Commonwealth v. Colon ( 2019 )

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SJC–12362
COMMONWEALTH vs. JOSE COLON.
Worcester. October 2, 2018. - May 3, 2019.
Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.
Homicide. Jury and Jurors. Interpreter. Due Process of Law,
Presence of defendant in courtroom, Fair trial. Search and
Seizure, Consent. Evidence, Hearsay, Chain of custody.
Practice, Criminal, Jury and jurors, Deliberation of jury,
Examination of jurors, Voir dire, Interpreter, Presence of
defendant, Public trial, Hearsay, Assistance of counsel,
Capital case.
Indictment found and returned in the Superior Court
Department on November 18, 2005.
A pretrial motion to suppress evidence was heard by C.
Jeffrey Kinder, J., and the case was tried before Richard T.
Tucker, J.
Elaine Pourinski for the defendant.
Ellyn H. Lazar, Assistant District Attorney, for the
Commonwealth.
LENK, J. In the summer of 2005, the victim was beaten and
stabbed to death near a set of railroad tracks in Dudley. In
2
2013, the defendant was convicted by a Superior Court jury of
murder in the first degree for his role in the killing. In this
direct appeal, the defendant maintains that a new trial is
required because the judge did not declare a mistrial after
members of the jury were exposed to an extraneous influence, and
that the judge committed reversible error by partially excluding
the defendant from the subsequent voir dire of the deliberating
jury. In addition, the defendant argues that the judge should
have allowed his request for individual voir dire on questions
of ethnic bias, and abused his discretion in certain evidentiary
rulings. The defendant also asks us to exercise our
extraordinary power under G. L. c. 278, § 33E, to order a new
trial or to reduce the degree of guilt.
We affirm the conviction and decline to exercise our
extraordinary powers to grant relief under G. L. c. 278, § 33E.
1. Facts. We summarize the facts that the jury could have
found, reserving additional details for discussion of specific
issues. See Commonwealth v. Clemente, 452 Mass. 295, 299
(2008).
Late on the evening of July 22, 2005, the victim and Jayser
Cruz were socializing at the victim's family home; the victim
and Cruz were family friends. At some point during the evening,
the victim's sister heard Cruz express an interest in a knife
that was lying on a table. The victim and Cruz then left the
3
house together. According to the victim's sister, Cruz took the
knife when they left.
Later that evening, the defendant was with Cruz and the
victim at a convenience store. They ran into two women, the
defendant's cousin, Maria Colon, 1 and one of her friends.
0F Cruz
and the victim were drunk. The victim suggested that they all
smoke marijuana, and the group walked to the nearby railroad
tracks to do so. Maria heard Cruz tell the defendant that Cruz
recently had bought a new knife.
After approximately fifteen minutes, Maria and her friend
left to go home. As they were walking away, Maria heard what
sounded like "skin ripping." When she looked back, she saw the
defendant throwing rocks at the victim; she described the rocks
as thin and estimated them to be approximately one inch in
width. Her friend saw the defendant throw four to six rocks,
which hit the victim in the back. The victim fell to the
ground, where he kept asking the defendant to "stop." Cruz was
laughing. When the defendant requested a knife, Cruz handed him
a backpack. Maria asked the defendant to stop; he told her to
leave, or "it would happen to [her] as well." At that point,
Maria and her friend left the area. When they last saw him, the
victim was on the ground in a fetal position.
1 Because they share a last name, we refer to the
defendant's cousin, Maria Colon, by her first name.
4
The next morning, when the defendant came to Maria's house,
she saw "little dots" and "splatter-marks" on his left leg.
That afternoon, she saw the defendant at a laundromat. When the
defendant left the laundromat, the "little dots" on his pants
were stained yellow, as though he had tried to wash them.
That evening, the defendant's girlfriend and her friend
picked up the defendant and they all drove around. The
defendant told his girlfriend that he had killed the victim, and
he pointed toward something in the distance that "looked like
feet." He said that he had killed the victim "for us," and he
warned her not to tell anyone or he would harm her siblings.
Later that evening, the defendant telephoned Maria and told
her that he had killed the victim. The defendant explained that
he had left the railroad tracks and was walking home, but then
he returned to the railroad tracks, where he saw the victim
getting up. The defendant picked up a large rock and hit the
victim in the head with it several times.
The same day, the victim's body was discovered near the
railroad tracks. When a chemist from the State police crime
laboratory arrived at the scene, he saw the victim lying on his
back; his heavily-bruised face and clothing were covered with
"red-brown staining." A large rock, weighing roughly fourteen
pounds, with red-brown stains, was next to the victim. The
stain later was determined to be the victim's blood. The
5
medical examiner concluded that the cause of death was a
combination of blunt force trauma to the head and two stab
wounds to the body. Deoxyribonucleic acid (DNA) testing
indicated that the blood found on a pair of jeans recovered from
the defendant's house was the victim's.
2. Prior proceedings. In November, 2005, a grand jury
returned indictments, charging the defendant, among other
things, with murder in the first degree. Thereafter, the
defendant moved to suppress his statements to police and the
items seized during the two searches of his house. Following an
evidentiary hearing, a Superior Court judge, who was not the
trial judge, allowed the motions to suppress in part and denied
them in part. The judge found that the defendant's statements
were obtained in violation of Miranda v. Arizona, 384 U.S. 436,
479 (1966), because the Spanish interpretation of the Miranda
warnings provided to the defendant were inadequate to apprise him
of his rights. The judge denied the motion to suppress the
evidence seized from the victim's house, after the judge
determined that the defendant's consent to the first search had
been validly obtained, and that police had had probable cause to
obtain a warrant for the second search.
In March, 2013, the defendant was tried before a Superior
Court jury. The jury convicted him of murder in the first
6
degree on theories of deliberate premeditation and extreme
cruelty or atrocity. The defendant timely appealed.
3. Discussion. The defendant maintains that a new trial
is required because the judge did not declare a mistrial when
several deliberating jurors expressed concerns about their
safety, and that the judge erred by partially excluding the
defendant from the subsequent voir dire of the deliberating
jury. The defendant argues also that he was denied a fair trial
because the judge did not conduct individual voir dire of the
members of the venire with respect to questions of ethnic bias
that defense counsel had requested be posed. The defendant
further asserts error in the denial of his motion to suppress
physical evidence, as well as in the admission of out-of-court
statements, and he contends that his attorney was ineffective in
failing to make certain arguments at the hearing on the motion
to suppress. In addition, the defendant asks us to exercise our
extraordinary power under G. L. c. 278, § 33E, to order a new
trial or to reduce the degree of guilt.
a. Dismissal of jurors during deliberations. The
defendant argues that he was denied the right to a fair and
impartial jury when, after substantial evidence of bias was
brought to the judge's attention during deliberations, the judge
did not excuse the entire jury. Specifically, while the jury
were deliberating, the juror in seat number 15 (juror no. 15)
7
notified a court officer that she was afraid of the
repercussions of the potential verdict in the case. She feared
that if the jury were to find the defendant guilty, there could
be possible retribution by gangs; if they were to find him not
guilty, someone else would be stabbed. Juror no. 15 was
fearful, in part, because the defendant had heard her name. The
other jurors "were all there" during juror no. 15's conversation
with the court officer; juror no. 15 reported that other jurors
also previously expressed similar fears. The judge found that
juror no. 15 could not remain impartial and excused her.
