Commonwealth v. Sammy Lozada

SUPREME JUDICIAL COURT

COMMONWEALTH vs. SAMMY LOZADA

Docket:

SJC-12985

Dates:

May 5, 2025 - July 17, 2025

Present:

Budd, C.J., Gaziano, Kafker, Wendlandt, Georges, Dewar, & Wolohojian, JJ.

County:

Hampden

Keywords:

Homicide. Practice, Criminal, Witness, Interpreter, New trial, Capital case. Interpreter. Evidence, Identification, Cross-examination. Witness, Cross-examination. Identification. Statute, Construction.

Indictments found and returned in the

Superior Court Department on July 5, 2017.

A motion for a new trial, filed on

December 7, 2021, was heard by Karen L. Goodwin, J.

Travis H. Lynch, Assistant District Attorney,

for the Commonwealth.

Michael J. Fellows for the defendant.

WENDLANDT, J. The defendant, Sammy Lozada, was convicted of

murder in the first degree for the stabbing death of Carlos Ramos

(victim). The stabbing occurred in the

Holyoke apartment of Maria Samot, who was the prosecution's key identification

witness at trial. Samot is deaf,

illiterate, and severely language deprived; she lacks the ability to

communicate in any recognized language, including American Sign Language

(ASL). Instead, Samot communicates using

a limited set of idiosyncratic gestures grounded in her Hispanic cultural

background. At trial, her testimony was

presented by a team of two certified deaf interpreters and two ASL interpreters.

No determination regarding the

appropriateness of these interpreters in view of Samot's severe communication

challenges was made as required by G. L. c. 221, § 92A

(§ 92A or statute). Specifically, the statute mandates that "no

testimony shall be admitted as evidence until" the trial judge determines

that an interpreter can communicate accurately with, and translate to and from,

a deaf witness. G. L. c. 221,

§ 92A, third par. This lapse proved

especially problematic during Samot's testimony on cross-examination when trial

counsel asked her questions that elicited dozens of nonresponsive answers

repeatedly stating that the defendant stabbed the victim.

Following his conviction, the defendant

filed a motion for a new trial, contending that "justice had not been

done" because of noncompliance with the statute. See Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001). The

motion judge, who was also the trial judge, held an evidentiary hearing at

which experts specializing in communications with severely language deprived

persons testified as to the extent of Samot's communications challenges and

opined that the team of interpreters provided to Samot at trial often were

unable to communicate with Samot or translate to and from her accurately. The judge, who herself had observed the

communication missteps during the trial, credited the experts' testimony and

found, inter alia, that the error in failing to make the determination required

under § 92A, third par., raised a substantial risk of a miscarriage of

justice. Accordingly, she allowed the

defendant's motion.

The Commonwealth appealed. Concluding that the judge did not abuse her

discretion in allowing the motion, we affirm.

1.

Background. a. Facts.

We summarize the facts as the jury could have found them, reserving

certain details for later discussion.

See Commonwealth v. Wiggins, 477 Mass. 732, 734 (2017).

In the early morning of April 28, 2017,

Jose Espada was walking on Maple Street in Holyoke when he encountered the

defendant and his associate, Madeline Garcia.

Espada, who was homeless, was on his way to a friend's vehicle to sleep;

he was carrying a brown-handled knife with a one-inch wide blade and his tablet

computer device. The defendant took the

tablet from him, saying, "Now this is mine." After a failed attempt to recover his

property, Espada went to a nearby corner store.

A few moments later, however, the defendant and Garcia found Espada and asked

him to unlock his tablet so that they could "hock" it for twenty

dollars. Espada acquiesced, in part

because the defendant offered to let him sleep at the defendant's home.

The defendant, Garcia, and Espada walked

to an apartment building on Maple Street.

The defendant and Garcia entered an apartment while Espada remained

outside the apartment door.

Approximately five minutes later, the defendant and Garcia emerged from

the apartment without the tablet. The

trio then proceeded to the defendant's home on High Street. Espada had planned to sleep on the

defendant's couch but decided against it, telling the defendant that he was

going to sleep in his friend's vehicle.

In response, the defendant announced his intent to get the tablet back

right then.

The cohort returned to the apartment

building on Maple Street and ascended the stairs to the apartment they had

visited previously. After knocking on

the door and receiving no answer, the defendant kicked the door open and asked

Garcia, "Baby, are you ready?"

