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-967
COMMONWEALTH
vs.
CARLOS VIEIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Salem Superior Court, the
defendant, Carlos Vieira, appeals from his convictions of two
counts of aggravated rape of a child by age difference and one
count of indecent assault and battery on a child under the age
of fourteen. We affirm.
Background. Evidence showed that in June 2018, the
defendant, age forty-nine, met the thirteen year old victim
through a social media application. They arranged to meet at
night in the defendant's SUV where they engaged in oral sex, and
the defendant "humped" the victim's thigh.
Months later, on September 13, 2018, a cluster of
residential gas explosions in Lawrence prompted the victim's family to evacuate. Leaving the city in the passenger seat of
his aunt's car, the victim "noticed that a cop [was] directing
traffic" at an intersection. He immediately recognized the
officer as the person involved in the sexual encounter in the
SUV.
In January 2019, the victim's mother suspected that her
friend's teenage daughter, who recently moved in with them, had
taken a watch. When the victim's mother confronted the daughter
about the watch, she became "very defensive" and told the
victim's mother that she "should be checking [the victim's]
phone." With the escalation of the argument, the victim's
mother confiscated the victim's electronics and contacted her
friend.
When the friend arrived, the victim's mother asked her to
speak to the victim. The friend spoke to the victim alone, and
she testified that during this conversation, the victim "seemed
hesitant to speak with [her]," but he told her that he "did
something" and was "not proud of it." The victim then explained
to her that through social media he met a man, and that he
"performed oral sex on the man, then the man performed oral sex
on him and dry humped him." The victim then told the friend
that this man was "a police officer" and that he saw him
directing traffic on the day of the explosions. After this
2 conversation, the friend told the victim's mother, who then
searched the victim's phone and contacted the police.
A State police investigation focused on the defendant.
Detectives confirmed that the defendant was a police officer who
worked on the day of the gas explosions. The victim selected
the defendant's photograph from an array as the perpetrator.
After meeting with the detectives and being informed of his
Miranda rights, the defendant acknowledged in an audio recorded
interview that he had been using the same social media
application that had been used to set up the meeting.
Discussion. 1. Designation of first complaint witness. A
first complaint witness is generally "the person who was first
told of the assault." Commonwealth v. King 445 Mass. 217, 243
(2005). Because the evidence showed that the victim first
reported the sexual assaults to the mother's friend, that friend
properly testified as the first complaint witness. For the
first time, the defendant contends that the judge erred by
allowing this testimony because the friend's daughter (who did
not testify) should have been designated as the first complaint
witness. We discern no error and no "substantial risk of a
miscarriage of justice." Commonwealth v. Freeman, 352 Mass.
556, 564 (1967).
The record does not support the defendant's claim that
someone else should have been designated as the first complaint
3 witness. For example, the defendant cites a sidebar discussion
about the friend's daughter telling the victim's mother to check
his phone because he had been "meeting men." The prosecutor
also mentioned this phone incident in the opening statement.
The defendant contends that knowledge about the victim "meeting
men" indicated that the victim necessarily reported the sexual
assaults to the friend's daughter. Even if the friend's
daughter would have testified about the victim "meeting men,"
the phrase, in context, referred to meeting men on the social
media application on the victim's phone. In these
circumstances, the phrase "meeting men" on the phone does not
equate with a report of a sexual assault that would require a
voir dire to sort out "who was the first complaint witness."
Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008). See, e.g.,
Commonwealth v. Murungu, 450 Mass. 441, 446 (2008) (encounter
with unhappy or upset victim who does not report sexual assault
"does not constitute a complaint"). The defendant also points
to suppression hearing testimony from a State police detective
indicating that the victim first reported abuse to his "cousin"
(referring to the friend's daughter). This hearsay testimony
would likewise be insufficient to require a voir dire because
the victim expressly denied, at trial, that he reported the
sexual assaults to anyone before the disclosure to his mother's
friend, and defense counsel acknowledged in his opening
4 statement that the victim "didn't tell anybody about it" before
this report. See id. at 447 (defense counsel may "show that the
first person to whom the complainant made a complaint was in
fact someone other than the proffered first complaint witness").
Thus, the record does not indicate a "contradiction" in the
evidence that would warrant a voir dire. Stuckich, supra.
2. Inadequate investigation. Evidence showing a "failure
of the authorities to conduct certain tests or produce certain
evidence" or showing that "certain police procedures [were] not
followed" is a permissible ground on which to build a defense
and may raise a reasonable doubt as to the defendant's guilt.
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Such a
defense, however, "is a two-edged sword for the defendant,
because it opens the door for the Commonwealth to offer evidence
explaining why the police did not follow the line of
investigation suggested by the defense," Commonwealth v. Silva-
Santiago, 453 Mass. 782, 803 n.25 (2009), and because "the
officer[s] must be allowed to defend that judgment."
