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Commonwealth v. Chow

Superior Court of Massachusetts, Norfolk

September 24, 2018

COMMONWEALTH
v.
YAN LONG CHOW

          MEMORANDUM AND ORDER ON MOTION TO SUPPRESS STATEMENTS

          Peter B. Krupp, Justice of the Superior Court

         Defendant Yan Long Chow is charged with murdering his wife by running over her with his vehicle. He moves to suppress statements he allegedly made to, or that were attributed to him by, the Quincy Police. Following an evidentiary hearing, the motion is allowed.

         FINDINGS OF FACT

         Based on the preponderance of the credible evidence at the evidentiary hearing, I make the following findings of fact:

         During the afternoon of September 2, 2016, officers from the Quincy Police Department were dispatched to 21 Phillips Street in Quincy on the report of a motor vehicle accident. The police found a Toyota Sienna minivan close to the street. It was believed that defendant had been operating the van and had run over his wife with the vehicle.[1] When Quincy Police Officers Whedbee and Flaherty responded, personnel from the Quincy Fire Department and from Fallon Ambulance Service were already on the scene, and Mr. Chow was in the rear of the ambulance. Because of the language barrier, the ambulance personnel and the police officers on the scene were unable to communicate with Mr. Chow.

         Quincy Police Officer Kent Yee, who was not scheduled to work on September 2, 2016, was called in to provide interpreter services in communicating with Mr. Chow. Off. Yee’s first language is Toisanese. He also speaks a little Cantonese, but he is not fluent in that language. He does not speak much more Mandarin than to ask whether a person speaks Mandarin. He does not speak Fuzhanese.[2]

         Off. Yee arrived at the scene about 15 minutes after he was called. He was directed to Mr. Chow in the ambulance. Off. Yee first established that Mr. Chow did not appear to speak or understand English. Off. Yee then spoke to Mr. Chow in Toisanese and Cantonese, but Mr. Chow did not respond. Mr. Chow also did not respond to Off. Yee’s question about whether Mr. Chow spoke Mandarin. Off. Yee was unable to communicate with Mr. Chow in the ambulance. As the paramedics were asking Off. Yee questions, Mr. Chow was pointing to his stomach. To Off. Yee, Mr. Chow appeared very confused. Mr. Chow did not say anything.

         Mr. Chow is a native speaker of Fuzhanese. He also speaks Mandarin. He knows a few words and phrases in Cantonese and English, but does not have any fluency in either language.[3] He does not speak or understand Toisanese.

         Mr. Chow was transported by ambulance to Quincy Medical Center. No police officers accompanied him.

         About an hour or so later, Officers Whedbee, Flaherty and Yee went to Quincy Medical Center to try to speak with Mr. Chow. Neither Off. Whedbee nor Off. Flaherty speak any Chinese language. They were entirely dependent on Off. Yee to communicate, if possible, with Mr. Chow.[4]

         The officers found Mr. Chow in a treatment room in the emergency department with some members of his family. Generally, Off. Whedbee and Off. Flaherty were asking the questions. Mr. Chow did not provide a narrative of what had occurred, or if he did Off. Yee did not understand him.[5] Off. Yee perceived Mr. Chow as speaking "a broken dialect" and acknowledged Mr. Chow was not speaking Cantonese. Off. Yee could not reliably determine what Mr. Chow was saying. Although Off. Yee told Off. Whedbee and Off. Flaherty what he thought Mr. Chow was saying, Off. Yee could only understand some words, he could not understand Mr. Chow’s dialect, and from the few words he thought he could understand he pieced together a statement that was then attributed to Mr. Chow. To the extent Off. Yee asked Mr. Chow follow-up questions, or leading questions, he posed them in Toisanese or Cantonese, languages Mr. Chow did not understand. At some point, Off. Yee gave Mr. Chow Miranda warnings, but again only in Toisanese.[6] The police interaction or "interview" with Mr. Chow at the hospital lasted less than ten minutes and was not recorded.

         DISCUSSION

         To be admitted, a statement of a defendant must be voluntary beyond a reasonable doubt. Commonwealth v. Tavares, 385 Mass. 140, 149-150 (1982); Commonwealth v. Lujan, 93 Mass.App.Ct. 95, 100-103 (2018). As in Lujan, here the statements attributed to Mr. Chow cannot fairly be said to be his statements and therefore cannot be considered voluntarily made by him. A person who does not speak the same language as a defendant cannot fairly or accurately translate, let alone translate verbatim, statements made by a suspect or witness, nor can such a suspect or witness be expected to understand questions (or to knowingly assent to leading questions) posed to him in a language he does not understand. See Commonwealth v. Santana, 477 Mass. 610, 618 n.6 (2017) ("This case makes plain the need for law enforcement to use capable, trained translators who will report verbatim the question asked and the response given."); Commonwealth v. Festa, 369 Mass. 419, 429 (1976). Here, Off. Yee did not fairly or reasonably understand Mr. Chow’s language and Off. Yee’s effort to piece together a narrative is insufficiently reliable to be considered a statement by defendant.

         Had the police recorded their interview with defendant, perhaps some of defendant’s statements may have been admitted, or the accuracy or scope of the police attribution (or misattribution) of statements to Mr. Chow could have been understood and better analyzed. While the "interview" in this case occurred about two weeks prior to the Supreme Judicial Court’s decision in Commonwealth v. AdonSoto,475 Mass. 497 (2016), the concerns that moved the Court to adopt a protocol "[g]oing forward, and where practicable, [that] all ...


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