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SJC-12383
COMMONWEALTH vs. SIFA LEE. 1
Essex. May 10, 2019. - November 12, 2019.
Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ.
Homicide. Stealing by Confining or Putting in Fear. Armed Assault with Intent to Murder. Interpreter. Constitutional Law, Fair trial, Assistance of counsel, Self-incrimination, Waiver of constitutional rights. Due Process of Law, Interpreter. Fair Trial. Jury and Jurors. Witness, Self- incrimination. Practice, Criminal, Capital case, Interpreter, Fair trial, Assistance of counsel, Instructions to jury, Empanelment of jury, Waiver.
Indictments found and returned in the Superior Court Department on December 28, 2011.
The cases were tried before David A. Lowy, J., and a motion for a new trial, filed on September 19, 2017, was considered by Timothy Q. Feeley, J.
Russell C. Sobelman for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
1 As is our custom, we spell the defendant's name as it appears on the indictments. 2
GAZIANO, J. In the early morning hours of September 27,
2011, three robbers broke into a restaurant by climbing through
a rooftop ventilation shaft. Once inside, the robbers
encountered the sixty-two year old victim, restaurant owner Shui
Woo, who had slept in his office that night. One robber, later
identified as the defendant, struck the victim, bound his feet
and hands, and ordered him to open a safe. When the victim
failed to do so, the robbers beat him to death with a crowbar
and a hammer.
A Superior Court jury convicted the defendant of murder in
the first degree on theories of extreme atrocity or cruelty and
felony-murder, stealing by confining or putting in fear, and
armed assault with intent to murder a person age sixty or older.
In this direct appeal, the defendant contends that he was
deprived of his constitutional rights to a competent interpreter
to interpret the trial proceeding into his native language. He
argues also that he is entitled to a new trial because trial
counsel provided ineffective assistance; several jury
instructions were erroneous; and the trial judge abused his
discretion in making certain rulings concerning the conduct of
the trial. In addition, the defendant asks this court to use
our extraordinary power under G. L. c. 278, § 33E, to reduce the
verdict or to order a new trial. For the reasons that follow, 3
we affirm the convictions and decline to exercise our authority
under G. L. c. 278, § 33E.
1. Prior proceedings. In December 2011, a grand jury
returned indictments charging the defendant, Cheng Sun (Sun),
and Jun Di Lin (Lin) with murder, G. L. c. 265, § 1; stealing by
confining or putting in fear (stealing), G. L. c. 265, § 21; and
armed assault with intent to rob a person age sixty or older
(armed assault), G. L. c. 265, § 18 (a). In September 2014, Lin
pleaded guilty to manslaughter, stealing, and armed assault in
exchange for an agreement to testify against his codefendants.
In January 2016, a joint trial commenced against the defendant
and Sun. The judge was required to continue the case after
seven days of empanelment because it was difficult to locate the
necessary multiple Chinese-language interpreters for the
defendant and Sun. Thereafter, the two cases were severed; Sun
was convicted on all charges at his trial in January and
February 2016.
In May 2016, following a twenty-nine day trial, a jury
convicted the defendant on all charges. The defendant filed a
timely notice of appeal. In September 2017, before his direct
appeal had been briefed, he moved for a new trial on multiple
grounds. A Superior Court judge, who was not the trial judge,
denied the defendant's motion without a hearing. We 4
consolidated the defendant's direct appeal from his convictions
and his appeal from the denial of the motion for a new trial.
2. Background. We summarize the facts the jury could have
found, reserving additional facts for our discussion of the
issues. The victim owned and operated a restaurant located on
Route 1 in Ipswich. He had been born in China in 1949, had
immigrated to the United States as a teenager, and had purchased
the restaurant in 1987. The victim lived in Quincy with his
family, but spent the majority of his time at the restaurant,
which was open 364 days a year. He slept at the restaurant four
to five nights a week, on a make-shift bed in his office,
because he wanted to "know everything that was going on," as
well as to accommodate early morning deliveries. When he stayed
at the restaurant overnight, the victim locked the doors from
the inside prior to going to sleep.
The office, which was next to the kitchen, contained a
large, metal safe. Inside the kitchen, a portion of the
suspended ceiling had been removed to expose a crude ventilation
shaft cut into the roof. At the end of the work day, or when it
rained, restaurant workers went onto the roof through an access
door and covered the ventilation shaft with an unsecured wooden
cover.
The victim employed a few long-term employees, including a
head chef, a hostess, and a waitress. The majority of the 5
workers, however, were temporary; they were drawn from Boston's
Chinatown neighborhood and transported to Ipswich by a company
van. The victim had employed hundreds of temporary workers over
the course of the twenty years that he operated the restaurant.
The defendant was one such employee; he had washed dishes at the
restaurant for two days either in 2010 or 2011.
On Monday, September 26, 2011, the victim's son, a
restaurant manager, worked with his father until sometime
between 11:30 P.M. and midnight. At 12:30 A.M., on his way
home, the son drove a group of employees back to Chinatown. The
victim stayed behind, locked the doors, and went to sleep. The
next morning, an employee found the victim's bloody body in the
office. The victim's ankles were bound with a black power cord
and his wrists were bound with a computer cord and a belt. A
medical examiner later determined that the victim had suffered
extensive injuries including two skull fractures, a fractured
arm, twelve rib fractures, and stab wounds to the back and
extremities. He died as a result of multiple blunt and sharp
force injuries and asphyxia due to strangulation.
The handle and keypad to the office safe were stained with
the victim's blood. The police recovered a bloody knife on the
office floor near the victim's body and the safe. In the
kitchen, police found tin snips (a tool capable of cutting wire)
and a baseball hat on a table underneath the ventilation shaft. 6
The wooden cover to the ventilation shaft had been removed.
Investigators found approximately $2,800 in cash under the
cushions of the victim's make-shift bed, and $50,000 in cash in
the safe.
