Opinion
10-P-1209
04-03-2012
COMMONWEALTH v. LY NOUN.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, a Cambodian national, was convicted by a Superior Court jury of two counts of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), and one count of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b).
The defendant was also charged with three counts of rape of a child, G. L. c. 265, § 23, five counts of rape, G. L. c. 265, § 22(b), three counts of indecent assault and battery on a person fourteen or over, G. L. c. 265, § 13H, and another count of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b). The jury found the defendant not guilty on all of these charges.
On appeal, he contends the motion judge erred in denying his motion to suppress statements made during a custodial interrogation by Lowell police because he did not knowingly, intelligently, and voluntarily waive his rights under the Fifth Amendment to the United States Constitution pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); the trial judge erred in admitting, over objection, testimony regarding alleged prior bad acts of the defendant; and (3) the trial judge failed properly to instruct the jury pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). In addition, the defendant argues that the cumulative effect of these errors denied him his rights to due process of law and to a fair trial. We affirm.
1. Validity of the waiver of Miranda rights. If an interrogation is custodial in nature, the Commonwealth bears the burden of proving beyond a reasonable doubt that the defendant made a valid waiver of Miranda rights. Commonwealth v. Edwards, 420 Mass. 666, 669-670 (1995). 'On review of a motion to suppress, we do not disturb the judge's findings of fact unless they are clearly erroneous and we give deference to the judge's legal conclusions, but independently review the correctness of the judge's application of constitutional principles to the facts found.' Commonwealth v. Seng, 436 Mass. 537, 543 (2002), citing Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995).
The motion judge did not make written findings of fact, but instead denied the defendant's motion to suppress from the bench after reciting her findings of fact and rulings of law.
To be valid, the waiver of Miranda rights must be made knowingly, intelligently, and voluntarily. Commonwealth v. Edwards, supra at 670. The validity of a waiver is assessed in light of the totality of the circumstances, which includes, inter alia, 'the defendant's age, education, intelligence and emotional stability.' Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). Here, the factor that was of the greatest concern to the motion judge was the nature and extent of the defendant's comprehension of Miranda rights in view of his inability to read and write, and his limited ability to speak and understand, English. If a defendant cannot understand the nature of his rights, he cannot waive them intelligently. Commonwealth v. Seng, supra at 544 ('[W]hat Miranda requires 'is meaningful advice to the unlettered and unlearned in language which [they] can comprehend and on which [they] can knowingly act," quoting from United States v. Connell, 869 F.2d 1349, 1351 [9th Cir. 1989]). In light of the evidence before her, the judge properly gave considerable weight to those factors.
In her findings, which are supported in the record and which we accept, the judge found that, after the defendant agreed to speak to officer Mercado, Mercado sought the assistance of detective Phay, who was born in Cambodia and spoke the defendant's primary language, Khmer. Phay has translated in criminal investigations in the Lowell police department, and testified in court as to those translations. Phay read each Miranda right to the defendant, translating each in Khmer, and asked him, after each translated warning, if he understood the warning. The defendant stated, in each instance, that he did.
The judge found that the defendant did not appear to have any difficulty understanding Phay when Phay spoke to him in Khmer, nor did Phay have any difficulty understanding the defendant when the defendant spoke in Khmer. Moreover, the tone and style of the questioning, according to the judge's findings, were neither aggressive nor confrontational.
Based on the judge's findings, we see no basis to disturb the judge's conclusion that the Commonwealth met its burden of proving that the defendant made a knowing, voluntary, intelligent waiver of Miranda rights.
2. Admission of prior bad act testimony. The defendant argues that the trial judge erred in admitting, over objection, certain testimony regarding the defendant's prior bad acts with the victim. We disagree. 'It is well settled that the prosecution may not introduce evidence of a defendant's prior or subsequent bad acts for the purpose of demonstrating bad character or propensity to commit the crime charged.' Commonwealth v. Barrett, 418 Mass. 788, 793 (1994). Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). However, such evidence may admissible for other relevant probative purposes, i.e., to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive. Commonwealth v. Mamay, 407 Mass. 412, 417 (1990).
The bad acts included the defendant's act of standing outside the victim's friend's house, where the victim was staying, with a bat in his hands and his striking the victim with a belt as an act of discipline. In addition, the victim also testified to an uncharged incident of rape by the defendant when she was between five and nine years old.
Moreover, 'when a defendant is charged with any form of illicit sexual intercourse, evidence of the commission of similar crimes by the same parties though committed in another place, if not too remote in time, is competent to prove an inclination to commit the [acts] charged in the indictment . . . and is relevant to show the probable existence of the same passion or emotion at the time in issue.' Commonwealth v. King, 387 Mass. 464, 470 (1982), quoting from Commonwealth v. Bemis, 242 Mass. 582, 585 (1922).
Here, the trial judge properly found that the evidence in question met the above requirement and, at least implicitly, determined that its probative value was not outweighed by a risk of undue prejudice to the defendant. Commonwealth v. Helfant, supra at 225. There was no error.
3. The DiGiambattista jury instruction. Lastly, the defendant contends that the judge erred in failing to provide the jury with a proper instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004). We agree, but find that the erroneous instruction, to which the defendant did not object, did not create a substantial risk of a miscarriage of justice. See Commonwealth vs. Drummond, 76 Mass. App. Ct. 625, 630 (2010).
'[W]hen the prosecution introduces evidence of a defendant's confession or statement that is the product of a custodial interrogation . . . and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care. Where voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.'
--------
Here, at the defendant's request, the judge properly gave the first part of the instruction but, as the Commonwealth concedes, erroneously failed to give the second part of the instruction. However, aside from the defendant's statements, there was evidence before the jury, including the victim's testimony, the defendant's admission that he was holding something when he threatened the victim, and photographs of the victim's bruises, sufficient to convict the defendant of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(b), and assault by means of a dangerous weapon, G. L. c. 265, § 15B(b). Moreover, especially where the jury acquitted the defendant on other serious charges about which he allegedly made inculpatory statements during the interrogation, we conclude that the error did not create a substantial risk of a miscarriage of justice.
Judgments affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),