NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected]

SJC-12383

COMMONWEALTH vs. SIFA LEE. 1

Essex. May 10, 2019. - November 12, 2019.

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

Homicide. Stealing by Confining or Putting in Fear. Armed Assault with Intent to Murder. Interpreter. Constitutional Law, Fair trial, Assistance of counsel, Self-incrimination, Waiver of constitutional rights. Due Process of Law, Interpreter. Fair Trial. Jury and Jurors. Witness, Self- incrimination. Practice, Criminal, Capital case, Interpreter, Fair trial, Assistance of counsel, Instructions to jury, Empanelment of jury, Waiver.

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.

1 As is our custom, we spell the defendant's name as it appears on the indictments. 2

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, 3

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 4

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 5

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. 6

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 7

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 Malden, 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.

2 In exchange for Lin's cooperation, the Commonwealth agreed to reduce the murder indictment to the lesser included offense of manslaughter, and to a combined sentence of from fifteen to twenty-five years for manslaughter and stealing, and five years of probation for the armed assault. 8

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

3 A scraping from the interior headband of the baseball hat found inside the restaurant contained a mixture of deoxyribonucleic acid (DNA) from at least two individuals. The defendant's DNA matched the major profile, and Lin matched the minor profile. 9

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

4 The Commonwealth offered evidence that, it contended, corroborated Lin's testimony. The evidence included surveillance video footage taken from businesses located on Route 1 near the restaurant, two Connecticut casinos, and the businesses near the laundromat. The Commonwealth also introduced evidence from Lin's GPS device and the taxicab's CMT system that showed its path of travel on September 27, 2011. 10

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,

, 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 11

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 12

detailed findings of fact to explain his rulings. We briefly

summarize these findings, supplemented with uncontroverted

evidence from the record.

The defendant, who was born in China, does not speak

English. At his January 2012 arraignment in the Superior Court,

he filed a motion requesting funds for an interpreter because

"his native language is Cantonese[]." In subsequent pretrial

motions, the defendant continued to represent that "his native

language is Cantonese[]" and "his native language is the

Cantonese dialect of Chinese." As a result, the judge appointed

Cantonese interpreters to interpret for the defendant in twenty-

three court appearances. These pretrial matters included a

complex motion to suppress raising issues of cell site location

information.

On January 13, 2016, the judge began to empanel a jury in

the joint trial of the defendant and Sun. During seven days of

jury selection, the judge provided the defendant with Cantonese

interpreters, and Sun with Mandarin interpreters. On January

20, 2016, the defendant objected to the qualifications of one of

the Cantonese interpreters. He did not, however, indicate that

he was unable to understand this interpreter's Cantonese.

The defendant's severed trial commenced on March 8, 2016,

with two Cantonese interpreters, Lewanna Li (Li) and Melissa Lo

(Lo). On the fourth day of empanelment, the defendant asserted 13

that "some of the interpretation" by Li was inaccurate. Defense

counsel informed the judge that the defendant "does speak

Cantonese, but that is not his native Chinese language. His

native Chinese language is [Taishanese]. The language spoken in

the Province of [Taishan], China. . . . [A] [Taishanese]

interpreter would be more suitable for [the defendant]." 5 The

judge continued to empanel with Lo as the sole interpreter, and

scheduled a hearing for the following day.

The next day, counsel stated that he had spoken to the

defendant regarding "the [e]mpanelment process, his

understanding of the process and the potential for errors in

translation." After these discussions, trial counsel explained,

the defendant had "clearly and unequivocally conveyed to [trial

counsel] that he understood the [e]mpanelment process." Counsel

added that the defendant was "raising no issues with regard to

that whatsoever."

The judge conducted a colloquy with the defendant to

confirm that he had knowingly and voluntarily withdrawn his

objection to the interpretation of the proceedings. The

5 The defendant's language is spoken in the southern portion of the Guangdong province in China. See C. Szedo, Testing Intelligibility Among Sinitic Dialects, Proceedings of the 2000 Conference of the Australian Linguistic Society 1 (Szedo). It has a number of spellings in written English. Trial counsel referred to the defendant's language as "Taosenese." For consistency, we use the spelling "Taishanese" throughout. 14

defendant said that he was born in China, and speaks Cantonese

and Taishanese. When asked about the conduct of the interrupted

trial, the defendant stated that he had had "a little bit" of

"difficulty" with the interpretation because some of the words

spoken during jury voir dire were not, in his opinion,

interpreted. With respect to this trial, the defendant

indicated that he understood that he had a right to "be present

during a trial, to understand what is happening and to be able

to assist meaningfully with . . . [his] defense." After the

colloquy, the judge found that "the defendant [had] been able to

understand what [was] going on . . . and that the defendant

[had] knowingly, willingly and voluntarily answered the

[c]ourt's questions and the [c]ourt [was] comfortable to make a

finding that the defendant [was] able to fully participate in

the proceedings."