Because juror no. 15 reported that others had expressed
similar "gang-related" fears, the judge conducted an individual
voir dire of each of the remaining members of the jury. 2 1F The
juror in seat number 1 (juror no. 1) also was excused, after
stating that he had been "watching to see if anyone is following
me when I leave here." The foreperson, who was in seat number 3
(juror no. 3), reported that she had heard other jurors express
fears about the proximity of the crime to "the location [in
which] they lived" and "gang relation." Juror no. 3 also said
she had been "concerned," the day before deliberations began,
that people the defendant might know would "go after us." On
2 Of the eleven remaining deliberating jurors, all but one
had heard juror no. 15 express her concerns. The four alternate
jurors, however, had not been present to hear her do so.
8
the first day of deliberations, however, juror no. 3 reported
that she was no longer concerned. The judge found that
juror no. 3 "indicated very clearly that she didn't have any
concerns now." Over the defendant's objection, juror no. 3 was
not excused. The judge told juror no. 3 not to discuss the
substance of the voir dire with anyone else.
Juror nos. 1 and 15 were replaced with alternates, and the
jury were instructed to begin deliberations anew. The defendant
objected that the jury were not struck entirely; he argued that
the "fear running through the deliberations" prevented the jury
from remaining impartial. The motion was denied. Approximately
one hour later, the jurors returned a verdict finding the
defendant guilty.
On appeal, the defendant contends that the extraneous
influences on the jury resulted in actual bias when the
suggestion of gang activity was introduced during the process of
deliberation, where no evidence of gang activity had been
presented at trial. The defendant argues that, as a result, he
was denied the right to a fair and impartial jury when the judge
declined to dismiss the entire jury.
i. Extraneous influence. "Article 12 of the Massachusetts
Declaration of Rights and the Sixth Amendment to the United
States Constitution guarantee a criminal defendant the right to
a trial before an impartial jury." Commonwealth v. Philbrook,
9
475 Mass. 20, 30 (2016). "The presence of even one partial
juror violates this right." Commonwealth v. Guisti, 434 Mass.
245, 251 (2001), S.C., 449 Mass. 1018 (2007). "Prohibiting
premature jury deliberations, and extraneous influences on
jurors" is one of the ways in which to safeguard a defendant's
right to trial before an impartial jury. Philbrook, supra.
Accordingly, extraneous influences on jurors present a
"serious question of possible prejudice" (citation omitted).
Guisti, 434 Mass. at 251. See Philbrook, 475 Mass. at 30. "An
extraneous matter is one that involves information not part of
the evidence at trial and raises a serious question of possible
prejudice" (quotations and citation omitted). Guisti, supra.
See, e.g., Commonwealth v. Cuffie, 414 Mass. 632, 635 (1993)
(juror made unauthorized visit to crime scene); Commonwealth v.
Fidler, 377 Mass. 192, 194 (1979) (during deliberations, juror
stated information not presented at trial). A defendant bears
the burden of demonstrating an extraneous influence by a
preponderance of the evidence. See Commonwealth v. Kincaid, 444
Mass. 381, 386-387 (2005), discussing Fidler, 377 Mass. at 201.
In this case, the defendant was Hispanic and had "tattoos
on [his] hands"; the victim was Caucasian. The case, as it was
presented to the jury, did not involve allegations of gang
involvement, and the record does not indicate that any evidence
of gang affiliation was introduced at trial. The Commonwealth's
10
theory was that the defendant killed the victim in order to be
with the defendant's girlfriend. Numerous jurors subsequently
recalled juror no. 15's comments. The conversation regarding
gang involvement included discussion of the location of the
crime and the "tattoos on the [defendant's] hands."
Until jurors began discussing gang-related concerns, juror
no. 3, for example, had not considered the defendant's tattoos
to be meaningful; "I never noticed that. I didn't even think --
it never came into my . . . ." The introduction of the concept
of gang affiliation by juror no. 15, therefore, constituted
"information not part of the evidence at trial," and, as
evidenced by the fear it caused some jurors, "raises a serious
question of possible prejudice" (citation omitted). Guisti, 434
Mass. at 251.
Nonetheless, not all extraneous jury discussion compromises
a defendant's right to a fair trial, and the presence of an
extraneous influence does not necessarily require a mistrial.
See Philbrook, 475 Mass. at 31. See also Commonwealth v.
Amirault, 404 Mass. 221, 232 (1989). If a trial judge learns of
such an influence, the judge must determine whether the jurors
remain impartial and, if not, what remedy is required. See
Philbrook, supra.
ii. Impartiality of remaining jurors. A trial judge has
"discretion in addressing issues of extraneous influence on
11
jurors discovered during trial." Commonwealth v. Trapp, 423
Mass. 356, 362, cert. denied, 519 U.S. 1045 (1996). Because the
"determination of a juror's impartiality is essentially one of
credibility, and therefore largely one of demeanor, [a
reviewing] court give[s] a trial judge's determination of
impartiality great deference" (quotations omitted). Philbrook,
475 Mass. at 30, quoting Commonwealth v. Alicea, 464 Mass. 837,
849 (2013). A reviewing court "will not disturb a judge's
findings of impartiality," or a judge's finding that a juror is
unbiased, "absent a clear showing of an abuse of discretion or
that the finding was clearly erroneous." See Commonwealth v.
Sleeper, 435 Mass. 581, 587 (2002); Commonwealth v. McCowen, 458
Mass. 461, 493-494 (2010).
Where a judge conducts individual voir dire of each juror,
excuses all influenced jurors, and determines that the remaining
jurors are impartial, a defendant's right to an impartial jury
has not been violated. See Philbrook, 475 Mass. at 31
(remaining jurors impartial after juror excused for deciding
case prematurely); Commonwealth v. Maldonado, 429 Mass. 502,
506–507 (1999) (remaining jurors impartial after juror excused
for fear of gang retribution); Commonwealth v. Kamara, 422 Mass.
614, 616–618 & n.1 (1996) (remaining jurors impartial after
juror excused for telling other jurors defendant was member of
gang). See also Commonwealth v. Stanley, 363 Mass. 102, 104-105
12
(1973) (jurors impartial despite reading newspaper in
deliberation room).
In Kamara, 422 Mass. at 616, one juror told the others that
she knew the defendant, that the defendant was a member of a
gang, and that she feared for her safety. The trial judge
excused the juror and questioned each remaining juror. Id. at
617. The judge found that, although they had heard the
extraneous information, the remaining jurors were able to be
fair and impartial. Id. at 617-618. We concluded that such a
determination was not an abuse of discretion. Id. at 620.
Here, juror no. 15 did not claim to know the defendant, or
to know that he was a member of a gang. When she expressed fear
of the defendant, the judge appropriately dismissed her,
conducted an extensive voir dire of the remaining jurors, and
dismissed an additional juror out of an "abundance of caution."
Both counsel agreed to the dismissals of juror nos. 15 and 1.
The other jurors stated individually that they had no similar
concerns. The judge appropriately instructed the jury that they
were to disregard "any personal likes or dislikes, opinions,
[or] prejudices," and were not to base their verdict on
"speculation, surmise[,] or conjecture." 3 2F
Although these instructions were administered prior to
3
deliberations, before juror nos. 1 and 15 were dismissed, there
is nothing to suggest that the remaining jurors did not continue
to heed them. See Commonwealth v. Stanley, 363 Mass. 102, 105
13
Having found that the remaining jurors were unafraid and
could remain impartial, the judge was not obligated to dismiss
them, and there was no abuse of discretion in his decision not
to dismiss the entire jury. "We are not prepared to substitute
our judgment for that of the trial judge who heard the evidence,
carefully interviewed the jurors individually, and made a
finding that each juror could do his or her job unaffected by
whatever extraneous information had been injected into the jury
room." Kamara, 422 Mass. at 620.
b. Lack of translators. The defendant's native language
was Spanish. Throughout the trial, the defendant made use of
two Spanish interpreters, who spoke to him through a headset.
