Commonwealth v. Zoilo Bracero.

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

22-P-677

COMMONWEALTH

vs.

ZOILO BRACERO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant

stands convicted of aggravated rape of a child with a ten-year

age difference, rape of a child with force, assault with intent

to rape a child, indecent assault and battery on a child under

the age of fourteen, and assault and battery by means of a

dangerous weapon on a child under the age of fourteen. The jury

acquitted the defendant on one charge of indecent assault and

battery on a child under the age of fourteen. On appeal, the

defendant claims for the first time that the trial judge erred

by admitting hearsay testimony that the defendant beat the

complainant, and by admitting testimony that unfairly

corroborated the complainant's credibility. We discern no error

and affirm.
Background. The Commonwealth presented its case through

four witnesses: Amanda1 (the complainant), Amanda's mother, a

Department of Children and Families (DCF) investigator, and a

police detective.

Amanda testified about her home life and the charged

offenses. Amanda initially lived with her mother, father, and

four siblings. DCF became involved with Amanda's family several

years before the sexual abuse began. Amanda's parents were

constantly fighting. Despite DCF involvement in the home, the

children learned that the family motto was "everything that

happened in the house, stays in the house." Amanda's parents

separated, and the defendant, Amanda's uncle, became

"practically the person who ruled everything" in the home. With

the approval of Amanda's mother, the defendant administered

physical punishment to the children by striking them with a belt

or making them kneel on a sharp object. Amanda's mother also

struck the children using her hand. The defendant began

sexually abusing Amanda when she was nine and continued to do so

until she reached the age of thirteen, when she disclosed the

abuse.

Amanda testified about the process of her disclosure. She

told her best friend about the physical abuse, "the hitting, the

1 A pseudonym.

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disrespect, the discipline" from her mother and the defendant,

and she told another friend "about the physical abuse." She

told these two friends that the defendant "disciplines her."

The next day, Amanda told her school counselor and a DCF

investigator "about the physical abuse." Two weeks after first

speaking with the DCF investigator, Amanda contacted the DCF

investigator and revealed "the sexual assault" and "[g]enerally"

what happened.

The DCF investigator also testified. She became involved

in the case to investigate alleged physical abuse by Amanda's

mother and father and the defendant. After meeting with Amanda,

the DCF investigator received a telephone call from Amanda. At

this point, the trial judge appropriately provided a limiting

instruction on first complaint testimony. The investigator then

related Amanda's report that the defendant had been sexually

abusing her since she was nine years old and threatened to "hurt

her if she told anybody."

Discussion. On appeal, the defendant claims the trial

judge erred by admitting (1) hearsay evidence that the defendant

physically abused Amanda, (2) evidence that DCF took Amanda into

custody, (3) evidence that the DCF investigator assessed the

credibility of Amanda, and (4) evidence of investigative steps

that buttressed Amanda's credibility. After a review of the

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record, we discern no error and no substantial risk of a

miscarriage of justice.

The defendant asserts that the trial judge admitted hearsay

testimony about physical abuse "over objection" by counsel, but

we read the record differently. When testifying about

disclosures to friends about physical abuse in the home, Amanda

started to relate statements that her friends made in response.

Defense counsel objected, and the judge sustained the objection.

A short time later, Amanda once again started to testify to what

her friends said in response to her disclosures, and the judge

sustained an objection. These objections were limited to the

hearsay statements of the friends and not to Amanda's statements

that are now the subject of this appeal. Because there was no

objection to Amanda's statements, our review is limited to

determining if there was an error that resulted in a

"substantial risk of a miscarriage of justice." Commonwealth v.

Freeman, 352 Mass. 556, 564 (1967).

There was no error here regarding hearsay testimony. The

challenged testimony was admitted as part of the first complaint

doctrine. The purpose of the first complaint doctrine "is to

give the jury as complete a picture as possible of how the

accusation of sexual assault first arose." Commonwealth v.

King, 445 Mass. 217, 246-247 (2005). A complainant may testify

"to the details of the first complaint" as well as "why the

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complaint was made at that particular time." Id. at 245.

Similarly, a first complaint witness may testify to the

"circumstances surrounding the initial complaint" as well as

"the events or conversations that culminated in the complaint."

Id. at 246. The testimony of Amanda and the DCF investigator

fell within the range of admissible evidence by outlining the

brief chain of events that led to the ultimate disclosure of

sexual abuse: Amanda told two friends about the physical abuse;

the next day, Amanda told her school counselor and a DCF

investigator about the physical abuse; and two weeks later

Amanda contacted the DCF investigator and revealed "the sexual

assault" and "[g]enerally" what happened. The limiting

instruction cautioned jurors on the use of this evidence and

obviated any potential prejudice. Notably, the disclosure of

physical abuse did not mention details and did not focus on the

defendant. Instead, according to Amanda's testimony, her report

of physical abuse mentioned her mother as well as the defendant.

According to the DCF investigator's testimony, she became

involved in the case due to allegations of physical abuse

perpetrated by Amanda's mother and father and the defendant. On

cross-examination of the DCF investigator, the defense

established that Amanda initially accused only her mother and

father of striking all the children with a belt. Given the

context and limited use of this testimony, as well as the

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defense use of this evidence to impeach Amanda, there was no

error and no substantial risk of a miscarriage of justice.

Freeman, 352 Mass. at 564.

