MEMORANDUM AND ORDER ON MOTION TO SUPPRESS
B. Krupp, Justice of the Superior Court
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
on the preponderance of the credible evidence at the
evidentiary hearing, I make the following findings of fact:
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. 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.
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. Yeeâs 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.
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. Yeeâs 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.
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. He does not speak or understand
Chow was transported by ambulance to Quincy Medical Center.
No police officers accompanied him.
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.
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. 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. Chowâs 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. The police interaction or
"interview" with Mr. Chow at the hospital lasted
less than ten minutes and was not recorded.
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. Chowâs language and Off. Yeeâs effort to piece
together a narrative is insufficiently reliable to be
considered a statement by defendant.
police recorded their interview with defendant, perhaps some
of defendantâs 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 Courtâs 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