During the voir dire concerning the extraneous influence created
by juror no. 15, the defendant was not provided with a
translator. The defendant argues that he thereby was denied the
right to a public trial. 43F
(1973) (court assumes instructions were followed). See also
Commonwealth v. Maldonado, 429 Mass. 502, 506–507 813 (1999) (no
error where judge dismissed one juror, questioned remaining
jurors, and administered instructions regarding duty of
impartiality). It would also have been prudent to instruct the
newly constituted jury that the reasons for the juror's
discharge had been personal and not related to the case. See
Commonwealth v. Connor, 392 Mass. 838, 846 (1984) (jury should
be instructed that reason for discharge is entirely personal).
See also Commonwealth v. Dosanjos, 52 Mass. App. Ct. 531, 536
(2001).
4 In his brief, the defendant refers to this issue as the
right to a "public trial"; at oral argument, the defendant
14
After juror no. 15 had been dismissed, and before any of
the other deliberating jurors had been interviewed by the judge,
defense counsel requested that the defendant be present during
the voir dire of the remaining jurors. The judge, however, was
concerned that the jurors would not speak candidly about their
fear of the defendant if they knew he was listening. Prior to
the individual voir dire of the deliberating jurors, the
following exchange occurred:
Defense counsel: "I think my client . . . [w]ell, I think
he needs to be here."
The judge: "During the voir dire?"
Defense counsel: "You don't want him here during . . .?"
The judge: "Yes; he can be here during the voir dire. I
don't know that I want him to hear what's said, though."
Defense counsel: "No -- I have no problem with the court's
direction that if anybody is excused, it's for personal
reasons."
The judge: "I do not . . . want him to learn that one
juror has left because she's fearful of him, because even
if it's just a stare or something like that --"
Defense counsel: "I don't think he's exhibited any
behavior. He's basically just been sitting there looking
claimed "a substantial right of the defendant to be present at
crucial proceedings." We understand the defendant to be
arguing, if obliquely, that the lack of translators implicated
the right to be present at trial under art. 12 of the
Massachusetts Declaration of Rights. The two rights are
distinct, and we analyze them separately. See Commonwealth v.
Dyer, 460 Mass. 728, 734-738 (2011), cert. denied, 566 U.S. 1026
(2012). We determine that, although the right to a public trial
was not implicated here, the right to be present at trial was.
15
straight ahead . . . . It's a delicate balance, because I
have to protect his rights, also."
The judge: "What would you suggest?"
Defense counsel: "Well, if he's at the sidebar, does he
hear?"
The judge: "No; if he's sitting there with the headphones
on, he'll get a translation of what is said."
Defense counsel: "Yes; but isn't he entitled to know? I
mean, he has rights also as a defendant, to know if we're
dealing with the jury who is going to decide his fate.
We've got competing interests here."
. . .
The judge: "The concern I have is that first of all, it
may be fearful to the jurors to speak candidly if it's
being interpreted to him."
Defense counsel: "That's a consideration -- I understand."
The judge: "So, I think this has to be done outside of his
hearing, and you can explain that some people -- whatever
you explain -- had some concerns. Whatever you think
you're duty-bound to tell him. I don't think you're duty-
bound to tell him that people are fearful of him."
Defense counsel: "Oh, I agree with the court. I'm not
duty-bound to tell him that; but my question is, any time
anything of substance happens in a courtroom with a
defendant, they have a right to be here. Now, I don't know
how we get around that."
The judge: "I understand . . . . I'm going to order that
he can't hear it. If you wish thereafter whatever you
think you're duty-bound to reveal, you should do that."
Defense counsel: "So, your order is that we'll do the voir
dire outside of the presence of the defendant?"
The judge: "No; he can be present, but not present with
ears."
16
The judge effectuated the defendant's presence "without
ears" by prohibiting interpreters at sidebar during the
individual voir dire, such that the defendant could "watch" but
would not understand what was being said. Defense counsel then
could relay pertinent information to the defendant at a later
point. Defense counsel agreed that, if a juror were excused,
counsel would tell the defendant only that it was for "personal
reasons," without explaining that any of the jurors had
expressed fears of him. Neither defense counsel nor the
defendant objected to this procedure, and voir dire commenced
without translation.
i. Right to a public trial. The defendant argues for the
first time on appeal that his right to a public trial, under the
First and Sixth Amendments to the United States Constitution,
was violated during the voir dire of the deliberating jurors.
Even if this argument were not waived, it is unavailing.
That individual voir dire took place at sidebar was not
itself error; "the voir dire examination process itself took
place, as it should have, in open court." See Commonwealth v.
Cohen, 456 Mass. 94, 117 (2010). See also Wilder v. United
States, 806 F.3d 653, 660 (1st Cir. 2015), cert. denied, 136 S.
Ct. 2031 (2016) (conducting voir dire at sidebar in open court
still enables members of public to "observe the individual
questioning of jurors from their seats and attempt to discern
17
facial expressions or body language"). "Conducting voir dire
examinations in open court [also] permits members of the public
to observe the judge, as well as the jurors." Cohen, 456 Mass.
at 117. Although the public cannot hear what is being said, the
ability to observe the process "furthers the values that the
public trial right is designed to protect" (citation omitted).
See id.
ii. Right to be present at trial. Whether the defendant
can hear what is being said, however, implicates a different
right: the right to be present at trial. "When a judge
conducts an inquiry about a consequential matter, such as an
allegation of serious misconduct of a juror or a suggestion of
juror bias, the defendant is entitled, based on confrontation
and fair trial rights, to be present." Commonwealth v. Dyer,
460 Mass. 728, 738 (2011), cert. denied, 566 U.S. 1026 (2012).
See Commonwealth v. Angiulo, 415 Mass. 502, 530 & n.26 (1993)
(reversal required under art. 12 of Massachusetts Declaration of
Rights where names of jurors were withheld and defendant and
defense counsel were barred from voir dire regarding jurors'
fear of defendant); Commonwealth v. Robichaud, 358 Mass. 300,
301–303 (1970) (reversal required under art. 12 where defendant
was excluded from hearing on juror misconduct).
"While the trial judge may perform minor administrative
formalities outside the presence of the defendant, . . . the
18
judge may not bar the defendant from a voir dire during which
jurors' impartiality may be discussed" (citation omitted).
Angiulo, 415 Mass. at 530. See, e.g., Commonwealth v. Dosanjos,
52 Mass. App. Ct. 531, 535 (2001) ("serious error" for judge to
exclude defendant from individual questioning of deliberating
jurors); Commonwealth v. Caldwell, 45 Mass. App. Ct. 42, 45
(1998) (error where deliberating juror was dismissed during
colloquy held outside defendant's presence).
Counsel's presence at sidebar and intention to relay
information to a defendant does not substitute for the
defendant's presence. See Robichaud, 358 Mass. at 301, 303
(counsel's presence insufficient in defendant's absence);
Dosanjos, 52 Mass. App. Ct. at 535 (error despite counsel's
presence); Caldwell, 45 Mass. App. Ct. at 45 (error
notwithstanding counsel's presence). This is especially so
where, as here, counsel agrees to restrict the information that
he would share with the defendant. Indeed, this does not appear
to be a case in which a defendant was "fully informed of
everything that occurred" in his absence. Contrast Commonwealth
v. Martino, 412 Mass. 267, 286-287 (1992) (no reversible error
where, after voir dire, defendant was fully informed of reason
for juror's discharge and agreed to her dismissal). Rather, the
judge cautioned defense counsel not to explain the very thing
the jurors were discussing -- "that people are fearful of him" -
19
- and requested that the defendant learn nothing more than that
several jurors had been dismissed for "personal reasons."
