Petition for Writ of Certiorari — Daniel Viveiros, Petitioner v. Massachusetts

Supreme Court, U.S.

FILED

No.

FEB 2 8 2022

OFFICE OF THE CLEPK

IN THE

SUPREME COURT OF THE UNITED STATES

'Tbuniel //tiros

— PETITIONER

(Your Name)

vs.

Thtt

ttin oP

— RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

P.fY)P \]usJiC/(xl

-ficr -fine

of

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

(Your Name)

BOO Co(fm/ ^ D

(Address) '

(yiarfiner; $1/1

(City, State, Zip Code)

uk

(Phone Number)

QUESTIONS PRESENTED

1. Whether the trial court erred be admitting, without'expert

medical testimony, evidence of the complainant's stomachaches

and bladder pain puporting to corroborate her allegations of

sexual assault?

2. Whether the commonwealth deprived the defendant of his sbate

and federal due process rights where the trial prosecutor (a)

grossly misstated the first complaint witness's testimony in

closing argument^](2) Violated the bar against Successive co

complaint testimony^' and (3) Improperly vouched for the first

complaint witness and the complainant?

.3. Whether the cumulative effect of the trial errors, all

of which tended'to bolster the complainant's uncorroborated

allegations, deprived therdefendant of his state and federal

due process rights and require a new trial?

LIST OF PARTIES

^1 All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF CONTENTS

OPINIONS BELOW

X

JURISDICTION

2

3^44

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3,6,7

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

§,9,10,11,12,13,14,15

16

CONCLUSION

INDEX TO APPENDICES

.. ApEENElXAS-Decision of State Court of Appeals

APPENDIX B- Decision of Supreme Court Denying Review

TABLE OF AUTHORITIES CITED

CASES

Commonwealth v. Alvarez,

480 Mass. 299,(2018)

12

Commonwealth v. Arana,

453 Mass. 214 (2009)

15

Commonwealth v. Burts,

68 Mass. App.Ct. 684, 688-89 (2007)

13

Commonwealth v. Gonzalez,

28 Mass. App. CT. 349 (2017)............

15

Commonwealth v. Hamel,

91 Mass. App. Ct. 349 (2017).,..........

8,13

Commonwealth v. Hrabak,

440 Mass. 650 (2004)..........................

9

Commonwealth v. Hudson,

417 Mass. 536 (1994)

8,9

Commonwealth v. Kin

445 Mass. 217 f2005)

9,14

Commonwealth v. Kee,

449 Mass. 550 (2007)........

14

Commonwealth v. Kirkpatrick,

423 Mass. 436 (1996)........

9

Commonwealth v. Loguidice,

420 Mass. 453, 457 (2005)

12

CSmmonwealth v. Pugh,

462 Mass. 482, 495 (2012)

11

Darden V. wainwright,

477 U.S. 168 (1986)

Gagnon v. Scarpelli,

411 U.S. 778 (1973)

Hicks v. Oklahoma,

447 U.S. 343 (1980)

S. Bakeries LLC v. NLRB,

871 F.3d 811, 840 (8th Cir. 2017)

10

FEDERAL CONSTITUTIONAL PROVISIONS CITED

FIFTH AMENDMENT

#

FOURTEENTH AMENDMENT

MASSACHUSETTS CONSTITUTIONAL PROVISIONS CITED

3,4

ARTICLE 10

STATUTES

M.G.L. c. 265,4§ 13B

5

M.G.L. c. 265, § 23A

5

M.G.L. c. 272, § 28A

5-

M.G.L. c. 272, § 53.

5

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

to

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

J or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

to

The opinion of the United States district court appears at Appendix

the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

j>^. For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix

to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

M is unpublished.

The opinion of the Mk<^C.Iau<,?.U< Appeals

appears at Appendix ^

to the petition and is

; or,

[ ] reported at

[ ] has been designated for publication but is not yet reported; or,

M is unpublished.

1.

court

JURISDICTION

[ ] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was______________________

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: ____________

order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on,

to and including______

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

£4 For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix ____

lakiki

[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

(date) on

to and including____

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2.

V

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Fifth Amendment

United States Constitution

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, excepttin cases arising in

the land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offence to

be twice put in jepordy of life or limb; nor shall

be compelled in any criminal case to be a witness

' !•-.

against himself, nor be deprived of life, libert!!, or

property, without due process of law; nor shall private

'PEopfeetj^abe taken for public use, without just compensation.