The defendant and Garcia then entered the apartment, while Espada

remained outside on the porch. From

outside, Espada heard someone asking, "Sammy, what's going on?" Then he heard screaming. Espada peered inside; he saw the defendant

holding a black-handled knife and the victim leaning over the sink with blood

on the front of his shirt. He also saw

Samot in the room. The defendant

demanded to know where the tablet was.

In response, the victim asked "Sammy" not to stab him again

because, in his words, he was "already dying."

Espada saw the defendant leave the

apartment, tablet in hand. By then, the

victim had made his way to the porch; he grabbed onto Espada before falling on

the ground face first. Believing that

the victim was dead, Espada fled down Maple Street; in his flight path, he

tossed the brown-handled knife he had been carrying into bushes, where it was

subsequently recovered by police.

Responding Holyoke police officers found

the victim prone and bleeding. He was

taken to a hospital, where he was pronounced dead at 3:13 A.M. that same early

morning. On entering the Maple Street

apartment, police found Samot in a frantic state. She was taken to the police station, where

officers interviewed her with the assistance of two interpreters -- both of

whom would subsequently provide interpretation services for Samot during her

testimony at the defendant's trial.

During the police interview, Samot identified photographs of both the

defendant and Garcia from two different photographic arrays.[1]

Although police secured the crime scene, an

officer later located Marie Karbone hiding inside a closet in the

apartment. Karbone led police to a

trash chute on the third floor, where they found a bent, black-handled knife

with blood on its one-half inch wide blade.

Deoxyribonucleic acid (DNA) testing showed that the blood was consistent

with the victim's DNA; no forensic evidence tied the black-handled knife to the

defendant.[2] A medical examiner

testified to a reasonable degree of medical certainty that the fatal wound was

more consistent with the thinner blade of the black-handled knife than that of

the brown-handled knife discarded by Espada, which, the examiner noted, tested

negative for blood.

b.

Samot's trial testimony. At

trial, Samot was the prosecution's key identification witness. The crime occurred at her apartment, and she

testified that it occurred in her presence.

Samot's testimony, unlike that provided by Espada, the prosecution's

other identification witness,[3] was not given pursuant to a cooperation

agreement with the prosecution. Samot

testified at trial through the assistance of two certified deaf interpreters

and two ASL interpreters. As noted

supra, no one requested a determination under § 92A, third par., and the

trial judge did not make the required determination.

Because of Samot's linguistic limitations,

including that she was severely language deprived, deaf, and did not

communicate through ASL, the interpreters utilized various strategies to

attempt to communicate with and translate to and from Samot, including the use

of photographs, gestures, and miming certain actions, such as the thrusting of

a knife.[4] Through this interactive

process, Samot testified on direct examination that the defendant had pushed

open the apartment door, removed a black-handled knife from his pocket, and

stabbed the victim. She pointed

repeatedly at the defendant to indicate that he was the perpetrator.

Nevertheless, despite the use of some

props and the interpreters' efforts, Samot's answers to several of the prosecutor's

questions were nonresponsive. For

example, when the prosecutor asked Samot if the defendant's appearance had

changed since she had last seen him, Samot answered only, "That's

him." When asked why the victim had

been at her apartment, Samot did not explain the victim's presence in her

apartment and instead replied, "He was stabbed there." And when asked where the defendant went after

the stabbing, Samot did not indicate the direction of the defendant's flight

and instead answered, "He stabbed him." After a series of nonresponsive answers, the

trial judge noted the communication difficulties.[5]

The moments of disconnection that occurred

during Samot's direct examination paled in comparison to what transpired on

cross-examination by trial counsel, who, unlike the prosecutor, did not work

with Samot pretrial in order to develop props or other tools.[6] During cross-examination, after Samot

acknowledged that a woman -- Karbone –- had been found in her apartment two

hours after officers secured the crime scene, trial counsel asked Samot how she

had learned of Karbone's presence.

Rather than provide any information about Karbone, Samot stated, "I

saw him." While trial counsel

eventually was able to have Samot acknowledge that a woman had been found in

her apartment, he could not obtain further details regarding their relationship

despite several attempts at rephrasing the question.

