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
21-P-238
COMMONWEALTH
vs.
OBDULIO ACEVEDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Obdulio Acevedo, was convicted after a jury
trial on three indictments charging rape of a child and one
indictment charging indecent assault and battery on a child. On
appeal, the defendant alleges ineffective assistance of counsel
and five separate claims of trial error. 1 Largely for the
reasons stated in the Commonwealth's brief, we affirm.
1. Ineffective assistance of counsel. The defendant
argues that his trial counsel failed to investigate unspecified
claims that could have established his innocence, amounting to
ineffective assistance of counsel.
1 The defendant's appellate counsel raised the ineffective assistance claim in a brief with a Moffett preface, and the defendant, representing himself, filed a separate brief containing the claims of trial error. See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The defendant makes this claim for the first time on
appeal. "[T]he preferred method for raising a claim of
ineffective assistance of counsel is through a motion for a new
trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). An
ineffective assistance of counsel claim "made on the trial
record alone is the weakest form of such a challenge."
Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "For
such a claim to be successful, counsel's inadequate performance
must 'appear[] indisputably on the trial record.'" Commonwealth
v. Morales, 461 Mass. 765, 785 (2012), quoting Zinser, supra at
811.
Here the defendant fails to provide any factual basis for
his ineffective assistance claim, merely asserting that trial
counsel failed to investigate some unspecified claims. As the
defendant did not "follow[] the recommended course of making a
motion for a new trial accompanied by affidavits, . . . [he] has
failed to present us with a record that permits us intelligently
to measure defense counsel's performance under the standard of
Commonwealth v. Saferian, 366 Mass. 89 (1974), and its progeny."
Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999).
See also Commonwealth v. Moffett, 383 Mass. 201, 215 (1981)
(rejecting ineffective assistance of counsel claim where
defendant failed to specify how trial counsel's omissions led to
prejudice).
2 2. Indictment. The defendant contends that the indictment
for indecent assault and battery was prejudicially described to
the jury as "beating this girl." To the contrary, the
indictment was read verbatim to the jury, in language consistent
with that set forth in G. L. c. 277, § 79. Moreover, the judge
immediately instructed the jury that indictments are not
evidence and that the jury "must not draw any inference from the
indictments or from the fact that the defendant has been
formally charged." There was no error.
3. Judge's response to jury deadlock. The defendant
argues that the judge erred in how she responded to the jury
after they reported being deadlocked.
The trial judge properly instructed the jury to continue
deliberations when they first asked, after only an hour of
deliberations, about the consequences of not being able to reach
a unanimous verdict. See Commonwealth v. Torres, 453 Mass. 722,
736 (2009); Mass. R. Crim. P. 27 (d), 378 Mass. 897 (1979).
When the jury reported again that they were at an impasse, the
judge properly conferred with counsel prior to issuing the Tuey-
Rodriquez instruction, and found that there had been "due and
thorough deliberations," as required by G. L. c. 234A, § 68C.
See Commonwealth v. Witkowski, 487 Mass. 675, 688-689 (2021).
At this juncture, the judge properly gave the Tuey-Rodriquez
instruction, which is the model instruction for this situation.
3 See Ray v. Commonwealth, 463 Mass. 1, 5-6 (2012). Although the
instruction does not specifically explain that a so-called "hung
jury" or a mistrial is an option, it is carefully crafted to
avoid coercing the jury to reach a verdict. See Commonwealth v.
Rodriquez, 364 Mass. 87, 98-100 (1973); Commonwealth v. O'Brien,
65 Mass. App. Ct. 291, 295 (2005); Commonwealth v. Martins, 38
Mass. App. Ct. 636, 641 (1995). Trial judges are urged not to
stray from its language. Witkowski, supra at 689; O'Brien,
supra. The judge handled the issue appropriately.
4. Sentencing record. The defendant claims that the
record is incomplete, arguing that he and his wife both remember
the judge making an improper statement during sentencing. As
this assertion is not supported by the record or any
corroborating evidence, we reject it. See Commonwealth v.
Denehy, 466 Mass. 723, 727 (2014), quoting Zabin v. Picciotto,
73 Mass. App. Ct. 141, 173 (2008) ("[a] party's self-serving and
uncorroborated assertions of what transpired at trial cannot
serve as grounds to contend that the official record of the
proceedings, prepared by a neutral court official, was
falsified").
5. Bill of particulars. The defendant argues that the
bill of particulars was improperly amended twice, frustrating
his defense. This is the only claim in the defendant's brief
that was properly raised at trial. We therefore review to
4 determine whether the variance, if any, between the bill of
particulars and the evidence at trial prejudiced the defendant.
