# Commonwealth v. Colon

> Massachusetts Supreme Judicial Court · May 3, 2019 · 482 Mass. 162

URL: https://www.frixlaw.com/law-library/cases/4394179

## Case

- **Full name:** COMMONWEALTH v. Jose COLON.
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** May 3, 2019
- **Citations:** 482 Mass. 162; 121 N.E.3d 1157
- **Precedential status:** Published
- **Opinion:** Opinion by Lenk
- **Judges:** Lenk
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC–12362

COMMONWEALTH vs. JOSE COLON.

Worcester. October 2, 2018. - May 3, 2019.

Present (Sitting at Worcester): Gants, C.J., Lenk, Gaziano,
Lowy, Budd, Cypher, & Kafker, JJ.

Homicide. Jury and Jurors. Interpreter. Due Process of Law,
Presence of defendant in courtroom, Fair trial. Search and
Seizure, Consent. Evidence, Hearsay, Chain of custody.
Practice, Criminal, Jury and jurors, Deliberation of jury,
Examination of jurors, Voir dire, Interpreter, Presence of
defendant, Public trial, Hearsay, Assistance of counsel,
Capital case.

Indictment found and returned in the Superior Court
Department on November 18, 2005.

A pretrial motion to suppress evidence was heard by C.
Jeffrey Kinder, J., and the case was tried before Richard T.
Tucker, J.

Elaine Pourinski for the defendant.
Ellyn H. Lazar, Assistant District Attorney, for the
Commonwealth.

LENK, J. In the summer of 2005, the victim was beaten and

stabbed to death near a set of railroad tracks in Dudley. In
2

2013, the defendant was convicted by a Superior Court jury of

murder in the first degree for his role in the killing. In this

direct appeal, the defendant maintains that a new trial is

required because the judge did not declare a mistrial after

members of the jury were exposed to an extraneous influence, and

that the judge committed reversible error by partially excluding

the defendant from the subsequent voir dire of the deliberating

jury. In addition, the defendant argues that the judge should

have allowed his request for individual voir dire on questions

of ethnic bias, and abused his discretion in certain evidentiary

rulings. The defendant also asks us to exercise our

extraordinary power under G. L. c. 278, § 33E, to order a new

trial or to reduce the degree of guilt.

We affirm the conviction and decline to exercise our

extraordinary powers to grant relief under G. L. c. 278, § 33E.

1. Facts. We summarize the facts that the jury could have

found, reserving additional details for discussion of specific

issues. See Commonwealth v. Clemente, 452 Mass. 295, 299

(2008).

Late on the evening of July 22, 2005, the victim and Jayser

Cruz were socializing at the victim's family home; the victim

and Cruz were family friends. At some point during the evening,

the victim's sister heard Cruz express an interest in a knife

that was lying on a table. The victim and Cruz then left the
3

house together. According to the victim's sister, Cruz took the

knife when they left.

Later that evening, the defendant was with Cruz and the

victim at a convenience store. They ran into two women, the

defendant's cousin, Maria Colon, 1 and one of her friends.
0F Cruz

and the victim were drunk. The victim suggested that they all

smoke marijuana, and the group walked to the nearby railroad

tracks to do so. Maria heard Cruz tell the defendant that Cruz

recently had bought a new knife.

After approximately fifteen minutes, Maria and her friend

left to go home. As they were walking away, Maria heard what

sounded like "skin ripping." When she looked back, she saw the

defendant throwing rocks at the victim; she described the rocks

as thin and estimated them to be approximately one inch in

width. Her friend saw the defendant throw four to six rocks,

which hit the victim in the back. The victim fell to the

ground, where he kept asking the defendant to "stop." Cruz was

laughing. When the defendant requested a knife, Cruz handed him

a backpack. Maria asked the defendant to stop; he told her to

leave, or "it would happen to [her] as well." At that point,

Maria and her friend left the area. When they last saw him, the

victim was on the ground in a fetal position.

1 Because they share a last name, we refer to the
defendant's cousin, Maria Colon, by her first name.
4

The next morning, when the defendant came to Maria's house,

she saw "little dots" and "splatter-marks" on his left leg.

That afternoon, she saw the defendant at a laundromat. When the

defendant left the laundromat, the "little dots" on his pants

were stained yellow, as though he had tried to wash them.

That evening, the defendant's girlfriend and her friend

picked up the defendant and they all drove around. The

defendant told his girlfriend that he had killed the victim, and

he pointed toward something in the distance that "looked like

feet." He said that he had killed the victim "for us," and he

warned her not to tell anyone or he would harm her siblings.

Later that evening, the defendant telephoned Maria and told

her that he had killed the victim. The defendant explained that

he had left the railroad tracks and was walking home, but then

he returned to the railroad tracks, where he saw the victim

getting up. The defendant picked up a large rock and hit the

victim in the head with it several times.

The same day, the victim's body was discovered near the

railroad tracks. When a chemist from the State police crime

laboratory arrived at the scene, he saw the victim lying on his

back; his heavily-bruised face and clothing were covered with

"red-brown staining." A large rock, weighing roughly fourteen

pounds, with red-brown stains, was next to the victim. The

stain later was determined to be the victim's blood. The
5

medical examiner concluded that the cause of death was a

combination of blunt force trauma to the head and two stab

wounds to the body. Deoxyribonucleic acid (DNA) testing

indicated that the blood found on a pair of jeans recovered from

the defendant's house was the victim's.

2. Prior proceedings. In November, 2005, a grand jury

returned indictments, charging the defendant, among other

things, with murder in the first degree. Thereafter, the

defendant moved to suppress his statements to police and the

items seized during the two searches of his house. Following an

evidentiary hearing, a Superior Court judge, who was not the

trial judge, allowed the motions to suppress in part and denied

them in part. The judge found that the defendant's statements

were obtained in violation of Miranda v. Arizona, 384 U.S. 436,

479 (1966), because the Spanish interpretation of the Miranda

warnings provided to the defendant were inadequate to apprise him

of his rights. The judge denied the motion to suppress the

evidence seized from the victim's house, after the judge

determined that the defendant's consent to the first search had

been validly obtained, and that police had had probable cause to

obtain a warrant for the second search.

In March, 2013, the defendant was tried before a Superior

Court jury. The jury convicted him of murder in the first
6

degree on theories of deliberate premeditation and extreme

cruelty or atrocity. The defendant timely appealed.

3. Discussion. The defendant maintains that a new trial

is required because the judge did not declare a mistrial when

several deliberating jurors expressed concerns about their

safety, and that the judge erred by partially excluding the

defendant from the subsequent voir dire of the deliberating

jury. The defendant argues also that he was denied a fair trial

because the judge did not conduct individual voir dire of the

members of the venire with respect to questions of ethnic bias

that defense counsel had requested be posed. The defendant

further asserts error in the denial of his motion to suppress

physical evidence, as well as in the admission of out-of-court

statements, and he contends that his attorney was ineffective in

failing to make certain arguments at the hearing on the motion

to suppress. In addition, the defendant asks us to exercise our

extraordinary power under G. L. c. 278, § 33E, to order a new

trial or to reduce the degree of guilt.

a. Dismissal of jurors during deliberations. The

defendant argues that he was denied the right to a fair and

impartial jury when, after substantial evidence of bias was

brought to the judge's attention during deliberations, the judge

did not excuse the entire jury. Specifically, while the jury

were deliberating, the juror in seat number 15 (juror no. 15)
7

notified a court officer that she was afraid of the

repercussions of the potential verdict in the case. She feared

that if the jury were to find the defendant guilty, there could

be possible retribution by gangs; if they were to find him not

guilty, someone else would be stabbed. Juror no. 15 was

fearful, in part, because the defendant had heard her name. The

other jurors "were all there" during juror no. 15's conversation

with the court officer; juror no. 15 reported that other jurors

also previously expressed similar fears. The judge found that

juror no. 15 could not remain impartial and excused her.

