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

22-P-1009

COMMONWEALTH

vs.

CARLOS RIVERA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2017, a Superior Court jury convicted the defendant of 

two counts of rape of a child. On the defendant's direct 

appeal, a panel of this court affirmed the convictions in an 

unpublished memorandum and order. Commonwealth v. Rivera, 96 

Mass. App. Ct. 1113 (2019). In 2022, the defendant filed a 

motion for a new trial based on ineffective assistance of both 

trial counsel and initial appellate counsel. The trial judge 

denied that motion following a nonevidentiary hearing. We 

affirm.

1. Jury selection. The defendant's lead argument involves 

the jury selection process. Prior to trial, the defendant filed 

a motion that, inter alia, requested individual voir dire of 

prospective jurors about whether they, or someone close to them, 

had been the victim of sexual assault. In lieu of adopting that 
2

requested procedure, the judge used a hybrid approach to address 

the issue. The defendant argues that this violated the rule 

established by Commonwealth v. Flebotte, 417 Mass. 348, 355 

(1994), requiring trial judges on request in future cases "to 

question each potential juror individually as to whether the 

juror had been a victim of a childhood sexual offense." 

According to the defendant, this amounted to structural error,

and his first appellate counsel provided ineffective assistance 

by failing to raise the error in the direct appeal.

We begin by setting forth in some detail how the jury 

selection process unfolded. On the first of day of jury 

selection, the judge had the following exchange with defense 

counsel.

JUDGE: "Well, you can -– on the panel voir dire you can ask 

whatever questions you want to ask.

"I will -– just so you know, what I typically do in cases 

like this is I ask the general questions, then I would ask 

the rape of a child questions, and if you want, I will ask 

questions regarding the defendant being Hispanic."

DEFENSE COUNSEL: "I think the victim is Hispanic also."

JUDGE: "So you don't wish to have that?"

DEFENSE COUNSEL: "If you are prepared to ask, Your Honor, I 

would be happy to have it, yes."

JUDGE: "Okay. Then I have two questions on that, two 

questions with respect to the -– you know, the whether or 

not they have been accused of or a victim of a similar 

crime, things of that nature. On those four questions I 

ask them not to raise their hand, but if they would have 

raised their hand, to come up to sidebar. And so we then 
3

clear out the panel that way. And then once we clear out 

the panel, then we go to the panel voir dire part of it."

DEFENSE COUNSEL: "Your Honor, also I'm not quite sure how 

this was going to be done in the circumstances. I had some 

sense what it was. I had proposed individual voir dire 

questions to be asked sidebar of each juror individually by 

you. Is that still -–"

JUDGE: "I normally wouldn't because that's an individual 

voir dire, which I don't do. I just do a panel voir dire. 

You're free to ask whatever questions you want to ask, 

including to the panel."

DEFENSE COUNSEL: "To the panel."

JUDGE: "Or to individuals on the panel. It's totally up to 

you how you wish to do that. Is there any -– now, the 

sensitive questions I will ask of them but ask them not to 

raise their hands. Is there a question that is unique of 

that group that you want me to ask that you don't think I'm

already going to ask in my general questions?"

DEFENSE COUNSEL: "The questions that I proposed, Your Honor, 

I don't know if you had a chance to look at them, might 

well be covered in the questions you're prepared to ask."

JUDGE: "Let me just check. Well, I'm going to ask the 

questions with respect to, you know, whether or not they or 

a family member has ever been accused of or been the victim 

of. So I'm going to be asking those questions. With 

respect to the questions about believability, whether they 

believe someone, I'll leave that to the attorneys on the 

panel voir dire part.

"Okay. Now, I know there is some motions and I'd like to 

defer those until after we at least start the impanelment

[sic]. Is there any particular pretrial motion that would 

affect the impanelment [sic] in any way?"

DEFENSE COUNSEL: "No, your Honor."

Consistent with this discussion, the judge then asked the 

jury venire a series of questions about such things as whether 

the jurors had any special hardships and whether they worked for 
4

law enforcement, and he called for prospective jurors to signal 

an affirmative response to each question by a show of hands. 

