Commonwealth v. Michael Squadrito.

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-1197

COMMONWEALTH

vs.

MICHAEL SQUADRITO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Michael Squadrito, appeals from his

conviction of rape after a jury trial in the Superior Court.

For the first time on appeal, the defendant objects to the

prosecutor's closing argument and to the admission of references

to "sexual assault" in both the victim's medical records and the

testimony of the emergency room nurse. Discerning no

substantial risk of a miscarriage of justice, we affirm.

Background. On an evening in November 2018, the victim

went to dinner with a friend and then to a series of bars in

Boston. The victim drank several beers, several mixed drinks,

and several shots of tequila. At about 2:30 A.M., the victim

left a bar near Quincy Market. She was extremely drunk. Using

her cell phone, she ordered a ride service to take her to her
home address. The car arrived at 2:45 A.M., driven by the

defendant, and the victim got into the back passenger seat.

The next thing the victim knew, she awoke with the

defendant on top of her, thrusting his penis into her vagina.

His mouth was on her neck, and her jeans and underpants were on

the ground. The defendant said, "I think we're done here," and

offered the victim a ride home. The victim said, "Absolutely

not," got out of the car, put on her pants, and ran in the

opposite direction from which the defendant's car was headed so

she could get away as quickly as possible.

Beginning at 3:23 A.M., the victim telephoned her friend

eight times and then her sister, but neither of them answered.

At 3:29 A.M., the victim telephoned her mother and, sobbing,

said she had been raped by a ride service driver. The victim

saw a subway station, realized she was near her home, and told

her mother where she was. When the mother found the victim, she

asked if it was possible that the victim had consented, because

the mother did not want to believe that the victim had been

raped; the victim replied, "no." 1

The mother took the victim to a Boston hospital.

Examination showed a bite mark to the victim's neck that later

1 On cross-examination of the mother, defense counsel asked if
"it wouldn't be so bad" if the victim had consented, and the
mother replied, "If she consented. She's an adult. She can
have sex with whoever she wants to."

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tested positive for amylase, a component of saliva. The victim

had pelvic pain; redness to six areas of her genitals, including

her labia and vaginal canal; and swelling of her perianal skin.

The victim's blood alcohol level was between .176 and .27.

Testing on a swab collected from the victim's vagina later

revealed sperm cells containing a DNA profile that matched the

defendant's. 2

Meanwhile, the defendant kept driving for about three

minutes until he was near a strip mall where at 3:25 A.M. he

notified the ride service that the ride had terminated. He did

not pick up any more passengers that night. He lived with his

mother and was driving her car, but he did not go home that

night. Later that day, the defendant spoke to police several

times by telephone and promised that he would come to the police

station, but he did not appear.

The defense theory was that the victim had consented to

sex. The defendant testified that during the ride, the victim

asked him several times if he wanted to "party," and when they

neared her address, she directed him to a side street and told

him to pull over. She motioned for him to join her in the back

seat and they kissed. The defendant testified that the victim

verbally consented to sex, took off her own pants, and then

2 The expected frequency of occurrence of that DNA profile was
one in 2.4 nonillion Caucasians.

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"used her hands to get my penis into her." Later that morning,

after his mother told him that police had been looking for him

at her house, the defendant told his mother that he had sex with

somebody. In closing, defense counsel argued that she was "not

suggesting" that the victim was "lying," but rather that the

victim "drank an awful lot of booze," and so "was unable to

remember" consenting to sex. The jury convicted the defendant,

and this appeal ensued.

Discussion. 1. Prosecutor's closing argument. For the

first time on appeal, the defendant argues that in closing the

prosecutor argued facts not in evidence by implying that the

victim's injuries could not have been caused by consensual sex,

and mischaracterized the evidence by stating that the victim's

"vagina" was swollen when the medical records showed that her

"[p]erianal skin" was swollen. The defendant did not object on

either ground at trial, so we review the closing argument to

determine whether any error created a substantial risk of a

miscarriage of justice. See Commonwealth v. Kozubal, 488 Mass.

575, 590 (2021), cert. denied, 142 S. Ct. 2723 (2022).

a. Reference to consensual intercourse. In closing, the

prosecutor argued that the injuries to the victim's genitals

included "redness and swelling that [the defendant] would have

you believe she obtained when she gently used her hand to guide

his penis into her vagina during their [fifteen] minutes of

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consensual intercourse." The defendant argues that the

prosecutor improperly asked the jury to infer that those

injuries evidenced the victim's lack of consent, an inference

which the defendant claims was beyond the common knowledge of

jurors and therefore required expert testimony to establish.