The investigating officers were able to establish a likely
timeline for the robbery. At 3:15 A.M., the robbers cut the
restaurant's telephone lines and electrical power wires at the
utility panel located in the back parking lot. At 3:30 A.M., a
truck driver pulled into the parking lot belonging to the pipe
supply company next door to the restaurant to begin a morning
delivery. The driver noticed a white taxicab parked on the side
of the warehouse that abuts the restaurant. The taxicab had
"Boston Cab Assoc" written in red letters on the passenger's
side door; it was unoccupied.
Officers did not identify a suspect in the first few days
of the investigation. That changed on September 29, when Lin
contacted the police, identified himself as the operator of the
white taxicab, and provided information about his two
accomplices in the robbery. Lin consented to the search of his
taxicab, a hand-held global positioning system (GPS) device, and
his home. Police also obtained records from a "CMT" device
installed in Lin's taxicab, which captured and transmitted, at
least once every three minutes, "extremely accurate" information 7
about the location of the taxicab, its speed and direction, and
meter activity.
At trial, Lin provided the following account. 2
Approximately two weeks before the robbery, Lin met the
defendant and Sun at a casino in Connecticut. They spent a few
days gambling together, and exchanged telephone numbers. The
defendant asked Lin if he knew any "wealthy people." They also
discussed "well-known" restaurant owners. Thereafter, Lin drove
the defendant and Sun to Boston-area restaurants in his taxicab,
presumably searching for likely places to rob.
On September 27, 2011, at approximately 2 A.M., while Lin
was at his home in Malden, he received telephone calls from the
defendant and Sun. Lin agreed to meet them in Boston. Either
the defendant or Sun brought a black bag, which was placed in
the trunk of the taxicab. The defendant directed Lin to the
restaurant in Ipswich. They arrived at 3 A.M. Lin parked the
taxicab next door to the restaurant, near the side of the pipe
supply building. The defendant and Sun retrieved items from the
black bag; they told Lin to wait for them, and walked toward the
rear of the restaurant.
2 In exchange for Lin's cooperation, the Commonwealth agreed to reduce the murder indictment to the lesser included offense of manslaughter, and to a combined sentence of from fifteen to twenty-five years for manslaughter and stealing, and five years of probation for the armed assault. 8
When they returned, the defendant was carrying a crowbar,
and both wore gloves and masks. Either the defendant or Sun
asked Lin to help them steal a safe containing "a lot of money."
Wearing a baseball hat supplied by the defendant, and gloves,
Lin followed the defendant and Sun to the rear of the
restaurant. 3 The three climbed up the roof by stepping onto an
ice machine condenser, and dropped into the kitchen through the
ventilation shaft.
While walking alone through the dining room, Lin heard the
victim screaming "very loudly" in the office. Lin entered the
office and saw Sun holding a knife to the injured victim's
throat. The defendant beat the victim with the crowbar on the
abdomen and legs. The victim was pleading, "What do you want?";
"Don't hurt me"; "Whatever you want I will give you everything."
The victim promised to open the safe. At Sun's suggestion, Lin
and the defendant bound the victim's ankles and hands. Lin
helped drag the victim, who was unable to walk, to the safe.
The victim was propped up facing the safe; he twice attempted to
enter a code on the keypad. Upset that the victim was "playing
games," the defendant beat him with the crowbar. Lin took the
3 A scraping from the interior headband of the baseball hat found inside the restaurant contained a mixture of deoxyribonucleic acid (DNA) from at least two individuals. The defendant's DNA matched the major profile, and Lin matched the minor profile. 9
crowbar away, but the defendant then beat the victim with a
hammer retrieved from the black bag.
The three departed the restaurant through the ventilation
shaft, leaving the victim unconscious on the office floor. Upon
returning to the taxicab, the defendant expressed frustration
that "after all that work" they had been unable to steal the
large sum of money he believed had been in the safe. Sun's hand
was injured, and their clothing had been stained with the
victim's blood.
Lin drove the defendant and Sun to casinos in Connecticut.
The three men obtained clean clothing, some from one of the
defendant's friends, and some that was purchased in the casino
shops. After changing, they washed the bloodstained clothes at
a laundromat, and disposed of other evidence in a nearby
Dumpster. 4
The defendant testified in his own defense. He admitted
that he, Lin, and Sun drove to the restaurant on September 27,
2011. He maintained, however, that Lin and Sun had planned the
robbery. He had been unaware of the plan, because Lin and Sun
4 The Commonwealth offered evidence that, it contended, corroborated Lin's testimony. The evidence included surveillance video footage taken from businesses located on Route 1 near the restaurant, two Connecticut casinos, and the businesses near the laundromat. The Commonwealth also introduced evidence from Lin's GPS device and the taxicab's CMT system that showed its path of travel on September 27, 2011. 10
spoke to each other in the Fuzhou dialect, which the defendant
does not understand. The defendant also testified that Lin and
Sun entered the restaurant while he remained outside,
"foolishly" playing video games on his cellular telephone "to
calm [himself] down." The defendant maintained that he had not
touched the victim.
3. Discussion. After he filed his direct appeal, but
before briefs had been submitted, the defendant filed a motion
for a new trial in this court. We stayed the appeal and
remanded the motion to the Superior Court.
In his motion for a new trial, the defendant raised eight
issues. He argued that (1) the judge did not appoint a
competent interpreter; (2) trial counsel was ineffective;
(3) certain of the jury instructions were erroneous; (4) the
judge erred in denying the defendant's motions for a mistrial;
(5) the judge did not use the Walker method of jury empanelment,
see Commonwealth v. Walker, 379 Mass. 297, 299 n.1 (1979);
(6) the judge's vacation unnecessarily delayed the trial;
(7) the "jury was infected with prejudicial bias based on
certain rulings by the judge"; and (8) the defendant should not
have been sentenced on the second and third indictments. The
motion judge, who was not the trial judge, denied the motion
without a hearing because he found that "the [ineffective
assistance] claim is not a substantial issue raised by the 11
motion or affidavit, and is not supported by a substantial
evidentiary showing." Citing the availability of appellate
review, the judge declined to rule on the other asserted grounds
for a new trial.
