COMMONWEALTH v. NILTON CORREIA (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Nilton Correia, was convicted of two counts of rape of a child pursuant to G. L. c. 265, § 23. On appeal, the defendant challenges the denial of his motion for a new trial based on ineffective assistance of counsel. The defendant also contends that the judge abused his discretion in denying his motion for specific performance of a plea agreement and in denying his motion for a mistrial. We affirm.

Background. In March 2016, the victim, who was fourteen years old, reported a sexual assault to the office of the district attorney for the Plymouth District. A Brockton police detective called a telephone number that the victim provided and identified the defendant as the suspect. The defendant, who was a Cape Verdean national, spoke to the detective in English. The detective asked the defendant to come down to the station and speak with her about a sexual assault investigation. The defendant agreed and several days later traveled to the Brockton police station, where detectives conducted an audio and videotaped interview that took place entirely in English. At the beginning of the interview, the defendant was told that he was the subject of a criminal sexual assault investigation. The detective asked the defendant if he understood English and the defendant responded that he did. The detective then read the defendant his Miranda rights, pausing throughout to confirm his understanding, and the defendant signed a written waiver form of his Miranda rights.

During the interview, the defendant admitted that he had sexual intercourse with the victim and that he believed it was consensual. He denied knowing that the victim was fourteen years old, telling the detective that the victim told him she was seventeen. The defendant stated that the victim told him she was a virgin. At the conclusion of the interview, the defendant left the police station and was later indicted on two counts of rape of a child.

In 2018, the defendant pleaded guilty to two counts of rape of a child, but in 2020 a judge of the Superior Court allowed the defendant to withdraw his plea of guilty because he was not properly informed of immigration consequences. In 2021, counsel for the defendant (motion counsel) filed a motion to suppress his statements arguing that the defendant's Miranda waiver was invalid due to his limited understanding of the English language. The motion judge conducted an evidentiary hearing, applied the factors set forth in Commonwealth v. Groome, 435 Mass. 201, 211-213 (2001), and concluded that Miranda warnings were not required because the defendant was not the subject of a custodial interrogation. The judge further concluded that, even if the defendant had been in custody, his Miranda waiver was valid because the circumstances of the interview were not coercive and the defendant displayed “a perfectly adequate command of the English language and understood all the questions he was asked.”

The case was scheduled for a jury trial on March 29, 2022. One day prior to the scheduled jury trial date, the Commonwealth sent an e-mail message with a plea offer to defense counsel (plea counsel). The offer included a charge concession from rape to indecent assault and battery on a child fourteen and over, a probationary term of five years, and several conditions of probation including that the defendant have no contact and stay away from the victim, be evaluated for sex offender treatment, and comply with any required treatment. The prosecutor stated that “[i]f there is an issue with any of those conditions, then the Commonwealth will be ready to proceed to trial tomorrow.” Plea counsel presented the offer to the defendant, who was agreeable to the charge concession.

The next day, plea counsel executed and filed a tender of plea form with the court. Plea counsel told the judge that his client was “inclined” to accept the plea offer, but requested that during the recitation of facts, the Commonwealth use the term “person” instead of “child” and not recite the fact that the victim was fourteen. The defendant further proposed that the Commonwealth recite that the victim was at least age fourteen or older, which would allow the defendant to avoid potential negative immigration consequences. The prosecutor unequivocally stated her position -- she was unwilling to modify the recitation of the facts in accordance with plea counsel's request.¹

Following a recess, the prosecutor reported to the judge that the Commonwealth had withdrawn its offer to reduce the charges and was prepared to go to trial on the rape charges. The prosecutor cited concerns from the victim that the defendant would not admit her true age in court and would not take responsibility for his criminal acts, causing the victim to worry that the defendant might once again move to withdraw his plea. The defendant objected and later filed a motion for specific performance of the plea offer, which was denied.