Even assuming that the prosecutor's argument could be

interpreted as asserting that the victim's injuries proved

nonconsent, we discern no substantial risk of a miscarriage of

justice.

In closing, a prosecutor may argue the evidence and "the

fair inferences which can be drawn from the evidence," but

should not "misstate the evidence or refer to facts not in

evidence." Commonwealth v. Kapaia, 490 Mass. 787, 804 (2022),

quoting Commonwealth v. Cheng Sun, 490 Mass. 196, 221 (2022).

Inferences from the evidence that are "beyond the common

knowledge of jurors" require "expert opinion to establish them."

Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 263 (2002)

("sweeping proposition" that sexual assault victims delay

disclosure). Without expert testimony, a prosecutor may not

assert in closing an opinion about the evidence beyond what the

jury can reasonably infer. Id. at 264. See Commonwealth v.

Hrabak, 440 Mass. 650, 655-656 (2004) (prosecutor improperly

argued in closing that child's rectum is flexible).

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The Commonwealth argues that the prosecutor was simply

asking the jury to find not credible the defendant's testimony

that the victim consented to sex, based on evidence including

the victim's injuries. See Commonwealth v. Gardner, 102 Mass.

App. Ct. 299, 312 (2023) (prosecutor properly argued that

defendant's explanations for marks on victim were implausible).

See also Commonwealth v. Hoime, 100 Mass. App. Ct. 266, 279

(2021) (no error in prosecutor's closing argument which

suggested that defendant's explanation of events "didn't make

any sense"). According to the Commonwealth, the evidence of

those injuries was inconsistent with the defendant's description

of consensual intercourse during which the victim "used her

hands to get my penis into her." See Gardner, supra. Thus, the

Commonwealth contends, this was not a situation like that in

Hrabak, 440 Mass. at 655-656, where a prosecutor improperly

argued, without supporting expert testimony, that the lack of

injury to a child victim's rectum was consistent with rape.

Here there were injuries to the victim's genitals and neck that

corroborated her testimony describing how the defendant

inflicted them on her.

We conclude that, even if the prosecutor's argument could

be interpreted as improperly asking the jury to infer that the

injuries to the victim's genitals evidenced nonconsensual sex,

no substantial risk of a miscarriage of justice arose. The

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victim testified that she awoke to find the defendant with his

mouth on her neck and his penis in her vagina, and she did not

consent to sex. Her testimony was corroborated by evidence

including telephone records showing her frantic calls beginning

two minutes before the defendant terminated the ride, her

mother's first complaint testimony, and medical records and test

results that revealed her high level of intoxication and the

defendant's sperm inside her. In contrast, the defendant

testified that the victim was alert during the ride and

initiated sex with him. The prosecutor argued that the

defendant's credibility was undermined by his conduct after the

incident. We discern no substantial risk of a miscarriage of

justice.

b. Reference to swelling to areas of vagina. The

defendant also claims that the prosecutor mischaracterized the

evidence when she argued in closing that there was "redness and

swelling to areas of [the victim's] vagina." He contends that

was a mischaracterization because although the medical records

document redness to six areas of the victim's genitals,

including the "[v]agina," they document swelling only to the

"[p]erianal skin," which the defendant argues is different from

the vagina. The emergency room nurse explained that the

perianal skin is the "skin right in between the vaginal canal

and the anus" and is "similar to the perineum," which is "the

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skin under and around the vagina." Based on this testimony, we

conclude, even assuming error, that no substantial risk of a

miscarriage of justice arose when the prosecutor referred to the

broader "area[] of [the victim's] vagina," which encompassed the

perianal skin. Cf. Commonwealth v. Mazariego, 474 Mass. 42, 57

(2016) (no error in prosecutor's closing argument that injuries

to labia "were in the area of [the victim's] vagina").

Moreover, the risk of any miscarriage of justice was lessened by

the judge's careful jury instructions that "the arguments of

counsel are not evidence" and that the jurors' memory of the

evidence controls. See id. (judge's instruction that jury's

recollection of the evidence controlled cured any misstatement).

2. References to "sexual assault" in medical records and

nurse's testimony. The defendant argues that a substantial risk

of a miscarriage of justice arose when references to "sexual

assault" came into evidence, both in the victim's medical

records and the testimony of the emergency room nurse. He

contends that those references were "ultimate conclusions

concerning the charged crimes" that prejudiced him because he

raised a consent defense. Commonwealth v. Dargon, 457 Mass.