See Commonwealth v. Crawford, 429 Mass. 60, 69 (1999). "A
request for a bill of particulars does not entitle a defendant
to secure a résumé of the [Commonwealth's] evidence . . . or to
require specific evidence as to facts that do not relate to an
element of the crime charged" (quotation and citation omitted).
Commonwealth v. Pillai, 445 Mass. 175, 188 (2005).
"Accordingly, the standard for showing prejudice from a variance
between the bill of particulars and trial testimony is high."
Id. "[R]elief is warranted only on a showing that the bill of
particulars failed to provide the defendant with 'notice to
prepare his defense.'" Id., quoting Commonwealth v. Amirault,
404 Mass. 221, 234 (1989).
The four indictments stemmed from a course of sexual abuse
of the victim lasting approximately ten years. The Commonwealth
filed its first bill of particulars approximately two weeks
prior to the trial. On the second day of trial, the defendant
filed a motion seeking to exclude specific acts omitted from the
first bill of particulars, namely, allegations of digital
Free access — add to your briefcase to read the full text and ask questions with AI
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
21-P-238
COMMONWEALTH
vs.
OBDULIO ACEVEDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Obdulio Acevedo, was convicted after a jury
trial on three indictments charging rape of a child and one
indictment charging indecent assault and battery on a child. On
appeal, the defendant alleges ineffective assistance of counsel
and five separate claims of trial error. 1 Largely for the
reasons stated in the Commonwealth's brief, we affirm.
1. Ineffective assistance of counsel. The defendant
argues that his trial counsel failed to investigate unspecified
claims that could have established his innocence, amounting to
ineffective assistance of counsel.
1 The defendant's appellate counsel raised the ineffective assistance claim in a brief with a Moffett preface, and the defendant, representing himself, filed a separate brief containing the claims of trial error. See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The defendant makes this claim for the first time on
appeal. "[T]he preferred method for raising a claim of
ineffective assistance of counsel is through a motion for a new
trial." Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). An
ineffective assistance of counsel claim "made on the trial
record alone is the weakest form of such a challenge."
Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "For
such a claim to be successful, counsel's inadequate performance
must 'appear[] indisputably on the trial record.'" Commonwealth
v. Morales, 461 Mass. 765, 785 (2012), quoting Zinser, supra at
811.
Here the defendant fails to provide any factual basis for
his ineffective assistance claim, merely asserting that trial
counsel failed to investigate some unspecified claims. As the
defendant did not "follow[] the recommended course of making a
motion for a new trial accompanied by affidavits, . . . [he] has
failed to present us with a record that permits us intelligently
to measure defense counsel's performance under the standard of
Commonwealth v. Saferian, 366 Mass. 89 (1974), and its progeny."
Commonwealth v. McCormick, 48 Mass. App. Ct. 106, 107 (1999).
See also Commonwealth v. Moffett, 383 Mass. 201, 215 (1981)
(rejecting ineffective assistance of counsel claim where
defendant failed to specify how trial counsel's omissions led to
prejudice).
2 2. Indictment. The defendant contends that the indictment
for indecent assault and battery was prejudicially described to
the jury as "beating this girl." To the contrary, the
indictment was read verbatim to the jury, in language consistent
with that set forth in G. L. c. 277, § 79. Moreover, the judge
immediately instructed the jury that indictments are not
evidence and that the jury "must not draw any inference from the
indictments or from the fact that the defendant has been
formally charged." There was no error.
3. Judge's response to jury deadlock. The defendant
argues that the judge erred in how she responded to the jury
after they reported being deadlocked.
The trial judge properly instructed the jury to continue
deliberations when they first asked, after only an hour of
deliberations, about the consequences of not being able to reach
a unanimous verdict. See Commonwealth v. Torres, 453 Mass. 722,
736 (2009); Mass. R. Crim. P. 27 (d), 378 Mass. 897 (1979).
When the jury reported again that they were at an impasse, the
judge properly conferred with counsel prior to issuing the Tuey-
Rodriquez instruction, and found that there had been "due and
thorough deliberations," as required by G. L. c. 234A, § 68C.
See Commonwealth v. Witkowski, 487 Mass. 675, 688-689 (2021).
At this juncture, the judge properly gave the Tuey-Rodriquez
instruction, which is the model instruction for this situation.
3 See Ray v. Commonwealth, 463 Mass. 1, 5-6 (2012). Although the
instruction does not specifically explain that a so-called "hung
jury" or a mistrial is an option, it is carefully crafted to
avoid coercing the jury to reach a verdict. See Commonwealth v.
