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Commonwealth v. Lujan

Appeals Court of Massachusetts, Hampden

April 3, 2018

COMMONWEALTH
v.
MIHAIL LUJAN.

          Heard: September 14, 2017.

         Indictment found and returned in the Superior Court Department on April 30, 2013. A pretrial motion to suppress evidence was heard by Tina S. Page, J.

         An application for leave to prosecute an interlocutory appeal was allowed by Geraldine S. Hines, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court.

          David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

          Patrick Levin, Committee for Public Counsel Services, for the defendant.

          Present: Wolohojian, Agnes, & Wendlandt, JJ.

          WOLOHOJIAN, J.

         We are called upon in this interlocutory appeal to decide whether a Superior Court judge erred in allowing the defendant's motion to suppress statements he made during a police interview. The defendant's native and primary language is Moldovan but he also has some knowledge of Russian, a language unrelated to Moldovan. To bridge the language barrier between the officers (who spoke English) and the defendant (who did not) the officers enlisted the help of a Russian-speaking student intern (intern). The intern had no knowledge of Moldovan, and was not a certified interpreter in Russian. After reviewing a videotape of the interview and conducting an evidentiary hearing that included testimony from a court-certified Russian interpreter, the judge found numerous irregularities in the way the intern carried out his interpretative role. These included instances where the intern omitted or changed words, phrases, and even questions and answers; instances where the intern suggested words to the defendant that the defendant adopted to his detriment; instances where the intern asked his own questions; and instances where the intern resorted to pantomime and gestures in an attempt to explain Russian words to the defendant and to help understand what the defendant was trying to say. The judge concluded that the defendant was not effectively advised of his Miranda rights and that the defendant's statement was not voluntary because much of the statement was not his.

         In this interlocutory appeal, the Commonwealth argues that (1) the defendant was not in custody, (2) as a result, Miranda warnings were not required, (3) in any event, the defendant's waiver of those rights was voluntary, and (4) the defendant's statement was voluntary. Like the judge, we conclude that the Commonwealth did not meet its burden of establishing voluntariness, and we affirm the order. Deciding as we do, we do not reach the Commonwealth's other arguments.

         Background.[1]

         The defendant's motion to suppress was accompanied by an affidavit from counsel, who averred that he had communicated in person with his client using Russian interpreters. Each of the two interpreters had told him that the defendant was not fluent in Russian and had trouble expressing his thoughts in Russian. Counsel further averred that one of the interpreters had listened to the police interview of the defendant and was of the view that the intern's translation from English to Russian (and vice versa) was faulty. Counsel suggested that a Moldovan interpreter was necessary for a proper waiver of the defendant's Miranda rights and in order to communicate meaningfully with the defendant.

         Over the course of two days, the judge conducted an evidentiary hearing on the motion to suppress. Three witnesses testified: West Springfield police Detective Matthew Mattina, the intern, and Roman Jakub, a court-certified interpreter for Russian and Ukrainian. In addition to having the benefit of the testimony of these witnesses, the judge had the videotape of the interview, as well as a transcription of the interview containing a certified translation of the interview (certified translation). The judge made her detailed findings based on her assessment of the witnesses' testimony, the videotaped interview, and the certified translation. We note that, although the Commonwealth challenges the judge's ultimate conclusions, it does not contend that any of the judge's subsidiary findings are clearly erroneous. With that background in mind, we turn to the judge's findings, which are wholly confirmed by our independent review of the videotaped interview and the certified translation, as well as by the transcript of the evidentiary hearing.

         The defendant is from Moldova, and his native language is Moldovan, a Romance language. He came to the United States three years before the events at issue in this case and has acquired an extremely limited understanding of English. He cannot effectively express himself in English, nor is there any indication that he can read or write English.

         Moldova was part of the Soviet Union until 1991 and Russian (a Slavic language unrelated to Moldovan) was the official language during that time. After Moldova declared independence from the Soviet Union, Romanian became its official language. The defendant (who was born in 1985) was a young child when the Soviet Union dissolved. However, he acquired some knowledge of Russian as a secondary language in the sense that he ...


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