The case proceeded to trial, during which the Commonwealth introduced the video recording of the defendant's interview at the police station. Pursuant to an earlier ruling, the statement by the defendant about the victim's virginity was ruled inadmissible under the Massachusetts’ rape shield statute, G. L. c. 233, § 21B. However, while playing the recording of the interview, the Commonwealth failed to omit the portion of the defendant's interview where he stated that the victim told him that she was a virgin. The defendant moved for a mistrial, arguing that a curative instruction would be insufficient because such information about the victim's sexual history would inflame the jury. The trial judge denied the defendant's motion for a mistrial and instead issued a curative instruction to the jury. The defendant was found guilty of both counts of rape of a child and this appeal followed.

Discussion. The defendant makes three arguments on appeal: (1) the denial of his motion for a new trial was improper because motion counsel was ineffective; (2) the denial of his motion for specific performance of a plea offer was improper because the Commonwealth unjustly revoked it; and (3) the denial of the defendant's motion for a mistrial was improper because the curative instruction was insufficient. We address each argument in turn.

1. Denial of the motion for a new trial. The defendant appeals from the denial of his motion for a new trial based on ineffective assistance of counsel. On review, “we consider whether the judge committed a significant error of law or abuse of discretion” in denying the defendant's motion for a new trial. Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015). “Under the abuse of discretion standard, the issue is whether the judge's decision resulted from a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). Id.

“Where a new trial is sought based on a claim of ineffective assistance of counsel, the burden of proving ineffectiveness rests with the defendant.” Commonwealth v. Montez, 450 Mass. 736, 755 (2008). To sustain a claim of ineffective assistance, the defendant must show that counsel's behavior fell “measurably below that which might be expected from an ordinary fallible lawyer,” and that such a failing “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). “[I]t is not enough for the defendant to show that [counsel's] errors had some conceivable effect on the outcome of the proceeding.” Commonwealth v. Amirault, 424 Mass. 618, 652 (1997), quoting Strickland v. Washington, 466 U.S. 668, 693(1984).

The defendant puts forth two arguments to support his claim of ineffective assistance of counsel. First, he asserts that motion counsel failed to sufficiently argue that the defendant was in custody at the time of the interrogation. Second, he asserts that motion counsel failed to retain a linguistics expert to show that the defendant's Miranda waiver was deficient. We are unpersuaded on both fronts.

In the motion to suppress, motion counsel focused his argument on whether the defendant knowingly and voluntarily waived his Miranda rights. However, to consider this argument, the motion judge necessarily had to first analyze whether the defendant was in custody and entitled to such warnings and the judge did so by evaluating the video-recorded interview with the police. The judge's findings of fact support the conclusion that the issue of whether the statements were custodial in nature was fully litigated at the motion stage. Nevertheless, the defendant claims that motion counsel was ineffective for failing to emphasize the Groome factors because had he done so, the judge would have concluded that the defendant's statements were the product of custodial interrogation. See Groome, 435 Mass. at 211-213.

Massachusetts case law is clear that “Miranda warnings are required only when a suspect is subject to custodial interrogation.” Commonwealth v. Amaral, 482 Mass. 496, 500 (2019). “An interview is custodial where a reasonable person in the suspect's shoes would experience the environment in which the interrogation took place as coercive” (quotation and citation omitted). Id. at 500-501. In determining whether a defendant was subjected to custodial interrogation, we consider

“(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview was terminated with an arrest.”

Groome, 435 Mass. at 211-212. “Rarely is any single factor conclusive” (citation omitted). Commonwealth v. Cawthron, 479 Mass. 612, 618 (2018).

