Commonwealth v. Vizcaino

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22-P-795 Appeals Court

COMMONWEALTH vs. CARLOS VIZCAINO.

No. 22-P-795.

Bristol. October 5, 2023. – April 11, 2024.

Present: Wolohojian, Desmond, & Sacks, JJ.

Assault and Battery by Means of a Dangerous Weapon. Assault by
Means of a Dangerous Weapon. Evidence, Testimony before
grand jury. Practice, Criminal, Transcript of testimony
before grand jury, Instructions to jury. Words,
"Coercion."

Indictments found and returned in the Superior Court
Department on June 27, 2019, and April 1, 2021.

The cases were tried before Renee P. Dupuis, J.

Tara B. Ganguly for the defendant.
Nathaniel W. Kennedy, Assistant District Attorney, for the
Commonwealth.

DESMOND, J. Following a jury trial in the Bristol Superior

Court, the defendant was convicted of assault and battery on a

family or household member, G. L. c. 265, § 13M (a); assault by

means of a dangerous weapon, G. L. c. 265, § 15B (b); and
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assault and battery by means of a dangerous weapon, G. L.

c. 265, § 15A (b). He was acquitted of two counts of rape,

G. L. c. 265, § 22 (b). He appeals from his convictions,

arguing that the trial judge improperly admitted the victim's

grand jury testimony in evidence pursuant to Commonwealth v.

Daye, 393 Mass. 55, 73-75 (1984). See Mass. G. Evid.

§ 801(d)(1)(A) (2023). We affirm.

Background. We summarize the evidence adduced at trial,

reserving certain details for our discussion of the alleged

errors. See Commonwealth v. Maldonado, 466 Mass. 742, 744,

cert. denied, 572 U.S. 1125 (2014). The defendant and the

victim began a relationship in 2014 or 2015, after the defendant

paid the victim for sex. The victim testified that their

relationship was not "normal," and, although she could not

describe what she meant by "normal," she said that she and the

defendant were intimate and did not date other people. The

victim also testified that she continued "working as a

prostitute" during her relationship with the defendant, and that

the two sometimes worked together. When they did, the victim

gave the defendant the money that she had earned. The defendant

provided the victim with a cell phone and paid the bill

associated with it, in part with the money that she gave him.

The victim gave the defendant access to her cell phone records

and social media accounts because she "had no choice" and, if
3

she did not, the defendant would become angry and hit or

"mentally damage[]" her.

In the early morning of May 31, 2018, at around 2 or

3 A.M., the victim, who was sleeping at a friend's house, woke

up and looked at her cell phone. Upon seeing text messages from

the defendant, the victim went outside and joined him in his

car.1 After giving each other a kiss and saying hello, the

victim again fell asleep. When she awoke the car was in a

location that was unknown to her, and the defendant was punching

her in the face. As the victim asked, "What did I do?" the

defendant repeatedly struck her, responding, "You know what you

did." The defendant eventually told the victim to perform oral

sex on him, and she complied. After some time, the defendant

climbed on top of the victim and initiated vaginal intercourse.

Around that time, the defendant took out a kitchen knife and

pressed it against the victim's throat, causing her pain.

Although she tried to move, the defendant pressed the knife more

deeply into her skin whenever she did so.

After some time, a vehicle entered the parking lot,

startling the defendant, and allowing the victim to escape from

the defendant's vehicle. Naked, the victim walked towards an

The victim had expected the defendant to pick her up
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earlier in the day, but he did not, so she fell asleep.
4

employee of a nearby methadone clinic, who had arrived in the

vehicle that had entered the parking lot. The victim asked the

employee to help her, stating, "I've been raped[,] and I've been

held at knifepoint." The employee, along with one of his

coworkers, covered the victim with a comforter and called 911.

While the victim was with the helpful bystanders, the defendant

rolled down the window of his vehicle and repeatedly asked,

"Babe, why are you doing this to me?" He drove away when she

did not respond.

During her testimony before the grand jury, the victim

described the incident as a controlling and violent sexual

encounter with the defendant. When asked if she had wanted to

have sex with the defendant, the victim responded, "No." Prior

to trial, however, the defendant filed a motion for

reconsideration of bail, arguing that the victim had spoken to

his investigator and recanted a portion of her prior testimony.