Commonwealth v. Lodge, 431 Mass. 461, 467 (2000).
For the first time, the defendant contends that during
cross-examination about investigative steps that were not taken,
State police detectives Stephen Buccheri and Sergeant Stephen
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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-967
COMMONWEALTH
vs.
CARLOS VIEIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Salem Superior Court, the
defendant, Carlos Vieira, appeals from his convictions of two
counts of aggravated rape of a child by age difference and one
count of indecent assault and battery on a child under the age
of fourteen. We affirm.
Background. Evidence showed that in June 2018, the
defendant, age forty-nine, met the thirteen year old victim
through a social media application. They arranged to meet at
night in the defendant's SUV where they engaged in oral sex, and
the defendant "humped" the victim's thigh.
Months later, on September 13, 2018, a cluster of
residential gas explosions in Lawrence prompted the victim's family to evacuate. Leaving the city in the passenger seat of
his aunt's car, the victim "noticed that a cop [was] directing
traffic" at an intersection. He immediately recognized the
officer as the person involved in the sexual encounter in the
SUV.
In January 2019, the victim's mother suspected that her
friend's teenage daughter, who recently moved in with them, had
taken a watch. When the victim's mother confronted the daughter
about the watch, she became "very defensive" and told the
victim's mother that she "should be checking [the victim's]
phone." With the escalation of the argument, the victim's
mother confiscated the victim's electronics and contacted her
friend.
When the friend arrived, the victim's mother asked her to
speak to the victim. The friend spoke to the victim alone, and
she testified that during this conversation, the victim "seemed
hesitant to speak with [her]," but he told her that he "did
something" and was "not proud of it." The victim then explained
to her that through social media he met a man, and that he
"performed oral sex on the man, then the man performed oral sex
on him and dry humped him." The victim then told the friend
that this man was "a police officer" and that he saw him
directing traffic on the day of the explosions. After this
2 conversation, the friend told the victim's mother, who then
searched the victim's phone and contacted the police.
A State police investigation focused on the defendant.
Detectives confirmed that the defendant was a police officer who
worked on the day of the gas explosions. The victim selected
the defendant's photograph from an array as the perpetrator.
After meeting with the detectives and being informed of his
Miranda rights, the defendant acknowledged in an audio recorded
interview that he had been using the same social media
application that had been used to set up the meeting.
Discussion. 1. Designation of first complaint witness. A
first complaint witness is generally "the person who was first
told of the assault." Commonwealth v. King 445 Mass. 217, 243
(2005). Because the evidence showed that the victim first
reported the sexual assaults to the mother's friend, that friend
properly testified as the first complaint witness. For the
first time, the defendant contends that the judge erred by
allowing this testimony because the friend's daughter (who did
not testify) should have been designated as the first complaint
witness. We discern no error and no "substantial risk of a
miscarriage of justice." Commonwealth v. Freeman, 352 Mass.
556, 564 (1967).
The record does not support the defendant's claim that
someone else should have been designated as the first complaint
3 witness. For example, the defendant cites a sidebar discussion
about the friend's daughter telling the victim's mother to check
his phone because he had been "meeting men." The prosecutor
also mentioned this phone incident in the opening statement.
The defendant contends that knowledge about the victim "meeting
men" indicated that the victim necessarily reported the sexual
assaults to the friend's daughter. Even if the friend's
daughter would have testified about the victim "meeting men,"
the phrase, in context, referred to meeting men on the social
media application on the victim's phone. In these
circumstances, the phrase "meeting men" on the phone does not
equate with a report of a sexual assault that would require a
voir dire to sort out "who was the first complaint witness."
Commonwealth v. Stuckich, 450 Mass. 449, 455 (2008). See, e.g.,
Commonwealth v. Murungu, 450 Mass. 441, 446 (2008) (encounter
with unhappy or upset victim who does not report sexual assault
"does not constitute a complaint"). The defendant also points
to suppression hearing testimony from a State police detective
indicating that the victim first reported abuse to his "cousin"
(referring to the friend's daughter). This hearsay testimony
would likewise be insufficient to require a voir dire because
the victim expressly denied, at trial, that he reported the
sexual assaults to anyone before the disclosure to his mother's
friend, and defense counsel acknowledged in his opening
4 statement that the victim "didn't tell anybody about it" before
this report. See id. at 447 (defense counsel may "show that the
first person to whom the complainant made a complaint was in
fact someone other than the proffered first complaint witness").
Thus, the record does not indicate a "contradiction" in the
evidence that would warrant a voir dire. Stuckich, supra.