Rodriquez, 364 Mass. 87, 98-100 (1973); Commonwealth v. O'Brien,
65 Mass. App. Ct. 291, 295 (2005); Commonwealth v. Martins, 38
Mass. App. Ct. 636, 641 (1995). Trial judges are urged not to
stray from its language. Witkowski, supra at 689; O'Brien,
supra. The judge handled the issue appropriately.
4. Sentencing record. The defendant claims that the
record is incomplete, arguing that he and his wife both remember
the judge making an improper statement during sentencing. As
this assertion is not supported by the record or any
corroborating evidence, we reject it. See Commonwealth v.
Denehy, 466 Mass. 723, 727 (2014), quoting Zabin v. Picciotto,
73 Mass. App. Ct. 141, 173 (2008) ("[a] party's self-serving and
uncorroborated assertions of what transpired at trial cannot
serve as grounds to contend that the official record of the
proceedings, prepared by a neutral court official, was
falsified").
5. Bill of particulars. The defendant argues that the
bill of particulars was improperly amended twice, frustrating
his defense. This is the only claim in the defendant's brief
that was properly raised at trial. We therefore review to
4 determine whether the variance, if any, between the bill of
particulars and the evidence at trial prejudiced the defendant.
See Commonwealth v. Crawford, 429 Mass. 60, 69 (1999). "A
request for a bill of particulars does not entitle a defendant
to secure a résumé of the [Commonwealth's] evidence . . . or to
require specific evidence as to facts that do not relate to an
element of the crime charged" (quotation and citation omitted).
Commonwealth v. Pillai, 445 Mass. 175, 188 (2005).
"Accordingly, the standard for showing prejudice from a variance
between the bill of particulars and trial testimony is high."
Id. "[R]elief is warranted only on a showing that the bill of
particulars failed to provide the defendant with 'notice to
prepare his defense.'" Id., quoting Commonwealth v. Amirault,
404 Mass. 221, 234 (1989).
The four indictments stemmed from a course of sexual abuse
of the victim lasting approximately ten years. The Commonwealth
filed its first bill of particulars approximately two weeks
prior to the trial. On the second day of trial, the defendant
filed a motion seeking to exclude specific acts omitted from the
first bill of particulars, namely, allegations of digital
vaginal and anal penetration, as the basis for any of the rape
counts. The judge heard arguments from both parties and allowed
the Commonwealth to amend the bill of particulars. In allowing
amendment, the judge emphasized the importance of ensuring that
5 the accusations against the defendant were clear, but also
stated that the agreed-upon indictments from the pretrial
conference report sufficiently put the defendant on notice that
these allegations would be part of the Commonwealth's case.
The Commonwealth amended the bill of particulars the next
day to add only the act of digital vaginal penetration. The
prosecutor informed the judge that the omission of digital anal
penetration was deliberate, as he was unsure if both types of
digital penetration could be properly added and wanted to err on
the side of caution. Following the judge's confirmation of
proper procedure, the Commonwealth amended the bill for the
final time to include both types of digital penetration.
The defendant objected to the amendments, arguing that the
Commonwealth failed to provide notice of the defendant "ever
touching [the victim's] buttocks." When the judge pointed out
that this allegation would not be going to the jury, however,
the defendant failed to raise any additional specific concerns. 2
Furthermore, the judge pointed out that the defendant had
effectively cross-examined the victim about inconsistencies in
her description of these acts, belying the defendant's claim
that he lacked notice of which acts would be submitted as
2 Indeed, the jury found the defendant guilty of rape by placing his penis inside the victim's mouth, placing his penis inside the victim's vagina, and placing his tongue inside the victim's vagina.
6 evidence. See Rogan v. Commonwealth, 415 Mass. 376, 378 (1993)
("The purpose . . . of specifications in a bill of particulars
. . . is to give a defendant reasonable knowledge of the nature
and character of the crime charged" [citation omitted]). We
agree with the judge that the defendant had proper notice of the
charged conduct, and to the extent there was a variance between
the bill of particulars and the evidence at trial, we discern no
prejudice.
6. First complaint witness. The defendant's final
argument is that the Commonwealth's decision not to call the
first complaint witness hurt his defense. This claim lacks
merit. The Commonwealth is not required to call a first
complaint witness. See Commonwealth v. King, 445 Mass. 217, 243
(2005) (first complaint witness "may testify to the details of
the alleged victim's first complaint of sexual assault"
[emphasis added]). The defendant had the option to call the
witness himself, but chose not to do so for strategic reasons.
Judgments affirmed.
By the Court (Blake, Massing, & Hand, JJ. 3),
Clerk
Entered: November 10, 2023.
3 The panelists are listed in order of seniority.