Many jurors raised their hands to the questions asked.

The judge then proceeded as follows:

"Now, ladies and gentlemen, I have four additional 

questions to ask you, but with respect to these four 

additional questions, if your answer is yes and you would 

have raised your hand, I don't want you to raise your hand 

but I do want you to come up to sidebar when your number is 

called. So again, with respect to these four questions, if 

you would have raised your hand because your answer is yes, 

don't. But when your number is called, please come up to 

sidebar.

"First question: Would the fact that the defendant is 

Hispanic affect your ability to decide this case fairly and 

impartially?

"Second question: Do you believe that Hispanics are more 

likely to commit crimes than individuals from other racial 

or ethnic backgrounds?

"Third question: Have you or an immediate member of your 

family or close personal friend ever been the victim of a 

similar crime or accused of a similar crime, and that being 

a sexual assault?

"And my last question: Are you or any member of your 

immediate family a member of or associated with any 

organization that provides services to individuals who have 

been victims of child abuse or sexual assault?

"Okay, ladies and gentlemen, that now completes all of my 

questions. So as I explained when we started, those jurors 

that in fact raised their hands to any of my questions in 

the first set, as well as those jurors who have raised 

their hands to any one of my last four questions, I would 

like to see you at sidebar when your number is called, with 

the attorneys present, again, simply to find out why you 

raised your hand or would have raised your hand and whether 

or not you could be a fair and impartial juror.
5

"Now, we're going to do this in an organized fashion so I 

ask you to listen very carefully to the court officers. 

They're going to line you up according to your number so we 

can be as efficient as possible."

The judge then called individual prospective jurors to 

sidebar and followed up with them as to why they either raised 

their hands, or, with respect to the second set of questions, 

would have raised their hands. It is evident from the record 

that not every prospective juror came to sidebar during this 

phase of the process; rather, this process involved only those 

who were responding affirmatively to the questions posed by the 

judge.1 Over the course of the two days of jury selection, 

twelve prospective jurors informed the judge at sidebar that 

they personally had been raped or otherwise sexually abused, 

with the record indicating that at least four were children at 

the time. All were excused by the judge.

The judge then allowed each side to question the remaining 

prospective jurors (that is, those who had not answered 

affirmatively to any of the questions posed by the judge, and 

those who were not excused even though they had). Before that 

process began, the judge once again told the jurors that if they 

1 It is not clear in the record before us whether any 

prospective jurors who did not raise their hands during the 

first set of questions, but knew they had an affirmative answer 

to one or more of the second set of questions, simply joined the 

line to come to sidebar or first informed a court officer that 

they should do so.
6

did not feel comfortable answering a question in open court, 

they should say so and the matter would be handled at sidebar.2

After the attorneys asked their questions, they had the 

opportunity to challenge for cause and to make peremptory 

challenges. Along the way, the lawyers struck the two jurors 

who had stated that they or someone close to them had been 

accused of, or the victim of, a sexual assault.3

The defendant argues that by filing his pretrial motion 

requesting individual voir dire on the sexual abuse issue, he 

preserved the issue for appeal. The Commonwealth counters that 

-– in light of the process laid out above -– the defendant 

acquiesced to the hybrid approach that the judge indicated he 

intended to use. Cf. Commonwealth v. Sousa, 33 Mass. App. Ct. 

433, 436 (1992) (failure to renew objection to jury instructions 

2 Specifically, the judge said:

"if you're asked a question that you don't wish to answer 

in open court, just let me know, and then we'll go over to 

sidebar to my right and we'll discuss it at sidebar. So if 

you are asked something that you don't wish to answer in 

open court, it doesn't happen often but occasionally it 

happens, let me know. We'll go over to sidebar and deal 

with it over there."

