Commonwealth v. Sam

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24-P-1006 Appeals Court

COMMONWEALTH vs. VICENTE SAM.

No. 24-P-1006.

Bristol. October 9, 2025. – January 29, 2026.

Present: Ditkoff, D'Angelo, & Wood, JJ.

Indecent Assault and Battery. Practice, Criminal, New trial,
Assistance of counsel, Redaction. Evidence, First
complaint, Hearsay, Medical record, Credibility of witness.
Witness, Credibility.

Complaint received and sworn to in the New Bedford Division
of the District Court Department on July 15, 2019.

The case was tried before Douglas J. Darnbrough, J., and a
motion for a new trial, filed on June 22, 2023, was heard by
Joseph P. Harrington, Jr., J.

Lisa B. Medeiros for the defendant.
Stephen C. Nadeau, Jr., Assistant District Attorney, for
the Commonwealth.

WOOD, J. Following a jury trial in the District Court, the

defendant was convicted of three counts of indecent assault and

battery on a child, whom we shall call Sue,1 in violation of

1 A pseudonym.
2

G. L. c. 265, § 13B. At trial, the Commonwealth introduced

medical records that contained statements by Sue's mother

relaying Sue's description of what happened. The mother was not

a first complaint witness. The defendant moved for a new trial,

arguing that his trial attorney was ineffective for, inter alia,

not properly requesting redaction of the medical records to

exclude the mother's statements. After an evidentiary hearing,

a judge (motion judge) who was not the trial judge denied the

motion. We conclude that because trial counsel failed to object

to what amounted to inadmissible hearsay that bolstered Sue's

credibility –- the central issue in the case -– the defendant

was deprived of effective assistance of counsel. Therefore, the

order denying his motion for a new trial must be reversed, his

judgments of conviction must be vacated, and the verdicts must

be set aside.

Background. 1. Trial evidence. Sue was the

Commonwealth's primary witness, and her credibility was a

critical issue for the jury. Sue testified as follows. In the

summer of 2019, when she was thirteen years old, she lived with

her mother and sisters on the first floor of a three-story

apartment building. The defendant lived on the second floor.

Sue had known the defendant all her life and "consider[ed] him

an uncle." At a certain point, he "made multiple statements
3

regarding marriage[,] . . . comments about . . . [i]f [she] ever

want[ed] to have sex[,] . . . [and] comments about [her] body."

On July 4, 2019, the defendant drove Sue and one of her

younger sisters to see fireworks. After the fireworks, the

defendant drove the girls home. During the ride, the defendant

touched her thigh. The defendant then moved his hand upward

toward her vagina. Sue used her arm to "try[] to restrain him"

and also said "no," but the defendant "kept moving towards [her]

vaginal area." The defendant then "inserted his two fingers

inside of [her]." She asked the defendant to stop at least

twice, but he ignored her.

When they got home, the defendant apologized to Sue and

told her, "I will never do that to you ever again." Sue later

noticed that her vagina "was bleeding." She explained that she

assumed she was bleeding because the defendant had inserted his

fingers into her vagina, but she acknowledged that she did not

know for certain why her vagina was bleeding.

The next day, July 5, 2019, at Sue's request, the defendant

drove her to a pool party at her friend's house. They were

alone in the car together. At Sue's request, the defendant

stopped at a drugstore where Sue selected some cosmetics for the

party, which the defendant purchased.

Then, while they were sitting in the car in the drugstore

parking lot, the defendant grabbed her left thigh and pulled it
4

towards him. He moved her shorts aside with his left hand and

touched her vagina. Sue responded, "Don't do this." The

defendant then put his mouth on Sue's vagina. Sue continued to

resist, "trying to shift over [her] legs and saying stop," while

also pushing his head away. The defendant stopped only when

"[s]omeone pulled up right next to [them]" in the parking lot.2

The defendant then dropped Sue off at her friend's house,

where she stayed for the next two days. Upon returning home,

Sue talked to her mother, who brought her to a hospital. Prior

to trial, the judge excluded the substance of the conversation

between the mother and Sue because the mother was not a first

complaint witness.

No first complaint witness testified. Sue initially had

disclosed the sexual assault to her friend, who had hosted the

pool party. The friend did not testify, nor was evidence that

Sue told a friend about the assault admitted at trial.3 Sue's

mother did not testify at trial.

2 The defense showed the jury surveillance video footage and
elicited testimony that it depicted the defendant's truck in the
drugstore parking lot, but the video footage did not show any
cars pulling up near the defendant's truck before he drove away.
The recording was not marked for identification or entered as an
exhibit. We remind parties that recordings shown to the jury
should, at the very least, be marked for identification.