Trial counsel encountered similar problems

when he asked Samot to identify who came through the front door of her

apartment and who was present in the kitchen during the stabbing. Out of seven questions regarding who was in

the kitchen, Samot gave six nonresponsive answers and, in three of those

answers, stated that the defendant stabbed the victim.[7] Despite his efforts, trial counsel did not

receive a responsive answer to his question as to who was in the kitchen.

Later, when Samot appeared to suggest that

the defendant was the sole intruder to come through the front door before the

stabbing,[8] trial counsel asked her about her prior statement to police

officers that three people -- two men, the defendant and Espada, and one woman,

Garcia -- had entered the apartment.

Samot's explanations were conflicting and inconsistent, but trial

counsel was not able to confront her with her prior inconsistent statements

because of the limits of the available interpretation. Similarly, trial counsel could not confront

the witness that her answers at trial regarding the color of the defendant's

hat and whether Garcia took money from the victim differed from the information

she had previously provided to police officers.[9]

At a sidebar conference toward the end of

cross-examination, the trial judge expressed serious doubt about Samot's

ability to understand complex questions.[10]

The interpreters, who were allowed to join the attorneys at the sidebar,

informed the trial judge that Samot had difficulty understanding

"abstract" concepts, like space and time: "[A]bstract is hard to turn into

concrete for [Samot]. So abstract

questions and statements, in [her] language, it's impossible. You have to be concrete." Despite that guidance, trial counsel was

unable to obtain responsive answers from Samot.

Following the sidebar, he tried once more to ask Samot about whether she

had told officers that Garcia had taken money from the victim. After that attempt failed to elicit a

responsive answer, trial counsel simply ended his cross-examination; he did not

move to strike any of the nonresponsive answers to his questions.

The jury found the defendant guilty of

murder in the first degree on the theories of deliberate premeditation, extreme

atrocity or cruelty, and felony-murder, G. L. c. 265, § 1; armed robbery, G. L.

c. 265, § 17; two counts of home invasion, G. L. c. 265, § 18C; and malicious

destruction of property, G. L. c. 266, § 127.

c.

Posttrial motion practice.[11] In

March 2023, the defendant filed an amended motion for a new trial together with

a motion for an evidentiary hearing, Mass. R. Crim. P. 30 (b), alleging, inter

alia, that the testimony provided by Samot was "inadmissible and highly

prejudicial" and "improperly allowed into evidence" without the

preliminary determination mandated by § 92A. In November 2023, the trial judge, pointing

to questions surrounding "the accuracy of the translation of the oath and

testimony of a key government witness," allowed the defendant's motion for

an evidentiary hearing.[12]

d.

Evidentiary hearing. The judge

conducted a four-day evidentiary hearing, during which the defendant offered

evidence from three expert witnesses, Drs. Judy Shepard-Kegl, Romy Spitz, and

Eileen Forrestal; Fatima Silvestre, one of the interpreters who had provided

translation services to Samot during her police interview and trial; and trial

counsel.

The experts, each of whom possessed a

background in linguistics and interpreting for language deprived individuals,[13]

testified that while Samot's testimony could have been interpreted accurately

with proper preparation and appropriate props, the methods used at trial were

insufficient to ensure accuracy.

Specifically, the experts testified that visual gestural communication

is the style of communication best suited to converse with, and translate on

behalf of, language deprived persons.

This method requires that the translator receive bits and pieces of

information through gestures unique to the subject and then "fill in the

gaps" through "inference and assuming context."[14] To do this, the interpreter must have some

facility with the subject's cultural background -- in order to understand

culturally based gestures -- and be able to "negotiate the meaning of

certain gestures" until he or she understands what the subject means by a

gesture in a given context.[15]

The experts also testified that while the

gestures used by a deaf and language deprived person may overlap with ASL, the

gestures are ultimately idiosyncratic to the subject, and one gesture may have

several different meanings depending on the context in which it is used. Additionally, persons who are both deaf and

severely language deprived, unlike persons who communicate through ASL, lack a

system of grammar. Thus, they are unable

to convey information using prepositional phrases (e.g., "who did what to

whom"), time, sequence of events, and cause and effect unless aided by

props or other tools. Shepard-Kegl

testified that, for this reason, Samot provided several of her nonresponsive

answers at trial; specifically, Samot would focus on "one or two little

pieces" of information from the larger question, such as the gesture for

"to stab," and give "what she can in terms of information."[16]

