Opinion
No. 11–P–362.
2012-05-22
COMMONWEALTH v. Steven EVEILLARD.
By the Court (RAPOZA, C.J., KANTROWITZ & KAFKER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant, Steven Eveillard, of unarmed robbery, in violation of G.L. c. 265, § 19( b ). On appeal, the defendant asserts that he was denied a fair trial, contending that (1) the trial judge abused his discretion by appointing two Bengali interpreters who were not certified; (2) the in-court identification was suggestive; and (3) the prosecutor made various improper remarks. We affirm.
Interpreters. The defendant argues that the trial judge committed reversible error when he appointed two Bengali interpreters who were not certified within the meaning of G.L. c. 221C, § 1. We review the judge's decision to determine whether he abused his discretion in doing so.
“[T]he qualifications of an interpreter fall within the area of the judge's discretion.” Commonwealth v. Salim, 399 Mass. 227, 238, 503 N.E.2d 1267 (1987). As there were no certified Bengali interpreters in the Commonwealth at the time of trial, the judge was authorized to use interpreters from a private agency. See Office of Court Interpreter Services Standards and Procedures § 9.01 (2009). Before allowing either interpreter to participate in the proceedings, however, the trial judge conducted a voir dire, carefully considering the training, qualifications, and experience of each. The two interpreters, in turn, swore to faithfully and accurately interpret the proceedings. Moreover, the judge expressed his intention to monitor their performance, going so far as to indicate that he would declare a mistrial if a competent interpretation were not performed. Although the defendant cites several examples of awkward wording used by the interpreters, there is no basis for concluding that either one failed to translate properly. Nor has it been made to appear that the victim could not understand the questions asked of him or that the jury would not have understood his testimony. See Commonwealth v. Barbosa, 399 Mass. 841, 845–847 & n. 10, 507 N.E.2d 694 (1987). We discern no abuse of discretion.
Where, as here, the interpretation has not been shown to be inaccurate or unfaithfully rendered, we do not reach the defendant's claims concerning either the right of confrontation or the right to due process. In the absence of a constitutional violation, we decline to review the claimed error under the harmless beyond a reasonable doubt standard as urged by the defendant.
In-court identification. The defendant challenges his in-court identification by the victim. Essentially, he contends that the nature of the overall in-court identification process was so suggestive as to violate his right to due process. The basis for his argument is that the prosecutor first pointed out codefendant Saintil, who was seated at the same table as the defendant, which, the defendant argues, created an unacceptably high risk of a mistaken identification and was highly suggestive. This argument is without merit.
At trial, the victim identified, as a group, the three defendants as the perpetrators of the unarmed robbery. The prosecutor then asked the victim to identify the defendants individually, gesturing first toward codefendant Saintil. Saintil objected and moved for a mistrial on the grounds that the prosecutor had tainted his in-court identification. The trial judge denied the motion, stating that the victim “ha[d] already identified all three of the defendants” as having participated in the unarmed robbery. He directed the prosecutor not to point at the individual defendants, but to employ a different form of inquiry.
When the prosecutor later asked the victim to identify the defendant, but without pointing him out, the defendant objected. The trial judge overruled the objection and the victim proceeded to identify the defendant.
The victim's in-court identification of the defendant was properly admitted at trial. In an even more suggestive situation than the present one, the Supreme Judicial Court did not disturb the allowance of an in-court identification where, after the several defendants were collectively identified, the prosecutor pointed to each defendant individually. See Commonwealth v. Gordon, 422 Mass. 816, 842–849, 666 N.E.2d 122 (1996). Here, even if the judge erred, no prejudice resulted where the prosecutor never gestured toward this defendant as she had toward codefendant Saintil. Nor did the prosecutor's gesture toward Saintil in any way taint the identification of the defendant. See Commonwealth v. Walker, 460 Mass. 590, 613 n. 25, 953 N.E.2d 195 (2011) (“If any unfair prejudice attached ... it was the codefendant, not the defendant, who would have borne its brunt”).
We further note that the judge gave comprehensive instructions on identification issues, including the possible impact from cross-racial differences, as requested by the defendant. In any case, the defendant was not prejudiced, especially considering the victim's contemporaneous out-of-court identification of each of the three defendants within ten minutes of the robbery.
Prosecutorial misconduct. Finally, the defendant complains that certain remarks during the prosecutor's cross-examination and closing argument were improper. As the defendant preserved these issues by objecting at trial, we review for prejudicial error. See Commonwealth v. Santiago, 425 Mass. 491, 500, 681 N.E.2d 1205 (1997).
We have reviewed the defendant's assertions concerning the questions posed to codefendant Saintil and his contention that the prosecutor misstated evidence during that examination. Having done so, we find no merit in the defendant's claim that the trial judge erred in overruling his objections. Similarly, although it would have been better left unsaid, the prosecutor's remark to the jury about being taken down “side roads” by the defense was more than adequately addressed in the trial judge's instruction to the jury, which the jurors are presumed to follow. See Commonwealth v. Pope, 406 Mass. 581, 588, 549 N.E.2d 1120 (1990).
Judgment affirmed.