3 Prior to trial, the prosecutor sought to substitute the
mother as the first complaint witness, but the trial judge found
that there had been an inadequate showing that the friend was
5

The officer who interviewed Sue testified that, initially,

Sue seemed "calm." "[A]s she started to relay her story,"

however, she became emotional "at certain points." She had to

stop speaking a couple of times. Her eyes were welling up and

her voice was "crackling."

The Commonwealth introduced Sue's hospital records, subject

to certain agreed upon redactions discussed infra. As admitted,

the exhibit documented that a nurse examined Sue and performed a

sexual assault examination4 but found no evidence of injury or

other physical sign of abuse. Within the exhibit was the

statement, "Patient presents with Alleged Sexual Assault," and

then the phrase, "Alleged Sexual Assault," which was underlined.

Immediately under that was a partially redacted statement from

Sue's mother:

"She told me that the first time he touched her was
Thursday. They were in the car and he touched her thigh
and neck. She told him to stop and then he slid her shorts
to the side and put his finger into her. The second time
was Friday and she told me [t]hey were in the car again
because he was taking her to a sleepover. He asked her
help to pick out a shampoo and they went to CVS. When she
got back into the car []he touched her again. 'He touched
my thigh then moved my shorts over and stuck his fingers in

unavailable and allowed the defendant's motion to preclude the
substitution.

4 It was clear to the jury that the medical records
documented a sexual assault examination because the defendant's
trial counsel moved to include a two-page document entitled
"Sexual Assault Evidence Collection Kit" as part of the medical
records. The trial judge granted that request.
6

me again.' He pulled over then 'licked my private area and
my upper thigh.' She told him to stop. He dropped her off
at the friend's house where she spent two nights. He
called her to pick her up but [s]he took an Uber home. He
called her today but she told him she felt sick."

2. Postconviction proceedings. The defendant filed a

motion for a new trial alleging ineffective assistance of

counsel. That motion was heard by a different judge, who held

an evidentiary hearing. Two witnesses testified: the

defendant's first attorney (appointed at arraignment) and

successor counsel (trial counsel).

Trial counsel testified that, prior to trial, she

determined that the best defense was to challenge Sue's

credibility because her claim was not corroborated by forensic

evidence or another witness. Trial counsel determined that

there were inconsistencies between Sue's statement to a sexual

assault nurse examiner and Sue's medical records, which she

planned to exploit at trial.

When the Commonwealth offered Sue's medical records as a

trial exhibit, both the prosecutor and the defendant's trial

counsel discussed redactions with the trial judge. They

specifically discussed Sue's mother's statement. The trial

judge redacted language at the beginning of the statement and

the end of the statement, apparently because it established that
7

Sue reported the alleged assault to her mother.5 When trial

counsel was asked why she did not seek to redact the mother's

hearsay statement recounting the details of the alleged assault,

trial counsel testified, "I think . . . I was focused on trying

to redact things so quickly that I probably missed that. And if

I had more time, I would have asked that that be redacted

because, yes, that [was] the exact first complaint witness

information that I was trying to keep out."

The motion judge ruled that the admission of the mother's

hearsay statement was error. Nevertheless, he denied the motion

for a new trial because he found that the mother's statement did

not "change[] the outcome as the defense was that the sexual

assault did not occur rather than that the interaction was

consensual."

Discussion. 1. Standard of review. "As a general matter,

we review a judge's denial of a defendant's motion for a new

trial to determine whether there has been a significant error of

law or other abuse of discretion." Commonwealth v. Caldwell,

487 Mass. 370, 374 (2021). "[W]e review independently findings

5 In support of these redactions, the trial judge stated, "I
don't want anyone to speculate about why the mother's not here."
However, the trial judge did not redact language immediately
before the mother's hearsay statement that "[t]he history is
provided by the mother" and "[Sue] told me that," which
established that the mother provided this statement.
8

made by the motion judge based entirely on documentary

evidence." Id. "Further, we make an independent determination

as to the correctness of the judge's application of

constitutional principles to the facts as found" (quotation and

citation omitted). Id. The defendant claims that his

representation at trial was not constitutionally adequate. Our

inquiry with respect to claims of ineffective assistance of

counsel is "whether there has been serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer -- and, if that is found, then,

typically, whether it has likely deprived the defendant of an

otherwise available, substantial ground of defence."