Where, without any action on his part, jurors fear a
defendant, he does not forfeit his right to be present. See
Angiulo, 415 Mass. at 520, 522 (right to be present at voir dire
where jurors felt "intimidated" by defendant, believed he was
writing down information about them, and saw him giving them
"[the] whammy" or "[the] evil eye"). Contrast Commonwealth v.
Senati, 3 Mass. App. Ct. 304, 307 (1975) (defendant forfeited
right to be present by refusing to obey court order to refrain
from leaving dock and shouting during trial). Nor may a judge
seat a defendant far enough away that the defendant is unable to
hear the proceedings, or conduct questioning, without
interpretation, in a language the defendant does not understand. 5 4F
In denying the defendant's request, it appears that the
judge applied an analysis more appropriate to the consideration
of the right to a public trial. The judge stated that it would
be sufficient for the defendant to "watch" without hearing,
"[j]ust like we've said the open courtroom is satisfied if
5 Of course, a defendant may waive the right to be present
at sidebar. See Dyer, 460 Mass. at 738. "More particularly, if
the defendant makes no request to be present, the judge takes no
steps to exclude him, and counsel never objects to his absence,
the issue is waived and this court will not address it on
appeal." Id. There is no evidence on this record, however,
that the defendant made such a waiver. See Commonwealth v.
Caldwell, 45 Mass. App. Ct. 42, 46 (1998).
20
people can watch what's happening. They don't have to sit at
sidebar." While it is true that the right to a public trial is
satisfied without the public being present at sidebar, the same
is not true for the defendant's right to be present at trial.
The right to a public trial is premised on certain
considerations, including the public perception of fairness in
the courts; it is satisfied without hearing conversations at
sidebar. See Gannett Co. v. De Pasquale, 443 U.S. 368, 380
(1979). A defendant's right to be present at his or her own
trial, by contrast, implicates additional concerns. It provides
the accused with information necessary to adjust the trial
strategy, guarantees that a defendant always has the opportunity
to object, and, in the event of conviction, ensures that the
defendant is able fully to assist in an appeal, because the
defendant understood the prior proceedings. For a defendant, as
distinct from the public, the proceedings must not only be seen,
but also heard. 6
5F
6 This analysis applies whether a defendant is partially
excluded due to an inability to understand English, or in any
other manner. We are particularly troubled, however, that the
defendant's inability to understand English was used to exclude
him from hearing the proceedings. "A non-English speaker,
throughout a legal proceeding, shall have a right to the
assistance of a qualified interpreter." G. L. c. 221C, § 2. It
is a judge's duty to aid, not hamper, a criminal defendant in
understanding what is occurring at the defendant's own trial.
21
iii. Prejudice. Although the defendant's exclusion in
this case was error, we must consider whether he thereby was
prejudiced. "The absence of the defendant from [the voir dire
of deliberating jurors] does not automatically constitute
reversible error" (citation omitted). Sleeper, 435 Mass. at
588-589. Although defense counsel initially requested the
defendant's presence at voir dire, counsel ultimately did not
object to the judge's decision not to allow that request.
Therefore, we review for a substantial likelihood of a
miscarriage of justice. See Dyer, 460 Mass. at 741.
Had the defendant been present during voir dire, little
would have changed. Of the twelve jurors questioned, two were
dismissed after expressing fear related to the defendant.
Defense counsel then moved to dismiss all of the remaining
jurors. The judge denied that request, over counsel's
objection. Because his attorney already had moved to dismiss
each juror, there was nothing more that the defendant could have
requested in terms of relief. Nor was the defendant in a
position to make strategic decisions about cross-examination or
introduction of evidence, informed by the content of the jurors'
answers; the trial had concluded, deliberations had begun, and
no additional evidence could have been presented.
"It is frequently to the defendant's advantage to
communicate orally with his counsel . . . since he may have
22
information which may aid his counsel in examining
[individuals]." Robichaud, 358 Mass. at 303. At most, if he
had been present, the defendant could have suggested additional
questions for counsel to ask the jurors. Yet, here, where the
judge conducted an extensive voir dire of the deliberating
jurors, the mere possibility that additional questions could
have been asked is not sufficient to require a new trial. "The
defendant's presence at the hearing would not likely have
yielded anything or altered its outcome." Sleeper, 435 Mass. at
589 (harmless error where judge properly excused biased juror
outside defendant's presence). See Dosanjos, 52 Mass. App. Ct.
at 536 (harmless error to conduct voir dire in defendant's
absence where defendant "offers no suggestion as to how he was
prejudiced by the procedure" [citation omitted]). See also
Commonwealth v. Hicks, 22 Mass. App. Ct. 139, 147 (1986). We
are unable to conclude that the defendant's partial exclusion
resulted in a substantial likelihood of a miscarriage of
justice.
c. Individual voir dire of the venire on racial or ethnic
bias. The defendant argues that the judge's decision not to
conduct individual voir dire of prospective jurors' ethnic bias,
in the form of five questions that defense counsel had requested
be posed to each member of the venire individually, deprived him
of his right to a fair and impartial jury, and requires a new
23
trial. 7 6F Stating that the twenty-two question case-specific jury
questionnaire 8 was sufficient to accomplish the goal of obtaining
7F
information on potential bias, the judge denied the request. 9 8F
7 It is not clear whether the defendant raised this claim on
constitutional or statutory grounds. At least with regard to
similar questions proposed for the written questionnaire, the
defendant argued that the questioning was necessary to protect
his rights under "the Sixth and Fourteenth Amendments to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights."
8 Voir dire of prospective jurors took place in four stages.
First, each potential juror was given the "standard jury
questionnaire." Second, the judge orally posed questions to the
venire as a group. Third, each potential juror was given a
twenty-two question written questionnaire, prepared specifically
for this case. Fourth, each potential juror -- regardless of
whether the juror had answered any questions affirmatively --
came to the sidebar for additional questioning.
9 One of the questions on the case-specific, twenty-two
question juror questionnaire was the first of the five questions
that defense counsel had requested be posed orally, specifically
inquiring about the potential juror's beliefs as to a Hispanic
defendant. See note 11, infra.
The other four questions on potential bias toward a
Hispanic defendant that were requested to be asked at voir dire
were:
"2. Do you believe that Hispanics are more likely to
commit crimes than whites?
"3. Would you believe the testimony of a white person over
that of a Hispanic person simply because of skin color?
"4. Would you give extra weight to the testimony of a
white person claiming that a Hispanic person committed a
crime?
"5. Are you conscious of any feelings of racial bias or
prejudice, which might tend to influence your judgement in
this case, even in the slightest degree?"
24
The defendant is correct that, "in cases of interracial
murder, a judge, if requested to do so, is required to conduct
an individual voir dire on the issue of potential bias."
Commonwealth v. Hunter, 427 Mass. 651, 654 (1998). See
Commonwealth v. Young, 401 Mass. 390, 398 (1987), overruled on
another ground, Commonwealth v. Ramirez, 407 Mass. 553 (1990)
(establishing rule because of "reasonable possibility" that
racial prejudice could affect jury's verdict in murder cases
where defendant and victim are of different races). We
similarly have required individual voir dire in cases of
interracial rape, Commonwealth v. Sanders, 383 Mass. 637, 640-
641 (1981), and interracial sexual offenses against children,
Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). A written
questionnaire does not suffice to fulfill this requirement. See
Young, supra at 397-398, citing Rosales-Lopez v. United States,
451 U.S. 182, 190 (1981) and Sanders, supra. "As a matter of
law we held that in such cases a substantial risk exists that
the extraneous issue of race will affect the impartiality of the
jury." Commonwealth v. Otsuki, 411 Mass. 218, 227 (1991).