On April 5, 2016, the judge found Cantonese interpreter

Stephanie Liu (Liu) to be qualified to interpret pursuant to

G. L. c. 221, § 92, and Mass. R. Crim. P. 41,

(1979). The defendant informed the judge that "he [was] much

more comfortable with [Taishanese] than he [was] in Cantonese,"

and would "prefer a [Taishanese] interpreter." Thereafter, the

defendant expressed his dissatisfaction with Liu. The defendant

contended that "he did not understand, because of poor

interpretation, much of what was said during the opening 15

statements of counsel and during the testimony of the witness

[on the first day of trial]." The judge observed that he did

not credit the defendant "for so many reasons," but would make

specific findings of fact at a later point. The defendant

asserted that he required a Taishanese interpreter "to vindicate

his constitutional rights."

On April 12, 2011, the defendant renewed his request for a

Taishanese interpreter because he had "only understood [ninety]

percent of what was translated to him on the day before." The

judge conducted a voir dire hearing to address the defendant's

contention that he did not understand the Cantonese

interpreters. The defendant waived the interpreter privilege,

see Mass. G. Evid. § 522(b) (2019), and Liu and Lo testified

that they were both able to speak to the defendant in Cantonese

and understood his Cantonese responses. Lo added that she also

spoke Taishanese, which she had learned at a young age from her

greatgrandmother. She had not, however, interpreted words into

Taishanese until the day of the voir dire hearing.

The judge found "that the defendant speaks Cantonese

fluently" and that the defendant's claim he did not understand

the proceedings was not credible "to an exponential degree."

The judge nonetheless agreed to appoint the defendant a

Taishanese interpreter. The next day, the judge conducted a

hearing and appointed Taishanese interpreter Way Moy (Moy), who 16

recently had retired as a staff interpreter for the New York

Supreme Court. The defendant objected to Moy's lack of

certification in Massachusetts. The following day, April 14,

2016, the defendant expressed dissatisfaction with Moy's

interpretation. He said that "he speaks a variation of

[Taishanese]" that [Moy] does not speak." The defendant

characterized Moy's Taishanese as "broken" or "very old

school[]," dating to the 1920s and 1930s. The judge found that

Moy was highly qualified in Taishanese and that the defendant

had received "the interpreter that he wanted."

ii. Analysis. A failure to provide a non-English speaker

with a competent interpreter implicates multiple constitutional

rights. As a matter of fundamental fairness, a defendant has a

due process right to understand the proceedings. See United

States v. Lopez-Collazo,

(4th Cir. 2016),

cert. denied,

(2017). See also United States ex

rel. Negron v. New York,

(2d Cir. 1970) (for

non-English speaker deprived of adequate interpreter, most of

trial is "[a] babble of voices"). A judge also is required to

provide a non-English speaker with a competent interpreter in

order to safeguard the defendant's rights under the Sixth

Amendment to the United States Constitution, and art. 12 of the

Massachusetts Declaration of Rights, to be present at trial and

to confront adverse witnesses. Commonwealth v. Garcia, 379

, 437 (1980). See United States v. Carrion,

(1st Cir. 1973), cert. denied,

(1974)

("right to confront witnesses would be meaningless if the

accused could not understand their testimony, and the

effectiveness of cross-examination would be severely hampered").

A non-English speaker also is entitled to competent

interpretation in order to consult meaningfully with counsel

during the trial. United States ex rel.

.