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

2. Trial counsel's failure to seek redaction of

inadmissible hearsay from the medical records. Trial counsel's

failure to redact the mother's statement from the medical

records was unreasonable performance. First, trial counsel did

not intentionally seek to include the mother's statement in the

medical records. To the contrary, trial counsel admitted that

it was an oversight, given that it was "the exact first

complaint witness information that [she] was trying to keep

out."
9

Second, the statements at issue were inadmissible hearsay.

The trial judge had ruled that, because the Commonwealth had

failed to demonstrate that the first complaint witness was

unavailable, Sue's mother could not testify as a substitute

first complaint witness. Indeed, the Commonwealth concedes that

the admission of the mother's hearsay statement within the

medical records was error but argues that it was not

prejudicial. Accordingly, trial counsel's failure to seek

redaction of Sue's mother's hearsay was an error that satisfied

the first prong of the ineffective assistance test. See

Saferian, 366 Mass. at 96.

As noted above, the motion judge found that the admission

of the hearsay statement was error. But he also found that it

did not "change[] the outcome as the defense was that the sexual

assault did not occur rather than that the interaction was

consensual." We disagree with the motion judge's implicit

conclusion that the error did not deprive the defendant of an

otherwise available, substantial ground of defence.

The fact that the defendant disputed that the sexual

assault occurred, and not whether it was consensual, does not

negate the effect that the mother's statements may have had on

the jury's assessment of Sue's credibility. The dispositive

point for the materiality analysis under Saferian is that Sue's

credibility was the central issue in the case.
10

Most important, the hearsay statement repeated the specific

details of Sue's allegations. The "repetition of the narrative

tend[ed] to enhance the credibility of the complainant to the

prejudice of the defendant" (citation omitted). Commonwealth v.

Aviles, 461 Mass. 60, 68 (2011). See Commonwealth v. King, 445

Mass. 217, 243 (2005), cert. denied, 546 U.S. 1216 (2006)

(repetition of sexual assault complaints "may unfairly enhance a

complainant's credibility as well as prejudice the defendant by

repeating for the jury the often horrific details of an alleged

crime"); Commonwealth v. Trowbridge, 419 Mass. 750, 761 (1995)

("the repetition of fresh complaint testimony creates a risk

that the jury will use the details of the fresh complaints as

substantive evidence that the crime actually occurred").

Also, neither party requested any limiting instructions

about this hearsay statement, and the trial judge made no

reference to it in his final jury charge. Because no first

complaint testimony was presented by the Commonwealth, the jury

did not receive a limiting instruction regarding the use of

first complaint testimony at any point. Therefore, the jury

were permitted to consider it for all purposes, including its

truth.

The admission of hearsay that provides the only significant

corroboration of an alleged victim's accusation without a

limiting instruction creates a substantial risk of a miscarriage
11

of justice. See Trowbridge, 419 Mass. at 762 (reversing

indecent assault and battery on child conviction based on

erroneous admission of corroborating hearsay where child's

credibility was central issue; "[w]ithout proper instructions,

there was a substantial risk that the fresh complaint testimony

would be used as substantive evidence of the crime, and lend

undue credibility to the complaining witness"); Commonwealth v.

Smith, 47 Mass. App. Ct. 551, 557-558 (1999) (erroneous

admission of corroborating hearsay in sexual abuse case without

limiting instructions created substantial risk of a miscarriage

of justice; "the credibility of the complainant and her mother

were crucial to the Commonwealth's case"). See also

Commonwealth v. Esteves, 429 Mass. 636, 639-641 (1999)

(reversing child rape conviction based on erroneous admission of

corroborating hearsay; "[t]he credibility of the complainant was

central to the Commonwealth's case");6 Commonwealth v. Parkes, 53

Mass. App. Ct. 815, 820-821 (2002) (erroneous admission of

corroborating hearsay created substantial risk of miscarriage of

justice in single witness identification case).7

6 In Esteves, the defendant objected to the admission of the
hearsay, so the Supreme Judicial Court applied the prejudicial
error standard. See Esteves, 429 Mass. at 638-639.

7 Because we vacate the defendant's judgments of conviction
and remand the case for a new trial in the Commonwealth's
discretion, we do not address the defendant's additional
12

Conclusion. The order denying the defendant's motion for a

new trial is reversed. The judgments are vacated, the verdicts

are set aside, and the case is remanded for further proceedings

consistent with this opinion.

So ordered.

arguments that the failure to interview the first complaint
witness, to show additional video footage to the jury that the
defendant argues was exculpatory, and to redact multiple
references to "sexual assault" from the medical records were
ineffective.