Commonwealth v. Santana, 21-P-413

CourtAppeals Court of Massachusetts
Writing for the CourtWALSH, J.
Docket Number21-P-413
Decision Date14 September 2022



No. 21-P-413

Appeals Court of Massachusetts, Suffolk

September 14, 2022

Heard: April 14, 2022

Complaint received and sworn to in the Brighton Division of the Boston Municipal Court Department on March 28, 2017. The case was tried before Mark H. Summerville, J.

Kathleen A. Kelly for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Rubin, &Walsh, JJ.


A Boston Municipal Court jury convicted the defendant of three counts of indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B.[1] On


appeal, the defendant contends that the judge erred by (1) allowing the Commonwealth to question him about his immigration status and ability to speak English, (2) admitting multiple first complaint testimony in violation of the first complaint doctrine, and (3) excluding evidence of the victim's mental health history. He also claims that the prosecutor improperly vouched for the victim's credibility during closing argument.

For the reasons that follow, we affirm the judgments.


We recount the facts as the jury could have found them, reserving certain details for later discussion. The victim was between the ages of seven and nine when the defendant sexually assaulted her on three occasions. During this time, the defendant lived with the victim's family, which consisted of her mother, father, and a younger sister. In addition, two or three uncles resided with the family.[2] Although the defendant was not related to the victim, he had two daughters with the sister of the victim's mother, and the victim referred to him as her uncle.


The victim testified that the first sexual assault occurred one night when her parents were asleep. The defendant entered the victim's bedroom, grabbed her by the wrists, and took her into his room. He proceeded to lay her down on the floor next to a computer playing music. The two moved to the defendant's bed, where the defendant began to touch the victim's leg. After some time, he got up, handed the victim money, and ordered her not to tell her parents or else he would "do something" to them. Despite the defendant's threat, the victim told her mother several days later. However, as the victim said at trial, her mother did not believe her.

The second sexual assault occurred in the defendant's bedroom. The defendant touched the victim's genital area over her clothing, and then, as the victim lay on the defendant's bed unclothed from the waist down, the defendant touched the outside of her vagina with his penis. At the same time, he grabbed her ankles and tried to spread her legs apart. On a third occasion, when the victim and defendant were alone in another room, the defendant exposed his penis to the victim and "shoved" her head into it. The victim testified that the incident happened


quickly and that she got up immediately and walked out of the room.[3]

The victim did not speak of the second and third assaults until 2017, when she once again informed her mother that the defendant had assaulted her. The victim testified that she and her mother were having an argument and that she told her mother "what was bothering [her] at the moment." At trial, the victim could not remember exactly what she said at that time, but she "generally" related that her uncle had "touched" her. Following this disclosure, the victim's father took her to the police station, where she reported the events in question.

The defendant denied the allegations and presented a robust defense. He attempted to establish that the victim and her parents had fabricated the allegations because he owed the family money. The defendant testified at trial and explained that, like the victim's parents, he was born in Brazil and that he came to the United States in 2008. He claimed that the victim's father, whom he knew in Brazil, paid for the trip, which cost $13,000. The defendant worked two jobs and repaid the loan. The defendant stated that years later, in August 2016, the father told the defendant that he wanted to be paid


interest on the loan. Soon thereafter, the father said he wanted $6,000 for the defendant's "ex-partner" and her daughter, who were still living in Brazil. According to the defendant, when he refused to pay, the victim's father threatened to have him deported. The defendant also sought to undermine the victim's credibility by suggesting she had falsely accused her parents of physically abusing her and by emphasizing that she had accused an "uncle" of abusing her and he, unlike the other men who resided in the household, was not the victim's uncle.


1. Evidence of the defendant's immigration status.

Prior to trial, defense counsel filed a motion in limine seeking to question the victim's parents about the debt ($13,000 loan plus interest) the defendant allegedly owed them.[4] As noted, defense counsel intended to use this outstanding obligation to establish that the victim and her family had a motive to fabricate the allegations. The judge addressed the motion before empanelling a jury and ruled that counsel could pursue this line of questioning. In response, the prosecutor explained to the trial judge that this was brand new information that she was hearing of and that she did not want to "bring up immigration issues if [it wasn't] needed." Defense counsel then


clarified that he would not discuss the details of how the defendant entered the country and that he would limit his questioning to the existence of the loan and unpaid interest.

However, the defendant's testimony on direct examination exceeded the parameters proposed by defense counsel. As we have described, the defendant testified that he was from Brazil and that the victim's father paid for him to come to the United States and later had threatened to have the defendant deported if he could not pay his debt. The defendant stated twice that the victim's father "said that if I didn't pay, he would have me deported." Thereafter, during her cross-examination, the prosecutor asked the defendant whether he was in the country legally. She inquired: "And it's fair to say that you're here illegally in the [United States]?" The trial judge overruled defense counsel's objection to the question, and the defendant answered, "Yes." On redirect examination, the defendant testified that he was in the process of "being documented" and that the documentation was on hold pending the outcome of the case.

Immediately after the defendant's testimony concluded, the judge instructed the jury, without objection, as follows:

"Now, ladies and gentlemen, I want to be absolutely and abundantly clear. The charges before the [c]ourt have nothing, nothing to do with whether the defendant is undocumented or documented, or in this country illegally,
these charges. You must determine these charges based upon the evidence, and the Commonwealth has the burden of proof, proof beyond a reasonable doubt. So, the only thing you are to take into consideration when determining the defendant's guilt or innocence is whether the Commonwealth has proven its case against the defendant, and has proven each and every element of the crimes before the [c]ourt beyond a reasonable doubt. His documented or undocumented status in the United States is irrelevant."

The defendant claims that the evidence of his immigration status was not only inadmissible but also so prejudicial that it deprived him of a fair trial. The Commonwealth asserts that the inquiry did not amount to an appeal to possible prejudice against undocumented immigrants, as the defendant asserts, but instead was a proper response to a subject raised by the defendant during his direct examination. The Commonwealth also notes that the prosecutor did not dwell on the defendant's immigration status, and the judge's limiting instruction cured any potential error.[5] Because the issue is preserved, we review for prejudicial error. See Commonwealth v. Imbert, 479 Mass. 575, 579 (2018).

We conclude that in this instance it was improper for the prosecutor to question the defendant about his immigration


status. To be admissible at trial, evidence must be relevant, that is, it must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Commonwealth v. Buzzell, 79 Mass.App.Ct. 460, 462 (2011), quoting Mass. G. Evid. § 401 (2011). Here, the question whether the defendant resided in the United States illegally had no bearing on whether he committed the sexual assaults and, therefore, defense counsel's objection should have been sustained. See Buzzell, supra (no fact in dispute that "becomes more or less probable depending on the [witness's] immigration status" and "no reason to believe that the fact that [a] witness[] may not [be] legally resid[ing] in this country ma[kes] them any less likely to be truthful").

The question remains whether the improper admission of this evidence requires a new trial. "An error is not prejudicial if it 'did not influence the jury, or had but slight effect'; however, if we cannot find 'with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgement was not substantially swayed by the error,' then it is prejudicial." Commonwealth v. Misquina, 82 Mass.App.Ct. 204, 207 (2012), quoting Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).


The error was nonprejudicial for several reasons. First, the jury could have reasonably inferred that the defendant's immigration status was in question based on his testimony that the victim's father threatened to have him deported. The implication of such a threat is that the defendant was -- in fact -- subject to deportation. Although we do not...

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