On appeal, the defendant pursues the first six of the
issues that he raised in his motion for a new trial. Focusing
in particular on his constitutional arguments with respect to
the interpreters, the defendant contends that "the original
criminal proceeding was infected with prejudicial constitutional
error" due to inadequacies with the interpreters provided. In
addition to raising all the arguments from his motion for a new
trial except for his claims of prejudicial bias and sentencing
on the second and third indictments, the defendant also raises
one new claim on appeal. He argues that a new trial is required
because the judge did not sua sponte conduct a colloquy of the
defendant before he testified, to ensure that the decision to
waive his right to silence was voluntarily made. The defendant
also asks this court to exercise its authority pursuant to G. L.
c. 278, § 33E, to order a new trial or to direct the entry of a
lesser degree of guilt.
a. Whether the defendant was deprived of his right to a
competent interpreter. i. Background. The judge confronted
numerous issues surrounding the interpreters throughout the two-
month trial. At the conclusion of the trial, the judge made 12
detailed findings of fact to explain his rulings. We briefly
summarize these findings, supplemented with uncontroverted
evidence from the record.
The defendant, who was born in China, does not speak
English. At his January 2012 arraignment in the Superior Court,
he filed a motion requesting funds for an interpreter because
"his native language is Cantonese[]." In subsequent pretrial
motions, the defendant continued to represent that "his native
language is Cantonese[]" and "his native language is the
Cantonese dialect of Chinese." As a result, the judge appointed
Cantonese interpreters to interpret for the defendant in twenty-
three court appearances. These pretrial matters included a
complex motion to suppress raising issues of cell site location
information.
On January 13, 2016, the judge began to empanel a jury in
the joint trial of the defendant and Sun. During seven days of
jury selection, the judge provided the defendant with Cantonese
interpreters, and Sun with Mandarin interpreters. On January
20, 2016, the defendant objected to the qualifications of one of
the Cantonese interpreters. He did not, however, indicate that
he was unable to understand this interpreter's Cantonese.
The defendant's severed trial commenced on March 8, 2016,
with two Cantonese interpreters, Lewanna Li (Li) and Melissa Lo
(Lo). On the fourth day of empanelment, the defendant asserted 13
that "some of the interpretation" by Li was inaccurate. Defense
counsel informed the judge that the defendant "does speak
Cantonese, but that is not his native Chinese language. His
native Chinese language is [Taishanese]. The language spoken in
the Province of [Taishan], China. . . . [A] [Taishanese]
interpreter would be more suitable for [the defendant]." 5 The
judge continued to empanel with Lo as the sole interpreter, and
scheduled a hearing for the following day.
The next day, counsel stated that he had spoken to the
defendant regarding "the [e]mpanelment process, his
understanding of the process and the potential for errors in
translation." After these discussions, trial counsel explained,
the defendant had "clearly and unequivocally conveyed to [trial
counsel] that he understood the [e]mpanelment process." Counsel
added that the defendant was "raising no issues with regard to
that whatsoever."
The judge conducted a colloquy with the defendant to
confirm that he had knowingly and voluntarily withdrawn his
objection to the interpretation of the proceedings. The
5 The defendant's language is spoken in the southern portion of the Guangdong province in China. See C. Szedo, Testing Intelligibility Among Sinitic Dialects, Proceedings of the 2000 Conference of the Australian Linguistic Society 1 (Szedo). It has a number of spellings in written English. Trial counsel referred to the defendant's language as "Taosenese." For consistency, we use the spelling "Taishanese" throughout. 14
defendant said that he was born in China, and speaks Cantonese
and Taishanese. When asked about the conduct of the interrupted
trial, the defendant stated that he had had "a little bit" of
"difficulty" with the interpretation because some of the words
spoken during jury voir dire were not, in his opinion,
interpreted. With respect to this trial, the defendant
indicated that he understood that he had a right to "be present
during a trial, to understand what is happening and to be able
to assist meaningfully with . . . [his] defense." After the
colloquy, the judge found that "the defendant [had] been able to
understand what [was] going on . . . and that the defendant
[had] knowingly, willingly and voluntarily answered the
[c]ourt's questions and the [c]ourt [was] comfortable to make a
finding that the defendant [was] able to fully participate in
the proceedings."
On April 5, 2016, the judge found Cantonese interpreter
Stephanie Liu (Liu) to be qualified to interpret pursuant to
G. L. c. 221, § 92, and Mass. R. Crim. P. 41, 378 Mass. 918
(1979). The defendant informed the judge that "he [was] much
more comfortable with [Taishanese] than he [was] in Cantonese,"
and would "prefer a [Taishanese] interpreter." Thereafter, the
defendant expressed his dissatisfaction with Liu. The defendant
contended that "he did not understand, because of poor
interpretation, much of what was said during the opening 15
statements of counsel and during the testimony of the witness
[on the first day of trial]." The judge observed that he did
not credit the defendant "for so many reasons," but would make
specific findings of fact at a later point. The defendant
asserted that he required a Taishanese interpreter "to vindicate
his constitutional rights."
On April 12, 2011, the defendant renewed his request for a
Taishanese interpreter because he had "only understood [ninety]
percent of what was translated to him on the day before." The
judge conducted a voir dire hearing to address the defendant's
contention that he did not understand the Cantonese
interpreters. The defendant waived the interpreter privilege,
see Mass. G. Evid. § 522(b) (2019), and Liu and Lo testified
that they were both able to speak to the defendant in Cantonese
and understood his Cantonese responses. Lo added that she also
spoke Taishanese, which she had learned at a young age from her
greatgrandmother. She had not, however, interpreted words into
Taishanese until the day of the voir dire hearing.
The judge found "that the defendant speaks Cantonese
fluently" and that the defendant's claim he did not understand
the proceedings was not credible "to an exponential degree."