During a hearing on the defendant's motion, the victim testified

that she believed the defense investigator wanted to hear "what

actually happened" and that the prosecutor did not "care about

the truth." Contrary to her grand jury testimony, the victim
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now maintained that the defendant had not forced her to have sex

with him during the assault.2

In response to the victim's recantation, the Commonwealth

indicated that it intended to file a motion in limine to

introduce the victim's grand jury testimony substantively

pursuant to Daye.3 The judge discussed the Daye requirements

with both parties, and ultimately ruled that portions of the

victim's grand jury testimony could be read in evidence if the

victim's trial testimony was consistent with her recantation.

After the victim testified at trial, contrary to her grand jury

testimony, that she had "asked [the defendant] to have sex with

[her]" during the assault "because that's the only way [she]

could calm him down," an employee of the district attorney's

office, consistent with the judge's ruling, was permitted to

read a portion of the victim's grand jury testimony in evidence.4

2 At the hearing on the motion for reconsideration of bail,
a victim witness advocate testified that the victim was "very
fearful" that the defendant would "somehow . . . be released"
from custody and "find out where she was." The victim moved to
a new address in order to prevent the defendant from learning
where she lived.

3 The Commonwealth first declared its intention to introduce
this motion during a pretrial hearing, immediately after the
judge denied the Commonwealth's motion to introduce the grand
jury testimony based on a theory of forfeiture by wrongdoing.

4 The judge, in consultation with both parties,
painstakingly reviewed the victim's trial and grand jury
testimonies, and was careful to admit only the portions of the
6

The defendant objected and the judge overruled the objection

while informing the defendant that his rights were preserved.

Discussion. As stated above, on appeal, the defendant

challenges the judge's substantive admission of portions of the

victim's grand jury testimony in evidence. He argues that the

judge erred by admitting the victim's grand jury testimony

without making the required finding under Daye that the victim's

testimony was not coerced by the Commonwealth. He contends that

the judge's instruction to the jury to disregard the victim's

grand jury testimony if they believed the testimony had been

coerced, shows that the judge was not sufficiently familiar with

the Daye requirements, and casts doubt on whether she implicitly

found that the testimony met the criteria for admission. He

further argues that the record does not support a finding that

the victim's grand jury testimony was not coerced. We disagree.

"[P]rior inconsistent statements made under oath before a

grand jury [can] be admitted substantively at trial, 'provided

the witness can be effectively cross-examined as to the accuracy

of the statement, the statement was not coerced and was more

than a mere confirmation or denial of an allegation by the

interrogator, and other evidence tending to prove the issue is

presented.'" Maldonado, 466 Mass. at 755, quoting Daye, 393

grand jury testimony that satisfied the requirements of Daye,
discussed infra.
7

Mass. at 75. "Although an express finding is, of course, to be

preferred, it is not essential where the evidence supports the

judge's implicit finding that [the witness] had not been

coerced." Commonwealth v. DePina, 476 Mass. 614, 621 (2017).

"Where the defendant's objections were preserved, we review for

prejudicial error." Commonwealth v. Brum, 492 Mass. 581, 587

(2023). "A trial judge's findings on these issues are entitled

to substantial deference and are 'conclusive as long as . . .

[they are] supported by the evidence.'" DePina, supra, quoting

Maldonado, supra at 756.

Here, the judge's extensive discussions with trial counsel,

together with her instructions to the jury, plainly reveal that

she was "aware of the Daye requirements," and we therefore

conclude that she implicitly made the requisite finding

regarding coercion even though she did not do so explicitly.

Maldonado, 466 Mass. at 756 (awareness of requirements supports

inference that judge made implicit finding under Daye). See

DePina, 476 Mass. at 621-622 (admission of testimony "implies a

factual finding that it was not coerced"). The judge and

counsel repeatedly discussed the Daye requirements prior to and

during the trial, with a particular focus on the coercion

element. Moreover, the judge instructed the jury, inter alia,

"You may consider a statement made under oath at a grand
jury proceeding that was not merely a yes or no answer to a
leading question for its truth. That is, you may believe
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the present testimony, you may believe the prior statement,
or you may believe both or neither. The decision of what
to believe is entirely up to you. However, because the
evidence in this case raises issues of whether the witness
was pressured to testify before the grand jury in the
matter [sic] that she did, before you can consider grand
jury testimony substantively, that is for its truth, you
must find that the grand jury testimony was not the result
of pressure or coercive tactics."