As has the United States Supreme Court with the Federal
cognate, we established this rule "as a matter of our
supervisory power," based on the requirements of G. L. c. 234,
§ 28, the predecessor to G. L. c. 234A, § 67A, and not as a
result of any constitutional mandate. See Young, 401 Mass. at
25
398. As part of our duty to oversee the courts of the
Commonwealth, we adopted "the essence of the rule, stated by the
plurality, in Rosales-Lopez, [451 U.S. at 190], 'that questions
directed to the discovery of racial prejudice be asked in
certain circumstances in which such an inquiry is not
constitutionally mandated.'" Id., quoting Rosales-Lopez, supra.
Until today, we explicitly "have declined . . . to extend
this rule to cases where the defendant and the victim are of
different ethnic backgrounds." Hunter, 427 Mass. at 654, citing
Commonwealth v. De La Cruz, 405 Mass. 269, 272 (1989). See
Hunter, supra (no individual voir dire for Caucasian defendant
and Filipino victim). See also Commonwealth v. Pina, 430 Mass.
66, 72-73 (1999) (no individual voir dire for Cape Verdean
defendant and Portuguese victim); De La Cruz, 405 Mass. at 272,
274 (no individual voir dire for Hispanic defendant and
Caucasian victim). Contrast Young, 401 Mass. at 391, 398
(individual voir dire for African-American defendant and
Hispanic victim). Rather, in murder cases involving individuals
from different ethnic backgrounds, this court has left the
determination whether individual voir dire on bias is warranted
"to the sound discretion of the trial judge." Hunter, supra.
26
Prior to trial, the defendant requested that the judge
individually ask each prospective juror five questions related
to racial or ethnic bias. Among them was the following: 10
9F
"The defendant in this case . . . is a Hispanic male, and
the victim in this case is a white male. Would those facts
in any way interfere with your ability to render a fair and
just verdict?" 11
10F
Although we have not mandated such questioning, where the
defendant and the victim are of different ethnic backgrounds, we
nonetheless have "encourage[d]" trial judges to conduct
individual voir dire to detect prejudice based on ethnic
considerations. See De La Cruz, 405 Mass. at 274. Yet the
distinction between race and ethnicity, and, correspondingly,
between that which we "require" and that which we "encourage,"
rests on an increasingly shaky foundation. Indeed, the Federal
courts do not attempt to distinguish between race and ethnicity
for purposes of juror voir dire. They operate under "a broader
10 The defendant argued that it was necessary to ask this
question in an individualized setting because "it's not until
you start doing the individual voir dire that you get behind
some of these questions, and people really come up and say to
you, 'Well, I have this bias . . . Well, yeah; I did have this
experience back in 19- whatever, and so I do have a bit of a
prejudice against. . . .'"
11 Question thirteen of the specifically-drafted juror
questionnaire asks:
"The defendant in this case is a Hispanic male. The victim
is a white male. Would the fact that the defendant is
Hispanic in any way interfere with your ability to render a
fair and just verdict?"
27
rule" applying to "'ethnic,' as well as racial, groups." 12
1F See
Young, 401 Mass. at 398 n.8. See also Rosales-Lopez, 451 U.S.
12"[I]n our heterogeneous society the [Federal] courts have
found the boundaries of race and ethnicity increasingly
difficult to determine," McCleskey v. Kemp, 481 U.S. 279, 316
n.39 (1987), and have noted the futility of attempting to define
"ethnicity." Rico v. Leftridge–Byrd, 340 F.3d 178, 183 (3d Cir.
2003) ("What, though, does 'ethnicity' and 'ethnic origin'
mean . . . . And how does one define 'race' when the
understanding of 'race' itself has changed over the
centuries?"). See Rosales-Lopez v. United States, 451 U.S. 182,
194 (1981) (Rehnquist, J., concurring) ("knowing the
contentiousness of our profession," it is unlikely that "precise
definition of . . . 'different racial or ethnic groups' will
ever be arrived at"); Suri v. Foxx, 69 F. Supp. 3d 467, 479 n.9
(D.N.J. 2014) ("Ethnicity does not have a clear definition in
the law, and there is variation in how the terms 'race' and
'ethnicity' are used").
For purposes of discrimination under the Federal Equal
Rights law, 42 U.S.C. § 1981, for example, Federal courts have
defined "racial discrimination" as encompassing discrimination
based on "ancestry or ethnic characteristics" (citation
omitted). Village of Freeport v. Barrella, 814 F.3d 594, 604-
605 (2nd Cir. 2016). For purposes of the Sixth Amendment right
to a jury of one's peers, a defendant is entitled to a jury that
fairly represents "distinctive groups" in the community. United
States v. Garcia, 991 F.2d 489, 491 (8th Cir. 1993). See id.,
quoting United States v. Black Bear, 878 F.2d 213, 214 (4th Cir.
1989) ("A group of people is distinct when they have a shared
attribute that defines or limits their membership, and when they
share a community of interest"). In 2016, the United States
Court of Appeals for the Second Circuit observed that the
"confusion in unraveling the legal definitions of 'race' and
"Hispanic'" has occurred since the distinction was first
recognized by the United States Office of Management and Budget
in 1977. See Village of Freeport, supra at 602 & n.13.
In light of this, the United States Supreme Court has held,
under its supervisory power, that a defendant charged with a
"violent crime" who requests individual voir dire on the
question of membership in "different racial or ethnic groups" is
entitled to such questioning. Rosales-Lopez, 451 U.S. at 192.
Although ethnic distinction, and, for that matter, racial
28
at 192 ("[F]ederal trial courts must make [an individualized]
inquiry when requested by a defendant accused of a violent crime
and where the defendant and the victim are members of different
racial or ethnic groups").
As the United States Supreme Court observed in 1981, when
crafting its supervisory rule, "It remains an unfortunate fact
in our society that violent crimes perpetrated against members
of other racial or ethnic groups often raise such a possibility
[that prejudice would influence the jury]." Rosales-Lopez,
supra at 192. Although trial judges may be understandably
hesitant to introduce notions of racial or ethnic bias into
their court rooms, "[w]e think that it would be far more
injurious to permit it to be thought that persons entertaining a
disqualifying prejudice were allowed to serve as jurors and that
inquiries designed to elicit the fact of disqualification were
barred" (citation omitted). See Rosales-Lopez, supra at 191.
This court previously has declined to follow the Federal
rule, and has done so using language that causes modern readers
dismay, and in a manner that is neither prudent nor accurate.
Thirty years ago, in De La Cruz, 405 Mass. at 273, we concluded
distinctions, may not be clear in every case, prior to voir
dire, it is left to "the defendant to resolve this conflict by
making the determination of whether or not he would prefer to
have the inquiry into racial or ethnic prejudice pursued." See
id. at 191.
 29
that individual voir dire was not necessary where a Hispanic
defendant was charged with sexually assaulting a Caucasian
victim. In doing so, we stated that our rule "implies that
Hispanic persons are not members of the black (Negro) race,"
but, rather, could be viewed as "members of the white race,"
such that there was no racial difference between the Hispanic
defendant and the Caucasian victim. Id. Ten years later, in
Pina, 430 Mass. at 72-74, we determined that a Cape Verdean
defendant charged with murdering a Portuguese victim similarly
was not entitled to individual voir dire concerning prejudice.