Because juror no. 15 reported that others had expressed

similar "gang-related" fears, the judge conducted an individual

voir dire of each of the remaining members of the jury. 2 1F The

juror in seat number 1 (juror no. 1) also was excused, after

stating that he had been "watching to see if anyone is following

me when I leave here." The foreperson, who was in seat number 3

(juror no. 3), reported that she had heard other jurors express

fears about the proximity of the crime to "the location [in

which] they lived" and "gang relation." Juror no. 3 also said

she had been "concerned," the day before deliberations began,

that people the defendant might know would "go after us." On

2 Of the eleven remaining deliberating jurors, all but one
had heard juror no. 15 express her concerns. The four alternate
jurors, however, had not been present to hear her do so.
8

the first day of deliberations, however, juror no. 3 reported

that she was no longer concerned. The judge found that

juror no. 3 "indicated very clearly that she didn't have any

concerns now." Over the defendant's objection, juror no. 3 was

not excused. The judge told juror no. 3 not to discuss the

substance of the voir dire with anyone else.

Juror nos. 1 and 15 were replaced with alternates, and the

jury were instructed to begin deliberations anew. The defendant

objected that the jury were not struck entirely; he argued that

the "fear running through the deliberations" prevented the jury

from remaining impartial. The motion was denied. Approximately

one hour later, the jurors returned a verdict finding the

defendant guilty.

On appeal, the defendant contends that the extraneous

influences on the jury resulted in actual bias when the

suggestion of gang activity was introduced during the process of

deliberation, where no evidence of gang activity had been

presented at trial. The defendant argues that, as a result, he

was denied the right to a fair and impartial jury when the judge

declined to dismiss the entire jury.

i. Extraneous influence. "Article 12 of the Massachusetts

Declaration of Rights and the Sixth Amendment to the United

States Constitution guarantee a criminal defendant the right to

a trial before an impartial jury." Commonwealth v. Philbrook,
9

475 Mass. 20, 30 (2016). "The presence of even one partial

juror violates this right." Commonwealth v. Guisti, 434 Mass.

245, 251 (2001), S.C., 449 Mass. 1018 (2007). "Prohibiting

premature jury deliberations, and extraneous influences on

jurors" is one of the ways in which to safeguard a defendant's

right to trial before an impartial jury. Philbrook, supra.

Accordingly, extraneous influences on jurors present a

"serious question of possible prejudice" (citation omitted).

Guisti, 434 Mass. at 251. See Philbrook, 475 Mass. at 30. "An

extraneous matter is one that involves information not part of

the evidence at trial and raises a serious question of possible

prejudice" (quotations and citation omitted). Guisti, supra.

See, e.g., Commonwealth v. Cuffie, 414 Mass. 632, 635 (1993)

(juror made unauthorized visit to crime scene); Commonwealth v.

Fidler, 377 Mass. 192, 194 (1979) (during deliberations, juror

stated information not presented at trial). A defendant bears

the burden of demonstrating an extraneous influence by a

preponderance of the evidence. See Commonwealth v. Kincaid, 444

Mass. 381, 386-387 (2005), discussing Fidler, 377 Mass. at 201.

In this case, the defendant was Hispanic and had "tattoos

on [his] hands"; the victim was Caucasian. The case, as it was

presented to the jury, did not involve allegations of gang

involvement, and the record does not indicate that any evidence

of gang affiliation was introduced at trial. The Commonwealth's
10

theory was that the defendant killed the victim in order to be

with the defendant's girlfriend. Numerous jurors subsequently

recalled juror no. 15's comments. The conversation regarding

gang involvement included discussion of the location of the

crime and the "tattoos on the [defendant's] hands."

Until jurors began discussing gang-related concerns, juror

no. 3, for example, had not considered the defendant's tattoos

to be meaningful; "I never noticed that. I didn't even think --

it never came into my . . . ." The introduction of the concept

of gang affiliation by juror no. 15, therefore, constituted

"information not part of the evidence at trial," and, as

evidenced by the fear it caused some jurors, "raises a serious

question of possible prejudice" (citation omitted). Guisti, 434

Mass. at 251.

Nonetheless, not all extraneous jury discussion compromises

a defendant's right to a fair trial, and the presence of an

extraneous influence does not necessarily require a mistrial.

See Philbrook, 475 Mass. at 31. See also Commonwealth v.

Amirault, 404 Mass. 221, 232 (1989). If a trial judge learns of

such an influence, the judge must determine whether the jurors

remain impartial and, if not, what remedy is required. See

Philbrook, supra.

ii. Impartiality of remaining jurors. A trial judge has

"discretion in addressing issues of extraneous influence on
11

jurors discovered during trial." Commonwealth v. Trapp, 423

Mass. 356, 362, cert. denied, 519 U.S. 1045 (1996). Because the

"determination of a juror's impartiality is essentially one of

credibility, and therefore largely one of demeanor, [a

reviewing] court give[s] a trial judge's determination of

impartiality great deference" (quotations omitted). Philbrook,

475 Mass. at 30, quoting Commonwealth v. Alicea, 464 Mass. 837,

849 (2013). A reviewing court "will not disturb a judge's

findings of impartiality," or a judge's finding that a juror is

unbiased, "absent a clear showing of an abuse of discretion or

that the finding was clearly erroneous." See Commonwealth v.

Sleeper, 435 Mass. 581, 587 (2002); Commonwealth v. McCowen, 458

Mass. 461, 493-494 (2010).

Where a judge conducts individual voir dire of each juror,

excuses all influenced jurors, and determines that the remaining

jurors are impartial, a defendant's right to an impartial jury

has not been violated. See Philbrook, 475 Mass. at 31

(remaining jurors impartial after juror excused for deciding

case prematurely); Commonwealth v. Maldonado, 429 Mass. 502,

506–507 (1999) (remaining jurors impartial after juror excused

for fear of gang retribution); Commonwealth v. Kamara, 422 Mass.

614, 616–618 & n.1 (1996) (remaining jurors impartial after

juror excused for telling other jurors defendant was member of

gang). See also Commonwealth v. Stanley, 363 Mass. 102, 104-105
12

(1973) (jurors impartial despite reading newspaper in

deliberation room).

In Kamara, 422 Mass. at 616, one juror told the others that

she knew the defendant, that the defendant was a member of a

gang, and that she feared for her safety. The trial judge

excused the juror and questioned each remaining juror. Id. at

617. The judge found that, although they had heard the

extraneous information, the remaining jurors were able to be

fair and impartial. Id. at 617-618. We concluded that such a

determination was not an abuse of discretion. Id. at 620.

Here, juror no. 15 did not claim to know the defendant, or

to know that he was a member of a gang. When she expressed fear

of the defendant, the judge appropriately dismissed her,

conducted an extensive voir dire of the remaining jurors, and

dismissed an additional juror out of an "abundance of caution."

Both counsel agreed to the dismissals of juror nos. 15 and 1.

The other jurors stated individually that they had no similar

concerns. The judge appropriately instructed the jury that they

were to disregard "any personal likes or dislikes, opinions,

[or] prejudices," and were not to base their verdict on

"speculation, surmise[,] or conjecture." 3 2F

Although these instructions were administered prior to
3

deliberations, before juror nos. 1 and 15 were dismissed, there
is nothing to suggest that the remaining jurors did not continue
to heed them. See Commonwealth v. Stanley, 363 Mass. 102, 105
13

Having found that the remaining jurors were unafraid and

could remain impartial, the judge was not obligated to dismiss

them, and there was no abuse of discretion in his decision not

to dismiss the entire jury. "We are not prepared to substitute

our judgment for that of the trial judge who heard the evidence,

carefully interviewed the jurors individually, and made a

finding that each juror could do his or her job unaffected by

whatever extraneous information had been injected into the jury

room." Kamara, 422 Mass. at 620.

b. Lack of translators. The defendant's native language

was Spanish. Throughout the trial, the defendant made use of

two Spanish interpreters, who spoke to him through a headset.