387, 394 (2010), quoting Commonwealth v. Dwyer, 448 Mass. 122,

137 (2006). See G. L. c. 233, § 79. See also Mass. G. Evid.

§ 803(6)(B) (2023).

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During trial, the victim's medical records were admitted

without objection from the defendant, subject to certain

redactions agreed by the parties. 3 Before the exhibits went to

the jury, defense counsel reviewed the redactions and stated

that she was content with the medical records exhibit as

redacted. However, that exhibit contained repeated references

to "assault," including a "diagnosis" of "sexual assault," and a

form captioned, "Sexual Assault Evidence Collection Kit."

Similarly, the emergency room nurse used the term "sexual

assault" repeatedly in testifying about the hospital's protocol

for treating patients who report sexual assault, including the

victim.

Because the defendant did not object at trial to the

references to sexual assault in the medical records and the

nurse's testimony, we review the issue for a substantial risk of

a miscarriage of justice. See Dargon, 457 Mass. at 397

(unredacted references to "sexual assault" in medical records);

Commonwealth v. McCoy, 456 Mass. 838, 850 (2010) (unobjected-to

testimony of sexual assault nurse examiner). To determine

whether those references to sexual assault caused a substantial

risk of a miscarriage of justice, we ask four questions:

3 An unredacted copy of the medical records was not marked for
identification, and so we cannot determine from the record
before us what redactions were made.

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"(1) Was there error? . . . (2) Was the defendant
prejudiced by the error? . . . (3) Considering the error in
the context of the entire trial, would it be reasonable to
conclude that the error materially influenced the
verdict? . . . (4) May we infer from the record that
counsel's failure to object or raise a claim of error at an
earlier date was not a reasonable tactical decision?"

Dargon, supra, quoting McCoy, supra.

As to the first factor, the Commonwealth concedes that the

failure to redact the references to "sexual assault" from the

medical records was error. See Dargon, 457 Mass. at 396

(admission of identical language was error). However, the

Commonwealth argues that when the emergency room nurse used the

term "sexual assault" in her testimony, she was simply

describing the protocol for treating a patient who reported

sexual assault, and did not opine that the victim had been

sexually assaulted. See McCoy, 456 Mass. at 851 (no substantial

risk of miscarriage of justice from nurse testifying to victim's

allegation of sexual assault, where nurse did not testify that

she believed victim's allegation). Contrast Commonwealth v.

McNickles, 22 Mass. App. Ct. 114, 119-120 & n.8 (1986). Having

reviewed the testimony, we tend to agree, but turn to the

remaining factors.

As to the second factor, the defendant argues that the

references to sexual assault prejudiced him because he raised a

consent defense. See Dargon, 457 Mass. at 397. We consider

this factor in the context of the third factor -- whether the

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error materially influenced the verdict -- and conclude that it

did not. As discussed above, the Commonwealth's case was

strong. At the same time, the defendant's case was weak: his

theory was that the victim had been sober enough to consent to

sex with him, but too drunk to remember that she did so. 4

Finally, as to the fourth factor, whether defense counsel

made a tactical decision in refraining from seeking further

redactions, we note as follows. Because the defendant did not

file a motion for new trial arguing that trial defense counsel

was ineffective for failing to redact or move to strike the

references to "sexual assault," the record before us does not

include direct evidence of counsel's strategy. Contrast

Gardner, 102 Mass. App. Ct. at 313. On cross-examination,

counsel elicited that the mother chose to take the victim to the

hospital where the mother and the victim both worked, even

though there was another hospital closer to their home. In

closing, defense counsel argued, "You had a lot of people

tossing around the term rape, sexual assault. Those are the

professional people . . . even her mom who used the term rape is

a nurse. . . . It's conclusory. That's not a decision for

those people to make. That's a decision for you folks to make."

4 The judge instructed the jury in accordance with Commonwealth
v. Blache, 450 Mass. 583, 595 n.19 (2008), and the defendant
does not find fault with the instruction.

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In that context, defense counsel's refraining from objecting to

the references to "sexual assault" may well have been a tactical

decision. Based on the record before us, we discern no

substantial risk of a miscarriage of justice. See Commonwealth

v. Coutu, 88 Mass. App. Ct. 686, 697 (2015).

Judgment affirmed.

By the Court (Rubin,
Ditkoff & Grant, JJ. 5),

Assistant Clerk

Entered: March 15, 2024.

5 The panelists are listed in order of seniority.

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