To reach that conclusion, this court relied upon the proposition
that "the term 'race' reflects the historical division of
humanity by physical characteristics into three primary
divisions: Caucasian, Mongolian, & Negro." Id. at 73 n.15,
citing De La Cruz, supra at 272. We have not addressed the
issue since.
We recognize that the distinctions described in these cases
retain little purchase in today's society. Specifically, over
the past few decades, the nation's landscape has changed
dramatically with respect to its Hispanic population. More than
half of the country's population growth between 2000 and 2010
was attributable to an increase in the Hispanic population. 13 12F In
13See Overview of Race and Hispanic Origin: 2010, U.S.
Department of Commerce, Economics and Statistics Administration,
30
Massachusetts, an increase in the Hispanic population accounts
for the entirety of the State's population growth in that same
period. 1413F Indeed, the Commonwealth now relies on the category of
"Hispanic," in addition to "African-American," "Caucasian," and
"Asian," in determining such things as the probabilities of DNA
matches. See, e.g., Commonwealth v. Seino, 479 Mass. 463, 469
(2018); Commonwealth v. Diaz, 478 Mass. 481, 486 (2017);
Commonwealth v. Broom, 474 Mass. 486, 488 & nn.3, 4, 5, 6
(2016).
The growing Hispanic and Latino population, in turn, has
encountered varied sources of discrimination. See, e.g.,
Commonwealth v. Buckley, 478 Mass. 861, 878 (2018) (Budd, J.,
concurring) (Hispanic drivers are stopped more often by police
than Caucasian drivers); Bradley v. Lynn, 443 F. Supp. 2d 145,
148, 149 (D. Mass. 2006) (finding disparate and adverse impact
on Hispanic candidates for entry-level fire fighter positions);
Kane v. Winn, 319 F. Supp. 2d 162, 179 (D. Mass. 2004) (citing
statistics that Latinos are overrepresented in country's prison
U.S. Census Bureau 3 (2011), https://www.census.gov/prod
/cen2010/briefs/c2010br-02.pdf [https://perma.cc/6QQH-Z227]
(comparing 2000 census to 2010 census).
14See Passel, Cohn, & Lopez, Hispanics Account for More
than Half of Nation's Growth in Past Decade, Overview, Pew
Research Center (Mar. 24, 2011), http://www.pewhispanic.org
/2011/03/24/hispanics-account-for-more-than-half-of-nations-
growth-in-past-decade/ [https://perma.cc/8XL6-DVUA].
31
population, and "Latino youths are incarcerated at twice the
rate of [Caucasian] American youths").
This type of discrimination poses no less a problem in the
context of jury trials. Indeed, research has shown that people
of Hispanic and Latino descent -- not unlike African Americans -
- are more likely to be treated severely by juries when accused
of killing a Caucasian victim. See, e.g., Race, Ethnicity, and
Culture in Jury Decision Making, 11 Ann. Rev. L. & Soc. Sci.
269, 272-273 (2015) (jurors more likely to recommend capital
punishment for African-American or Latino defendants accused of
killing Caucasian victims). Concurring in De La Cruz, 405 Mass.
at 276, Chief Justice Liacos wrote that "[p]eople's prejudices
do not . . . fit into categories formulated by Webster's
Dictionary." Rather, he observed that "[w]e have recognized
previously, under the Declaration of Rights of the Constitution
of the Commonwealth, the threat that bias toward ethnic groups
presents to a fair trial." Id. at 276 (Liacos, C.J.,
concurring).
"Nothing in the statute" on which we based our decision in
Young, 401 Mass. at 398, "requires us to limit the voir dire
requirement to racial prejudice" rather than to include ethnic
32
prejudice. De La Cruz, 405 Mass. at 276 (Liacos, C.J.,
concurring). Indeed, G. L. c. 234A, § 67A, 15 provides:
14F
"To determine whether a juror stands indifferent in the
case . . . [with respect to] preconceived opinions toward
the credibility of certain classes of persons . . . the
court shall, or the parties or their attorneys may, with
the permission and under the direction of the court,
examine the juror specifically with respect to such
considerations, attitudes, exposure, [and] opinions. . . ."
"The statute includes within its scope prejudices against
identifiable classes of individuals, including Hispanic
persons." De La Cruz, 405 Mass. at 276 (Liacos, C.J.,
concurring). See art. 1 of the Massachusetts Declaration of
Rights ("Equality under the law shall not be denied or abridged
because of . . . race . . . or national origin"). See, e.g.,
Commonwealth v. Long, 419 Mass. 798, 807 n.9 (1995) ("both
racial and ethnic groups are discrete groups protected under
art. 1"); Commonwealth v. Aponte, 391 Mass. 494, 503–504 (1984)
(addressing underrepresentation of Hispanic people on grand jury
venires). There is no principled reason why a Hispanic
defendant charged with murdering a Caucasian victim should be
entitled to fewer protections against potential bias than an
African-American defendant in the same position.
15 Our prior jurisprudence applied G. L. c. 234, § 28, as
amended by St. 1985, c. 463. In 2016, that statute was replaced
with G. L. c. 234A, § 67A, inserted by St. 2016, c. 36, § 4.
The language as to this provision is virtually identical in both
statutes.
33
Of course, attorneys seeking to ask questions about ethnic
bias would now have some leeway to do so during attorney-
directed voir dire, which was not available to defense counsel
at the time of the defendant's trial. See, G. L. c. 234A,
§ 67D, inserted by St. 2016, c. 36, § 4. Nonetheless, this
questioning occurs within guidelines and limitations established
by the judge, and does not provide a clear, consistent,
authoritative, and reliable means of detecting bias among
potential jurors in the way that mandatory questioning by the
trial judge, upon request, would assure.
Indeed, the value of individual voir dire to uncover
potential ethnic bias was evident in the empanelment proceedings
in this case. A least one potential juror identified in her
written questionnaire that the knowledge that the defendant was
Hispanic would interfere with her ability to be fair and
impartial. After the judge conducted voir dire concerning the
juror's response, he found that she would not be able to be
impartial and excused her. Another juror's ethnic bias,
however, only came to the fore after answering individual voir
dire questions, where the potential juror had marked "no" to the
relevant question on the questionnaire. 16
15F
16Juror no. 10 acknowledged having formed an opinion about
the case. Called to individual voir dire and asked to specify,
the juror responded,
34
Of course, in many cases, ethnicity remains unlikely to be
a source of bias in a murder trial, particularly where it is
difficult for jurors to distinguish between the ethnicities of
the defendant and the victim. See generally Commonwealth v.
Bastaldo, 472 Mass. 16, 28-30 (2015) (discussing difficulties of
distinguishing ethnic differences in some circumstances). In
such cases, a reasonable defense attorney would likely have no
reason to request individual voir dire on ethnic bias. In light
of the changes in our society since this court last addressed
the issue, however, it is difficult to say now that the question
of possible ethnic bias toward members of the Hispanic community
can be set aside as not constituting "racial" bias; for
instance, descriptions of suspects provided to police often now
are stated as "light-skinned Hispanic male," Commonwealth v.
Nelson, 468 Mass. 1, 5 (2014), or "dark-skinned Hispanic or
Juror no. 10: "What is on his head? What's that thing on
his head?"
The judge: "It's an earphone."
Juror no. 10: "Does he not understand English?"
The judge: "Right. His native language is Spanish."
Juror no. 10: "Yeah -- that's . . . he's an American
citizen, and he can't understand and speak English, so
that's why I've formed an opinion."
The juror was excused.
35
light-skinned African–American," Commonwealth v. Cavitt, 460
Mass. 617, 619 (2011).