The experts testified that, based on their

review of the videotape of Samot's police interview following the stabbing, there

were numerous translation deficiencies that occurred. For example, Spitz testified that the

interpreters mistranslated Samot's gesture for "man" or

"boy," which was a common gesture grounded in her Hispanic culture,

to mean "hat" or "baseball hat." The experts agreed, however, that Samot had

identified the defendant as the person she "believe[d]" committed the

murder.[17]

The experts could not conduct a similar

analysis of Samot's trial testimony because the trial was not videotaped.[18] Nonetheless, based on their review of the

transcripts, the experts agreed that many of the same interpretation issues

that affected the accuracy of the police interview also were present at

trial. Spitz cited Samot's nonresponsive

answers as evidence that she did not understand several questions posed by

trial counsel on cross-examination.

Additionally, Shepard-Kegl flagged that two of the trial interpreters

had also provided their interpretation services at the police interview; in her

opinion, the dual role presented a conflict of interest that, at a minimum,

should have been disclosed to the parties because it could affect the accuracy

of the interpretation at trial.

In her testimony, Silvestre, who was one

of the two interpreters translating during Samot's police interview,

acknowledged the possibility that her trial interpretation could have been

influenced by her prior experience with Samot. However, when pressed by the

judge, Silvestre maintained she was "[ninety-nine percent] confident"

in the accuracy of the trial translation, adding that the team of four

translators, working together, "did the best [they] could do at that

time." The judge credited

Silvestre's testimony as to her belief in the fidelity of the translation but

found that Samot's nonresponsive answers ultimately "reflected

problems" with the interpretation and that Silvestre's "dual

role" raised at least the "possibility" of unconscious

influence.

For his part, trial counsel testified that

he had no strategic reason for not moving to strike Samot's nonresponsive

answers during cross-examination, which the judge credited.

e.

Allowance of amended motion and instant appeal. In July 2024, the judge allowed the

defendant's amended motion for a new trial, reasoning that the admission of

Samot's testimony was improper absent the determination required under

§ 92A, third par., and, in this case, the error created a substantial risk

of a miscarriage of justice. More

specifically, the judge concluded that in the course of making the statutorily

required determination, the challenges in conveying abstract concepts to Samot

would have been revealed; the need for counsel to supply props in order to

examine her effectively would have been learned; and the difficulties and

potential risks for miscommunication (e.g., addition, omission, confabulation,

etc.) that come with interpreting testimony from a language deprived person

would have surfaced. The judge further

stated that, while an "unlikely" outcome, it was possible that a

§ 92A hearing could have resulted in the total exclusion of Samot's

testimony. Finally, the judge concluded

that the defendant had also established that he is entitled to a new trial on

the grounds of ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89,

96 (1974). The Commonwealth

appealed.

2.

Discussion. A judge may

"grant a new trial at any time if it appears that justice may not have

been done." Mass. R. Crim. P.

30 (b). We review the judge's allowance

of the defendant's motion "for abuse of discretion or other error of

law." Commonwealth v. Gaines, 494

Mass. 525 , 536 (2024). An abuse of

discretion occurs when the judge makes a "clear error of judgment in

weighing the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives." Id., quoting Commonwealth v. Kolenovic, 471

Mass. 664, 672 (2015), S.C., 478 Mass. 189 (2017). A reviewing court extends "special

deference" to the decision of a motion judge who was also the trial judge,

Commonwealth v. Rosario, 460 Mass. 181, 195 (2011), quoting Commonwealth v.

Grace, 397 Mass. 303, 307 (1986), and that "judge's findings of fact after

an evidentiary hearing on a motion for a new trial will be accepted if

supported by the record," Rosario, supra, quoting Commonwealth v. Walker,

443 Mass. 213, 224 (2005).

The Commonwealth proffers three claims of

error relating to the judge's decision to allow the defendant's motion for a

new trial. We address each in turn.

a.

Enforceability of § 92A. The

Commonwealth first contends that § 92A, third par., provides no

enforceable right to the defendant, who himself is not deaf or hearing impaired,[19]

to challenge noncompliance with the requirements of the statute. In the Commonwealth's view, the rights

created by the statute are intended for -- and belong solely to -- the person

who is deaf or hearing impaired and thus needs the services of an interpreter

under § 92A.