During the voir dire concerning the extraneous influence created

by juror no. 15, the defendant was not provided with a

translator. The defendant argues that he thereby was denied the

right to a public trial. 43F

(1973) (court assumes instructions were followed). See also
Commonwealth v. Maldonado, 429 Mass. 502, 506–507 813 (1999) (no
error where judge dismissed one juror, questioned remaining
jurors, and administered instructions regarding duty of
impartiality). It would also have been prudent to instruct the
newly constituted jury that the reasons for the juror's
discharge had been personal and not related to the case. See
Commonwealth v. Connor, 392 Mass. 838, 846 (1984) (jury should
be instructed that reason for discharge is entirely personal).
See also Commonwealth v. Dosanjos, 52 Mass. App. Ct. 531, 536
(2001).

4 In his brief, the defendant refers to this issue as the
right to a "public trial"; at oral argument, the defendant
14

After juror no. 15 had been dismissed, and before any of

the other deliberating jurors had been interviewed by the judge,

defense counsel requested that the defendant be present during

the voir dire of the remaining jurors. The judge, however, was

concerned that the jurors would not speak candidly about their

fear of the defendant if they knew he was listening. Prior to

the individual voir dire of the deliberating jurors, the

following exchange occurred:

Defense counsel: "I think my client . . . [w]ell, I think
he needs to be here."

The judge: "During the voir dire?"

Defense counsel: "You don't want him here during . . .?"

The judge: "Yes; he can be here during the voir dire. I
don't know that I want him to hear what's said, though."

Defense counsel: "No -- I have no problem with the court's
direction that if anybody is excused, it's for personal
reasons."

The judge: "I do not . . . want him to learn that one
juror has left because she's fearful of him, because even
if it's just a stare or something like that --"

Defense counsel: "I don't think he's exhibited any
behavior. He's basically just been sitting there looking

claimed "a substantial right of the defendant to be present at
crucial proceedings." We understand the defendant to be
arguing, if obliquely, that the lack of translators implicated
the right to be present at trial under art. 12 of the
Massachusetts Declaration of Rights. The two rights are
distinct, and we analyze them separately. See Commonwealth v.
Dyer, 460 Mass. 728, 734-738 (2011), cert. denied, 566 U.S. 1026
(2012). We determine that, although the right to a public trial
was not implicated here, the right to be present at trial was.
15

straight ahead . . . . It's a delicate balance, because I
have to protect his rights, also."

The judge: "What would you suggest?"

Defense counsel: "Well, if he's at the sidebar, does he
hear?"

The judge: "No; if he's sitting there with the headphones
on, he'll get a translation of what is said."

Defense counsel: "Yes; but isn't he entitled to know? I
mean, he has rights also as a defendant, to know if we're
dealing with the jury who is going to decide his fate.
We've got competing interests here."

. . .

The judge: "The concern I have is that first of all, it
may be fearful to the jurors to speak candidly if it's
being interpreted to him."

Defense counsel: "That's a consideration -- I understand."

The judge: "So, I think this has to be done outside of his
hearing, and you can explain that some people -- whatever
you explain -- had some concerns. Whatever you think
you're duty-bound to tell him. I don't think you're duty-
bound to tell him that people are fearful of him."

Defense counsel: "Oh, I agree with the court. I'm not
duty-bound to tell him that; but my question is, any time
anything of substance happens in a courtroom with a
defendant, they have a right to be here. Now, I don't know
how we get around that."

The judge: "I understand . . . . I'm going to order that
he can't hear it. If you wish thereafter whatever you
think you're duty-bound to reveal, you should do that."

Defense counsel: "So, your order is that we'll do the voir
dire outside of the presence of the defendant?"

The judge: "No; he can be present, but not present with
ears."
16

The judge effectuated the defendant's presence "without

ears" by prohibiting interpreters at sidebar during the

individual voir dire, such that the defendant could "watch" but

would not understand what was being said. Defense counsel then

could relay pertinent information to the defendant at a later

point. Defense counsel agreed that, if a juror were excused,

counsel would tell the defendant only that it was for "personal

reasons," without explaining that any of the jurors had

expressed fears of him. Neither defense counsel nor the

defendant objected to this procedure, and voir dire commenced

without translation.

i. Right to a public trial. The defendant argues for the

first time on appeal that his right to a public trial, under the

First and Sixth Amendments to the United States Constitution,

was violated during the voir dire of the deliberating jurors.

Even if this argument were not waived, it is unavailing.

That individual voir dire took place at sidebar was not

itself error; "the voir dire examination process itself took

place, as it should have, in open court." See Commonwealth v.

Cohen, 456 Mass. 94, 117 (2010). See also Wilder v. United

States, 806 F.3d 653, 660 (1st Cir. 2015), cert. denied, 136 S.

Ct. 2031 (2016) (conducting voir dire at sidebar in open court

still enables members of public to "observe the individual

questioning of jurors from their seats and attempt to discern
17

facial expressions or body language"). "Conducting voir dire

examinations in open court [also] permits members of the public

to observe the judge, as well as the jurors." Cohen, 456 Mass.

at 117. Although the public cannot hear what is being said, the

ability to observe the process "furthers the values that the

public trial right is designed to protect" (citation omitted).

See id.

ii. Right to be present at trial. Whether the defendant

can hear what is being said, however, implicates a different

right: the right to be present at trial. "When a judge

conducts an inquiry about a consequential matter, such as an

allegation of serious misconduct of a juror or a suggestion of

juror bias, the defendant is entitled, based on confrontation

and fair trial rights, to be present." Commonwealth v. Dyer,

460 Mass. 728, 738 (2011), cert. denied, 566 U.S. 1026 (2012).

See Commonwealth v. Angiulo, 415 Mass. 502, 530 & n.26 (1993)

(reversal required under art. 12 of Massachusetts Declaration of

Rights where names of jurors were withheld and defendant and

defense counsel were barred from voir dire regarding jurors'

fear of defendant); Commonwealth v. Robichaud, 358 Mass. 300,

301–303 (1970) (reversal required under art. 12 where defendant

was excluded from hearing on juror misconduct).

"While the trial judge may perform minor administrative

formalities outside the presence of the defendant, . . . the
18

judge may not bar the defendant from a voir dire during which

jurors' impartiality may be discussed" (citation omitted).

Angiulo, 415 Mass. at 530. See, e.g., Commonwealth v. Dosanjos,

52 Mass. App. Ct. 531, 535 (2001) ("serious error" for judge to

exclude defendant from individual questioning of deliberating

jurors); Commonwealth v. Caldwell, 45 Mass. App. Ct. 42, 45

(1998) (error where deliberating juror was dismissed during

colloquy held outside defendant's presence).

Counsel's presence at sidebar and intention to relay

information to a defendant does not substitute for the

defendant's presence. See Robichaud, 358 Mass. at 301, 303

(counsel's presence insufficient in defendant's absence);

Dosanjos, 52 Mass. App. Ct. at 535 (error despite counsel's

presence); Caldwell, 45 Mass. App. Ct. at 45 (error

notwithstanding counsel's presence). This is especially so

where, as here, counsel agrees to restrict the information that

he would share with the defendant. Indeed, this does not appear

to be a case in which a defendant was "fully informed of

everything that occurred" in his absence. Contrast Commonwealth

v. Martino, 412 Mass. 267, 286-287 (1992) (no reversible error

where, after voir dire, defendant was fully informed of reason

for juror's discharge and agreed to her dismissal). Rather, the

judge cautioned defense counsel not to explain the very thing

the jurors were discussing -- "that people are fearful of him" -
19

- and requested that the defendant learn nothing more than that

several jurors had been dismissed for "personal reasons."