The judge nonetheless agreed to appoint the defendant a
Taishanese interpreter. The next day, the judge conducted a
hearing and appointed Taishanese interpreter Way Moy (Moy), who 16
recently had retired as a staff interpreter for the New York
Supreme Court. The defendant objected to Moy's lack of
certification in Massachusetts. The following day, April 14,
2016, the defendant expressed dissatisfaction with Moy's
interpretation. He said that "he speaks a variation of
[Taishanese]" that [Moy] does not speak." The defendant
characterized Moy's Taishanese as "broken" or "very old
school[]," dating to the 1920s and 1930s. The judge found that
Moy was highly qualified in Taishanese and that the defendant
had received "the interpreter that he wanted."
ii. Analysis. A failure to provide a non-English speaker
with a competent interpreter implicates multiple constitutional
rights. As a matter of fundamental fairness, a defendant has a
due process right to understand the proceedings. See United
States v. Lopez-Collazo, 824 F.3d 453, 460-461 (4th Cir. 2016),
cert. denied, 137 S. Ct. 628 (2017). See also United States ex
rel. Negron v. New York, 434 F.2d 386, 388 (2d Cir. 1970) (for
non-English speaker deprived of adequate interpreter, most of
trial is "[a] babble of voices"). A judge also is required to
provide a non-English speaker with a competent interpreter in
order to safeguard the defendant's rights under the Sixth
Amendment to the United States Constitution, and art. 12 of the
Massachusetts Declaration of Rights, to be present at trial and
to confront adverse witnesses. Commonwealth v. Garcia, 379 17
Mass. 422, 437 (1980). See United States v. Carrion, 488 F.2d
12, 14 (1st Cir. 1973), cert. denied, 416 U.S. 907 (1974)
("right to confront witnesses would be meaningless if the
accused could not understand their testimony, and the
effectiveness of cross-examination would be severely hampered").
A non-English speaker also is entitled to competent
interpretation in order to consult meaningfully with counsel
during the trial. United States ex rel. Negron, supra at 389.
In addition, a non-English speaker has a statutory right to
a court-appointed qualified interpreter. See G. L. c. 221C,
§§ 1-2; G. L. c. 221, § 92. General Laws c. 221C, § 2, provides
that "[a] non-English speaker, throughout a legal proceeding,
shall have a right to the assistance of a qualified
interpreter." A "qualified interpreter" is defined as "a
certified interpreter who has also passed the examination [given
by the office of court interpreter services] and been qualified
for interpreting in the [F]ederal courts by the United States
[D]istrict [C]ourt of the [D]istrict of Massachusetts." G. L.
c. 221C, § 1. In the event that a "qualified interpreter" is
not "reasonably available," a judge shall appoint a "certified
interpreter." G. L. c. 221C, § 2. Under G. L. c. 221C, § 1, a
"certified interpreter" is "an interpreter who has been duly
trained and certified" by the office of court interpreter
services. 18
Pursuant to G. L. c. 221, § 92, a Superior Court judge "may
appoint such official interpreters as they may deem necessary
for the sessions of the court." The judge also has authority to
appoint "other interpreters when the services of the official
interpreters are not available." G. L. c. 221, § 92. See Mass.
R. Crim. P. 41 ("The judge may appoint an interpreter or expert
if justice so requires and may determine the reasonable
compensation for such services and direct payment therefor").
Implicit in the judge's authority to appoint an interpreter
pursuant to G. L. c. 221, § 92, and Mass. R. Crim. P. 41, is the
understanding that the individual appointed to interpret is
competent. See United States v. Villegas, 899 F.2d 1324, 1348
(2d Cir.), cert. denied, 498 U.S. 991 (1990). 6
The issue raised in this appeal is whether any inadequacy
in the interpretation of the proceedings "made the trial
fundamentally unfair." See United States v. Tapia, 631 F.2d
1207, 1210 (5th Cir. 1980). According to the defendant, the
trial record "contains a plethora of examples of the defendant's
6 In passing, the defendant asserts that G. L. c. 221, §§ 1- 7, in effect, supersede G. L. c. 221, § 92, and Mass. R. Crim. P. 41. He does not, however, argue that the judge improperly certified the interpreters pursuant to G. L. c. 221, § 92, and Mass. R. Crim. P. 41. As the defendant contends that the issue is whether he was deprived of his constitutional right to a fair trial due to inadequacies in the interpretation, we need not address the defendant's statutory argument. 19
struggle to understand what was going on." 7 The judge, he
alleges, "tolerate[d]" incompetent interpreters for the sake of
expediency, without regard to the defendant's ability to
understand the proceedings. More particularly, the defendant
argues that the judge erred in finding that (1) the defendant
spoke fluent Cantonese and, therefore, did not need a Taishanese
interpreter; (2) the defendant was able to understand Cantonese
interpreter Liu; and (3) the defendant was able to understand
Taishanese interpreter Moy. We evaluate each of the defendant's
claims under an abuse of discretion standard. See Commonwealth
v. Garcia, 379 Mass. 422, 437 (1980) (judgments concerning
defendant's need for interpreter "uniquely within the province
of the trial judge"). See also Valladares v. United States, 871
F.2d 1564, 1566 (11th Cir. 1989) (judge in direct contact with
defendant is given wide discretion to decide adequacy of
interpreter); Chee v. United States, 449 F.2d 747, 748 (9th Cir.