2. Inadequate investigation. Evidence showing a "failure
of the authorities to conduct certain tests or produce certain
evidence" or showing that "certain police procedures [were] not
followed" is a permissible ground on which to build a defense
and may raise a reasonable doubt as to the defendant's guilt.
Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Such a
defense, however, "is a two-edged sword for the defendant,
because it opens the door for the Commonwealth to offer evidence
explaining why the police did not follow the line of
investigation suggested by the defense," Commonwealth v. Silva-
Santiago, 453 Mass. 782, 803 n.25 (2009), and because "the
officer[s] must be allowed to defend that judgment."
Commonwealth v. Lodge, 431 Mass. 461, 467 (2000).
For the first time, the defendant contends that during
cross-examination about investigative steps that were not taken,
State police detectives Stephen Buccheri and Sergeant Stephen
O'Connor "exceeded the bounds of proper testimony when they
opined on the issue of guilt or innocence." We discern no error
5 and no "substantial risk of a miscarriage of justice." Freeman,
352 Mass. at 564.
Defense counsel cross-examined Sgt. O'Connor about the
victim's initial inability to identify the defendant and the
absence of any effort by the police to obtain a description of
the perpetrator's physical characteristics. When cross-
examining Sgt. O'Connor about the victim's initial inability to
select the defendant's photograph from an array, defense counsel
asked, "[Y]ou weren't really sure if that was the person or not
at that particular point in time, right?" Sgt. O'Connor replied
that the police were sure that it was the defendant whom the
victim "was talking about." When counsel pressed further and
asked "why" the police did not ask the victim "anything about
[the perpetrator's] weight, facial hair, height, tattoos, or any
identifying characteristics," Sgt. O'Connor replied that the
victim identified the defendant based upon "the car he drove,
where he lived, [and that] he was a police officer." When
pressed even further, Sgt. O'Connor testified, "Our focus was on
the person that he saw at the intersection, driving that car
[that] belongs to [the defendant]. He pointed out the house[,]
that this particular person drives the car. There's one person,
one male party that lives in that house."
The cross-examination of Detective Buccheri followed a
similar path. Counsel established through cross-examination
6 that the police did not obtain a description of the perpetrator,
even after the victim failed to make any identification from the
first photographic array. Counsel asked, "[W]ouldn't it have
made some sense to [get a description of the perpetrator]?"
Det. Buccheri responded that he "was presented with a
substantial amount of actionable intelligence[,]" including "a
plate, a known location, a confirmed ID of [the defendant] that
occurred at an intersection of Beacon and Mount Vernon, who was
a Lawrence police officer."
Read in context, this testimony of the detectives did not
express an opinion on the guilt of the defendant. Instead,
responding to counsel's questions, the detectives simply
explained why they chose not to obtain a description of the
perpetrator based upon other actionable information that they
had available. Contrast Lodge, 431 Mass. at 467 (improper for
prosecutor to elicit testimony about "a general expression of
the officer's opinion of guilt, followed by a recital of all the
evidence against the defendant"). Notably, in his closing
argument, defense counsel repeatedly referred to this evidence
as the police "jump[ing] to a conclusion" and failing to at
least obtain a description of the perpetrator -- especially
after the victim had failed to initially identify the defendant
from a photographic array. The defendant "may not now be heard
to cry foul over evidence that [he] purposefully introduced and
7 tried to use to [his] advantage." Commonwealth v. Chaleumphong,
434 Mass. 70, 76 (2001).
Finally, we disagree with the defendant's suggestion that
counsel was ineffective because he should have moved to strike
the detectives' cross-examination testimony. He points to a
sidebar discussion where the judge cautioned counsel that his
questions opened the door to witnesses explaining why they took
certain investigative steps. Counsel responded, "It was
inadvertent." From this exchange, the defendant now concludes
that counsel lacked any strategy. "[A]n ineffective assistance
of counsel challenge made on the trial record alone is the
weakest form of such a challenge because it is bereft of any
explanation by trial counsel for his actions and suggestive of
strategy contrived by a defendant viewing the case with
hindsight." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5
(2002). Nevertheless, as previously discussed, the record here
shows that counsel pursued an evident strategy of highlighting
weaknesses in the police investigation. This strategy continued
after the sidebar discussion and continued through the closing
argument. Lack of success does not equate with a lack of a
reasonable strategy. See Commonwealth v. Kolenovic, 471 Mass.
664, 675 (2015) (strategic choices may be reasonable despite
unfavorable outcome or availability of different choices).
8 In sum, we discern no error nor combination of errors that
resulted in a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Rubin, Shin & Hodgens, JJ. 1),
Clerk
Entered: January 27, 2025.
1 The panelists are listed in order of seniority.