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Commonwealth v. Lee

Supreme Judicial Court of Massachusetts, Essex

November 12, 2019


          Heard: May 10, 2019.

          Indictments found and returned in the Superior Court Department on December 28, 2011. The cases were tried before David A. Lowy, J., and a motion for a new trial, filed on September 19, 2017, was considered by Timothy Q. Feeley, J.

          Russell C. Sobelman for the defendant.

          Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

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

          GAZIANO, J.

         In the early morning hours of September 27, 2011, three robbers broke into a restaurant by climbing through a rooftop ventilation shaft. Once inside, the robbers encountered the sixty-two year old victim, restaurant owner Shui Woo, who had slept in his office that night. One robber, later identified as the defendant, struck the victim, bound his feet and hands, and ordered him to open a safe. When the victim failed to do so, the robbers beat him to death with a crowbar and a hammer.

         A Superior Court jury convicted the defendant of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, stealing by confining or putting in fear, and armed assault with intent to murder a person age sixty or older. In this direct appeal, the defendant contends that he was deprived of his constitutional rights to a competent interpreter to interpret the trial proceeding into his native language. He argues also that he is entitled to a new trial because trial counsel provided ineffective assistance; several jury instructions were erroneous; and the trial judge abused his discretion in making certain rulings concerning the conduct of the trial. In addition, the defendant asks this court to use our extraordinary power under G. L. c. 278, § 33E, to reduce the verdict or to order a new trial. For the reasons that follow, we affirm the convictions and decline to exercise our authority under G. L. c. 278, § 33E.

         1. Prior proceedings.

         In December 2011, a grand jury returned indictments charging the defendant, Cheng Sun (Sun), and Jun Di Lin (Lin) with murder, G. L. c. 265, § 1; stealing by confining or putting in fear (stealing), G. L. c. 265, § 21; and armed assault with intent to rob a person age sixty or older (armed assault), G. L. c. 265, § 18 (a.) . In September 2014, Lin pleaded guilty to manslaughter, stealing, and armed assault in exchange for an agreement to testify against his codefendants. In January 2016, a joint trial commenced against the defendant and Sun. The judge was required to continue the case after seven days of empanelment because it was difficult to locate the necessary multiple Chinese-language interpreters for the defendant and Sun. Thereafter, the two cases were severed; Sun was convicted on all charges at his trial in January and February 2016.

         In May 2016, following a twenty-nine day trial, a jury convicted the defendant on all charges. The defendant filed a timely notice of appeal. In September 2017, before his direct appeal had been briefed, he moved for a new trial on multiple grounds. A Superior Court judge, who was not the trial judge, denied the defendant's motion without a hearing. We consolidated the defendant's direct appeal from his convictions and his appeal from the denial of the motion for a new trial.

         2. Background.

         We summarize the facts the jury could have found, reserving additional facts for our discussion of the issues. The victim owned and operated a restaurant located on Route 1 in Ipswich. He had been born in China in 1949, had immigrated to the United States as a teenager, and had purchased the restaurant in 1987. The victim lived in Quincy with his family, but spent the majority of his time at the restaurant, which was open 364 days a year. He slept at the restaurant four to five nights a week, on a make-shift bed in his office, because he wanted to "know everything that was going on," as well as to accommodate early morning deliveries. When he stayed at the restaurant overnight, the victim locked the doors from the inside prior to going to sleep.

         The office, which was next to the kitchen, contained a large, metal safe. Inside the kitchen, a portion of the suspended ceiling had been removed to expose a crude ventilation shaft cut into the roof. At the end of the work day, or when it rained, restaurant workers went onto the roof through an access door and covered the ventilation shaft with an unsecured wooden cover.

         The victim employed a few long-term employees, including a head chef, a hostess, and a waitress. The majority of the workers, however, were temporary; they were drawn from Boston's Chinatown neighborhood and transported to Ipswich by a company van. The victim had employed hundreds of temporary workers over the course of the twenty years that he operated the restaurant. The defendant was one such employee; he had washed dishes at the restaurant for two days either in 2010 or 2011.

         On Monday, September 26, 2011, the victim's son, a restaurant manager, worked with his father until sometime between 11:30 P..M. and midnight. At 12:30 A.M., on his way home, the son drove a group of employees back to Chinatown. The victim stayed behind, locked the doors, and went to sleep. The next morning, an employee found the victim's bloody body in the office. The victim's ankles were bound with a black power cord and his wrists were bound with a computer cord and a belt. A medical examiner later determined that the victim had suffered extensive injuries including two skull fractures, a fractured arm, twelve rib fractures, and stab wounds to the back and extremities. He died as a result of multiple blunt and sharp force injuries and asphyxia due to strangulation.

         The handle and keypad to the office safe were stained with the victim's blood. The police recovered a bloody knife on the office floor near the victim's body and the safe. In the kitchen, police found tin snips (a tool capable of cutting wire) and a baseball hat on a table underneath the ventilation shaft. The wooden cover to the ventilation shaft had been removed. Investigators found approximately $2, 800 in cash under the cushions of the victim's make-shift bed, and $50, 000 in cash in the safe.

         The investigating officers were able to establish a likely timeline for the robbery. At 3:15 A.M., the robbers cut the restaurant's telephone lines and electrical power wires at the utility panel located in the back parking lot. At 3:30 A.M., a truck driver pulled into the parking lot belonging to the pipe supply company next door to the restaurant to begin a morning delivery. The driver noticed a white taxicab parked on the side of the warehouse that abuts the restaurant. The taxicab had "Boston Cab Assoc" written in red letters on the passenger's side door; it was unoccupied.

