Opinion
13-P-942
08-03-2017
COMMONWEALTH v. HNUNA CHAWNG.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of two counts of indecent assault and battery on a child, in violation of G. L. c. 265, § 13B, and two counts of witness intimidation, in violation of G. L. c. 268, § 13B. In this consolidated appeal from his convictions and the order denying his motion for a new trial, he claims error occurred in (1) the appointment of a noncertified interpreter, (2) the denial of motions to continue in order to locate a certified interpreter and a certain defense witness, (3) the admission of hearsay testimony, (4) the prosecutor's closing argument, and (5) the violation of his right to a speedy trial. We affirm.
Discussion. 1. Right to a certified interpreter. The defendant argues that the motion judge abused his discretion in denying the motion for a new trial because a structural error occurred when he was appointed a language interpreter that was not "certified" as required by G. L. c. 221C, § 2. While a statutory violation indeed occurred here, the judge did not abuse his discretion in denying the motion because there was no prejudicial constitutional error. See Commonwealth v. Azar, 50 Mass. App. Ct. 767, 768 (2001), S.C., 435 Mass. 675 (2002).
Because the defendant's claim of structural error is constitutionally based and was preserved below, we assume that such an error, if found, would be "prejudicial constitutional error" for purposes of our review of the denial of the motion for a new trial. See Commonwealth v. Weaver, 474 Mass. 787, 814 (2016).
"Review of a judge's ruling on a motion for new trial is limited to determining whether the judge abused his discretion, particularly where, as here, the trial judge is the one ruling on the motion. See Commonwealth v. Moore, 408 Mass. 117, 125 (1990). However, a judge has no discretion to deny a motion for a new trial if the original criminal proceeding was infected with prejudicial constitutional error. Commonwealth v. Sullivan, 385 Mass. 497, 503 (1982)." Azar, 50 Mass. App. Ct. at 768. We must accept the motion judge's findings of fact, made after an evidentiary hearing, if they are supported by the record, and we defer to the judge's assessments of credibility. Commonwealth v. Rosario, 460 Mass. 181, 195 (2011).
Pursuant to both a constitutional right as well as a statutory one, a criminal defendant who is a non-English speaker is entitled to the assistance of court-appointed interpretation services. See Sixth Amendment to the United States Constitution; art. 12 of the Declaration of Rights of the Massachusetts Constitution; G. L. c. 221C, § 2 ; Commonwealth v. Turell, 6 Mass. App. Ct. 937, 938 (1978), citing Negron v. New York, 310 F. Supp. 1304 (E.D.N.Y.), aff'd, 434 F.2d 386 (2d Cir. 1970). The constitutional right guarantees competent interpretation services and derives from the defendant's right to confront witnesses and to be present at his own trial. Negron, 434 F.2d at 389. See Commonwealth v. Garcia, 379 Mass. 422, 438 (1980). The statutory right guarantees the defendant a "certified" court interpreter as the term is defined in G. L. c. 221C, § 1. See Commonwealth v. Vargas, 475 Mass. 338, 355 (2016). Notably, the defendant cites no authority, nor are we aware of any, conferring a constitutional right to a certified interpreter.
The statute confers the right to a "certified" interpreter if a "qualified" interpreter is not reasonably available. G. L. c. 221C, § 2. A "certified" interpreter is "an interpreter who has been duly trained and certified under the direction of the coordinator of interpreter services pursuant to subsection (e) of section seven." G. L. c. 221C, § 1, inserted by St. 1986, c. 627, § 2. A "qualified" interpreter is "a certified interpreter who has also passed the examination and been qualified for interpreting in the federal courts by the United States district court for the district of Massachusetts." G. L. c. 221C, § 1. Thus, because both types of statutorily satisfactory interpreters are "certified," we use this term when referring to the statutory right.
Here, following a hearing in which the defendant presented evidence from a language expert, the judge made detailed findings concerning the adequacy of the interpretation services the defendant received. With the advantage of having presided over the trial, the judge recounted the two-year ordeal in locating an interpreter for the defendant in his native language of Mizo Chin. After conducting a nationwide search, the head of the Office of Court Interpreter Services, Gaye Gentes, eventually secured the services of Zho Hmung. While Hmung was not "certified" pursuant to G. L. c. 221C, the judge appointed him, relying on Gentes's "professionalism and expertise" in her selection. The judge also found that Hmung had "vast experience" in interpreting at the United Nations as well as immigration hearings and that he had a master's degree from the Kennedy School of Government. See Commonwealth v. Salim, 399 Mass. 227, 238 (1987) ("[T]he qualifications of an interpreter fall within the area of the judge's discretion").