Where, without any action on his part, jurors fear a

defendant, he does not forfeit his right to be present. See

Angiulo, 415 Mass. at 520, 522 (right to be present at voir dire

where jurors felt "intimidated" by defendant, believed he was

writing down information about them, and saw him giving them

"[the] whammy" or "[the] evil eye"). Contrast Commonwealth v.

Senati, 3 Mass. App. Ct. 304, 307 (1975) (defendant forfeited

right to be present by refusing to obey court order to refrain

from leaving dock and shouting during trial). Nor may a judge

seat a defendant far enough away that the defendant is unable to

hear the proceedings, or conduct questioning, without

interpretation, in a language the defendant does not understand. 5 4F

In denying the defendant's request, it appears that the

judge applied an analysis more appropriate to the consideration

of the right to a public trial. The judge stated that it would

be sufficient for the defendant to "watch" without hearing,

"[j]ust like we've said the open courtroom is satisfied if

5 Of course, a defendant may waive the right to be present
at sidebar. See Dyer, 460 Mass. at 738. "More particularly, if
the defendant makes no request to be present, the judge takes no
steps to exclude him, and counsel never objects to his absence,
the issue is waived and this court will not address it on
appeal." Id. There is no evidence on this record, however,
that the defendant made such a waiver. See Commonwealth v.
Caldwell, 45 Mass. App. Ct. 42, 46 (1998).
20

people can watch what's happening. They don't have to sit at

sidebar." While it is true that the right to a public trial is

satisfied without the public being present at sidebar, the same

is not true for the defendant's right to be present at trial.

The right to a public trial is premised on certain

considerations, including the public perception of fairness in

the courts; it is satisfied without hearing conversations at

sidebar. See Gannett Co. v. De Pasquale, 443 U.S. 368, 380

(1979). A defendant's right to be present at his or her own

trial, by contrast, implicates additional concerns. It provides

the accused with information necessary to adjust the trial

strategy, guarantees that a defendant always has the opportunity

to object, and, in the event of conviction, ensures that the

defendant is able fully to assist in an appeal, because the

defendant understood the prior proceedings. For a defendant, as

distinct from the public, the proceedings must not only be seen,

but also heard. 6
5F

6 This analysis applies whether a defendant is partially
excluded due to an inability to understand English, or in any
other manner. We are particularly troubled, however, that the
defendant's inability to understand English was used to exclude
him from hearing the proceedings. "A non-English speaker,
throughout a legal proceeding, shall have a right to the
assistance of a qualified interpreter." G. L. c. 221C, § 2. It
is a judge's duty to aid, not hamper, a criminal defendant in
understanding what is occurring at the defendant's own trial.
21

iii. Prejudice. Although the defendant's exclusion in

this case was error, we must consider whether he thereby was

prejudiced. "The absence of the defendant from [the voir dire

of deliberating jurors] does not automatically constitute

reversible error" (citation omitted). Sleeper, 435 Mass. at

588-589. Although defense counsel initially requested the

defendant's presence at voir dire, counsel ultimately did not

object to the judge's decision not to allow that request.

Therefore, we review for a substantial likelihood of a

miscarriage of justice. See Dyer, 460 Mass. at 741.

Had the defendant been present during voir dire, little

would have changed. Of the twelve jurors questioned, two were

dismissed after expressing fear related to the defendant.

Defense counsel then moved to dismiss all of the remaining

jurors. The judge denied that request, over counsel's

objection. Because his attorney already had moved to dismiss

each juror, there was nothing more that the defendant could have

requested in terms of relief. Nor was the defendant in a

position to make strategic decisions about cross-examination or

introduction of evidence, informed by the content of the jurors'

answers; the trial had concluded, deliberations had begun, and

no additional evidence could have been presented.

"It is frequently to the defendant's advantage to

communicate orally with his counsel . . . since he may have
22

information which may aid his counsel in examining

[individuals]." Robichaud, 358 Mass. at 303. At most, if he

had been present, the defendant could have suggested additional

questions for counsel to ask the jurors. Yet, here, where the

judge conducted an extensive voir dire of the deliberating

jurors, the mere possibility that additional questions could

have been asked is not sufficient to require a new trial. "The

defendant's presence at the hearing would not likely have

yielded anything or altered its outcome." Sleeper, 435 Mass. at

589 (harmless error where judge properly excused biased juror

outside defendant's presence). See Dosanjos, 52 Mass. App. Ct.

at 536 (harmless error to conduct voir dire in defendant's

absence where defendant "offers no suggestion as to how he was

prejudiced by the procedure" [citation omitted]). See also

Commonwealth v. Hicks, 22 Mass. App. Ct. 139, 147 (1986). We

are unable to conclude that the defendant's partial exclusion

resulted in a substantial likelihood of a miscarriage of

justice.

c. Individual voir dire of the venire on racial or ethnic

bias. The defendant argues that the judge's decision not to

conduct individual voir dire of prospective jurors' ethnic bias,

in the form of five questions that defense counsel had requested

be posed to each member of the venire individually, deprived him

of his right to a fair and impartial jury, and requires a new
23

trial. 7 6F Stating that the twenty-two question case-specific jury

questionnaire 8 was sufficient to accomplish the goal of obtaining
7F

information on potential bias, the judge denied the request. 9 8F

7 It is not clear whether the defendant raised this claim on
constitutional or statutory grounds. At least with regard to
similar questions proposed for the written questionnaire, the
defendant argued that the questioning was necessary to protect
his rights under "the Sixth and Fourteenth Amendments to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights."

8 Voir dire of prospective jurors took place in four stages.
First, each potential juror was given the "standard jury
questionnaire." Second, the judge orally posed questions to the
venire as a group. Third, each potential juror was given a
twenty-two question written questionnaire, prepared specifically
for this case. Fourth, each potential juror -- regardless of
whether the juror had answered any questions affirmatively --
came to the sidebar for additional questioning.

9 One of the questions on the case-specific, twenty-two
question juror questionnaire was the first of the five questions
that defense counsel had requested be posed orally, specifically
inquiring about the potential juror's beliefs as to a Hispanic
defendant. See note 11, infra.

The other four questions on potential bias toward a
Hispanic defendant that were requested to be asked at voir dire
were:

"2. Do you believe that Hispanics are more likely to
commit crimes than whites?

"3. Would you believe the testimony of a white person over
that of a Hispanic person simply because of skin color?

"4. Would you give extra weight to the testimony of a
white person claiming that a Hispanic person committed a
crime?

"5. Are you conscious of any feelings of racial bias or
prejudice, which might tend to influence your judgement in
this case, even in the slightest degree?"
24

The defendant is correct that, "in cases of interracial

murder, a judge, if requested to do so, is required to conduct

an individual voir dire on the issue of potential bias."