         Officers did not identify a suspect in the first few days of the investigation. That changed on September 29, when Lin contacted the police, identified himself as the operator of the white taxicab, and provided information about his two accomplices in the robbery. Lin consented to the search of his taxicab, a hand-held global positioning system (GPS) device, and his home. Police also obtained records from a "CMT" device installed in Lin's taxicab, which captured and transmitted, at least once every three minutes, "extremely accurate" information about the location of the taxicab, its speed and direction, and meter activity.

         At trial, Lin provided the following account.[2]Approximately two weeks before the robbery, Lin met the defendant and Sun at a casino in Connecticut. They spent a few days gambling together, and exchanged telephone numbers. The defendant asked Lin if he knew any "wealthy people." They also discussed "well-known" restaurant owners. Thereafter, Lin drove the defendant and Sun to Boston-area restaurants in his taxicab, presumably searching for likely places to rob.

         On September 27, 2011, at approximately 2 A.M., while Lin was at his home in Maiden, he received telephone calls from the defendant and Sun. Lin agreed to meet them in Boston. Either the defendant or Sun brought a black bag, which was placed in the trunk of the taxicab. The defendant directed Lin to the restaurant in Ipswich. They arrived at 3 A.M. Lin parked the taxicab next door to the restaurant, near the side of the pipe supply building. The defendant and Sun retrieved items from the black bag; they told Lin to wait for them, and walked toward the rear of the restaurant.

         When they returned, the defendant was carrying a crowbar, and both wore gloves and masks. Either the defendant or Sun asked Lin to help them steal a safe containing "a lot of money." Wearing a baseball hat supplied by the defendant, and gloves, Lin followed the defendant and Sun to the rear of the restaurant.[3] The three climbed up the roof by stepping onto an ice machine condenser, and dropped into the kitchen through the ventilation shaft.

         While walking alone through the dining room, Lin heard the victim screaming "very loudly" in the office. Lin entered the office and saw Sun holding a knife to the injured victim's throat. The defendant beat the victim with the crowbar on the abdomen and legs. The victim was pleading, "What do you want?"; "Don't hurt me"; "Whatever you want I will give you everything." The victim promised to open the safe. At Sun's suggestion, Lin and the defendant bound the victim's ankles and hands. Lin helped drag the victim, who was unable to walk, to the safe. The victim was propped up facing the safe; he twice attempted to enter a code on the keypad. Upset that the victim was "playing games," the defendant beat him with the crowbar. Lin took the crowbar away, but the defendant then beat the victim with a hammer retrieved from the black bag.

         The three departed the restaurant through the ventilation shaft, leaving the victim unconscious on the office floor. Upon returning to the taxicab, the defendant expressed frustration that "after all that work" they had been unable to steal the large sum of money he believed had been in the safe. Sun's hand was injured, and their clothing had been stained with the victim's blood.

         Lin drove the defendant and Sun to casinos in Connecticut. The three men obtained clean clothing, some from one of the defendant's friends, and some that was purchased in the casino shops. After changing, they washed the bloodstained clothes at a laundromat, and disposed of other evidence in a nearby Dumpster.[4]

         The defendant testified in his own defense. He admitted that he, Lin, and Sun drove to the restaurant on September 27, 2011. He maintained, however, that Lin and Sun had planned the robbery. He had been unaware of the plan, because Lin and Sun spoke to each other in the Fuzhou dialect, which the defendant does not understand. The defendant also testified that Lin and Sun entered the restaurant while he remained outside, "foolishly" playing video games on his cellular telephone "to calm [himself] down." The defendant maintained that he had not touched the victim.

         3. Discussion.

         After he filed his direct appeal, but before briefs had been submitted, the defendant filed a motion for a new trial in this court. We stayed the appeal and remanded the motion to the Superior Court.

         In his motion for a new trial, the defendant raised eight issues. He argued that (1) the judge did not appoint a competent interpreter; (2) trial counsel was ineffective; (3) certain of the jury instructions were erroneous; (4) the judge erred in denying the defendant's motions for a mistrial; (5) the judge did not use the Walker method of jury empanelment, see Commonwealth v. Walker, 379 Mass. 297, 299 n.1 (1979); (6) the judge's vacation unnecessarily delayed the trial; (7) the "jury was infected with prejudicial bias based on certain rulings by the judge"; and (8) the defendant should not have been sentenced on the second and third indictments. The motion judge, who was not the trial judge, denied the motion without a hearing because he found that "the [ineffective assistance] claim is not a substantial issue raised by the motion or affidavit, and is not supported by a substantial evidentiary showing." Citing the availability of appellate review, the judge declined to rule on the other asserted grounds for a new trial.

         On appeal, the defendant pursues the first six of the issues that he raised in his motion for a new trial. Focusing in particular on his constitutional arguments with respect to the interpreters, the defendant contends that "the original criminal proceeding was infected with prejudicial constitutional error" due to inadequacies with the interpreters provided. In addition to raising all the arguments from his motion for a new trial except for his claims of prejudicial bias and sentencing on the second and third indictments, the defendant also raises one new claim on appeal. He argues that a new trial is required because the judge did not sua sponte conduct a colloquy of the defendant before he testified, to ensure that the decision to waive his right to silence was voluntarily made. The defendant also asks this court to exercise its authority pursuant to G. L. c. 278, § 33E, to order a new trial or to direct the entry of a lesser degree of guilt.

         a. Whether the defendant was deprived of his right to a competent interpreter.

         i. Background.

         The judge confronted numerous issues surrounding the interpreters throughout the two-month trial. At the conclusion of the trial, the judge made detailed findings of fact to explain his rulings. We briefly summarize these ...

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