To be sure, certain provisions of

§ 92A exclusively concern the rights of deaf and hearing-impaired

persons. See, e.g., G. L.

c. 221, § 92A, first par. (permitting deaf or hearing-impaired person

to waive statutory right to qualified interpreter), second par. (providing

that, inter alia, deaf or hearing-impaired arrestee is entitled to interpreter

during police interrogations), seventh par. (establishing privilege for

confidential communications between certified sign language interpreter and any

deaf or hearing-impaired person using services of said interpreter). See also Commonwealth v. Elliott, 87 Mass.

App. Ct. 520 , 530 n.7 (2015) (stating, in case involving hearing-impaired

defendant, "over-all objective" of § 92A is "to ensure that

deaf and hearing-impaired persons can understand and fully participate in the

legal proceedings in which they are involved" [citation omitted]).

The third paragraph of § 92A,

however, is not so limited.[20] It sets

forth an evidentiary rule that protects not only the deaf or hearing-impaired

witness, but also those, like the defendant in the present action, who have a

substantial interest in the outcome of the proceeding. For example, it requires that, prior to the

admission of testimony, the interpreter is situated to assure effective

communications "between all persons having a substantial interest in the

outcome of such proceedings," expressly acknowledging the interest of

others in proceedings where an interpreter is provided to a deaf or

hearing-impaired person. G. L.

c. 221, § 92A, third par.

Importantly to our present analysis,

§ 92A, third par., also precludes testimony until the person conducting

the proceeding, here the trial judge, "determines, on the basis of

testimony of the interpreter and the deaf or hearing-impaired person, that such

interpreter is able . . . to communicate accurately with and

translate information to and from such deaf or hearing-impaired

person." Id. Contrary to the Commonwealth's suggestion,

this provision is not tethered exclusively to, and does not benefit only, the

deaf or hearing-impaired person herself.

It broadly sets forth a prerequisite to the admission of testimony

through a § 92A interpreter.

Specifically, it provides that "no testimony shall be admitted as

evidence" until this and the other two prerequisites are met. See Hashimi v. Kalil, 388 Mass. 607, 609

(1983) (word "shall" ordinarily interpreted as having "a

mandatory or imperative obligation").

See, e.g., Commonwealth v. Steeves, 490 Mass. 270 , 280 (2022), quoting

United States v. Scheffer, 523 U.S. 303, 308 (1998) (State lawmakers "have

broad latitude under the Constitution to establish rules excluding evidence

from criminal trials"). Thus,

contrary to the Commonwealth's contention, the defendant falls squarely within

those the Legislature intended to benefit by virtue of the statute. In short, the defendant may challenge

evidence offered against him in his own criminal case on the ground that it was

erroneously admitted in violation of § 92A, third par.[21] See Mass. G. Evid. § 103(a) (2025)

(party may claim error in ruling to admit evidence if ruling, inter alia,

"injuriously affects a substantial right of the party"). See also G. L. c. 231, § 119

(same).

b.

Appointment of substitute interpreter.

Second, the Commonwealth maintains that where a judge determines under

§ 92A, third par., that an interpreter cannot render an accurate

translation, the remedy is the appointment of a replacement interpreter

pursuant to § 92A, fourth par. The

fourth paragraph of § 92A provides that

"[i]f, at

any time during the proceeding, it is determined that the interpreter is no

longer able to provide effective communication between the parties, the person

conducting such proceeding shall appoint another qualified interpreter or an

intermediary interpreter in accordance with the provisions of this

section."

The plain language of § 92A, fourth

par., provides no support for the Commonwealth's argument. In particular, the phrases "during the

proceeding" and "is no longer able to provide effective communication

between the parties," in § 92A, fourth par., presuppose that the

determination required under § 92A, third par., has been made. That latter provision, as discussed supra,

provides its own remedy: "no

testimony shall be admitted as evidence until" the threshold determination

has been made. See G. L.

c. 221, § 92A, third par. The

fourth paragraph thus, rather than providing a remedy where the threshold

determination has not been made, provides a remedy for a different situation,

namely, where the threshold determination required under § 92A, third

par., has been made and then it becomes apparent during the proceeding that the

original interpreter is no longer able to function effectively. In sum, the process of appointing a

substitute interpreter has no bearing on whether a required threshold

determination to establish the competency of an interpreter is a prerequisite

to the admission of a deaf person's testimony.

c.