7 We have carefully examined the seventy-five instances cited by the defendant as "examples of the defendant's struggle to understand what was going on." These portions of the trial transcript include counsel's objections, a pause in the trial so that the interpreter could explain the word "postmortem" to the defendant, the interpreter asking a witness to clarify the pronunciation of a surname, and the interpreter indicating that he could not hear part of an answer. 20
1971) (per curiam) (trial judge has broad discretion in
determining fitness and qualifications of interpreters). 8
The defendant concedes that he understands "some
Cantonese." He argues, however, that he does not speak
Cantonese well enough "to be comfortable understanding it at
trial without an interpreter translating." 9 The judge's finding
8 In a related claim, the defendant contends that he was deprived of a fair trial by the judge's denial of a continuance prior to beginning cross-examination of Lin on the ninth day of testimony. Counsel believed that the defendant had prepared certain questions he wanted counsel to ask on cross-examination of Lin. Before cross-examination began, counsel sought a continuance so that he could review those questions with an interpreter and his client. The judge denied the motion, pointing to the inconvenience to the jury in dismissing them early, and instructed trial counsel to question Lin for the forty-five minutes remaining in the court day, and then to discuss the questions with the defendant thereafter. The judge noted also that defense counsel had had nine days to prepare for the cross-examination, and that he had had access to daily transcripts of the majority of the testimony. In addition, the judge pointed out that the cross-examination was likely to be lengthy, and to continue over more than one day.
According to the defendant, this "showed a total lack of sensitivity to . . . interpretation issues." The defendant has not shown that the judge abused his discretion in ordering the forty-five minutes of cross-examination before counsel had reviewed the questions that the defendant wanted him to ask. See Commonwealth v. Fernandez, 480 Mass. 334, 340 (2018). Due to planned delays in the trial, counsel had ample time to consult with the defendant and to prepare his cross-examination of Lin, and was able to resume cross-examination four days later having fully consulted with his client.
9 While the defendant speaks Cantonese and Taishanese, the two are very different languages. In general, Cantonese speakers comprehend approximately 31.3 percent of what they hear in Taishanese. See Szedo, supra at 4. 21
that the defendant spoke fluent Cantonese, and understood the
proceedings interpreted from English into Cantonese, is well
supported by the record. Over the course of the four years
prior to his trial, the defendant represented to the judge that
"his native language is Cantonese." On the fifth day of trial,
the judge conducted a colloquy of the defendant, where the
defendant withdrew his objections to the Cantonese interpreters.
In addition, while seeking a Taishanese interpreter for himself,
the defendant also requested that the court assign Cantonese
interpreter Lo. 10
The judge's denial of the defendant's motion to remove Liu,
and the judge's decision that Liu was competent, are also well
supported by the record and indicate no abuse of discretion.
The judge found that Liu is an experienced Cantonese interpreter
who has been certified by the office of court administration in
New York. He also credited Liu's testimony that she always
understood the defendant's Cantonese.
As evidence that Liu was inadequate, on appeal the
defendant points to a "serious misinterpretation" of Lin's
testimony. On that occasion, the prosecutor asked Lin where the
10Although not before the trial judge, we note that, in postconviction proceedings, appellate counsel filed a motion for funds to retain the services of an interpreter. Appellate counsel represented that "the defendant does not speak English well and requires the services of a Cantonese or [Taishanese] interpreter in order to communicate with his attorney." 22
defendant had directed him to go. Lin answered, as interpreted
by Liu, "In the beginning he asked me if I knew how to go to
Route One and then we would go to" the victim's restaurant. Lin
shook his head at this interpretation, and Liu corrected
herself, apologizing and asking if Lin had meant the proper name
"Kowloon." Lin in fact had said, "In the beginning he asked me
if I knew how to go to Route One and then we would go to the
Kowloon," an unrelated but well-known restaurant on Route 1.
Trial counsel renewed his "motion to have [Liu] stricken as the
interpreter." The judge conducted a voir dire; he then credited
Liu's explanation that "kowlong" means "dragon" in Cantonese, so
she thought Lin had been referring to the victim's restaurant,
the name of which included the word "dragon." We discern no
basis to disturb the judge's factual finding that there was
"absolutely no issue as it relates to [Liu's] ability."
The defendant contends further that the judge erred in
finding that Moy was a competent Taishanese interpreter. He
argues, "At no time during the trial of this matter did the
defendant receive translation from an interpreter capable of
speaking Taishanese fluently." The judge made detailed findings
regarding the defendant's ability to understand Moy's Taishanese
interpretation. He found, for example, that the defendant had
no difficulty answering approximately 625 questions posed by his
counsel on direct examination. The judge reasoned, "It would 23
have been impossible for him to have answered those 625
questions . . . if he did not understand the interpretation."
The judge noted that the defendant, again with Moy interpreting,
had little difficulty understanding the 300 questions asked by
the prosecutor on cross-examination. The defendant has not
demonstrated that the judge's findings are erroneous.
b. Ineffective assistance of counsel. The defendant
claims that a new trial is required because of trial counsel's
asserted failures effectively to cross-examine two witnesses.
In his decision on the defendant's motion for a new trial, the
motion judge noted that the defendant had not submitted an
affidavit from trial counsel or from any other person to provide
the court with "specific facts supporting the ineffectiveness
claim." In the judge's view, the defendant's assertions had not
"come close to suggesting that he could conceivably overcome the
stringent standard of review applied to claims of ineffective
assistance because of a failure to impeach a witness"
(quotations and citation omitted). 11 See Commonwealth
v. Jenkins, 458 Mass. 791, 805 (2011).
11The defendant also argues, for the first time on appeal, that he was deprived of effective assistance because trial counsel visited him in jail eighteen times (over a four-year period of pretrial detention), and that an interpreter was present for only eight visits. Our case law strongly disfavors raising an ineffective assistance claim on direct appellate review because the record is "bereft of any explanation by trial counsel for his actions" (citation omitted). Commonwealth v. 24
In reviewing a claim of ineffective assistance in a case of
murder in the first degree, we apply the more favorable standard
of review for a substantial likelihood of a miscarriage of
justice, pursuant to G. L. c. 278, § 33E. See Commonwealth
v. Vargas, 475 Mass. 338, 358 (2016). "We consider whether
there was an error in the course of the trial (by defense
counsel, the prosecutor, or the judge) and, if there was,
whether that error was likely to have influenced the jury's
conclusion." Id., quoting Commonwealth v. Lessieur, 472 Mass.
317, 327, cert. denied, 136 S. Ct. 418 (2015).
