Commonwealth v. Espinal

482 Mass. 190

121 N.E.3d 1189

COMMONWEALTH

v.Arismendy ESPINAL.

SJC-12597

Supreme Judicial Court of Massachusetts, Essex..

Argued December 6, 2018

Decided May 6, 2019

Rebecca Kiley, Committee for Public Counsel Services, for the defendant.

Catherine Patrick Sullivan, Assistant District Attorney, for the Commonwealth.

J. Anthony Downs, for Lawyers for Civil Rights & others, amici curiae, was present but did not argue.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

LENK, J.

A jury in the District Court convicted the defendant of indecent assault and battery on a twelve year old child. On appeal, the defendant, whose native language is Spanish, maintains that the judge erred in denying his request that a question be posed collectively to potential jurors about bias toward non-English speakers. He argues further that the judge abused his discretion by allowing the introduction of prejudicial testimony from an investigator and testimony that amounted to improper bolstering by the first complaint witness. Finally, the defendant contends that the judge should have given the jury a modified form of the first complaint instruction.

While we recognize that there may well be bias toward non-English speakers, and that a thorough voir dire is necessary to ensure an unbiased jury, in the circumstances here, we discern no abuse of discretion by the trial judge in declining to ask the requested question. We conclude further that the defendant's other arguments are unavailing, and affirm the conviction. Going forward, however, we anticipate that where a defendant is entitled to the services of a translator because of an inability to speak English, the judge will, on request, ordinarily pose a question to the venire regarding language-related bias.¹

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, 893 N.E.2d 19 (2008), cert. denied, 555 U.S. 1181, 129 S.Ct. 1329, 173 L.Ed.2d 602 (2009).

a. Assault. At the time of the complaint, the victim, Sofia² was twelve years old. She recently had moved to the United States from Spain and was living with her single father in Lawrence. When her father was at work, the victim often was looked after by her father's friend, Eusabia Magali Concepcion. Concepcion was like a "grandmother" or "mother" to Sofia. Concepcion babysat her over the course of approximately one year.

When Concepcion looked after Sofia, Sofia would go to Concepcion's apartment. Concepcion shared the apartment with the defendant, her romantic partner. When the victim was at the apartment, the defendant sometimes was there, too.

In January 2015, Concepcion left the defendant and the victim alone while Concepcion took a shower. The victim had been left alone with the defendant before, and there were no allegations that anything improper had taken place during those times. This time, however, the defendant gave the victim wine and insisted that she drink it, at one point "forc[ing]" her, despite her protests. The wine made her feel dizzy. The defendant then told her to stick out her tongue, and he "sucked [her] tongue" with his mouth. He asked her to stick out her tongue again, but she refused.

When Concepcion returned from the shower, the victim said nothing about what had happened because she was "scared that [the defendant] was going to do something to [her]." Instead, she went into the bathroom and washed out her mouth. She called her father to pick her up and take her home. The victim's father testified that, when she got into his vehicle, he "knew something was wrong because I know her.... She's my daughter. I'm a father and a mother. I know her. I know when she is worried and I know when she is not worried."

The automobile was being driven by Sofia's father's boss. Because the boss was in the vehicle, she said nothing about the incident during the ride home. When the victim and her father got out of the car and entered their house, however, she began crying "a lot" and told her father what had happened. She spent much of the night washing out her mouth.

The defendant was charged with indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B.

b. Trial. The case was tried in the District Court in June of 2017. Throughout trial, the defendant required the use of a Spanish-speaking interpreter.³

Before trial, the defendant submitted a written request that certain questions be posed to the venire, collectively, during voir dire. The requested questions were "mostly standard questions," with the exception of the final question: "Do you have any problem with a defendant that requires the services of a Spanish-speaking interpreter?" The Commonwealth did not object to the final question being asked. Defense counsel explained the reasons the question should be asked as follows:

"I do think that the question about a witness or a defendant that requires the services of the Spanish-speaking interpreter is important .... The concern is a racial bias, or some sort of ethnic bias. There's a lot of people that believe that if you're in this country and you don't speak English, that you've done something wrong, period. My client is a naturalized citizen of the United States. I think that that is a huge bias."