Fourteenth Amendment

United States Constitution

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United Stated and of the state wherein

they reside. No state shall make or enforce any law which

shall abridge the privilegesnor immunities of citizens

of the United Stated; nor shall any State deprive any p

perosn of life, liberty, or property, withouttdue

process of the law; nor deny to any peron within its

jurisdiction the equal protection of the laws.

Artical 12

Massachusetts Declaration of Rights

j

e

No subject shall be held to answer for any crimes or

offence, until the same is fully and plainly , substantially

and formally, described to him; or be compelled to accuse,

or furnish evidence against hjmsell,'. And every subject

shall have a right to produce all proofs, that may be

favorable to him; to meet the witnesses against him face to

face, and to be fully heard in his defence by himsellfJ, or

his counsel, at his election. And no subject shall be arress

ted, imprisoned, despoiled, or deprived of his property,

immunities, or privileges, put out of the protection of law,

exiled, or deprived of his life,liberty or estate, but by li\

tnd judgment of his peers, or the law of the larid.

M

And the legislature shall not make any law, that shall

subject any,person to a capital or infamous punishment,

excepting for government of the army and navy, without

trial by jury.

4.

STATEMENT OF THE CASE

Case Number:BRCR2016-00289

On septembe^ 8, 2016, a grand jury returned a ten-count

indictment against Daniel Viveiros.[FNl] The indictment charged

\

him with (1) Rape of a child, aggrivated by a five year age

difference, in violationodf M.G.L c. 265, § 23A; (2) Four

counts of indecent assault and battery on a child under the

age of fourteen, in violation of M.G.L c. 265, § 13B; (3) Two

counts of dissemination of obscene material harmful to a minor

in violation of M.G.L c. 272, § 28A

Case Number: BRCR2018-00289

On January 11,2018, A Bristol grand jury returned another

indictment against Viveiros. It charged him with three counts

of rape of a child, aggrivated by a five year age difference

in violation of M.G.L c. 265, §23A. R. 27-32. The alleged victim

was the same person as in the the 2016 indictment.

The superior court consolidated the two indictments for

the purposes of trial. The Honerable Karen Green presided over

a jury trial between July 9, 2019 and Jlily 18, 2019. After

deliberating on July 17 and 18, 2019, the jury returned guilty

verdicts on all charges of the indictments..

Judge Green sentenced Viveiros to consecutive sentences

of ten-to-fifteen years on the first counts of the 20016 and

20183indictments. She also imposed a consecutive f iire-to-ten

year sentence on count 2 of the 2016 indictment.The remaining

sentences were to be concurrent. Viveiros filed a timley notice

of appeal on july 26,2019.

["FNl] For the redactions of the names tat appear in the record

see appendix A.

5.

Statement of facts

The complainant, A.T, was born on April 14,2006 she first

met Viveiros, her mothers boyfriend when she was "about eight

[or] eight and a half

A short time after Viveiros started

dating A.T.'s mother, he moved in with them in New Bedford MA.

One night A.T. went to be and woke up to find Viveiros

on top of her. Her "nightgown was up and [her] underwear was

down." His "private" was touching her "private'." She said his

penis was "alittleebit in."

According to A.T. incidents "continued" "[e]very other day

when [her] mom was in the shower or she was at work." Viveiros

put his "penis,inside of [her] vagina... more than one time."

"things changed," as well, with Viveiros having her touch him

and "watch videos." A.T. testified that the events occured in

"[T]he living room, [her] mom's room, [and her] room" both in

New Bedford and after they moved to Swansea.

At a certain point Viveiros and A.T.'s mojbher had a child

L.V., and got married. The interactions between Viveiros and

A.T. continued after the marriage. The incidents allegedly occurr

occurred when A.T. was between eight-and-a-half and ten years o.u:

old.

Over objection, A.T.'s mother testified that A.T.suffered

from Stomachaches and bladder pains. According to the mother,

the stomachaches started around the time Viveiros entered their

lives and resolved themselves when he left the household. A.T.'s

mother brought her to urgent care centers, her pediatrician's

office and to a childrens hospital.

6.

All medical professionals failed to come up with a definitive

diagnosis.

After A.T. made her allegations, she was examined by

medical professionals. Her examination proved normal. The

commonwealth's expert testified that a "normal examination does

not exclude nor does it confirm that [vaginal] sexual penetration

has occurred."

The First complaint testimony and the closing argument.

