Heard: December 6, 2018.
received and sworn to in the Lawrence Division of the
District Court Department on December 14, 2015. The case was
tried before Michael A. Uhlarik, J.
Supreme Judicial Court granted an application for direct
Rebecca Kiley, Committee for Public Counsel Services, for the
Catherine Patrick Sullivan, Assistant District Attorney, for
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.
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.
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.
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), cert, denied, 555 U.S. 1181 (2009).
time of the complaint, the victim, Sofia 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.
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.
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
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."
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
defendant was charged with indecent assault and battery on a
child under the age of fourteen, in violation of G. L. c.
265, § 13B.
case was tried in the District Court in June of 2017.
Throughout trial, the defendant required the use of a
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."
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
The prosecutor: "No."
The court: "Okay. No. I'm not going to give
it to you."
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.
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
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.
jury returned a verdict of guilty. The defendant commenced a
timely appeal, and we allowed his ...