New trial. Because trial counsel

did not object to the failure to make a threshold determination under

§ 92A, third par., the defendant was entitled to relief "only if the

defendant demonstrates a substantial risk of a miscarriage of justice, namely,

a serious doubt whether the result of the trial might have been different had

the error not been made" (quotations and citations omitted). Commonwealth v. Brescia, 471 Mass. 381, 389

(2015). See Commonwealth v. Bly, 444

Mass. 640, 648 (2005) ("assertions of unpreserved error offered as the

basis of a claim of ineffective assistance of counsel in a motion for a new

trial are evaluated in a case of murder in the first degree under a substantial

likelihood of a miscarriage of justice standard"). We discern no abuse of discretion in the

judge's conclusion that a substantial risk of a miscarriage of justice is

present here.

To begin, the judge concluded that the

failure to make a determination under § 92A, third par., as to the

adequacy of the interpreter team's ability to accurately communicate with and

interpret to and for Samot was error ("It is uncontroverted that the trial

court did not comply with this statute").

That provision, as discussed supra, required the judge to make that

determination as a prerequisite to the admission of any testimony from

Samot. See G. L. c. 221,

§ 92A, third par. No such

determination was made, and Samot testified through interpreters who may have

done their best but were nonetheless ill equipped to communicate with Samot and

to translate to and for her as a severely language deprived individual. This was error.

Next, the judge concluded that the failure

to make the determination prior to allowing Samot to testify prejudiced the

defendant. While the judge acknowledged

that it was "unlikely" that a determination under the statute would

have resulted in the exclusion of Samot's testimony altogether, the

Commonwealth's contention that the defendant was not prejudiced ignores the

prejudice, well articulated by the judge, stemming from how Samot's testimony

could have come in -- a procedure that necessarily would have involved, inter

alia, tools and props -‑ which would have been revealed during the

determination that was, in error, never made.

See Commonwealth v. Kelley, 404 Mass. 459, 463 (1989) (violation of

§ 92A, second par., entitled hearing-impaired defendant to remedy

"adequate to cure any prejudice" resulting from violation, including

dismissal where apt). The judge observed

that the determination under § 92A, third par.,

"would have

disclosed the challenges of communicating with and interpreting [for]

Samot. The assessment would have

identified difficulties in conveying abstract concepts to Samot, the need to

understand idiosyncrasies in [her] use of gestures, the need for props to be

supplied by counsel for the party examining Samot, and the risks of the

ambiguity and/or co-creation by the interpreters of Samot's testimony."

In other words,

the statutorily required determination would have revealed -- in accordance

with the credited testimony of the experts -- that Samot likely could give

testimony,[22] but only if the proper resources for translating for a severely

language deprived person were available to the interpreter, who was trained to

provide translation for a person with Samot's language challenges.

The judge, who, as the trial judge, was

well positioned to observe firsthand the consequences of the error in failing

to make the § 92A determination, see Rosario, 460 Mass. at 195 , found

Samot's nonresponsive answers "reflected problems" with the translation

that was provided.[23] Not only was

trial counsel unable to cross-examine Samot on salient details related to the

killing, but his attempts to do so were often met with nonresponsive statements

that the defendant was the killer.[24]

Relying on the experts' testimony at the

posttrial hearing, the judge found that the interpreters assigned to Samot

during the defendant's trial lacked the requisite skill set to translate

accurately to and for Samot. None was

proficient in visual gestural communication, the mode of communication best

suited to converse with and translate on behalf of a severely language deprived

person, like Samot.

In addition, the judge found that two of

the interpreters had already mistranslated several of Samot's culturally

specific gestures during her interview with police officers, errors that went

uncorrected and therefore likely were repeated at trial. The judge concluded that "[t]he

proceeding required by § 92A would have informed the entire course of

Samot's testimony." A § 92A,

third par., determination likely would have revealed that the assigned

interpreters could not "communicate accurately with," or

"translate information to and from," Samot. G. L. c. 221, § 92A, third

par. These findings are well supported

by the record.

The judge concluded that failure to

comport with the statute "materially influenced the verdict." Commonwealth v. McCoy, 456 Mass. 838, 850

(2010). Other than Espada, who testified

pursuant to a cooperation agreement, Samot was the sole witness at trial to

place the black-handled knife in the defendant's hand;[25] moreover, she alone

testified to seeing the stabbing. Samot

was a critical identification witness; without her testimony, the jury's focus

naturally may have shifted to Espada and Garcia, each of whom had the victim's

blood on their clothing.