In addition, a non-English speaker has a statutory right to

a court-appointed qualified interpreter. See G. L. c. 221C,

§§ 1-2; G. L. c. 221, § 92. General Laws c. 221C, § 2, provides

that "[a] non-English speaker, throughout a legal proceeding,

shall have a right to the assistance of a qualified

interpreter." A "qualified interpreter" is defined as "a

certified interpreter who has also passed the examination [given

by the office of court interpreter services] and been qualified

for interpreting in the [F]ederal courts by the United States

[D]istrict [C]ourt of the [D]istrict of Massachusetts." G. L.

c. 221C, § 1. In the event that a "qualified interpreter" is

not "reasonably available," a judge shall appoint a "certified

interpreter." G. L. c. 221C, § 2. Under G. L. c. 221C, § 1, a

"certified interpreter" is "an interpreter who has been duly

trained and certified" by the office of court interpreter

services. 18

Pursuant to G. L. c. 221, § 92, a Superior Court judge "may

appoint such official interpreters as they may deem necessary

for the sessions of the court." The judge also has authority to

appoint "other interpreters when the services of the official

interpreters are not available." G. L. c. 221, § 92. See Mass.

R. Crim. P. 41 ("The judge may appoint an interpreter or expert

if justice so requires and may determine the reasonable

compensation for such services and direct payment therefor").

Implicit in the judge's authority to appoint an interpreter

pursuant to G. L. c. 221, § 92, and Mass. R. Crim. P. 41, is the

understanding that the individual appointed to interpret is

competent. See United States v. Villegas,

, 1348

(2d Cir.), cert. denied,

(1990). 6

The issue raised in this appeal is whether any inadequacy

in the interpretation of the proceedings "made the trial

fundamentally unfair." See United States v. Tapia,

(5th Cir. 1980). According to the defendant, the

trial record "contains a plethora of examples of the defendant's

6 In passing, the defendant asserts that G. L. c. 221, §§ 1- 7, in effect, supersede G. L. c. 221, § 92, and Mass. R. Crim. P. 41. He does not, however, argue that the judge improperly certified the interpreters pursuant to G. L. c. 221, § 92, and Mass. R. Crim. P. 41. As the defendant contends that the issue is whether he was deprived of his constitutional right to a fair trial due to inadequacies in the interpretation, we need not address the defendant's statutory argument. 19

struggle to understand what was going on." 7 The judge, he

alleges, "tolerate[d]" incompetent interpreters for the sake of

expediency, without regard to the defendant's ability to

understand the proceedings. More particularly, the defendant

argues that the judge erred in finding that (1) the defendant

spoke fluent Cantonese and, therefore, did not need a Taishanese

interpreter; (2) the defendant was able to understand Cantonese

interpreter Liu; and (3) the defendant was able to understand

Taishanese interpreter Moy. We evaluate each of the defendant's

claims under an abuse of discretion standard. See Commonwealth

v. Garcia,

(1980) (judgments concerning

defendant's need for interpreter "uniquely within the province

of the trial judge"). See also Valladares v. United States,

(11th Cir. 1989) (judge in direct contact with

defendant is given wide discretion to decide adequacy of

interpreter); Chee v. United States,

(9th Cir.

7 We have carefully examined the seventy-five instances cited by the defendant as "examples of the defendant's struggle to understand what was going on." These portions of the trial transcript include counsel's objections, a pause in the trial so that the interpreter could explain the word "postmortem" to the defendant, the interpreter asking a witness to clarify the pronunciation of a surname, and the interpreter indicating that he could not hear part of an answer. 20

1971) (per curiam) (trial judge has broad discretion in

determining fitness and qualifications of interpreters). 8

The defendant concedes that he understands "some

Cantonese." He argues, however, that he does not speak

Cantonese well enough "to be comfortable understanding it at

trial without an interpreter translating." 9 The judge's finding

8 In a related claim, the defendant contends that he was deprived of a fair trial by the judge's denial of a continuance prior to beginning cross-examination of Lin on the ninth day of testimony. Counsel believed that the defendant had prepared certain questions he wanted counsel to ask on cross-examination of Lin. Before cross-examination began, counsel sought a continuance so that he could review those questions with an interpreter and his client. The judge denied the motion, pointing to the inconvenience to the jury in dismissing them early, and instructed trial counsel to question Lin for the forty-five minutes remaining in the court day, and then to discuss the questions with the defendant thereafter. The judge noted also that defense counsel had had nine days to prepare for the cross-examination, and that he had had access to daily transcripts of the majority of the testimony. In addition, the judge pointed out that the cross-examination was likely to be lengthy, and to continue over more than one day.