Commonwealth v. Hunter, 427 Mass. 651, 654 (1998). See

Commonwealth v. Young, 401 Mass. 390, 398 (1987), overruled on

another ground, Commonwealth v. Ramirez, 407 Mass. 553 (1990)

(establishing rule because of "reasonable possibility" that

racial prejudice could affect jury's verdict in murder cases

where defendant and victim are of different races). We

similarly have required individual voir dire in cases of

interracial rape, Commonwealth v. Sanders, 383 Mass. 637, 640-

641 (1981), and interracial sexual offenses against children,

Commonwealth v. Hobbs, 385 Mass. 863, 873 (1982). A written

questionnaire does not suffice to fulfill this requirement. See

Young, supra at 397-398, citing Rosales-Lopez v. United States,

451 U.S. 182, 190 (1981) and Sanders, supra. "As a matter of

law we held that in such cases a substantial risk exists that

the extraneous issue of race will affect the impartiality of the

jury." Commonwealth v. Otsuki, 411 Mass. 218, 227 (1991).

As has the United States Supreme Court with the Federal

cognate, we established this rule "as a matter of our

supervisory power," based on the requirements of G. L. c. 234,

§ 28, the predecessor to G. L. c. 234A, § 67A, and not as a

result of any constitutional mandate. See Young, 401 Mass. at
25

398. As part of our duty to oversee the courts of the

Commonwealth, we adopted "the essence of the rule, stated by the

plurality, in Rosales-Lopez, [451 U.S. at 190], 'that questions

directed to the discovery of racial prejudice be asked in

certain circumstances in which such an inquiry is not

constitutionally mandated.'" Id., quoting Rosales-Lopez, supra.

Until today, we explicitly "have declined . . . to extend

this rule to cases where the defendant and the victim are of

different ethnic backgrounds." Hunter, 427 Mass. at 654, citing

Commonwealth v. De La Cruz, 405 Mass. 269, 272 (1989). See

Hunter, supra (no individual voir dire for Caucasian defendant

and Filipino victim). See also Commonwealth v. Pina, 430 Mass.

66, 72-73 (1999) (no individual voir dire for Cape Verdean

defendant and Portuguese victim); De La Cruz, 405 Mass. at 272,

274 (no individual voir dire for Hispanic defendant and

Caucasian victim). Contrast Young, 401 Mass. at 391, 398

(individual voir dire for African-American defendant and

Hispanic victim). Rather, in murder cases involving individuals

from different ethnic backgrounds, this court has left the

determination whether individual voir dire on bias is warranted

"to the sound discretion of the trial judge." Hunter, supra.
26

Prior to trial, the defendant requested that the judge

individually ask each prospective juror five questions related

to racial or ethnic bias. Among them was the following: 10
9F

"The defendant in this case . . . is a Hispanic male, and
the victim in this case is a white male. Would those facts
in any way interfere with your ability to render a fair and
just verdict?" 11
10F

Although we have not mandated such questioning, where the

defendant and the victim are of different ethnic backgrounds, we

nonetheless have "encourage[d]" trial judges to conduct

individual voir dire to detect prejudice based on ethnic

considerations. See De La Cruz, 405 Mass. at 274. Yet the

distinction between race and ethnicity, and, correspondingly,

between that which we "require" and that which we "encourage,"

rests on an increasingly shaky foundation. Indeed, the Federal

courts do not attempt to distinguish between race and ethnicity

for purposes of juror voir dire. They operate under "a broader

10 The defendant argued that it was necessary to ask this
question in an individualized setting because "it's not until
you start doing the individual voir dire that you get behind
some of these questions, and people really come up and say to
you, 'Well, I have this bias . . . Well, yeah; I did have this
experience back in 19- whatever, and so I do have a bit of a
prejudice against. . . .'"

11 Question thirteen of the specifically-drafted juror
questionnaire asks:

"The defendant in this case is a Hispanic male. The victim
is a white male. Would the fact that the defendant is
Hispanic in any way interfere with your ability to render a
fair and just verdict?"
27

rule" applying to "'ethnic,' as well as racial, groups." 12
1F See

Young, 401 Mass. at 398 n.8. See also Rosales-Lopez, 451 U.S.

12"[I]n our heterogeneous society the [Federal] courts have
found the boundaries of race and ethnicity increasingly
difficult to determine," McCleskey v. Kemp, 481 U.S. 279, 316
n.39 (1987), and have noted the futility of attempting to define
"ethnicity." Rico v. Leftridge–Byrd, 340 F.3d 178, 183 (3d Cir.
2003) ("What, though, does 'ethnicity' and 'ethnic origin'
mean . . . . And how does one define 'race' when the
understanding of 'race' itself has changed over the
centuries?"). See Rosales-Lopez v. United States, 451 U.S. 182,
194 (1981) (Rehnquist, J., concurring) ("knowing the
contentiousness of our profession," it is unlikely that "precise
definition of . . . 'different racial or ethnic groups' will
ever be arrived at"); Suri v. Foxx, 69 F. Supp. 3d 467, 479 n.9
(D.N.J. 2014) ("Ethnicity does not have a clear definition in
the law, and there is variation in how the terms 'race' and
'ethnicity' are used").

For purposes of discrimination under the Federal Equal
Rights law, 42 U.S.C. § 1981, for example, Federal courts have
defined "racial discrimination" as encompassing discrimination
based on "ancestry or ethnic characteristics" (citation
omitted). Village of Freeport v. Barrella, 814 F.3d 594, 604-
605 (2nd Cir. 2016). For purposes of the Sixth Amendment right
to a jury of one's peers, a defendant is entitled to a jury that
fairly represents "distinctive groups" in the community. United
States v. Garcia, 991 F.2d 489, 491 (8th Cir. 1993). See id.,
quoting United States v. Black Bear, 878 F.2d 213, 214 (4th Cir.
1989) ("A group of people is distinct when they have a shared
attribute that defines or limits their membership, and when they
share a community of interest"). In 2016, the United States
Court of Appeals for the Second Circuit observed that the
"confusion in unraveling the legal definitions of 'race' and
"Hispanic'" has occurred since the distinction was first
recognized by the United States Office of Management and Budget
in 1977. See Village of Freeport, supra at 602 & n.13.

In light of this, the United States Supreme Court has held,
under its supervisory power, that a defendant charged with a
"violent crime" who requests individual voir dire on the
question of membership in "different racial or ethnic groups" is
entitled to such questioning. Rosales-Lopez, 451 U.S. at 192.
Although ethnic distinction, and, for that matter, racial
28

at 192 ("[F]ederal trial courts must make [an individualized]

inquiry when requested by a defendant accused of a violent crime

and where the defendant and the victim are members of different

racial or ethnic groups").

As the United States Supreme Court observed in 1981, when

crafting its supervisory rule, "It remains an unfortunate fact

in our society that violent crimes perpetrated against members

of other racial or ethnic groups often raise such a possibility

[that prejudice would influence the jury]." Rosales-Lopez,

supra at 192. Although trial judges may be understandably

hesitant to introduce notions of racial or ethnic bias into

their court rooms, "[w]e think that it would be far more

injurious to permit it to be thought that persons entertaining a

disqualifying prejudice were allowed to serve as jurors and that

inquiries designed to elicit the fact of disqualification were

barred" (citation omitted). See Rosales-Lopez, supra at 191.

This court previously has declined to follow the Federal

rule, and has done so using language that causes modern readers

dismay, and in a manner that is neither prudent nor accurate.

Thirty years ago, in De La Cruz, 405 Mass. at 273, we concluded

distinctions, may not be clear in every case, prior to voir
dire, it is left to "the defendant to resolve this conflict by
making the determination of whether or not he would prefer to
have the inquiry into racial or ethnic prejudice pursued." See
id. at 191.
29

that individual voir dire was not necessary where a Hispanic

defendant was charged with sexually assaulting a Caucasian

victim. In doing so, we stated that our rule "implies that

Hispanic persons are not members of the black (Negro) race,"

but, rather, could be viewed as "members of the white race,"

such that there was no racial difference between the Hispanic

defendant and the Caucasian victim. Id. Ten years later, in

Pina, 430 Mass. at 72-74, we determined that a Cape Verdean

defendant charged with murdering a Portuguese victim similarly

was not entitled to individual voir dire concerning prejudice.