Finally, the judge's conclusion that trial

counsel's failure to request a § 92A hearing or object to the admission of

Samot's testimony was not the product of a reasonable tactical decision is

unassailable. See McCoy, 456 Mass. at

850 . Trial counsel testified at the

posttrial hearing that there existed no "good reason" for failing to

move to strike Samot's nonresponsive answers; nor did it occur to him, either

before or during trial, to move to examine her competency.

3.

Conclusion. On the record before

us, we discern no abuse of discretion in the judge's allowance of the

defendant's amended motion for a new trial, and on that basis we affirm the

order.[26]

So ordered.

footnotes

[1] A video

recording of the interview was not introduced as an exhibit at trial but was

entered as an exhibit at the evidentiary hearing on the defendant's amended

motion for a new trial.

[2] At trial, the

prosecution relied on the testimony of Espada and Samot to tie the defendant to

the black-handled knife.

[3] Garcia had

pleaded guilty to armed robbery and was sentenced to a term in prison in

December 2019. She did not testify at

the defendant's trial.

[4] Partway through

Samot's testimony, the trial judge instructed the jury as to what parts of the

interpreters' exchanges with Samot constituted evidence -- e.g., "[w]hat

the interpreters say verbally was the answer of . . . Samot to the

question" posed -- and what parts did not constitute evidence -- e.g., the

gestures used by interpreters to "relate" questions to her.

[5] At a sidebar

conversation on how best to authenticate an exhibit, the trial judge remarked

that "[i]t's just so difficult to communicate with her."

[6] To

illustrate, the prosecutor came prepared with a floor plan of Samot's apartment

to aid her in answering where she was in the house when the stabbing

occurred. By contrast, trial counsel was

unable to ask his first question as styled -- "How long had you known [the

victim]?" -- because neither party had brought a visual aid, such as a

calendar, that might have enabled Samot to understand the question.

[7] The following

excerpt provides a representative sample of this exchange:

Q.:

"My question was, at the time that you went into the kitchen, who

was in the kitchen?"

A.:

"Him[, the defendant]."

. . .

Q.:

"And he was the only person in the kitchen?"

A.:

"I saw him. I saw him. He did it."

Q.: "My question again, who did you see in

the kitchen when you first came into the kitchen?"

A.: "I saw the door being pushed open and I

saw him stab [the victim]."

[8] Samot testified

as follows:

Q.: "And after [the defendant] came in, did

you see another man come in?"

A.: "It was [the defendant]. It was this guy."

Q.: "And he was the only one who came

through the door after the door was opened?"

A.: "It was one guy. It was him."

[9] Trial counsel

was able to elicit this information from a police officer whom he called in

rebuttal. The officer testified, inter

alia, that Samot had not told them that Garcia had taken money from the victim

and that she had said a second man had entered the apartment with the

defendant.

[10] The trial

judge specified that while she had no doubts that Samot was

"competent" to testify, she was troubled by the fact that

"complex questions are going by her":

"When she's asked about whether she talked to somebody at another

time and what she told the person at another time, she doesn't seem to be

getting that. . . . She

just keeps repeating, and she gives a nonresponsive answer."

[11] The defendant

timely filed a notice of appeal. In December 2021, he filed a motion for a new

trial before this court, which we remitted to the trial court.

[12] This court

stayed consideration of the defendant's direct appeal pending resolution of his

amended motion for a new trial.

[13] Dr. Judy

Shepard-Kegl has a doctorate in linguistics from the Massachusetts Institute of

Technology and advanced training in cognitive neuroscience and interpreting;

she has directed the interpreter training programs at the University of

Southern Maine for twenty-five years.

Dr. Romy Spitz has a doctorate in psychology and has completed

postdoctoral work in brain bases of language impairment; she has thirty years

of experience in assessing individuals with language deprivation. Dr. Eileen Forrestal, Ph.D., coordinated the

ASL and deaf studies program at Union College prior to her retirement. She has interpreted hundreds of times over

the past ten years for individuals who are deaf as well as language deprived,

including in court room settings.

[14] Put another

way, the interpretation that is eventually conveyed is a

"co-construction" by the interpreter based on information provided by

the "speaker"; it is not that of the speaker alone.