These instructions support the conclusion that the judge

properly understood that coerced testimony may not be admitted

for substantive use pursuant to Daye.5

We are further unpersuaded by the defendant's argument that

the record is inadequate to support the judge's implicit finding

that the victim's grand jury testimony was not coerced. The

defendant asserts that because the victim recanted her grand

jury testimony and later asserted that she did not have an

opportunity to speak freely in front of the grand jury, the

judge was precluded from making such a finding. The judge,

however, was free to discredit the victim's claim of coercion.

See Maldonado, 466 Mass. at 754, 756 (judge not required to find

5 The defendant did not object to the jury instruction with
respect to coercion. As the judge's preliminary finding of
coercion pursuant to Daye was "conclusive," DePina, 476 Mass. at
621, it was unnecessary for the jury to make their own
independent finding of coercion. See Commonwealth v. Bright,
463 Mass. 421, 428-429 (2012); Mass. G. Evid. § 104(a) & note
(2023). Assuming without deciding that this instruction was in
error, we discern no substantial risk of a miscarriage of
justice. See Brum, 492 Mass. at 587. Indeed, this instruction
could only have benefited the defendant because it provided a
second opportunity for inculpatory evidence to be excluded from
the jury's consideration.
9

testimony was coerced even though witness "testified at trial

that he was 'forced' to say what he had said to the grand jury

and was 'tricked' by the prosecutor"). See also DePina, 476

Mass. at 622 (judge not required to credit uncontroverted claim

of police coercion). To the extent that the victim provided

conflicting testimony with respect to whether she was coerced,

the judge was permitted to weigh the competing evidence in

arriving at her conclusion.6 See Commonwealth v. Sineiro, 432

Mass. 735, 742 (2000) ("A trial judge has considerable

discretion in deciding whether inconsistency exists between a

witness's testimony at trial and prior testimony or statements

of the witness").

In contrast to the defendant's assertion, the evidence

amply supported the judge's implicit finding that the victim's

grand jury testimony was not coerced. During her grand jury

testimony, in response to open-ended questions from the

prosecutor, the victim described the defendant waking her by

punching her in the face with a closed fist.7 In further

6 In particular, we note the ample evidence before the judge
that the victim was afraid the defendant would find and harm her
sometime in the future. See Maldonado, 466 Mass. at 755-756.

7 On occasion in the admitted grand jury testimony, the
victim answered "yes" or "no" in response to leading questions.
However, these questions were limited to clarification of the
victim's narrative testimony. See Commonwealth v. Pierre, 486
10

response to the open-ended questions, the victim described how

the defendant had inserted his penis into her vagina while

pressing a knife deeply into her neck when she tried to move.

When asked whether "[intercourse] [was] something [she] had

wanted to do," she responded, "No." This testimony was

consistent with the statement she made to the bystander who

rendered her assistance immediately following the attack,

asserting that she had been raped. Having thoroughly reviewed

the record, we discern no evidence, other than the victim's

pretrial assertion, which the judge was not required to credit,

of any coercion imposed upon the victim by the prosecutor.8 In

light of these facts, there was no error in the judge's finding

that the victim's grand jury testimony was not coerced, and in

her allowance in evidence of the contested testimony for

substantive purposes.9 See Brum, 492 Mass. at 588.

Conclusion. Although an express finding of a lack of

coercion is preferred, see DePina, 476 Mass. at 621, here we

Mass. 418, 429 (2020) ("fairly open-ended" questions satisfy
Daye requirements).

8 The defendant agreed at oral argument that the transcript
of the grand jury testimony does not reflect any form of
coercion or compulsion.

9 Having concluded that there was no error in the admission
of the victim's grand jury testimony, we need not address the
defendant's arguments with respect to the prejudice flowing from
that admission.
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conclude that, because the record plainly reveals that the judge

was fully aware of the Daye requirements, she implicitly made

the requisite findings prior to admitting the victim's grand

jury testimony. We further conclude that the record is

sufficient to support those findings and, discerning no error,

we affirm the judgments.

So ordered.