Several different interpreters were secured but each was rejected because he or she did not speak the proper dialect. Eventually, two certified interpreters satisfactory to the defendant were located, however, both were subsequently disqualified. The first was deemed a potential witness, and the second was disqualified when, after he was named, the defendant traveled to Maryland and visited with him. The judge noted that the visit was "highly unusual" and he was "concerned that the defendant was deliberately attempting to delay his own trial."
We note that in Commonwealth v. Salim, 399 Mass. 227 (1987), the underlying trial occurred in Essex County prior to the implementation of the protocols outlined in G. L. c. 221C in that county. See Commonwealth v. Espinoza, 28 Mass. App. Ct. 65, 71 n.3 (1989).
In his decision on the defendant's motion for new trial, the judge stated he was "confident the defendant could communicate with Hmung and understood the proceeding." Thus, he was satisfied that the defendant received constitutionally sufficient interpretation services. See Negron, 434 F.2d at 391 ; Garcia, supra. In arriving at this conclusion, the judge relied on several factors, each of which is well supported by the record. Notably, he found that while testifying in his own defense, the defendant's "responses were appropriate to the questions asked by both counsel, suggesting he understood the interpreted questions and, in responding, the interpreter understood the defendant's answers to those questions." The judge also stated that he did not credit the defendant's affidavit or the "self-serving" statements made to the expert witness.
The defendant's claim that the judge failed to properly consider the language expert's conclusion also lacks merit. The judge was free to credit and weigh the evidence as he saw fit, and we cannot say he abused his discretion in failing to adopt the view of the language expert. See Commonwealth v. Goodreau, 442 Mass. 341, 349 (2004).
There is no dispute that the defendant was a non-English speaker and the interpreter appointed for trial was not "certified" pursuant to the statute. The defendant was thus denied a statutory right. Ultimately, however, we agree with the judge that the defendant's constitutional right to competent interpretation services was not violated and thus no prejudicial constitutional error occurred which would require a new trial. See Negron, 434 F.2d at 390-391. See also Azar, 50 Mass. App. Ct. at 768. Accordingly, the judge did not abuse his discretion in denying the motion for a new trial on that basis.
The judge was satisfied, however, that the defendant had a "sufficient working knowledge of English" based on his own observations of the defendant at trial and the testimony of witnesses. The judge was of course free to credit his own observations and make credibility determinations.
To the extent the defendant asserts this preserved claim of error on direct appeal, we note that the statutory violation does not require reversal because there was no prejudice to the defendant. An error is nonprejudicial where the court "is sure that the error did not influence the jury, or had but very slight effect." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (quotation omitted). Notwithstanding the difficulty in assessing whether the use of a certified interpreter would have had any effect here, we are confident in the judge's determination that the defendant received competent, constitutionally sufficient interpretation services, as discussed herein. The record and his findings support the conclusion that the failure to comply with G. L. c. 221C was not prejudicial.
2. Motions to continue. The defendant argues the judge abused his discretion in failing to allow motions to continue in order (1) to appoint a certified interpreter, and (2) to secure the responding police officer as a witness. We disagree.
"[A] continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served." Mass.R.Crim.P. 10(a)(1), 378 Mass. 861 (1979). "Generally, ‘[t]he decision whether to grant a motion to continue lies within the sound discretion of the trial judge ... [and a] denial of a continuance will not constitute error absent an abuse of that discretion.’ " Commonwealth v. Super, 431 Mass. 492, 496 (2000), quoting from Commonwealth v. Painten, 429 Mass. 536, 543 (1999). A judge's consideration should include balancing the defendant's "need for additional time against the possible inconvenience, increased costs, and prejudice" to the Commonwealth. Super, supra at 496-497.