[15] Spitz

testified that, had she been asked to translate for Samot at trial, she would

have enlisted the services of someone from Samot's culture to watch for

idiomatic gestures:

"I would

have asked for someone from her culture to give feedback to the team about any

cultural signs or gestures that she has.

For example, her sign for good friend[;] [h]er gesture for that looks a

lot like the ASL sign for spouse. But

someone from that culture could have given that information to the interpreting

team."

[16] As an

example of this phenomenon, and to illustrate how Samot's grammar deficiency

would impede her ability to answer a multipart question, Shepard-Kegl

explained:

"[W]hen

someone asks a question like, . . . '[D]id you ever tell anyone that

the woman took the money after [the victim] was stabbed?' That . . . string[,] [a]ll [Samot]

would get out of that, at best, is 'woman' and 'money,' and she would come back

with whatever response she . . . was going to give, and . . . and

what she's coming back with is 'woman,' 'money.' The woman took the money. So[,] it's not telling me that she's

responding to the question . . . ."

[17] Shepard-Kegl

qualified her answer with the word "believe" because it was never

established at the police interview that Samot saw the stabbing.

[18] While, in

this case, the motion judge was the trial judge and thus was well positioned to

assess the effect of the failure to comply with § 92A, third par., in view

of the posttrial evidence presented by the defendant, we recognize that that

will not always be the case. A videotape

of testimony of a deaf or hearing-impaired party or witness would better

preserve the testimony for posttrial motions and appellate review.

[19] In this

opinion, we refer to the term "hearing impaired" given that it is the

term used in G. L. c. 221, § 92A.

[20] The third

paragraph of § 92A provides:

"In all

proceedings involving an interpreter under this section, no testimony shall be

admitted as evidence until:

"(1) the

interpreter is so situated as to assure effective communication between all

persons having a substantial interest in the outcome of such proceedings,

"(2) the

interpreter swears under oath, that he will provide a true and accurate

interpretation of the proceedings to the best of his skill and judgment, and

"(3) the

person conducting such proceedings determines, on the basis of testimony of the

interpreter and the deaf or hearing-impaired person, that such interpreter is

able in that particular proceeding, to communicate accurately with and

translate information to and from such deaf or hearing-impaired person

involved." (Emphases added.)

G. L.

c. 221, § 92A, third par.

[21] The

defendant notes that the absence of an accurate interpreter for Samot

implicated his constitutional right to confront witnesses against him, and thus

required a new trial. We need not reach

this argument because we agree with him that the judge did not abuse her

discretion in allowing his motion for a new trial on the basis of the statutory

violation. See Commonwealth v. Loretta,

386 Mass. 794, 797 (1982) ("If a case can be decided on nonconstitutional

grounds, the better course is to decide it by not reaching the constitutional

issue").

[22] On this

point, Shepard-Kegl agreed that there was "no question" that Samot is

cognitively competent and testified that Samot could "communicate with the

proper resources[ and] supports."

Spitz concurred that Samot was cogitatively and communicatively

competent and added that an expert "could have got the story of what

happened from [her]" because "[s]he is capable of communicating it

through . . . tools or strategies." Forrestal testified that, based on her

viewing of the videotape of the police interview, Samot demonstrated a

"basic form" of communication and understood the questions asked of

her "about half of the time."

[23] Contrary to

the Commonwealth's argument, the judge did not adopt Silvestre's

self-assessment that the translation was accurate despite Silvestre's statement

at the posttrial hearing that Silvestre was herself "[ninety-nine percent]

confident" in the translation. While

the judge found Silvestre to be a candid witness, her findings were ultimately

contrary to Silvestre's self-assessment.

[24] In fact, the

prosecutor highlighted Samot's nonresponsive answers in her closing argument,

stating: "[A]t no point did

. . . Samot falter or hesitate as she sat down in the witness stand,

looked across from the defendant and said, over and over, 'That's the man who

stabbed [the victim].'"

[25] While stains

located on the blade of the black-handled knife tested positive for the

victim's DNA, the defendant's DNA was not found on the object.

[26] Because we

affirm the grant of a new trial on evidentiary grounds, we need not reach the

judge's subsidiary finding that trial counsel's performance was

constitutionally ineffective. See

Loretta, 386 Mass. at 797 .