The defendant contends that Lin's prior statements to
police were "vastly different from his testimony at trial," and
that trial counsel's failure to impeach Lin with two prior
inconsistent statements "may have changed the results of the
trial." The first asserted inconsistent statement concerned
Lin's agreement with Sun to split the proceeds of the robbery.
In a September 29, 2011 interview, Lin told police that the
defendant and Sun returned to the taxicab after their initial
Gorham, 472 Mass. 112, 116 n.4 (2015). To be entitled to relief, "the factual basis of the claim [must] appear[] indisputably on the trial record." Commonwealth v. Zinser, 446 Mass. 807, 811 (2006). The defendant does not contend that counsel was unprepared in any manner. Nor does he explain how he was prejudiced by the lack of an interpreter. Moreover, the defendant does not mention that the record demonstrates that trial counsel visited the defendant, with an interpreter, an additional forty-two times in the court house holding cell. 25
entry into the restaurant. Lin said that Sun convinced him to
break into the restaurant by telling him, "Just come in to help
us. Go inside, get some of the money. I'll split it with you.
So, if you don't go inside to help us, you know, the other guy
is going to hit you with the crowbar." In a March 10, 2014
interview, Lin denied that Sun had told him there would be money
inside the restaurant. In that interview, Lin responded to a
question concerning what he knew prior to their arrival at the
restaurant. Lin insisted that the defendant and Sun "didn't
tell [him] . . . anything until [they got] there." At trial,
Lin did not mention any prior agreement to split the proceeds of
the robbery.
The second asserted inconsistency involved Lin's statement
to police that he had observed "three shadows" behind the
restaurant after the defendant and Sun left the taxicab. This
statement is inconsistent, the defendant argues, with Lin's
trial testimony that only the defendant and Sun were involved in
the robbery. As the motion judge recognized, the defendant did
not meet the stringent standard required for claims of
ineffective assistance premised on a failure to impeach a
witness. See Jenkins, 458 Mass. at 805. See also Commonwealth
v. Valentin, 470 Mass. 186, 191 (2014) (counsel not ineffective
for failing to cross-examine witness concerning particular
statement where counsel otherwise "conducted a thorough 26
impeachment" of witness through cross-examination); Commonwealth
v. Fisher, 433 Mass. 340, 347 (2001) ("absent counsel's failure
to pursue some obviously powerful form of impeachment . . . , it
is speculative to conclude that a different approach to
impeachment would likely have affected the jury's conclusion").
Here, trial counsel impeached Lin's credibility in multiple
ways, including challenging Lin's statements that he purportedly
was unable to communicate with the defendant, that Lin was a
heavy gambler, that Lin had attempted to flee the country after
meeting with police, and that Lin had negotiated a favorable
plea agreement in exchange for his testimony. During cross-
examination, Lin admitted that he had lied to the police
concerning his involvement in the crime. For example, he
falsely told the officers that the defendant forced him to
surrender his taxicab keys when they arrived at the restaurant.
Lin also said that he had lied about wearing gloves inside the
restaurant. In his closing argument, trial counsel pointed out
that Lin repeatedly "lied to the police. . . . He lied about
the threats from the very beginning." Trial counsel emphasized
that Lin "hasn't told the truth in . . . a lot of ways. He
started off, as I said, not telling the truth; and he
continued."
The defendant also argues that trial counsel's cross-
examination of Yusheng Tan (Tan), the defendant's friend from 27
the casino where the defendant, Sun, and Lin went after the
robbery, should have been "more vigorous." Trial counsel's
performance was deficient, the defendant argues, because counsel
did not mention that Tan told the police that the taxicab was
yellow; Tan told the police he was unable to get a good look at
the driver; and Tan testified that the defendant's clothing was
filthy even though Tan "possibly" did not have a chance to
observe the defendant, who was "sandwiched between two other
individuals" in the back seat of Lin's taxicab.
The defendant has not demonstrated that the absence of
these relatively minor issues from counsel's cross-examination
amounted to ineffective assistance of counsel. Trial counsel
impeached Tan with multiple prior inconsistent statements
concerning the sequence of events inside the casino and the
defendant's gambling losses. Counsel also raised the issue of
bias because the defendant owed Tan, or Tan's mother, a gambling
debt. In his closing argument, trial counsel maintained that
Tan was untruthful and told a "whopper" of a lie concerning the
defendant's gambling losses. On the issue of bias, trial
counsel commented, "Is that a bias that he has so that he would
frame his testimony against [the defendant]?"
c. Jury instructions. The defendant asserts that the
judge provided a number of erroneous jury instructions as to
joint venture liability; the merger doctrine; and the duty to 28
find the highest crime proved beyond a reasonable doubt.
Because the defendant objected at trial, we review for
prejudicial error. Commonwealth v. Cole, 473 Mass. 317, 321
(2015).
i. Joint venture liability. The defendant argues, as he
did at trial, that it was error for the judge to instruct the
jury on joint venture liability. He contends that the
Commonwealth prosecuted the case on a theory of principal
liability and did not argue, or establish, that the defendant
aided and abetted another in the commission of the crime.
This argument mischaracterizes the Commonwealth's trial
strategy. The prosecutor's opening statement reflected the
Commonwealth's position that the defendant, Sun, and Lin
together committed the crime. She stated that the three men
"brutally beat [the victim]. They demanded that he open the safe and give them money, that [the defendant] armed himself with a crow bar and a hammer and that he used that to beat [the victim] over and over again, that [Sun] was armed with a knife, and that they beat [the victim] so badly after having bound him and dragged him and demanded from him, that he eventually collapsed. And the three men left him dead or dying on that office floor and fled back into the night the same way they came."
In her closing argument, the prosecutor continued to maintain
that the defendant, Sun, and Lin robbed and killed the victim:
"Three men assaulted [the victim] and tried to rob him. Three
men confined him, put him in fear while they tried to steal from 29
him. And three men brutally murdered [him]. But you are here
to render a verdict as to just one, [the defendant]."