At trial, A.A. testified, in pertinent part, as follows:

A: [A.T.] asked me if i could keep a secret and i said yes.

And she told me that danny was raping -- well, making him touch

her-- Immean, making her touch him in his private area.

Q: Okay. Is that the only thing she told you during that first

conversation?

A: Yes.

Q: Okay. Do yotimremember her telling you anything that came

out of his penis or anything els like that?

A: Not that first conversation no.

Q: So you had more than one conversation?

A: Yes

IN her closing argument, the trial prosecutor argued:

Lett's talk about [A.A. ]. Yes, they're very close, no doubt.

Andyy.es, she said to you on the witness stand, you know what,

I'm confused and i really don';t remember. Why?

I would submit to you that they had multiple conversations.

Does that make sense? They're best friends, they're cousins.

Of course they talked, and they talk about this more that once;

She doesn't know what was said first. She doesn't remember that

right?~ But when she got up there, she said to you -- and this

is how we know there was more than one conversation, she told

me rape -- rape, and she was about to say raped her, took it

backaand realized that wasn't the first conversation. But we

know there was a converation about that though, dontt we.

7.

REASONS FOR GRANTING THE PETITION

I. THE TRIAL JUDGE ERRED IN ADMITTING, WITHOUT EXPERT

OPINION TESTIMONY, EVIDENCE THAT PROMOTED AN

INFERENCE THAT A.T'S PHYSICAL SYMPTOMS SUPPORTED HER

CLAIMS OF ABUSE.

Over objection, the trial court admitted A.T.'s mother's

testimony that A.T. suffered from bladder pain

and stomachaches

during the period Viveiros was purportedly sexually assaulting

her. The Appeals court grudgingly acknowledged that the

commonwealth could notiamtrodueeeevidence of A.T.'s bladder

pain without expert medical testimony on a causal link between

sexual abuse and "bladder issues".’'.'

Slip op. at 4, citing

commonwealth v. hamel, 91 Mass. app. ct 349, 351 (2017).

Misreading this court!s precedent, however, the Appeals

court held that no expert testimony was required to establish

a causal relationship between A.T.'s stoumachaches and the :

alleged sexual assaults. See Slip op. at 4, citing commonwealth

v. hudson, 417 Mass. 536, 542 (1994). Armed with its finding

that the trial judge only partially erred by admitting, without

supporting expert testimony, evidence of A.T.'s chronic sto

stomachaches and bladder issues during the time she lived with

Viveiros^ the AppealsOCourt found no prejudicial error. Slip

op. at 5. This finding cannot stand.

A.

The Appeals court correctly found that the

trial court erroneously admitted lay

testimony, without supporting expert

testimony, thatA.T. suffered from bladder ailments during the time of the alleged

sexual assaults.

8.

'

The Appeals Court recognized that the Commonwealth could

not introduce evidence that A.T. suffered from "bladder issues"

during

the time of the alleged sexual abuse without also

presenting expert medical testimony on causation. See,

Slip op. at 4.' In light of the Massachusetts supreme judicial

court's proir decisions, the Appeals Court's holding was

inescapable. See, e.g., Commonwealth v. Kirkpatrick, 423

Mass. 436, 447 (1996);;Commonwealth v. Hrabak, 440 Mass. 650,

653, 656 (2004), overruled on other grounds, Commonwealth

v. King, 445 Mass. 217 (2005).

B.

The admission of lay testimony about A.T.'s

chronic, clinically significant stomachaches

corresponding temporally with the alleged

sexual assaults was error in the absence of

expert medical testimony on the issue of

causation.

Selyingoon Commonwealth v. Hudson, 417 Mass. 536, 542 (1994)

the Appeals Court held that "it is within the common knowledges

and experience of lay jurors that children may exhibit

stomachaches as a result of anxiety or distress." Slip op.

at 4. It therefore concluded that the lay testimony about A.T.'s

stomachaches was admissible in the absence of expert testimony

on a causal lihk between her symptoms and the alleged sexual

assaults. Id.

The Appeals Court's faulty conclusion rests on a

shocking misreading of Hudson© In that case, the victim's mother

testified that the victim "&ent to the hospital ''a lot' because

of stomach pain" during the time of the incident. Hudson, 417

Mass, at 50-51. As the commonwealth certainly recognized,

however, the prosecution could only introduce that lay :evidence-■

9.

by calling an expert on physical symptoms thatsexually abused

childern may experience. Id. at 52.