According to the defendant, this "showed a total lack of sensitivity to . . . interpretation issues." The defendant has not shown that the judge abused his discretion in ordering the forty-five minutes of cross-examination before counsel had reviewed the questions that the defendant wanted him to ask. See Commonwealth v. Fernandez,

(2018). Due to planned delays in the trial, counsel had ample time to consult with the defendant and to prepare his cross-examination of Lin, and was able to resume cross-examination four days later having fully consulted with his client.

9 While the defendant speaks Cantonese and Taishanese, the two are very different languages. In general, Cantonese speakers comprehend approximately 31.3 percent of what they hear in Taishanese. See Szedo, supra at 4. 21

that the defendant spoke fluent Cantonese, and understood the

proceedings interpreted from English into Cantonese, is well

supported by the record. Over the course of the four years

prior to his trial, the defendant represented to the judge that

"his native language is Cantonese." On the fifth day of trial,

the judge conducted a colloquy of the defendant, where the

defendant withdrew his objections to the Cantonese interpreters.

In addition, while seeking a Taishanese interpreter for himself,

the defendant also requested that the court assign Cantonese

interpreter Lo. 10

The judge's denial of the defendant's motion to remove Liu,

and the judge's decision that Liu was competent, are also well

supported by the record and indicate no abuse of discretion.

The judge found that Liu is an experienced Cantonese interpreter

who has been certified by the office of court administration in

New York. He also credited Liu's testimony that she always

understood the defendant's Cantonese.

As evidence that Liu was inadequate, on appeal the

defendant points to a "serious misinterpretation" of Lin's

testimony. On that occasion, the prosecutor asked Lin where the

10Although not before the trial judge, we note that, in postconviction proceedings, appellate counsel filed a motion for funds to retain the services of an interpreter. Appellate counsel represented that "the defendant does not speak English well and requires the services of a Cantonese or [Taishanese] interpreter in order to communicate with his attorney." 22

defendant had directed him to go. Lin answered, as interpreted

by Liu, "In the beginning he asked me if I knew how to go to

Route One and then we would go to" the victim's restaurant. Lin

shook his head at this interpretation, and Liu corrected

herself, apologizing and asking if Lin had meant the proper name

"Kowloon." Lin in fact had said, "In the beginning he asked me

if I knew how to go to Route One and then we would go to the

Kowloon," an unrelated but well-known restaurant on Route 1.

Trial counsel renewed his "motion to have [Liu] stricken as the

interpreter." The judge conducted a voir dire; he then credited

Liu's explanation that "kowlong" means "dragon" in Cantonese, so

she thought Lin had been referring to the victim's restaurant,

the name of which included the word "dragon." We discern no

basis to disturb the judge's factual finding that there was

"absolutely no issue as it relates to [Liu's] ability."

The defendant contends further that the judge erred in

finding that Moy was a competent Taishanese interpreter. He

argues, "At no time during the trial of this matter did the

defendant receive translation from an interpreter capable of

speaking Taishanese fluently." The judge made detailed findings

regarding the defendant's ability to understand Moy's Taishanese

interpretation. He found, for example, that the defendant had

no difficulty answering approximately 625 questions posed by his

counsel on direct examination. The judge reasoned, "It would 23

have been impossible for him to have answered those 625

questions . . . if he did not understand the interpretation."

The judge noted that the defendant, again with Moy interpreting,

had little difficulty understanding the 300 questions asked by

the prosecutor on cross-examination. The defendant has not

demonstrated that the judge's findings are erroneous.

b. Ineffective assistance of counsel. The defendant

claims that a new trial is required because of trial counsel's

asserted failures effectively to cross-examine two witnesses.

In his decision on the defendant's motion for a new trial, the

motion judge noted that the defendant had not submitted an

affidavit from trial counsel or from any other person to provide

the court with "specific facts supporting the ineffectiveness

claim." In the judge's view, the defendant's assertions had not

"come close to suggesting that he could conceivably overcome the

stringent standard of review applied to claims of ineffective

assistance because of a failure to impeach a witness"

(quotations and citation omitted). 11 See Commonwealth

v. Jenkins,

(2011).