Therefore, as a matter of our supervisory power, in cases
of murder, sexual offenses against children, and rape, decided
after the issuance of the rescript in this case, we extend the
principle announced in Young, 401 Mass. at 398; Hobbs, 385 Mass.
at 873; and Sanders, 383 Mass. at 640, and require that, where a
defendant facing trial on such a charge requests individual voir
dire on the issue of racial or ethnic prejudice, and the
defendant and the victim are of different such backgrounds, that
request should be granted. 17
16F
"In prior cases announcing new rules or requirements in the
exercise of our superintendence power, we have declined to give
the new rule or requirement retroactive effect." Commonwealth
v. Dagley, 442 Mass. 713, 720–721 (2004), cert. denied, 544 U.S.
930 (2005). See Commonwealth v. Ramos, 31 Mass. App. Ct. 362,
366 (1991) ("all previous extensions of the Sanders rule have
17We do not at this time expand the categories of crimes
which, as a matter of law, require individual voir dire with
respect to racial or ethnic bias. See, e.g., Commonwealth v.
Grice, 410 Mass. 586, 589 (1991) (declining to expand rule to
include armed robbery). Where other crimes are at issue, the
decision to conduct individual voir dire remains within the
sound discretion of the trial judge. Nothing in this decision,
however, should be read to discourage judges from conducting
individual voir dire on racial or ethnic bias, regardless of the
crime charged. Nor do we mean to suggest that individual voir
dire on the question of racial or ethnic bias should not be
conducted at sidebar. See Dyer, 460 Mass. at 738.
36
been prospectively applied"). Accordingly, the rule we announce
today shall be applied in cases tried after the issuance of the
rescript in this case, and not to the defendant's case. See,
e.g., Commonwealth v. King, 445 Mass. 217, 248 (2005), cert.
denied, 546 U.S. 1216 (2006) (prospectively applying new first
complaint doctrine).
Under our jurisprudence at the time the defendant's case
was tried, in the absence of a "substantial risk" of ethnic
bias, the choice to conduct individual voir dire on the question
of ethnic bias was left to the discretion of the trial judge.
See Hunter, 427 Mass. at 654. The Commonwealth did not argue
that the defendant's ethnicity was "a possible motive for the
killing, or otherwise informed the evidence." See Pina, 430
Mass. at 74. The defendant was identified by witnesses who knew
him; he was not made a suspect on the basis of his ethnic
characteristics. See id. Accordingly, we are confident that
the judge correctly determined that there was no substantial
risk of bias related to ethnicity. Thus, it was within the
judge's discretion to deny the request for individual voir dire.
d. Consent to search. As stated, prior to trial, the
defendant moved to suppress statements and evidence recovered
during a police search of his residence. The motion judge
allowed the motion to suppress the statements, after he found
that the Miranda warnings were inadequate, but denied the motion
37
to suppress evidence. He concluded that some of the evidence
had been seized pursuant to a "consent search" and some of the
evidence was seized during a second search, with a warrant; the
warrant affidavit did not rely on or even mention any of the
evidence seized during the warrantless search.
On the day after the victim's body was discovered, police
brought the defendant to the police station for questioning. At
that time, the defendant was twenty-one years old; he could not
read English, and he had a limited understanding of spoken
English. Accordingly, a police officer was brought in to
translate from English to Spanish. The officer read from a
Miranda rights card, written in English, which he attempted to
translate into Spanish. The officer advised the defendant of
his Miranda rights as follows:
"These are your Miranda rights. Before we begin I
have to read this to you, ok? They're in English, I'm
going to read it for you in Spanish, but back here
where you sign it's going to be in English. You
understand? Ok. Before they, we ask you any
question, you can stay quiet. You have right to
silence. Uh, every little thing that you say we can
use it in court. You have a right to talk to a lawyer
before we ask you something. If you cannot pay for a
lawyer the court gives you a lawyer without paying
anything. If you want to talk to us without a lawyer
here, you can stop when you want, without a lawyer.
So if you want to talk to us and you want to stop,
well that is your right, you want to talk and say
nothing, to be looking for a lawyer. You understand?
Ok."
38
Following this interpretation of his Miranda rights, the
defendant agreed to speak with the officers. He denied any
involvement in the victim's death.
Later in the interview, police requested the defendant's
consent to search his residence. They presented him with a
consent to search form, printed in English, which the officer
again attempted to explain in Spanish. The officer did not
provide a verbatim oral recitation of the language on the form,
but he did tell the defendant that if he did not want to sign
the form, "you don't sign it." The defendant ultimately signed
the form.
Police searched the house where the defendant had been
staying. They seized various items of clothing from an area of
the living room where he had been sleeping and keeping his
belongings. 18
17F Officers then obtained a search warrant, returned
to the residence, and seized additional items. A pair of blue
jeans with a yellow stain on the ankle was located under the
couch in the living room. Due to an error in the evidence log,
it is unclear whether the jeans were seized during the first
search or the second search.
18The defendant had come to Massachusetts from Puerto Rico
approximately one month earlier and had been staying at his
uncle's house.
39
On appeal, the defendant argues that the judge erred in
denying the motion to suppress the evidence seized, because the
Commonwealth did not show that the defendant freely and
voluntarily consented to the search, and the evidence seized
pursuant to the later warrant should have been suppressed as the
fruit of the poisonous tree. The motion judge found that the
defendant's affidavit was limited, however, to the contention
that, had he "understood [his] rights under Miranda, [he] would
not have signed the consent form." The defendant's appellate
counsel concedes that the defendant "did not raise" any other
issues regarding the consent form in Superior Court.
"The theory on which a motion to suppress is presented in
the trial court cannot be changed when the motion comes before
this court for review." Commonwealth v. Pina, 406 Mass. 540,
542, cert. denied, 498 U.S. 832 (1990). As the motion judge
noted, quoting Commonwealth v. Costa, 65 Mass. App. Ct. 227,
231-232 (2005), "[a] Miranda-like warning is not a necessary
prerequisite to a valid consent [to search] under the Fourth
Amendment [to the United States Constitution] or under art. 14
[of the Massachusetts Declaration of Rights]."
Even if the question of voluntariness were to be
considered, there was no error. The Commonwealth bears the
burden of proving that consent was freely and voluntarily given.
See Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995).
40
Consent is free and voluntary where it is "unfettered by
coercion, express or implied," and must be more than mere
"acquiescence to a claim of lawful authority" (citations
omitted). Id. The failure to inform a defendant of the right
to withhold consent is a relevant consideration, but not
necessarily dispositive. See Commonwealth v. Carr, 458 Mass.
295, 302 (2010). A voluntariness determination requires a
consideration of the totality of the circumstances.
Commonwealth v. Rogers, 444 Mass. 234, 242 (2005).
While the motion judge found that the officer who presented
the defendant the consent form was unable to give "a verbatim
recitation of the language [on that form]," 19 the judge found
18F
further that the translation was sufficient to permit free and
voluntary consent. He observed that consent to search need only
be "free and voluntary," not "knowing and intelligent"; that the
defendant was informed of his "right to refuse consent"; and
that there was no trickery or coercion in the police conduct.
The motion judge's determination is supported by the
record. Although some warnings contained on the printed English
form were not conveyed, the translation of the form included the
key information that the police were asking to search the
19At the hearing on the motion to suppress, the officer
testified that he was unable "to read that [form] verbatim to
[the defendant]" in Spanish, in part because some of the words
"exceed[ed his] comfort level."