In this case, the Massachusetts Appeals Court drew exactly

the wrong lesson from Hudson. The lay testimony in Hudson was

admissible because the Commonwealth offered expert testimony

that permitted the jury to properly appraise the probative

value of the accuser's symptoms.

Had the jury heard from an expert in Ihirsicasef they

would have learned that "symptoms such as stomachaches [doj]

not automatically prove" allegations of sexual abuse. Id. at 52.

Indeed, the Commonwealth's expert in Hudson testified that st

stomachaches may "be caused by pav&riety of things"agtjd

"often times __ occur as part of a child's normal development."

Id.

Hudson illustrates the rational for the rule requiring

expert testimony on medical causation. It cautions jurors who

may otherwise fall prey to the "shopworn logical fallacy"odf

"confusing temporal correlation with causation." S. Bakeries,

LLC

v. NLRB, 871 F.3d 811, 840 (8th cir. 2017)

(Gruender, J.,

concurring in part, dissenting in part).

Id Hudson, lay testimony about the victim's stomachachesd

was admissible only because the Commonwealth presented expert

testimony to keep the jury from drawing logically or scientificaA

lly unsupported inferences from the evidence. Since the same

safeguard was required here, the Massachusetts Appeals Court's

holding to the contrary cannot stand.

10.

C.

The Massachusetts Appeals Court's half-hearted

prejudicial error analysis rested on credibilty

findings outside an appellate court's purview.

The Massachusetts Appeals Court correctly treated Viveiros's

claim as a preserved error and purported to apply the prejudicial

error standard. Slip op. at 4-5. Its analysis faltered on two

fronts. First, it only considered the effect of the erroneously

admitted lay testimony about A.T.'s Bibladder problems." Slip op.

at 5. Moreover, its finding that the " commonwealth's evidence

was strong" necessarily rested on credibility assessments that

thetAppeals Court was in no position to make. Id. The Appeals

Court's rpissapprehension of its own role as a reviewing court

calls out for further review.

The Appeals Court's finding that the error was not

prejudicial rested, in its entirety, on therfollowing analysis.

Here, apart from the single reference during the

mother's direct examination, the victim's bladder

problems were not again mentioned, either in

questioning, testimony, or closing arguments. The

Commonwealth's evidence was strong, and the

victim's testimony was corroborated in various

aspects, including by the first complaint

witness, by the mother, and by text messages from

the defendant.

Slip op. bt 5.

The Appeals Court's Finding thatithe Commonwealth's case

was "strong" is both mystifying and untenable. Its analysis

makes clear that the reference to the strength of the

0

"Commonwealth's evidence" is simply an allusion to A.T. s

testimony. But an appellate court is not in the business of

assessing thercredibility of a cpmplaining witness. Cf.

Commonwealth v. pugh, 462 Mass. 482, 495 (2012).

11..

Indeed, the Massachusetts Appeals Court's findings that the

Commonwealth's case was strong flies in the face of Massachusetts

Supreme Judicial Court's precedent as well as the precedents

set by The United Stated Supreme Court. For the purposes of

prejudicial error review, this court would deem this "a close

case for the jury" since "[sjuccess for the Commonwealth

depended completely on the credibility of therchild."

Commonwealth v. Alvarez, 480. Mass. 299, (2018).. ( collecting

cases and quoting Commonwealth v. Loguidice, 420 Mass. 453,

457 (2005)).

Moreover, the putative corroboration of A.T.'s testimony

was gossamer. There were no percipient witnesses to acts of

sexual abuse. Despit the family's close quarters, A.T.'a mother

never observed ant untoward conduct that prompted her to alert

the authorities or to end her relationship with Viveiros. And,

far from corroborating A.T.'s account, the firstrcomplaint

witness, A.A., expressly testified that A.T. did not)report

that Viveiros had raped her. Indeed, A.A. admitted that her

pretrial account of A.T.'s first complaint did nottinclude any

reference whatsoever to contact between Viveiros and A.T.

Finally, A.T.'s physical examination by a sexual assult

physician came back normal. The Commonwealth sought to adress

this lacuna with expert testimonyfcthat a normal physical exami­

nation was not inconsistent with A.T.'s allegations.

12.

The core factual dispute was whether A.T.'s testimony was t>e

believable beyond a reasonable doubt in the absence of any p

physical evidence supporting her allegations.