The judge denied the request; counsel objected, citing the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and arts. 12 and 14 of the Massachusetts Declaration of Rights. Counsel asserted further, "I think that racial bias is something that should be explored when the defendant is of a minority race, in this case, Latino." The judge clarified:

THE COURT : "Is the complainant a different ethnicity?"

THE PROSECUTOR : "No."

THE COURT : "Okay. No. I'm not going to give it to you." The attorneys for both sides were introduced to the members of the venire. The witnesses, as well as the defendant, were asked to stand when their names were called. The interpreter was not introduced.

The judge posed several questions to the collective venire regarding bias, including, "[A]re any of you aware of any bias or prejudice that you have toward either the defendant or the prosecution?" and "[D]o any of you know of any reason why you would not be impartial in this case and be able to render a true and just verdict based solely on the evidence and the law?" No prospective juror indicated an affirmative response to either question. ⁴

The jury were sworn, and trial commenced. Throughout the trial, the jury heard testimony from four witnesses. Among them, the victim's father testified as the first complaint witness, and an investigator for the Department of Children and Families (DCF) testified as to statements made by the defendant during an interview.

The jury returned a verdict of guilty. The defendant commenced a timely appeal, and we allowed his motion for direct appellate review.

2. Discussion. The defendant claims that four errors at trial warrant a new trial: (1) the judge improperly denied his request to pose a question to the venire regarding language-related bias; (2) the judge permitted prejudicial testimony from the DCF investigator; (3) the judge permitted improper bolstering of the victim's credibility through the first complaint witness; and (4) the judge improperly instructed the jury regarding first complaint testimony. We discern no error warranting a new trial.

a. Jury voir dire. The defendant maintains that the judge erred in denying his request to ask the members of the venire, collectively, "Do you have any problem with a defendant that requires the services of a Spanish-speaking interpreter?"

"A criminal defendant is entitled to a trial by an impartial jury pursuant to the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights." Commonwealth v. Williams, 481 Mass. 443, 447, 116 N.E.3d 609 (2019). "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors" (citation omitted). Commonwealth v. Dabney, 478 Mass. 839, 848, 90 N.E.3d 750, cert. denied, ––– U.S. ––––, 139 S.Ct. 127, 202 L.Ed.2d 78 (2018). Following voir dire, a judge's determination that a jury are impartial will not be disturbed absent a clear error of law or abuse of discretion. Id.

General Laws c. 234A, § 67A, governs the examination of jurors during voir dire. The first paragraph of that statute provides, in relevant part:

"Upon motion of either party, the court shall ... examine on oath a person who is called as a juror, to learn whether the juror ... has expressed or formed an opinion, or is sensible of any bias or prejudice."

We have not required, however, that judges ask every question requested by a defendant. See Commonwealth v. Morales, 440 Mass. 536, 548–549, 800 N.E.2d 683 (2003), quoting Commonwealth v. Sanders, 383 Mass. 637, 641, 421 N.E.2d 436 (1981) ("[a] judge has broad discretion as to the questions to be asked, and need not put the specific questions proposed by the defendant"). Rather, in most cases, the proper scope of jury voir dire is left to the sound discretion of the trial judge. See Commonwealth v. Silva, 455 Mass. 503, 512, 918 N.E.2d 65 (2009). "A trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure that a particular jury can weigh and view the evidence impartially." Commonwealth v. Lopes, 440 Mass. 731, 736, 802 N.E.2d 97 (2004).

i. Mandatory questions. Certain categories of questions, however, must be asked. See Silva, 455 Mass. at 512, 918 N.E.2d 65. General Laws c. 234A, § 22, for example, established the confidential juror questionnaire, which requires that prospective jurors be asked to respond, in writing, to a series of personal questions concerning, among other...