To reach that conclusion, this court relied upon the proposition

that "the term 'race' reflects the historical division of

humanity by physical characteristics into three primary

divisions: Caucasian, Mongolian, & Negro." Id. at 73 n.15,

citing De La Cruz, supra at 272. We have not addressed the

issue since.

We recognize that the distinctions described in these cases

retain little purchase in today's society. Specifically, over

the past few decades, the nation's landscape has changed

dramatically with respect to its Hispanic population. More than

half of the country's population growth between 2000 and 2010

was attributable to an increase in the Hispanic population. 13 12F In

13See Overview of Race and Hispanic Origin: 2010, U.S.
Department of Commerce, Economics and Statistics Administration,
30

Massachusetts, an increase in the Hispanic population accounts

for the entirety of the State's population growth in that same

period. 1413F Indeed, the Commonwealth now relies on the category of

"Hispanic," in addition to "African-American," "Caucasian," and

"Asian," in determining such things as the probabilities of DNA

matches. See, e.g., Commonwealth v. Seino, 479 Mass. 463, 469

(2018); Commonwealth v. Diaz, 478 Mass. 481, 486 (2017);

Commonwealth v. Broom, 474 Mass. 486, 488 & nn.3, 4, 5, 6

(2016).

The growing Hispanic and Latino population, in turn, has

encountered varied sources of discrimination. See, e.g.,

Commonwealth v. Buckley, 478 Mass. 861, 878 (2018) (Budd, J.,

concurring) (Hispanic drivers are stopped more often by police

than Caucasian drivers); Bradley v. Lynn, 443 F. Supp. 2d 145,

148, 149 (D. Mass. 2006) (finding disparate and adverse impact

on Hispanic candidates for entry-level fire fighter positions);

Kane v. Winn, 319 F. Supp. 2d 162, 179 (D. Mass. 2004) (citing

statistics that Latinos are overrepresented in country's prison

U.S. Census Bureau 3 (2011), https://www.census.gov/prod
/cen2010/briefs/c2010br-02.pdf [https://perma.cc/6QQH-Z227]
(comparing 2000 census to 2010 census).

14See Passel, Cohn, & Lopez, Hispanics Account for More
than Half of Nation's Growth in Past Decade, Overview, Pew
Research Center (Mar. 24, 2011), http://www.pewhispanic.org
/2011/03/24/hispanics-account-for-more-than-half-of-nations-
growth-in-past-decade/ [https://perma.cc/8XL6-DVUA].
31

population, and "Latino youths are incarcerated at twice the

rate of [Caucasian] American youths").

This type of discrimination poses no less a problem in the

context of jury trials. Indeed, research has shown that people

of Hispanic and Latino descent -- not unlike African Americans -

- are more likely to be treated severely by juries when accused

of killing a Caucasian victim. See, e.g., Race, Ethnicity, and

Culture in Jury Decision Making, 11 Ann. Rev. L. & Soc. Sci.

269, 272-273 (2015) (jurors more likely to recommend capital

punishment for African-American or Latino defendants accused of

killing Caucasian victims). Concurring in De La Cruz, 405 Mass.

at 276, Chief Justice Liacos wrote that "[p]eople's prejudices

do not . . . fit into categories formulated by Webster's

Dictionary." Rather, he observed that "[w]e have recognized

previously, under the Declaration of Rights of the Constitution

of the Commonwealth, the threat that bias toward ethnic groups

presents to a fair trial." Id. at 276 (Liacos, C.J.,

concurring).

"Nothing in the statute" on which we based our decision in

Young, 401 Mass. at 398, "requires us to limit the voir dire

requirement to racial prejudice" rather than to include ethnic
32

prejudice. De La Cruz, 405 Mass. at 276 (Liacos, C.J.,

concurring). Indeed, G. L. c. 234A, § 67A, 15 provides:
14F

"To determine whether a juror stands indifferent in the
case . . . [with respect to] preconceived opinions toward
the credibility of certain classes of persons . . . the
court shall, or the parties or their attorneys may, with
the permission and under the direction of the court,
examine the juror specifically with respect to such
considerations, attitudes, exposure, [and] opinions. . . ."

"The statute includes within its scope prejudices against

identifiable classes of individuals, including Hispanic

persons." De La Cruz, 405 Mass. at 276 (Liacos, C.J.,

concurring). See art. 1 of the Massachusetts Declaration of

Rights ("Equality under the law shall not be denied or abridged

because of . . . race . . . or national origin"). See, e.g.,

Commonwealth v. Long, 419 Mass. 798, 807 n.9 (1995) ("both

racial and ethnic groups are discrete groups protected under

art. 1"); Commonwealth v. Aponte, 391 Mass. 494, 503–504 (1984)

(addressing underrepresentation of Hispanic people on grand jury

venires). There is no principled reason why a Hispanic

defendant charged with murdering a Caucasian victim should be

entitled to fewer protections against potential bias than an

African-American defendant in the same position.

15 Our prior jurisprudence applied G. L. c. 234, § 28, as
amended by St. 1985, c. 463. In 2016, that statute was replaced
with G. L. c. 234A, § 67A, inserted by St. 2016, c. 36, § 4.
The language as to this provision is virtually identical in both
statutes.
33

Of course, attorneys seeking to ask questions about ethnic

bias would now have some leeway to do so during attorney-

directed voir dire, which was not available to defense counsel

at the time of the defendant's trial. See, G. L. c. 234A,

§ 67D, inserted by St. 2016, c. 36, § 4. Nonetheless, this

questioning occurs within guidelines and limitations established

by the judge, and does not provide a clear, consistent,

authoritative, and reliable means of detecting bias among

potential jurors in the way that mandatory questioning by the

trial judge, upon request, would assure.

Indeed, the value of individual voir dire to uncover

potential ethnic bias was evident in the empanelment proceedings

in this case. A least one potential juror identified in her

written questionnaire that the knowledge that the defendant was

Hispanic would interfere with her ability to be fair and

impartial. After the judge conducted voir dire concerning the

juror's response, he found that she would not be able to be

impartial and excused her. Another juror's ethnic bias,

however, only came to the fore after answering individual voir

dire questions, where the potential juror had marked "no" to the

relevant question on the questionnaire. 16
15F

16Juror no. 10 acknowledged having formed an opinion about
the case. Called to individual voir dire and asked to specify,
the juror responded,
34

Of course, in many cases, ethnicity remains unlikely to be

a source of bias in a murder trial, particularly where it is

difficult for jurors to distinguish between the ethnicities of

the defendant and the victim. See generally Commonwealth v.

Bastaldo, 472 Mass. 16, 28-30 (2015) (discussing difficulties of

distinguishing ethnic differences in some circumstances). In

such cases, a reasonable defense attorney would likely have no

reason to request individual voir dire on ethnic bias. In light

of the changes in our society since this court last addressed

the issue, however, it is difficult to say now that the question

of possible ethnic bias toward members of the Hispanic community

can be set aside as not constituting "racial" bias; for

instance, descriptions of suspects provided to police often now

are stated as "light-skinned Hispanic male," Commonwealth v.

Nelson, 468 Mass. 1, 5 (2014), or "dark-skinned Hispanic or

Juror no. 10: "What is on his head? What's that thing on
his head?"

The judge: "It's an earphone."

Juror no. 10: "Does he not understand English?"

The judge: "Right. His native language is Spanish."

Juror no. 10: "Yeah -- that's . . . he's an American
citizen, and he can't understand and speak English, so
that's why I've formed an opinion."