3 As noted, the judge already had excused all prospective 

jurors who reported that they, or someone close to them, had 

been victims of sexual abuse. The judge did not excuse two 

jurors who reported that they knew someone who had been accused 

of sexual assault. However, the prosecutor struck one of these 

(who reported that a coworker's son had been "rail-roaded" on a 

rape charge), and defense counsel struck the other (whose father 

had been convicted of rape).
7

after judge gave supplemental instructions in response to 

initial objection constitutes acquiescence). In our view, the 

Commonwealth has the stronger argument on this. The judge, 

after noting that he "normally" did not do individual voir dire, 

laid out his intended process, which notably included probing 

the subject in a manner that went beyond the narrow mandate of 

Flebotte in three important respects.4 The judge also informed 

counsel that they were free to pose any questions they wanted 

during attorney-conducted voir dire (something not available in 

the era that Flebotte was decided). Having been informed of the 

hybrid process the judge intended to provide, defense counsel 

voiced no objection. Individual voir dire is required by 

Flebotte only if requested, and the trial judge cannot be 

faulted for concluding under these circumstances that counsel 

had acquiesced to the procedure he described.

Even if we were to assume that trial counsel preserved the 

issue for the first appeal, we would conclude that first 

appellate counsel was not ineffective for failing to raise the 

4 Flebotte, 417 Mass. at 355, mandates individual voir dire 

only with respect to whether individual prospective jurors 

themselves had been victims of child sexual abuse. See 

Commonwealth v. Whiting, 59 Mass. App. Ct. 104, 105-107 (2003). 

By contrast, the judge here did not limit the inquiry to the 

prospective jurors themselves but included "immediate member[s] 

of your family or close personal friend[s]," did not limit it to 

sexual abuse of a child but expanded it to include "sexual 

assault" in general, and asked it to include those accused of, 

not just victimized by, a sexual assault. 
8

issue in the direct appeal, because the defendant would not have 

succeeded on that issue for the reasons set forth below. See 

Commonwealth v. Comita, 441 Mass. 86, 90-91 (2004) (failure to 

raise issue that had minimal chance of success does not 

constitute ineffective assistance).

We have described the directive that judges, if requested, 

conduct individual voir dire on the Flebotte question as 

"unequivocal." Commonwealth v. Holloway, 44 Mass. App. Ct. 469, 

473 (1998). Unless and until the Supreme Judicial Court 

modifies that edict, we and the trial courts are duty bound to 

follow it.5 

Assuming arguendo that the judge should have conducted 

individual voir dire on whether the prospective jurors had been 

victims of child sexual abuse, and that issue had been raised in 

the first appeal, it hardly follows that the defendant would 

5 Flebotte was decided three decades ago. Since then, there 

have been many developments, including the advent of attorneyconducted voir dire and the implementation of hybrid approaches 

to juror selection. In addition, some cases issued in the 

interim suggest a renewed appreciation for providing trial court 

judges discretion in conducting jury selection. See

Commonwealth v. Shea, 460 Mass. 163, 168-169 (2011) (criticizing 

particular hybrid voir dire process used by trial judge, while 

finding no abuse of discretion). Finally, in light of the sex 

abuse scandal involving the Catholic Church and the so-called 

"me too" movement, it is possible that there has been a 

lessening of the social stigma attached to victims of sexual 

abuse. In a case where the issue is squarely raised, the

Supreme Judicial Court might find it useful to clarify whether 

strict individual voir dire posing the Flebotte question is 

still mandatory if requested.
9

have prevailed on that issue. The defendant is not correct that 

the failure to ask the Flebotte question through an individual 

voir dire constitutes structural error. Holloway, 44 Mass. App. 

Ct. at 473 (because it is required only by exercise of Supreme 

Judicial Court's superintendence powers and not by Constitution, 

failure to conduct individual voir dire regarding child sexual 

abuse requires showing of prejudice). 

Although the judge did not engage in a full individual voir 

dire, the defendant was not prejudiced because the judge 

followed a hybrid approach that functioned as a close facsimile. 