11The defendant also argues, for the first time on appeal, that he was deprived of effective assistance because trial counsel visited him in jail eighteen times (over a four-year period of pretrial detention), and that an interpreter was present for only eight visits. Our case law strongly disfavors raising an ineffective assistance claim on direct appellate review because the record is "bereft of any explanation by trial counsel for his actions" (citation omitted). Commonwealth v. 24

In reviewing a claim of ineffective assistance in a case of

murder in the first degree, we apply the more favorable standard

of review for a substantial likelihood of a miscarriage of

justice, pursuant to G. L. c. 278, § 33E. See Commonwealth

v. Vargas,

(2016). "We consider whether

there was an error in the course of the trial (by defense

counsel, the prosecutor, or the judge) and, if there was,

whether that error was likely to have influenced the jury's

conclusion."

quoting Commonwealth v. Lessieur,

, cert. denied,

(2015).

The defendant contends that Lin's prior statements to

police were "vastly different from his testimony at trial," and

that trial counsel's failure to impeach Lin with two prior

inconsistent statements "may have changed the results of the

trial." The first asserted inconsistent statement concerned

Lin's agreement with Sun to split the proceeds of the robbery.

In a September 29, 2011 interview, Lin told police that the

defendant and Sun returned to the taxicab after their initial

Gorham,

, 116 n.4 (2015). To be entitled to relief, "the factual basis of the claim [must] appear[] indisputably on the trial record." Commonwealth v. Zinser,

(2006). The defendant does not contend that counsel was unprepared in any manner. Nor does he explain how he was prejudiced by the lack of an interpreter. Moreover, the defendant does not mention that the record demonstrates that trial counsel visited the defendant, with an interpreter, an additional forty-two times in the court house holding cell. 25

entry into the restaurant. Lin said that Sun convinced him to

break into the restaurant by telling him, "Just come in to help

us. Go inside, get some of the money. I'll split it with you.

So, if you don't go inside to help us, you know, the other guy

is going to hit you with the crowbar." In a March 10, 2014

interview, Lin denied that Sun had told him there would be money

inside the restaurant. In that interview, Lin responded to a

question concerning what he knew prior to their arrival at the

restaurant. Lin insisted that the defendant and Sun "didn't

tell [him] . . . anything until [they got] there." At trial,

Lin did not mention any prior agreement to split the proceeds of

the robbery.

The second asserted inconsistency involved Lin's statement

to police that he had observed "three shadows" behind the

restaurant after the defendant and Sun left the taxicab. This

statement is inconsistent, the defendant argues, with Lin's

trial testimony that only the defendant and Sun were involved in

the robbery. As the motion judge recognized, the defendant did

not meet the stringent standard required for claims of

ineffective assistance premised on a failure to impeach a

witness. See Jenkins,

. See also Commonwealth

v. Valentin,

(2014) (counsel not ineffective

for failing to cross-examine witness concerning particular

statement where counsel otherwise "conducted a thorough 26

impeachment" of witness through cross-examination); Commonwealth

v. Fisher,

(2001) ("absent counsel's failure

to pursue some obviously powerful form of impeachment . . . , it

is speculative to conclude that a different approach to

impeachment would likely have affected the jury's conclusion").

Here, trial counsel impeached Lin's credibility in multiple

ways, including challenging Lin's statements that he purportedly

was unable to communicate with the defendant, that Lin was a

heavy gambler, that Lin had attempted to flee the country after

meeting with police, and that Lin had negotiated a favorable

plea agreement in exchange for his testimony. During cross-

examination, Lin admitted that he had lied to the police

concerning his involvement in the crime. For example, he

falsely told the officers that the defendant forced him to

surrender his taxicab keys when they arrived at the restaurant.

Lin also said that he had lied about wearing gloves inside the

restaurant. In his closing argument, trial counsel pointed out

that Lin repeatedly "lied to the police. . . . He lied about

the threats from the very beginning." Trial counsel emphasized

that Lin "hasn't told the truth in . . . a lot of ways. He

started off, as I said, not telling the truth; and he

continued."

The defendant also argues that trial counsel's cross-

examination of Yusheng Tan (Tan), the defendant's friend from 27

the casino where the defendant, Sun, and Lin went after the

robbery, should have been "more vigorous." Trial counsel's

performance was deficient, the defendant argues, because counsel

did not mention that Tan told the police that the taxicab was

yellow; Tan told the police he was unable to get a good look at

the driver; and Tan testified that the defendant's clothing was

filthy even though Tan "possibly" did not have a chance to

observe the defendant, who was "sandwiched between two other

individuals" in the back seat of Lin's taxicab.