a. Certified interpreter. The defendant moved to continue on two occasions to locate an interpreter who met the requirements of G. L. c. 221C. Given the considerable years-long efforts to find such an interpreter to no avail and the eventual appointment of a constitutionally sufficient one, we cannot say the judge abused his discretion, particularly where there was no indication of when a certified Mizo Chin interpreter with the proper dialect would ever be available. See Commonwealth v. Hanger, 6 Mass. App. Ct. 407, 418-419 (1978).
b. Defense witness. The defendant claims that without the testimony of the responding police officer, he was unable to present crucial evidence. However, as the judge found, the officer's potential testimony "was for impeachment purposes only" and "would have been cumulative and of marginal importance at best." In fact, the defendant cites no reason for the officer's testimony other than to impeach the victim's mother's testimony that she did not go home to fabricate the story with the victim before returning to the store to speak with police. Moreover, the record indicates that despite the officer's unavailability, defense counsel cross-examined the mother on this point. In these circumstances, it was not an abuse of discretion for the judge to determine that the inconvenience and increased cost of further delay outweighed the defendant's need for additional time, particularly when counsel offered no assurance of when, if at all, the witness would be available to testify.
Furthermore, the case had been continued multiple times, and it is unlikely that additional time would have had any effect on procuring the witness. At a hearing before an earlier scheduled trial date, the defendant stated that the officer would be out of the country for three or four months. As a result, the judge granted a five-month continuance to ensure his appearance. Despite this accommodation and two subpoenas, the officer did not appear on the rescheduled date. The judge reasonably concluded that he "was not confident that anything different would occur at a future date."
3. Hearsay. The defendant next argues that Officer Costine's testimony about the store's surveillance system was hearsay and resulted in prejudicial error. We disagree.
Officer Costine testified that when he attempted to obtain surveillance footage of the incident from the store's corporate headquarters, he learned that the store had experienced a power outage on the day of the incident. As a result, the video cameras were in their default positions and none was trained on the area where the incident took place during the relevant time frame. Officer Costine had no personal knowledge of these facts, and his testimony on the issue was hearsay. However, the store's manager, Samba Saidysall, also testified about the surveillance system and its apparent malfunction. Relying on his personal knowledge, Saidysall stated that parts of the store were equipped with video cameras but on the day of the incident, the camera that was trained on the relevant area was not in its normal position. While he was unsure why the camera had moved, he thought it was possibly due to a power failure. The defendant did not object to this testimony. Thus, even assuming Officer Costine's testimony was improperly admitted, the error was harmless beyond a reasonable doubt because it was cumulative of properly admitted evidence. Commonwealth v. Perez, 411 Mass. 249, 260-261 (1991).
The defendant also argues there was improper authentication of a surveillance video. Six still photographs from a surveillance video were admitted in evidence after the victim identified herself in that portion of the video. Even were we to assume error in their admission, there was no prejudice to the defendant because the victim's presence in the store on the day of the incident is undisputed.
4. Closing argument. The defendant argues that the Commonwealth's closing argument was improper and requires reversal. Because defense counsel did not object, we review under a substantial risk of a miscarriage of justice standard. Such a risk exists "if we have a serious doubt whether the result of the trial might have been different had the error not been made." Azar, 435 Mass. at 687 (quotation omitted).
The defendant first claims error in the prosecutor's statement, "[w]hat would motivate a 12-year-old little girl to come into this courtroom and talk about such humiliating things in such detail? I'd suggest to you one thing and one thing only: the truth." These remarks sail close to the boundary of proper argument and are sufficiently similar to the remarks the Supreme Judicial Court criticized in Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005), to give us pause. We nonetheless conclude that, even if there was error, there was no substantial risk of a miscarriage of justice. "Nothing in the prosecutor's remarks indicated that she had personal knowledge of the witness' credibility or any independent knowledge of evidence not before the jury." Commonwealth v. Kebreau, 454 Mass. 287, 304 (2009). Moreover, in his closing, defense counsel attacked the victim's credibility. "Where, as here, defense counsel in his closing argument challenged the credibility of the alleged victim, a prosecutor acts properly in inviting the jury to consider whether the victim has a motive to lie, and identifying evidence that demonstrates that the victim's testimony is accurate and reliable." Commonwealth v. Polk, 462 Mass. 23, 39-40 (2012).