The defendant next contends that the judge erred by

allowing evidence that "the Commonwealth (through DCF) took

[Amanda] into its custody" and placed her "ultimately into

foster care." Given the context of the testimony about DCF's

role in Amanda's care, we discern no error.2 On direct

examination of Amanda, the prosecutor elicited testimony tending

to show Amanda's bias. Amanda testified that DCF "put" her in

"different programs" and "helped" her stay in college by

"paying" for her education. Amanda also testified that she had

not been back to her house since she disclosed the sexual abuse.

This testimony was proper. So as to avoid the "dramatic impact"

of having evidence of potential bias extracted from its witness

on cross-examination, the Commonwealth may, on direct

examination, inquire into possible bias of the witness.

Commonwealth v. Young, 10 Mass. App. Ct. 410, 412 (1980).

"Otherwise it might appear the prosecution is trying to conceal

damaging information from the jury." Id.

2 On cross-examination of the DCF investigator, defense counsel
said, "I want to ask you some questions about foster care," but
the investigator testified, "I'm not comfortable speaking to
that, because that's not the type of job that I do."

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Defense counsel did not object to this testimony, which was

entirely consistent with the defense strategy of focusing on

Amanda's credibility. In her opening statement, defense counsel

suggested the motive for Amanda to contrive a story about the

defendant. Amanda had a difficult home life, but after accusing

the defendant, "she got to leave and she hasn't had to come back

since." In her closing argument, counsel once again emphasized

that Amanda was unhappy in a dysfunctional home and "was able to

walk out of [that] home after she made this accusation."

Contrast Commonwealth v. Calderon, 65 Mass. App. Ct. 590, 595

(2006) (improper for social worker to testify about steps

department took to "seek custody of the victim"). Thus, there

was no error or "substantial risk of a miscarriage of justice."

Freeman, 352 Mass. at 564.

We also discern no error related to the DCF investigator's

testimony about her general duties. The defendant argues that

he was prejudiced by testimony that investigators "try to

determine if the report is actually true." The referenced

testimony is taken out of context from a larger narrative. The

witness was not referring to Amanda's allegations as the defense

now suggests but was referring to general procedures about

reports of "child abuse and neglect": "As an investigator, you

get a report. The report has, there's allegations of child

abuse and neglect. It has to involve a caretaker most times.

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And it's our job to talk to collaterals –- meaning doctors,

schools -– meet with the children, meet with the parents, see

the home, and try to determine if the report is actually true or

not. . . . [O]ur job is to gather information to either support

the allegations of child abuse and neglect, or we gather

information to unsupport the allegations of abuse and neglect."

When read in context, the investigator testified to general

duties concerning reports of abuse and neglect, not to a

conclusion about whether Amanda had been sexually abused. See

Calderon, 65 Mass. App. Ct. at 595 (permissible for witness to

provide "background information about the social worker's duties

and how she became involved in the case"). Therefore, the

testimony did not create the "imprimatur of official belief in

the complainant." Commonwealth v. Stuckich, 450 Mass. 449, 457

(2008).3

Finally, we disagree with the defendant's contention that

the judge erred by admitting testimony of the DCF investigator

and the lead police detective about the "investigative process."

Citing language in Commonwealth v. Stuckich, 450 Mass. 449

(2008), the defendant contends that the testimony about the

investigative process "unfairly corroborated" Amanda's testimony

"by repeatedly telling the jury that the Commonwealth believed

3 We note that defense counsel elicited testimony from the police
detective that the defendant was "arrested on these charges."

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her." Contrary to the defense claim on appeal, neither the DCF

investigator nor the police detective testified that they

believed Amanda. The DCF investigator testified that she

attended an interview with Amanda and spoke with the defendant.

The police detective testified that he was contacted by the DCF

investigator, spoke to the defendant, and attended an interview

with Amanda. We discern no impropriety in the admission of this

evidence about investigative steps, especially where the

interaction of these two witnesses with the defendant was

critical to establishing a foundation for identifying him in

court.4 See Commonwealth v. Arana, 453 Mass. 214, 226 (2009)

("We did not intend in Stuckich to imply that, unless a police

officer is the first complaint witness, testimony concerning the

circumstances giving rise to the police involvement in a sexual

assault case will never be admissible as part of the

Commonwealth's case-in-chief").

Also, testimony about the police investigation is entirely

appropriate to answer defense claims of an inadequate

investigation. See Arana, 453 Mass. at 226-227 (steps in police

investigation admissible and relevant where defense theory

implied police incompetent and biased). Here, in her opening

4 Neither Amanda nor her mother could identify the defendant in
court during trial in 2019, five years after the indictments
issued.

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statement, defense counsel pointed to the lack of physical,

medical, and eyewitness testimony as a weakness in the

Commonwealth's case against the defendant. Through an extensive

cross-examination of the police detective, defense counsel also

established the police failed to question witnesses, collect

physical evidence, prepare search warrants, and subject evidence

to scientific testing. To rebut the suggestion this was

inadequate investigation, the Commonwealth was permitted to

produce evidence about the investigative process to explain why

such evidence might not have been gathered. Arana, 453 Mass. at

227. The evidence about the investigative steps taken here was

proper as "an integral piece of the Commonwealth's response to

the defendant's theory." Id.

Judgments affirmed.

By the Court (Henry, Shin &
Hodgens, JJ.5),

Clerk

Entered: April 13, 2023.

5 The panelists are listed in order of seniority.

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