The juror was excused.
35

light-skinned African–American," Commonwealth v. Cavitt, 460

Mass. 617, 619 (2011).

Therefore, as a matter of our supervisory power, in cases

of murder, sexual offenses against children, and rape, decided

after the issuance of the rescript in this case, we extend the

principle announced in Young, 401 Mass. at 398; Hobbs, 385 Mass.

at 873; and Sanders, 383 Mass. at 640, and require that, where a

defendant facing trial on such a charge requests individual voir

dire on the issue of racial or ethnic prejudice, and the

defendant and the victim are of different such backgrounds, that

request should be granted. 17
16F

"In prior cases announcing new rules or requirements in the

exercise of our superintendence power, we have declined to give

the new rule or requirement retroactive effect." Commonwealth

v. Dagley, 442 Mass. 713, 720–721 (2004), cert. denied, 544 U.S.

930 (2005). See Commonwealth v. Ramos, 31 Mass. App. Ct. 362,

366 (1991) ("all previous extensions of the Sanders rule have

17We do not at this time expand the categories of crimes
which, as a matter of law, require individual voir dire with
respect to racial or ethnic bias. See, e.g., Commonwealth v.
Grice, 410 Mass. 586, 589 (1991) (declining to expand rule to
include armed robbery). Where other crimes are at issue, the
decision to conduct individual voir dire remains within the
sound discretion of the trial judge. Nothing in this decision,
however, should be read to discourage judges from conducting
individual voir dire on racial or ethnic bias, regardless of the
crime charged. Nor do we mean to suggest that individual voir
dire on the question of racial or ethnic bias should not be
conducted at sidebar. See Dyer, 460 Mass. at 738.
36

been prospectively applied"). Accordingly, the rule we announce

today shall be applied in cases tried after the issuance of the

rescript in this case, and not to the defendant's case. See,

e.g., Commonwealth v. King, 445 Mass. 217, 248 (2005), cert.

denied, 546 U.S. 1216 (2006) (prospectively applying new first

complaint doctrine).

Under our jurisprudence at the time the defendant's case

was tried, in the absence of a "substantial risk" of ethnic

bias, the choice to conduct individual voir dire on the question

of ethnic bias was left to the discretion of the trial judge.

See Hunter, 427 Mass. at 654. The Commonwealth did not argue

that the defendant's ethnicity was "a possible motive for the

killing, or otherwise informed the evidence." See Pina, 430

Mass. at 74. The defendant was identified by witnesses who knew

him; he was not made a suspect on the basis of his ethnic

characteristics. See id. Accordingly, we are confident that

the judge correctly determined that there was no substantial

risk of bias related to ethnicity. Thus, it was within the

judge's discretion to deny the request for individual voir dire.

d. Consent to search. As stated, prior to trial, the

defendant moved to suppress statements and evidence recovered

during a police search of his residence. The motion judge

allowed the motion to suppress the statements, after he found

that the Miranda warnings were inadequate, but denied the motion
37

to suppress evidence. He concluded that some of the evidence

had been seized pursuant to a "consent search" and some of the

evidence was seized during a second search, with a warrant; the

warrant affidavit did not rely on or even mention any of the

evidence seized during the warrantless search.

On the day after the victim's body was discovered, police

brought the defendant to the police station for questioning. At

that time, the defendant was twenty-one years old; he could not

read English, and he had a limited understanding of spoken

English. Accordingly, a police officer was brought in to

translate from English to Spanish. The officer read from a

Miranda rights card, written in English, which he attempted to

translate into Spanish. The officer advised the defendant of

his Miranda rights as follows:

"These are your Miranda rights. Before we begin I
have to read this to you, ok? They're in English, I'm
going to read it for you in Spanish, but back here
where you sign it's going to be in English. You
understand? Ok. Before they, we ask you any
question, you can stay quiet. You have right to
silence. Uh, every little thing that you say we can
use it in court. You have a right to talk to a lawyer
before we ask you something. If you cannot pay for a
lawyer the court gives you a lawyer without paying
anything. If you want to talk to us without a lawyer
here, you can stop when you want, without a lawyer.
So if you want to talk to us and you want to stop,
well that is your right, you want to talk and say
nothing, to be looking for a lawyer. You understand?
Ok."
38

Following this interpretation of his Miranda rights, the

defendant agreed to speak with the officers. He denied any

involvement in the victim's death.

Later in the interview, police requested the defendant's

consent to search his residence. They presented him with a

consent to search form, printed in English, which the officer

again attempted to explain in Spanish. The officer did not

provide a verbatim oral recitation of the language on the form,

but he did tell the defendant that if he did not want to sign

the form, "you don't sign it." The defendant ultimately signed

the form.

Police searched the house where the defendant had been

staying. They seized various items of clothing from an area of

the living room where he had been sleeping and keeping his

belongings. 18
17F Officers then obtained a search warrant, returned

to the residence, and seized additional items. A pair of blue

jeans with a yellow stain on the ankle was located under the

couch in the living room. Due to an error in the evidence log,

it is unclear whether the jeans were seized during the first

search or the second search.

18The defendant had come to Massachusetts from Puerto Rico
approximately one month earlier and had been staying at his
uncle's house.
39

On appeal, the defendant argues that the judge erred in

denying the motion to suppress the evidence seized, because the

Commonwealth did not show that the defendant freely and

voluntarily consented to the search, and the evidence seized

pursuant to the later warrant should have been suppressed as the

fruit of the poisonous tree. The motion judge found that the

defendant's affidavit was limited, however, to the contention

that, had he "understood [his] rights under Miranda, [he] would

not have signed the consent form." The defendant's appellate

counsel concedes that the defendant "did not raise" any other

issues regarding the consent form in Superior Court.

"The theory on which a motion to suppress is presented in

the trial court cannot be changed when the motion comes before

this court for review." Commonwealth v. Pina, 406 Mass. 540,

542, cert. denied, 498 U.S. 832 (1990). As the motion judge

noted, quoting Commonwealth v. Costa, 65 Mass. App. Ct. 227,

231-232 (2005), "[a] Miranda-like warning is not a necessary

prerequisite to a valid consent [to search] under the Fourth

Amendment [to the United States Constitution] or under art. 14

[of the Massachusetts Declaration of Rights]."

Even if the question of voluntariness were to be

considered, there was no error. The Commonwealth bears the

burden of proving that consent was freely and voluntarily given.

See Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995).
40

Consent is free and voluntary where it is "unfettered by

coercion, express or implied," and must be more than mere

"acquiescence to a claim of lawful authority" (citations

omitted). Id. The failure to inform a defendant of the right

to withhold consent is a relevant consideration, but not

necessarily dispositive. See Commonwealth v. Carr, 458 Mass.

295, 302 (2010). A voluntariness determination requires a

consideration of the totality of the circumstances.

Commonwealth v. Rogers, 444 Mass. 234, 242 (2005).

While the motion judge found that the officer who presented

the defendant the consent form was unable to give "a verbatim

recitation of the language [on that form]," 19 the judge found
18F

further that the translation was sufficient to permit free and

voluntary consent. He observed that consent to search need only

be "free and voluntary," not "knowing and intelligent"; that the

defendant was informed of his "right to refuse consent"; and

that there was no trickery or coercion in the police conduct.

The motion judge's determination is supported by the

record. Although some warnings contained on the printed English

form were not conveyed, the translation of the form included the

key information that the police were asking to search the

19At the hearing on the motion to suppress, the officer
testified that he was unable "to read that [form] verbatim to
[the defendant]" in Spanish, in part because some of the words
"exceed[ed his] comfort level."
41

defendant's residence and that, by signing the form, the

defendant was giving them permission to do so. There was no

evidence that the defendant's will was overborne. The judge's

finding that the defendant's consent was free and voluntary thus

was not clearly erroneous. 20
19F

e. Admission of out-of-court statements. The defendant

claims that the judge erred in allowing a police investigator to

testify to double hearsay evidence in two instances. Because

the defendant objected at trial, we review to determine whether

the introduction of the testimony was error and, if so, whether

it was prejudicial. See Commonwealth v. Sullivan, 478 Mass.