The judge properly instructed the jury on the theory of
joint venture liability. See Commonwealth v. Smith, 460 Mass.
385, 389 (2011) (judge required to instruct on elements of joint
venture where supported by evidence). "There is no requirement
that the Commonwealth prove precisely what role the defendant
played -- whether he acted as a principal or an accomplice (or
joint venturer)." Commonwealth v. Silva, 471 Mass. 610, 621
(2015). To support a conviction as a joint venturer, the
Commonwealth was required to prove, beyond a reasonable doubt,
that the defendant "knowingly participated in the commission of
the crime charged, alone or with others, with the intent
required for that offense." Commonwealth v. Zanetti, 454 Mass.
449, 468 (2009). Here, there was ample evidence that the
defendant knowingly participated with others in the robbery and
beating, with the requisite intent. 12 See Commonwealth v. Horne,
466 Mass. 440, 446-447 (2013).
12 The defendant's claim that he was prejudiced by the portion of the judge's instructions referencing the crime of conspiracy is unavailing. The judge instructed the jury that they could consider statements made that were attributed to Sun if the Commonwealth established that the statements were "made during or in furtherance of the joint venture or conspiracy." The defendant objected to the judge's use of the word "conspiracy." He argued that conspiracy is a separate crime and had the potential to inject "something into the case that wasn't there." In response, the judge explained to the jury that his 30
ii. Instruction on merger. The trial judge instructed the
jury on the felony-murder merger doctrine that "[t]he act of
violence that is an element of the underlying felony of stealing
by confining or putting in fear may not be the same act that
caused the victim's death. Where an act of violence is an
element of the underlying felony, you may find felony murder
only if you find an act that is separate and distinct from the
violent act that resulted in [the victim's] death."
See Commonwealth v. Gunter, 427 Mass. 259, 272 (1998) (merger
doctrine limits application of felony-murder rule). The
defendant objected to this instruction.
The defendant contends on appeal that the merger doctrine
precluded a conviction of felony-murder because more than one
person struck the victim during the robbery, and the medical
examiner could not isolate the cause of death to any one injury.
He argues, "[I]f more than one person was involved and there is
no proof as to what [the victim] died from, then there can be no
use of the word conspiracy was limited to their consideration of the statements by Lin and Sun. He emphasized, "Obviously, there is no separate indictment or crime before you alleging conspiracy." We presume that the jury understood and followed the judge's instruction. Commonwealth v. Maynard, 436 Mass. 558, 570-571 (2002). 31
conclusion that the defendant was part of what resulted in [the
victim's] death." 13
The merger doctrine is inapplicable, however, "where the
predicate felony has an intent or purpose separate and distinct
from the act causing physical injury or death." Commonwealth
v. Morin, 478 Mass. 415, 431 (2017). It is well established
that the merger doctrine does not apply to the predicate felony
of robbery, where that predicate felony plainly has a purpose
separate and distinct from the acts that caused the victim's
death. 14 Id., citing Commonwealth v. Christian, 430 Mass. 552,
13 On appeal, the defendant argues also that one of the judge's instructions misstated the facts. The judge instructed,
"In this case, the Commonwealth alleges the following separate and distinct acts, that the defendant, allegedly as an aider and abetter, bound [the victim], brought [him] to a safe, put a knife to or close to [his] neck, struck [his] legs before [he] was brought to the safe and/or stepped on [his] upper thigh."
The defendant contends that "[t]here was no evidence at trial that the defendant [as opposed to Sun] . . . used a knife against [the victim]." Contrary to the defendant's argument, this instruction did not inform the jury that the defendant held a knife to the victim's throat; the instruction plainly referred to the defendant's participation "as an aider and abetter" in the robbery with Sun and Lin.
14 Moreover, if the jury convict a defendant on two theories of murder in the first degree, the verdict "will remain undisturbed even if only one theory is sustained on appeal." Commonwealth v. Nolin, 448 Mass. 207, 220 (2007), citing Commonwealth v. Chipman, 418 Mass. 262, 270 n.5 (1994). As the jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty, we could affirm the verdict without reaching the defendant's contention that the 32
556 (2000). See Commonwealth v. Fredette, 480 Mass. 75, 81
(2018); Commonwealth v. Holley, 478 Mass. 508, 520 (2017).
iii. Highest crime. The judge instructed the jury that
they had a duty to find the defendant guilty of the most serious
offense the Commonwealth proved beyond a reasonable doubt. He
also instructed, "If the evidence does not prove beyond a
reasonable doubt that the defendant is guilty of any offense or
offenses charged, you must find him not guilty." The defendant
contends that these instructions violated the language of G. L.
c. 265, § 1, which provides that "[t]he degree of murder shall
be found by the jury."
There was no error. See Commonwealth v. Dickerson, 372
Mass. 783, 797 (1977). It is well settled that a judge may, in
the exercise of discretion, inform the jury of their duty to
return a verdict for the most serious crime proved against the
defendant beyond a reasonable doubt. See, e.g., Commonwealth
v. Nelson, 468 Mass. 1, 16-17 (2014); Commonwealth v. Rivera,
445 Mass. 119, 131 (2005); Model Jury Instructions on Homicide
107 (2018); Model Jury Instructions on Homicide 93-94 (2013).
d. Walker method. The defendant argues that the judge
abused his discretion in denying the defendant's request for
felony-murder conviction is precluded by the merger doctrine. See Commonwealth v. Pytou Heang, 458 Mass. 827, 860 n.36 (2011), and cases cited. 33
the Walker method of jury selection. Under the Walker method,
the parties do not begin to exercise peremptory challenges until
the number of members of the venire found indifferent equals the
total number of all peremptory challenges that may be exercised
by all the parties plus the number of indifferent jurors and
alternates needed to serve. Walker, 379 Mass. at 299 n.1.