The central concern that animated the Supreme Judicial Court to 

require individual voir dire on the topic was the fear that 

prospective jurors might not want to reveal that they had been 

the victims of child sexual abuse if forced to answer that 

question in open court. Flebotte, 417 Mass. at 355. The hybrid 

approach here addressed that problem in a different way, namely, 

by inviting prospective jurors to come to sidebar for individual 

questioning. Thus, the judge inquired of all prospective jurors 

whether they had been victims of child sexual abuse, without 

calling on them to identify themselves as such in open court.6 

6 As noted, the hybrid approach here did require some degree 

of self-identification. Theoretically, an astute observer 

inside the courtroom could have determined that some prospective 

jurors had an affirmative answer to one of the questions asked 

during the second set, because they went to sidebar even without 
10

The only appreciable difference between the hybrid approach and 

what Flebotte mandates would seem to be that under individual 

voir dire, each juror would be asked point blank whether he or 

she had been the victim of child sexual abuse (so that they 

would be required to lie in order to avoid admitting this), 

while under the hybrid approach they could avoid having to 

answer the question directly by not going up to sidebar. The 

fact that so many prospective jurors came forward to sidebar to 

reveal that they, or someone close to them, had been victimized 

by sexual assault suggests that the distinction is theoretical 

at best.

Because a challenge to the judge's failure to conduct 

individual voir dire on the Flebotte question would not have 

prevailed, initial appellate counsel was not ineffective for not 

raising it.

2. Expert on delayed disclosure. The victim testified 

that the defendant began raping him when he was six years old. 

It was undisputed that the victim did not tell anyone that he 

having raised their hands to the questions asked during the 

first set. However, putting aside that this assumes the 

observer had unusually keen observational skills, the observer 

still would not have known which of the four questions asked 

during the second set was implicated. To the extent that the 

defendant contends that some jurors may have failed to selfreport a history of sexual assault, we see no appreciably 

greater risk of that here than through the process described in 

Flebotte.
11

had been raped until years later. In addressing that delay, the 

victim testified that the defendant had threatened him and had 

said that if he told anyone, the defendant would stop supporting 

the family, and the victim and his family would end up poor and 

homeless. The first person that the victim told was his 

godmother. According to the victim, the godmother responded by 

telling him to stop lying and looking for attention.

Among the witnesses the Commonwealth called at trial was 

Dr. Margaret Miller, a psychologist who testified as an expert 

witness on delayed disclosure of sexual abuse by child victims. 

She testified in pertinent part to common reasons why children 

who have been sexually abused might delay disclosure, such as 

fear of negative consequences from the disclosure or the shame 

or guilt they may feel from being abused.

On appeal, the defendant argues that his trial counsel was 

constitutionally ineffective for failing to mount a challenge to 

the scientific reliability of Dr. Miller's testimony regarding 

delayed disclosure by child victims of sexual abuse, and that 

first appellate counsel was similarly ineffective for not 

raising the issue in the first appeal. We disagree. Dr. 

Miller's testimony fits easily within the type of testimony that 

long has been held proper by case law. See, e.g., Commonwealth

v. Bougas, 59 Mass. App. Ct. 368, 375-376 (2003). The defendant 

is unable to point to anything in that testimony that 
12

constituted "junk science" whose reliability could have been 

challenged pursuant to Commonwealth v. Lanigan, 413 Mass. 154

(1992), S.C., 419 Mass. 15 (1994). Neither trial counsel nor 

initial appellate counsel was ineffective for not raising the 

issue.7

Order denying motion for a 

new trial affirmed.

By the Court (Milkey, Henry & 

Desmond, JJ.8),

Assistant Clerk

Entered: May 22, 2024.

7 The defendant additionally argues that Miller improperly 

vouched for the victim's credibility in her testimony, and that 

trial counsel's failure to object to it on that basis amounted 

to ineffective assistance. This is not a case where a 

Commonwealth witness testified as both an expert and as a fact 

witness who indicated to the jury that he or she believed the 

victim's allegations. Contrast Commonwealth v. Velazquez, 78 

Mass. App. Ct. 660, 666-667 (2011). In fact, the jury were made 

aware that Miller had never examined or even met the victim. 

Nothing she testified to properly could be characterized as 

"vouching" for the victim's credibility.

8 The panelists are listed in order of seniority.