"The suggestion that the physical condition experienced

by the child

was the result of the abuse [s]he described could

serve as a powerful llorensic corroboration of the child's

testimony." Hamel, 91 Mass. App. Ct. at 353. With the appeals

Court's assessment of prejudicerresting

impermissibly on its

own credibility determinations, its ruling represents a

jurisprudential failure that this court must remedy.

II.

THE TRIAL PROSECUTOR GROSSLY MISSTATED THE

EVIDENCE, ABUSED THE FIRST COMPLAINT RULE AND

IMPROPERLY VOUCHED FOR BOTH THE COMPLAINANT

AND THE FIRST COMPLAINT WITNESS.

During closing argument, the trial prosecutor struggled

to reconcile A.T.'s rape allegations with the first complaint

witness's testimony that A.T. reported a far less serious offense.

The prosecutor argued, however, that Hit we know" that A.T. made

a successive complaint to the First-complaint witness, A.A.,

in which A.T. "reported ... that the defendant 'raped' her."

Slip op. at66.

The Appeals Court acknowledged that the closing argument

was not supported by the record, since A.A. never testified

that such a report had been made . it further noted' that the

tria}J.prosecutor's formulation improperly "conveyed, at least

inferentially, the prosecutor's belief about either certain

witnesses or the credibility of certain withesses." Slip op.

at 7-8, quoting Commonwealth v. burts, 68 Mass. App.Ct. 684,

688-89 (2007).

13.

Ii: nonetheless concluded that the prosecutor's misconduct

did not give rise to a substantial risk of a miscarriage of

justice. Slip op. at 8.

The Appeals Court's holdings rested once again on its faulty

finding that the "Commonwealth's case was strong." Id. It further

observed, inexplicably, that the error "did not go to the heart

of the case." Id.

Yet A.T.'s credibility was the heart of theacase.

The jury could not convict Viveiros if they doubted her story

or believed only part of it. indeed, the entire rationale for

idriitting A.A.'s first complaint testimony was to allow the

jury to "assess the credibility and reliatiilit^of [A.T.'s]

testimony here in court" by eliciting, among other things, "any

discrepancies innthe complainant's story." Commonwealth v. King,

445 Mass. 217, 242-245(2005).

Assuming arguendo that the firstccomplaint doctrine exists

to improve the accuracy of the jury's fact-finding, see Id.,

the trial prosecutor's improper argument stymied that objective.

The prosecutor erased the serious discrepancy between A.T.'s

trial testimaony and her flirst complaint by fabricating a sub

subsequent, consistent complaint.

More egregious still, the trial prosecutor conveyed the

distinct and false impression that she personally knew that

A.T. subsequently told A.A. thatbshe had been raped. See Commomwealth v. kee, 449 Mass. 550,560 (2007). In the context of * a

trial where the jury learned that the trial prosecutors met

privately with A.T. and A.A. on multiple occasions, the false

assertion that "we know" the complaint evidence

14-

fully corroborated A.i.'s testimony gave rise to a substantial

risk of miscarrage of justice.

This court should grant this petition for writ of

certiorarinbecause the case presents examples of prosecutorial

misconduct that is very likely to recur. The trial prosecutor

knew that she could not come out and aak A.A. whether A.T.

subsequently reported that Viveirosahad raped A.T. See

commonweath v. Arana, 453 Mass. 214, 222-223 (2009). thus, in

lieu of posing the forbidden question, the trial prosecutor

observed the legal rule during examination and flouted it in

dossing argument.

The Massachusetts Appeals Court's ruling in this case sends

all the wrong messages to prosecutors.aMostccritical, it sugests

that closing arguments are a safe have for erid-runs around law.

This Court must therefore act to discourage this form

of

misconduct from taking hold in all future proceedings.

III.

THE CUMULATIVE EFFECTROF TRIAL ERRORS

IMPROPERLY BOLSTERED A.T.'S CREDIBILITY

AND RENDERED THE TRIAL FUNDAMENTALLY

UNFAIR.

The Massachusetts Appeals Court acknowledged Viveiros's

claim;hi cumlative error, See Commonwealth v. Gonzalez, 28 M

MAss. App. Ct. 906, 907 (1989), but nonetheless rejected it

without any meaningful explanation. That both errors improperly

bolstered A.T.'s testimony in a case hinging on her credibility

surely warrented more that a footnote declining to "seperatly

discuss their cuculative effect." slip op. at 8. This Court =

should grant this petition for writ of certiorari because the

MAssachusetts Courts did not meaningfully review and apply the

law while attaing his conviction if the first instance.

15.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

16.