The Walker method affords the parties the benefit of exercising
peremptory challenges based on the selection of the jury as a
whole instead of piecemeal. See P.M. Lauriat & D.H. Wilkins,
Massachusetts Jury Trial Benchbook § 3.1.4.4, at 107-108 (4th
ed. 2019) (Lauriat & Wilkins) (Walker method "allows the parties
to identify and evaluate the entire pool of jurors from which
the final jury will be selected").
Although he acknowledged the value of the Walker method,
the judge denied the defendant's request to empanel using
the Walker method. The judge explained that, given the number
of days anticipated for empanelment, the court did not have the
resources available to accommodate the defendant's request.
Instead, the judge required the exercise of peremptory
challenges after sixteen members of the venire had been found
indifferent. As the defendant objected to the judge's ruling,
we review for prejudicial error. Cole, 473 Mass. at 321.
The defendant argues that the judge violated then-existing
Rule 6 of the Rules of the Superior Court, which "expressly 34
provide[d] that peremptory challenges start after 'the full
number of [jurors] is obtained.'" 15 He contends that the judge
improperly chose "speed" over "fairness."
In Commonwealth v. Johnson, 417 Mass. 498, 506-508 (1994),
we rejected the argument that the Walker method is required, and
see no reason to disturb this precedent. "While the Walker
method of jury challenging may be a desirable strategic
tool . . . [,] in cases such as this where the total number of
peremptory challenges is great, the Walker method is likely to
be inefficient and unworkable. In any case, use of the Walker
method is not mandated by rule 6." Id. at 507-508. See Lauriat
15At the time of the defendant's trial, in 2016, Rule 6 of the Rules of the Superior Court provided in part:
"The procedure in the matter of peremptory challenges of jurors, except when an individual voir dire is conducted, shall be as follows, unless specially otherwise ordered in a particular case. The juror shall first be called until the full number is obtained. . . . When it has been determined that all the jurors stand indifferent in the case, each plaintiff shall at one time exercise his right of peremptory challenge as to such jurors, and after others have been called to take the places of those challenged, and it has been determined that they stand indifferent in the case, shall at one time exercise his right of challenge of such others, and so on until he has exhausted his right of peremptory challenge or has ceased to challenge."
Rule 6 of the Rules of the Superior Court, Massachusetts Rules of Court, at 1693 (Thomson Reuters 2015). Rule 6 was amended on July 26, 2017, effective September 1, 2017, to provide for attorney-conducted voir dire. Commonwealth v. Dabney, 478 Mass. 839, 848-849, cert. denied, 139 S. Ct. 127 (2018). See G. L. c. 234A, § 67D; St. 2016, c. 36, § 4; St. 2014, c. 254, § 2. 35
& Wilkins, supra at 107 ("The Walker method is not mandated by
Superior Court Rule 6 . . .").
e. Break in trial due to judge's vacation. The defendant
argues that a one-week delay occasioned by the judge's vacation
created a substantial likelihood of a miscarriage of justice.
The delay, according to the defendant, "negatively impacted the
jurors," to his detriment. Because the defendant did not object
to the delay at trial, we review to determine whether any error
resulted in a substantial likelihood of a miscarriage of
justice. Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992),
S.C., 469 Mass. 447 (2014).
The judge began to empanel the jury on March 8, 2016, and
the jury returned its verdict on May 18, 2016. On the first day
of trial, the judge informed counsel of particular days that he
was not available, which included a pre-planned vacation during
the week of April 18-22, 2016. During jury selection, the judge
told the members of the venire that it was difficult to estimate
the length of the trial, but that the court would not be in
session during the week of April school vacation. At individual
voir dire, the judge asked each potential juror whether the
trial schedule posed a substantial hardship. All of the seated
jurors responded that it did not.
Having been informed of the schedule, the jurors certainly
were not surprised by the one-week delay that indeed took place 36
during the nearly three-month trial, and the defendant has not
shown that any of the jurors were upset with this break in the
lengthy proceedings. Moreover, trial counsel did not object to
the schedule or raise a concern about the possible negative
impact on the jury. The defendant's posttrial arguments to the
contrary are speculative at best.
f. Colloquy before defendant testified. In the only issue
on appeal that the defendant did not raise in his motion for a
new trial, the defendant contends that the judge should have,
but did not, sua sponte conduct a colloquy of the defendant
before he testified, to ensure that the defendant knowingly and
voluntarily had waived the privilege against self-incrimination
when he took the witness stand. The defendant argues that the
judge was aware of the defendant's history of mental illness,
the tensions between the defendant and trial counsel, and
difficulties with the interpreters. The defendant contends that
it was not clear that he voluntarily, knowingly, and
intelligently waived his right against self-incrimination.
"A criminal defendant must decide whether to testify, as is
the defendant's constitutional right, or not to testify, which
is also a constitutional right." Commonwealth v. Ramirez, 407
Mass. 553, 556 (1990). It is an important strategic decision
made with the advice of counsel. Commonwealth v. Waters, 399
Mass. 708, 716 (1987). "It must be intelligently and 37
voluntarily made, with sufficient awareness of the relevant
circumstances and likely consequences" (quotation and citation
omitted). Commonwealth v. Medina, 64 Mass. App. Ct. 708, 723
(2005).
The judge was not required to engage in a colloquy with the
defendant to determine whether he voluntarily, knowingly, and
intelligently waived his right not to testify. See Ramirez, 407
Mass. at 556 ("there is no requirement in this Commonwealth that
the trial judge engage in a colloquy with the defendant
personally about the defendant's participation in the decision
whether to testify"). See also Commonwealth v. Smith, 456 Mass.
476, 481 (2010) (whether to conduct colloquy on defendant's
decision not to testify is within judge's
discretion); Commonwealth v. Glacken, 451 Mass. 163, 170 (2008)
(trial judge need not determine whether defendant knowingly and
voluntarily waived right to testify).
g. Relief under G. L. c. 278, § 33E. We have carefully
reviewed the entire record, pursuant to G. L. c. 278, § 33E, and
discern no reason to order a new trial or to reduce the degree
of guilt. The defendant's convictions and the order denying his
motion for a new trial are affirmed.
So ordered.