Here, even if motion counsel had emphasized the reasons why he believed the defendant's statements were custodial, it would not have resulted in a successful motion to suppress. Based on the video recording of the interrogation and weighing of the Groome factors, we agree that the defendant was not in custody. The defendant voluntarily appeared at the police station a few days after the detective invited him to come to the station and provide “[his] side of the story.” And although he was at a police station and informed that he was the subject of a criminal investigation, the tone of the questioning was not aggressive, and the defendant was told he was free to leave. He agreed to speak to the detective and, after the interview concluded, the defendant was not placed under arrest. He left the police station and was later notified of the charges. On these facts, motion counsel's failure to more effectively argue that the defendant was in custody cannot support a claim of ineffective assistance of counsel because it would not have produced a different result.

The defendant's next contention is that motion counsel was ineffective for failing to offer testimony from a linguistics expert that the defendant did not understand English well enough to have voluntarily waived his Miranda rights. We have recognized that “[t]he absence of expert testimony constitutes ineffective assistance where such testimony could provide a substantial ground of defense or is necessary to rebut critical expert testimony relied upon by the Commonwealth.” Commonwealth v. Jacobs, 488 Mass. 597, 606 (2021).

The defendant's argument must fail because, as stated above, his statements at the police station were not the product of a custodial interrogation. Therefore, any failure by motion counsel to obtain the services of a linguistics expert would not have resulted in the suppression of the defendant's statements. Even if we were to consider the defendant's argument regarding the voluntariness of his Miranda waiver, the defendant's claim of ineffective assistance of counsel still falls short because it would not have resulted in a different outcome. The motion judge made findings of fact based on his own viewing of the video recording of the interview, stating that the defendant “displayed a perfectly adequate command of the English language and understood all of the questions he was asked.” He thus concluded that the defendant had knowingly, intelligently, and voluntarily waived his Miranda rights. See Commonwealth v. Neves, 474 Mass. 355, 361 (2016) (judge need not disregard his or her own firsthand observations in favor of expert testimony when assessing validity of Miranda waiver).

2. Denial of the motion for specific performance of the plea agreement. The defendant next argues that he has a constitutional right to enforce the Commonwealth's plea offer, which he claims was accepted and breached without a justifiable change in circumstances. While we generally review the denial of a motion for specific performance of a plea bargain for an abuse of discretion, see Commonwealth v. Francis, 477 Mass. 582, 585 (2017), “[w]here a defendant claims that a judge has made an error of constitutional dimension, we accept the judge's subsidiary findings of fact absent clear error ․ but review independently the application of constitutional principles to the facts found” (quotations and citation omitted). Commonwealth v. Perez, 480 Mass. 562, 567–68 (2018).

It is well settled that prosecutors enjoy “substantial freedom to exercise their discretion in plea bargaining.” Commonwealth v. DiBenedetto, 491 Mass. 390, 399 (2023) quoting Commonwealth v. Smith, 384 Mass. 519, 522 (1981). A defendant does not have a constitutional right to a plea bargain, and the decision whether to enter into a plea agreement “is the prosecutor's alone.” DiBenedetto, supra at 402, citing Francis, 477 Mass. at 585. Discretion in plea bargaining is not unlimited, however, as “a judge may ‘enforce a plea agreement over the Commonwealth's objection if [the judge] finds that the defendant has reasonably relied on a prosecutor's promise to his or her detriment.’ ” DiBenedetto, supra at 400, quoting Francis, supra at 585.

The defendant argues that there was a valid and enforceable plea agreement that the defendant detrimentally relied on. We do not agree. Whether an enforceable promise in plea bargaining exists is “primarily a question of contract law.” Francis, 477 Mass. at 585. “Under ordinary contract principles ․ an offeror is ordinarily free to revoke an offer at any time before it is accepted.” Commonwealth v. Johnson, 447 Mass. 1018, 1020 (2006).