The defendant next argues that the prosecutor misstated the evidence underlying the defense's theory that the victim and her mother went home for two hours before speaking to police in order to fabricate their story. Specifically, the prosecutor stated there was "no credible evidence to [show the mother and victim went home]." The defendant claims, however, that he offered significant credible evidence by way of a police report and a store employee's testimony. However, the police report he refers to was never entered in evidence, and the employee's testimony was not in direct contradiction to the prosecutor's statement as the defendant suggests. Furthermore, the judge properly instructed the jury that they were to determine witness credibility and any disputed questions of fact.
Finally, the prosecutor's statement that the area of the store where the incident occurred was "the perfect place to commit this kind of crime" was neither misleading nor prejudicial. It is well established that "[e]nthusiastic rhetoric, strong advocacy, and excusable hyperbole are not grounds for reversal," Commonwealth v. Beland, 436 Mass. 273, 289 (2002) (quotation omitted), and jurors are presumed to have "[a] certain measure of ... sophistication in sorting out excessive claims on both sides." Commonwealth v. Kozec, 399 Mass. 514, 517 (1987). Accordingly, no substantial risk of a miscarriage of justice occurred as a result of the prosecutor's closing argument.
Given our conclusions herein, there was no cumulative error.
5. Right to a speedy trial. Over two years elapsed between the defendant's return date, his November 5, 2010, arraignment, and the beginning of his trial on February 25, 2013. Pursuant to Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 909 (1979), a defendant must be tried "within twelve months after the return day in the court in which the case is awaiting trial." See Commonwealth v. Bourdon, 68 Mass. App. Ct. 526, 527 (2007) (The " ‘return date’ here [is] arraignment"). However, certain periods are excluded from the computation of the time within which the trial must commence. See Mass.R.Crim.P. 36(b)(2). Additionally, if the defendant "acquiesced in, was responsible for, or benefited from the delay," the period of that delay is also excluded from the calculation. Commonwealth v. Rodgers, 448 Mass. 538, 540 (2007), quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).
Here, all but fifty-six days of the period between the defendant's arraignment and the beginning of his trial were either excludable under Mass.R.Crim.P. 36(b)(2) or agreed to, acquiesced to, or caused by the defendant. See Barry v. Commonwealth, 390 Mass. 285, 289 (1983). He therefore was brought to trial within the time period permitted.
The docket indicates that the defendant agreed to or did not object to continuances on several occasions. In Commonwealth v. Montgomery, 76 Mass. App. Ct. 500, 505 (2010), this court held that where no trial date has been set, the defendant's lack of an objection to continuances for status "has no bearing on [the] inquiry of whether he acquiesced for purposes of speedy trial analysis." Here, while multiple trial dates had been set, there was one period in which a trial date was no longer scheduled and the case was continued several times for "status" (May 16, 2011, until December 15, 2011). However, even were we to include this period, the total amount of includable days would be 269, which is still within the time period the Commonwealth has to bring the defendant to trial.
The defendant argues, however, that in denying his motions to dismiss on speedy trial grounds, the judge erred in failing to consider Mass.R.Crim.P. 36(c), which requires the inclusion of any delay due to the conduct of the prosecutor in bringing the defendant to trial that was "unreasonably lacking in diligence" and "resulted in prejudice to the defendant." In support, the defendant cites the multiple delays related to locating and appointing an interpreter. While the defendant concedes that the burden of appointing an interpreter is on the court and not the prosecutor, he argues that those delays should be included nonetheless because it was not his burden to appoint one. See G. L. c. 221C, § 2. However, without reaching the merits of his argument, even were we to include the delays related to interpreter issues in the rule 36 calculation, the defendant's claim fails. Relying on the docket notes, a revised calculation results in the exclusion of all but 287 days, which is less than the one-year period the Commonwealth has to bring the defendant to trial. Accordingly, the defendant was not denied his right to a speedy trial.
The defendant's first motion to dismiss on speedy trial grounds was docketed May 30, 2012. Under the revised calculation, which favors the defendant, as of that date, all but 276 days are excluded. The defendant's motion to reconsider the denial of the motion to dismiss was docketed August 30, 2012. As of that date, under the revised calculation all but 280 days are excluded.
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Judgments affirmed.
Order denying motion for new trial affirmed.