41
defendant's residence and that, by signing the form, the
defendant was giving them permission to do so. There was no
evidence that the defendant's will was overborne. The judge's
finding that the defendant's consent was free and voluntary thus
was not clearly erroneous. 20
19F
e. Admission of out-of-court statements. The defendant
claims that the judge erred in allowing a police investigator to
testify to double hearsay evidence in two instances. Because
the defendant objected at trial, we review to determine whether
the introduction of the testimony was error and, if so, whether
it was prejudicial. See Commonwealth v. Sullivan, 478 Mass.
369, 375-376 (2017). "An error is not prejudicial if it 'did
not influence the jury, or had but very slight effect'"
20The officer's inability to convey a precise and complete
translation nonetheless is concerning. Although the incomplete
translation proved sufficient in this instance, the additional
warnings included on the English version of the form -- which
the officer did not translate -- doubtless have some value.
That non-English speaking defendants should receive fewer
warnings in their interactions with the police runs counter to
our long-standing principles of equal treatment and access to
justice. See generally Bridgeman v. District Attorney for the
Suffolk Dist., 476 Mass. 298, 311-312 (2017) (noting defect in
Commonwealth's Spanish translation of notice to criminal
defendants); Commonwealth v. Siny Van Tran, 460 Mass. 535, 561
(2011) (waiver of right against self-incrimination invalid where
Chinese translation "fell measurably below what would be
required to impart the substantive meaning of the right").
This could be avoided if care were taken to provide proper
translation. Indeed, as the translating officer indicated, "If
[the form] was given to me in Spanish, I could have gone through
it with him in Spanish."
42
(citations omitted). Commonwealth v. Cruz, 445 Mass. 589, 591
(2005).
At trial, the defendant employed a Bowden defense, see
Commonwealth v. Bowden, 379 Mass. 472, 486 (1980); he argued
that Cruz had killed the victim, and that the police had failed
properly to investigate Cruz's actions. A Bowden claim refers
to defendants' "right to base their defense on the failure of
police adequately to investigate [the crime] in order to raise
the issue of reasonable doubt as to the defendant's guilt in the
minds of the jury" (citation omitted). See Commonwealth v.
Avila, 454 Mass. 744, 753 (2009). We discern no error in
permitting the testifying officer to rebut the defendant's
Bowden defense by testifying to out-of-court statements that
affected the conduct of the police during the course of the
investigation.
Through a State trooper, the defendant presented evidence
that, according to an internal police report, "[A]fter an
exhaustive investigation, investigators were able to determine
that Cruz was responsible for the death of [the victim]." On
cross-examination, the prosecutor asked the trooper about
statements made to him during interviews he had conducted with
several witnesses. In one statement, the defendant told his
cousin Maria that he had "smashed" the victim in the head with a
big rock and stabbed him five times. Maria thereafter repeated
43
the defendant's words to one of her friends. The friend
ultimately repeated the statements to the officer. In a second
statement, the defendant told his girlfriend that he had killed
someone, and pointed out the location of the body. His
girlfriend repeated the defendant's statement to one of her
friends, who, in turn, relayed the statements to the
investigator.
The defendant objected to the admission of these statements
on grounds of hearsay, double hearsay, and prejudice. Noting
that, in the context of a Bowden defense, the statements are
admissible for a purpose other than their truthfulness, the
judge overruled the objections. The judge gave detailed
limiting instructions immediately before and immediately after
the officer presented this testimony, and explained to the jury
that the statements were not being offered for their truth but,
rather, to show that the police had been presented with the
information at the time they were deciding which suspects to
investigate.
If a defendant raises a Bowden defense, our "cases make
clear that . . . the Commonwealth has the right to rebut it."
Avila, 454 Mass. at 753. A Bowden defense, therefore, is "a
two-edged sword for the defendant, because it opens the door for
the Commonwealth to offer evidence explaining why the police did
44
not follow the line of investigation suggested by the defense."
Commonwealth v. Silva-Santiago, 453 Mass. 782, 803 n.25 (2009).
"[T]he presentation of a Bowden defense can expand the
usual evidentiary boundaries quite significantly," and can
permit introduction of evidence that "otherwise [would not] be
admitted on hearsay or relevance grounds." Avila, 454 Mass. at
757. The permissible scope of rebuttal evidence depends, in
part, on the issues raised by the defense; "the more wide-
ranging the defendant's attack on the police investigation, the
broader the Commonwealth's response may be." Id. at 754–755.
Prior to trial, trial counsel argued that out-of-court
statements of Cruz that "border[ed] on an admission" should be
admitted in light of the Bowden defense. The statements were
then introduced at trial. By the same token, the fact that the
police had been informed of competing admissions, which instead
implicated the defendant, permissibly could be introduced as
rebuttal, to help the jury understand why the police focused on
the defendant rather than on Cruz. "[T]he Commonwealth was
entitled to elicit testimony about why the investigators chose
the particular investigative path they did, including the
reasons they ultimately accepted and acted on . . . information
that the defendant was the person who [killed] the victim."
Avila, 454 Mass. at 755.
45
Nor do we think that the judge abused his discretion in
determining that the probative value of the testimony was not
substantially outweighed by its prejudicial effect. See
Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010) (balancing
probative value and prejudicial effect "are matters entrusted to
the trial judge's broad discretion and are not disturbed absent
palpable error" [citation omitted]). The quantity of statements
to which the officer testified was not excessive. Contrast
Commonwealth v. Lodge, 431 Mass 461, 467 (2000) ("a general
expression of the officer's opinion of guilt, followed by a
recital of all the evidence against the defendant, is not
permitted"). Moreover, the jury already had heard much of the
substance of the testimony through Maria and the defendant's
girlfriend, who had described the defendant's statements in
detail. 2120F
f. Ineffective assistance of counsel. The defendant
contends that his trial counsel was ineffective for failing to
move to suppress the jeans seized from the defendant's residence
on the ground of improper documentation in the chain of custody.
Police testified that the jeans were recovered during a search
21The defendant argues also that it was error to permit the
trooper to opine as to the defendant's guilt. Had the trooper
done so, there might have been error. The trooper testified,
however, that the evidence led his investigation "to focus on
[the defendant]," as opposed to other suspects.
46
of the defendant's residence, and were placed in a bag labeled
"22." The evidence log, however, contained only twenty-one
entries, and did not reflect that jeans had been found and
bagged at the scene. The log indicated that other items of
clothing were seized both during the consent search and, later,
during the search pursuant to the warrant.
When evaluating a claim of ineffective assistance of
counsel in a case of murder in the first degree, we apply the
standard of G. L. c. 278, § 33E, to determine whether there was
a substantial likelihood of a miscarriage of justice.
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014). In doing so, we determine whether there was
an error in the course of trial, and, if so, whether it was
likely to have influenced the jury's conclusion. Id. Where the
basis of the claim is counsel's failure to file a motion to
suppress, "the defendant has to demonstrate a likelihood that
the motion to suppress would have been successful." See
Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
In this case, counsel moved, unsuccessfully, to suppress
the jeans on other grounds. Moving to suppress the jeans on the
additional basis that they were improperly labeled was unlikely
to have succeeded. "Defects in the chain of custody of
otherwise admissible evidence go to the weight of the evidence,
as opposed to the admissibility of the evidence." Commonwealth
47
v. Miller, 475 Mass. 212, 228 (2016). See Commonwealth v.
Jones, 42 Mass. App. Ct. 378, 380–381 (1997) (counsel not
ineffective despite failing to object notwithstanding weakness
in chain of custody).
g. Relief pursuant to G. L. c. 278, § 33E. Pursuant to
our duty under G. L. c. 278, § 33E, we have reviewed the entire
record carefully, and discern no reason to use our extraordinary
power to reduce the verdict or to order a new trial.
Judgment affirmed.