There was no enforceable plea agreement. Plea counsel stated that while his client was “inclined to accept” the Commonwealth's offer, he had concerns with the language used in the plea and the recitation of facts. Expressing concerns about immigration consequences, plea counsel requested that the plea say “person” instead of “child” and that the victim was at least “age fourteen or older,” rather than “fourteen.” Here, the defendant attempted to modify the terms of the agreement. In essence, he made a counteroffer to the prosecutor. Thus, even though plea counsel eventually submitted a plea tender, he had not accepted the Commonwealth's offer as there was no agreement on terms with the Commonwealth. Once the counteroffer was rejected, there was no requirement that the prosecutor's initial offer was still in effect for the defendant to accept.

Even if we were to accept the defendant's contention that the prosecutor and the defendant had entered into a binding plea agreement, to enforce a plea agreement the defendant still must prove detrimental reliance. See DiBenedetto, 491 Mass at 400; Francis, 477 Mass. at 585; Smith, 384 Mass. at 522 (declining to follow holding of Cooper v. United States, 594 F.2d 12, 18-19 [4th Cir. 1979], that detrimental reliance not required). This he cannot do. The defendant argues that he detrimentally relied on the plea offer because after it was withdrawn, he had to go to trial even though he did not have a viable defense having already admitted that he had sexual intercourse with the fourteen year old victim. Not having a viable defense at trial does not demonstrate detrimental reliance on the plea offer. There was no detrimental reliance because the defendant did not make any statements or take any action in reliance of the plea offer. When a prosecutor withdraws a plea offer in such a situation, a defendant's remedy is a trial, which is precisely what happened here. “The defendant is in no worse position than he would have been if the prosecutor had made no plea bargain offer at all.” Smith, 384 Mass. at 522.

3. Denial of the motion for a mistrial. Lastly, the defendant argues that, because the statement by the defendant about the victim's virginity was so inflammatory, the judge's curative instruction was insufficient and thus the motion for a mistrial should have been granted. “We review the denial of a motion for a mistrial for an abuse of discretion.” Commonwealth v. Durand, 475 Mass. 657, 668 (2016). “[A] trial judge is in the best position to determine whether a mistrial, an extreme measure available to a trial judge to address error, is necessary, or whether a less drastic measure, such as a curative instruction, is adequate.” Commonwealth v. Amran, 471 Mass. 354, 360 (2015). “When a jury have been exposed to inadmissible evidence, the judge may rely on a curative instruction to ‘correct any error and to remedy any prejudice.’ ” Durand, supra, quoting Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997), S.C., 438 Mass. 356 (2003). A mistrial is generally unnecessary where the “judge's instructions are prompt and the jury do not hear the inadmissible evidence again” (citation omitted). Commonwealth v. Pereira, 100 Mass. App. Ct. 411, 421 (2021). Here, we find no abuse of discretion because the trial judge promptly issued the following forceful instruction to the jury:

“Before we get started I want to address one item that came up yesterday toward the end of the video that you saw ․ At the very end of the interview a statement was made by the defendant in which he alleges that the person with whom he admitted having sex allegedly said to him that she was -- that she was a virgin, a matter regarding that individual's sexual history.

I instruct you now that you are to disregard that statement entirely. You are to consider it stricken from the record and give it no consideration whatsoever in your evaluation of whether or not the Commonwealth has proven the charges in this case beyond a reasonable doubt.”

We presume that juries follow curative instructions and “disregard matters withdrawn from their consideration.” Commonwealth v. Cameron, 385 Mass. 660, 668 (1982). Moreover, the judge found that the inclusion of the clip was “entirely inadvertent,” emphasizing that the inadmissible evidence was a “small snippet” of the video. See Commonwealth v. Paige, 488 Mass. 677, 683-684 (2021) (denial of motion for mistrial proper where Commonwealth inadvertently showed jury inadmissible video footage prejudicial to defendant). We accordingly affirm.

Judgments affirmed.

Order denying motion for new trial affirmed.

Order dated April 7, 2025, affirmed.

FOOTNOTES

1.   The prosecutor stated “I want the record to be crystal clear that the Commonwealth is going to assert that the child was 14 years old at the time ․”