the bedrooms in the home were located. See

Commonwealth v. Cash, 101 Mass. App. Ct. 473, 478 (2022) (no

error in joinder where evidence was admissible).

For the first time on direct appeal, Heroildo contends that

trial counsel was ineffective for failing to request a curative

instruction regarding Nancy's testimony. 5 He does not, however,

claim that trial counsel was ineffective for failing to move to

sever docket no. 501. Generally, to prevail on an ineffective

assistance of counsel claim a defendant must demonstrate that,

but for his counsel's "serious incompetency, inefficiency, or

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

"the result of the proceeding would have been different"

(citation omitted). Commonwealth v. Mahar, 442 Mass. 11, 15

(2004). Here, the defendant cannot meet his burden. Trial

counsel did not request a curative or limiting instruction, 6 and

without the benefit of an affidavit from him, we cannot

determine whether this was a strategic choice. "A strategic or

tactical decision by counsel will not be considered ineffective

assistance unless that decision was 'manifestly unreasonable'

5 The preferred method to raise such a claim is through a
motion for new trial filed in the trial court. See Commonwealth
v. Zinser, 446 Mass. 807, 810 (2006).

6 When asked, trial counsel told the judge it was "simply
too confusing for the jury" to receive a limiting instruction.

5
when made." Commonwealth v. Spring, 94 Mass. App. Ct. 310, 320

(2018), quoting Commonwealth v. Acevedo, 446 Mass. 435, 442

(2006). Moreover, the judge was not required to give a limiting

instruction sua sponte. See Commonwealth v. Cruzado, 480 Mass.

275, 279 (2018). Because Heroildo has not established that such

an instruction "might have accomplished something material for

the defense" (citation omitted), Commonwealth v. Dargon, 457

Mass. 387, 403 (2010), this claim fails.

2. Sufficiency of the evidence of witness intimidation.

In assessing the sufficiency of the evidence, the relevant

"question is whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt" (citation omitted). Commonwealth v. Latimore,

378 Mass. 671, 677 (1979). The defendant contends the evidence

of intimidation of a witness was insufficient "where the plain

text of the law provides that the victim cannot be intimidated

unless an investigation is underway." This question is

controlled in all material respects by Commonwealth v. Fragata,

480 Mass. 121 (2018). 7

7 To the extent that the defendant asks us to hold that the
statute includes an element that a criminal investigation has
commenced at the time of the alleged intimidation, we decline to
do so. Moreover, "we have no power to alter, overrule or
decline to follow the holding of cases the Supreme Judicial

6
"[T]o convict a defendant of witness intimidation under

. . . G. L. c. 268, § 13B (1) (c) (i), the Commonwealth must

prove that (1) a possible criminal violation occurred that would

trigger a criminal investigation or proceeding; (2) the victim

would likely be a witness or potential witness in that

investigation or proceeding; (3) the defendant engaged in

intimidating behavior, as defined in the statute, toward the

victim; and (4) the defendant did so with the intent to impede

or interfere with the investigation or proceeding, or in

reckless disregard of the impact his conduct would have in

impeding or interfering with that investigation or proceeding."

Fragata, 480 Mass. at 122. "The subsection at issue here

specifically prohibits, in relevant part, intimidation of 'a

witness or potential witness at any stage of a criminal

investigation, . . . or other criminal proceeding of any type.'"

Id. at 124, quoting G. L. c. 268, § 13B (1) (c) (i). Because

"'[p]otential' means 'capable of being but not yet in

existence'" (citation omitted), id. at 125, the statutory

reference to "'a potential witness at any stage of a criminal

investigation' indicates that the investigation need not have

already begun when the intimidation occurred." Id. This is

precisely what occurred here. Heroildo's nieces were potential

Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct.
476, 485 (2003).

7
witnesses within the meaning of the statute; he told Julie

"don't say anything to anybody," and "don't say anything because

you're messing with fire," and he threatened Mandy and told her

that he would kill her mother. Accordingly, the evidence

sufficed.

Judgments affirmed.

By the Court (Blake,
Ditkoff & D'Angelo, JJ. 8),

Clerk

Entered: November 4, 2024.

8 The panelists are listed in order of seniority.

8