369, 375-376 (2017). "An error is not prejudicial if it 'did

not influence the jury, or had but very slight effect'"

20The officer's inability to convey a precise and complete
translation nonetheless is concerning. Although the incomplete
translation proved sufficient in this instance, the additional
warnings included on the English version of the form -- which
the officer did not translate -- doubtless have some value.
That non-English speaking defendants should receive fewer
warnings in their interactions with the police runs counter to
our long-standing principles of equal treatment and access to
justice. See generally Bridgeman v. District Attorney for the
Suffolk Dist., 476 Mass. 298, 311-312 (2017) (noting defect in
Commonwealth's Spanish translation of notice to criminal
defendants); Commonwealth v. Siny Van Tran, 460 Mass. 535, 561
(2011) (waiver of right against self-incrimination invalid where
Chinese translation "fell measurably below what would be
required to impart the substantive meaning of the right").

This could be avoided if care were taken to provide proper
translation. Indeed, as the translating officer indicated, "If
[the form] was given to me in Spanish, I could have gone through
it with him in Spanish."
42

(citations omitted). Commonwealth v. Cruz, 445 Mass. 589, 591

(2005).

At trial, the defendant employed a Bowden defense, see

Commonwealth v. Bowden, 379 Mass. 472, 486 (1980); he argued

that Cruz had killed the victim, and that the police had failed

properly to investigate Cruz's actions. A Bowden claim refers

to defendants' "right to base their defense on the failure of

police adequately to investigate [the crime] in order to raise

the issue of reasonable doubt as to the defendant's guilt in the

minds of the jury" (citation omitted). See Commonwealth v.

Avila, 454 Mass. 744, 753 (2009). We discern no error in

permitting the testifying officer to rebut the defendant's

Bowden defense by testifying to out-of-court statements that

affected the conduct of the police during the course of the

investigation.

Through a State trooper, the defendant presented evidence

that, according to an internal police report, "[A]fter an

exhaustive investigation, investigators were able to determine

that Cruz was responsible for the death of [the victim]." On

cross-examination, the prosecutor asked the trooper about

statements made to him during interviews he had conducted with

several witnesses. In one statement, the defendant told his

cousin Maria that he had "smashed" the victim in the head with a

big rock and stabbed him five times. Maria thereafter repeated
43

the defendant's words to one of her friends. The friend

ultimately repeated the statements to the officer. In a second

statement, the defendant told his girlfriend that he had killed

someone, and pointed out the location of the body. His

girlfriend repeated the defendant's statement to one of her

friends, who, in turn, relayed the statements to the

investigator.

The defendant objected to the admission of these statements

on grounds of hearsay, double hearsay, and prejudice. Noting

that, in the context of a Bowden defense, the statements are

admissible for a purpose other than their truthfulness, the

judge overruled the objections. The judge gave detailed

limiting instructions immediately before and immediately after

the officer presented this testimony, and explained to the jury

that the statements were not being offered for their truth but,

rather, to show that the police had been presented with the

information at the time they were deciding which suspects to

investigate.

If a defendant raises a Bowden defense, our "cases make

clear that . . . the Commonwealth has the right to rebut it."

Avila, 454 Mass. at 753. A Bowden defense, therefore, is "a

two-edged sword for the defendant, because it opens the door for

the Commonwealth to offer evidence explaining why the police did
44

not follow the line of investigation suggested by the defense."

Commonwealth v. Silva-Santiago, 453 Mass. 782, 803 n.25 (2009).

"[T]he presentation of a Bowden defense can expand the

usual evidentiary boundaries quite significantly," and can

permit introduction of evidence that "otherwise [would not] be

admitted on hearsay or relevance grounds." Avila, 454 Mass. at

757. The permissible scope of rebuttal evidence depends, in

part, on the issues raised by the defense; "the more wide-

ranging the defendant's attack on the police investigation, the

broader the Commonwealth's response may be." Id. at 754–755.

Prior to trial, trial counsel argued that out-of-court

statements of Cruz that "border[ed] on an admission" should be

admitted in light of the Bowden defense. The statements were

then introduced at trial. By the same token, the fact that the

police had been informed of competing admissions, which instead

implicated the defendant, permissibly could be introduced as

rebuttal, to help the jury understand why the police focused on

the defendant rather than on Cruz. "[T]he Commonwealth was

entitled to elicit testimony about why the investigators chose

the particular investigative path they did, including the

reasons they ultimately accepted and acted on . . . information

that the defendant was the person who [killed] the victim."

Avila, 454 Mass. at 755.
45

Nor do we think that the judge abused his discretion in

determining that the probative value of the testimony was not

substantially outweighed by its prejudicial effect. See

Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010) (balancing

probative value and prejudicial effect "are matters entrusted to

the trial judge's broad discretion and are not disturbed absent

palpable error" [citation omitted]). The quantity of statements

to which the officer testified was not excessive. Contrast

Commonwealth v. Lodge, 431 Mass 461, 467 (2000) ("a general

expression of the officer's opinion of guilt, followed by a

recital of all the evidence against the defendant, is not

permitted"). Moreover, the jury already had heard much of the

substance of the testimony through Maria and the defendant's

girlfriend, who had described the defendant's statements in

detail. 2120F

f. Ineffective assistance of counsel. The defendant

contends that his trial counsel was ineffective for failing to

move to suppress the jeans seized from the defendant's residence

on the ground of improper documentation in the chain of custody.

Police testified that the jeans were recovered during a search

21The defendant argues also that it was error to permit the
trooper to opine as to the defendant's guilt. Had the trooper
done so, there might have been error. The trooper testified,
however, that the evidence led his investigation "to focus on
[the defendant]," as opposed to other suspects.
46

of the defendant's residence, and were placed in a bag labeled

"22." The evidence log, however, contained only twenty-one

entries, and did not reflect that jeans had been found and

bagged at the scene. The log indicated that other items of

clothing were seized both during the consent search and, later,

during the search pursuant to the warrant.

When evaluating a claim of ineffective assistance of

counsel in a case of murder in the first degree, we apply the

standard of G. L. c. 278, § 33E, to determine whether there was

a substantial likelihood of a miscarriage of justice.

Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469

Mass. 447 (2014). In doing so, we determine whether there was

an error in the course of trial, and, if so, whether it was

likely to have influenced the jury's conclusion. Id. Where the

basis of the claim is counsel's failure to file a motion to

suppress, "the defendant has to demonstrate a likelihood that

the motion to suppress would have been successful." See

Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

In this case, counsel moved, unsuccessfully, to suppress

the jeans on other grounds. Moving to suppress the jeans on the

additional basis that they were improperly labeled was unlikely

to have succeeded. "Defects in the chain of custody of

otherwise admissible evidence go to the weight of the evidence,

as opposed to the admissibility of the evidence." Commonwealth
47

v. Miller, 475 Mass. 212, 228 (2016). See Commonwealth v.

Jones, 42 Mass. App. Ct. 378, 380–381 (1997) (counsel not

ineffective despite failing to object notwithstanding weakness

in chain of custody).

g. Relief pursuant to G. L. c. 278, § 33E. Pursuant to

our duty under G. L. c. 278, § 33E, we have reviewed the entire

record carefully, and discern no reason to use our extraordinary

power to reduce the verdict or to order a new trial.

Judgment affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4394179. Public record. Not legal advice.