The defendant has not demonstrated that the absence of

these relatively minor issues from counsel's cross-examination

amounted to ineffective assistance of counsel. Trial counsel

impeached Tan with multiple prior inconsistent statements

concerning the sequence of events inside the casino and the

defendant's gambling losses. Counsel also raised the issue of

bias because the defendant owed Tan, or Tan's mother, a gambling

debt. In his closing argument, trial counsel maintained that

Tan was untruthful and told a "whopper" of a lie concerning the

defendant's gambling losses. On the issue of bias, trial

counsel commented, "Is that a bias that he has so that he would

frame his testimony against [the defendant]?"

c. Jury instructions. The defendant asserts that the

judge provided a number of erroneous jury instructions as to

joint venture liability; the merger doctrine; and the duty to 28

find the highest crime proved beyond a reasonable doubt.

Because the defendant objected at trial, we review for

prejudicial error. Commonwealth v. Cole,

(2015).

i. Joint venture liability. The defendant argues, as he

did at trial, that it was error for the judge to instruct the

jury on joint venture liability. He contends that the

Commonwealth prosecuted the case on a theory of principal

liability and did not argue, or establish, that the defendant

aided and abetted another in the commission of the crime.

This argument mischaracterizes the Commonwealth's trial

strategy. The prosecutor's opening statement reflected the

Commonwealth's position that the defendant, Sun, and Lin

together committed the crime. She stated that the three men

"brutally beat [the victim]. They demanded that he open the safe and give them money, that [the defendant] armed himself with a crow bar and a hammer and that he used that to beat [the victim] over and over again, that [Sun] was armed with a knife, and that they beat [the victim] so badly after having bound him and dragged him and demanded from him, that he eventually collapsed. And the three men left him dead or dying on that office floor and fled back into the night the same way they came."

In her closing argument, the prosecutor continued to maintain

that the defendant, Sun, and Lin robbed and killed the victim:

"Three men assaulted [the victim] and tried to rob him. Three

men confined him, put him in fear while they tried to steal from 29

him. And three men brutally murdered [him]. But you are here

to render a verdict as to just one, [the defendant]."

The judge properly instructed the jury on the theory of

joint venture liability. See Commonwealth v. Smith,

(2011) (judge required to instruct on elements of joint

venture where supported by evidence). "There is no requirement

that the Commonwealth prove precisely what role the defendant

played -- whether he acted as a principal or an accomplice (or

joint venturer)." Commonwealth v. Silva,

(2015). To support a conviction as a joint venturer, the

Commonwealth was required to prove, beyond a reasonable doubt,

that the defendant "knowingly participated in the commission of

the crime charged, alone or with others, with the intent

required for that offense." Commonwealth v. Zanetti,

(2009). Here, there was ample evidence that the

defendant knowingly participated with others in the robbery and

beating, with the requisite intent. 12 See Commonwealth v. Horne,

(2013).

12 The defendant's claim that he was prejudiced by the portion of the judge's instructions referencing the crime of conspiracy is unavailing. The judge instructed the jury that they could consider statements made that were attributed to Sun if the Commonwealth established that the statements were "made during or in furtherance of the joint venture or conspiracy." The defendant objected to the judge's use of the word "conspiracy." He argued that conspiracy is a separate crime and had the potential to inject "something into the case that wasn't there." In response, the judge explained to the jury that his 30

ii. Instruction on merger. The trial judge instructed the

jury on the felony-murder merger doctrine that "[t]he act of

violence that is an element of the underlying felony of stealing

by confining or putting in fear may not be the same act that

caused the victim's death. Where an act of violence is an

element of the underlying felony, you may find felony murder

only if you find an act that is separate and distinct from the

violent act that resulted in [the victim's] death."

See Commonwealth v. Gunter,

(1998) (merger

doctrine limits application of felony-murder rule). The

defendant objected to this instruction.

The defendant contends on appeal that the merger doctrine

precluded a conviction of felony-murder because more than one

person struck the victim during the robbery, and the medical

examiner could not isolate the cause of death to any one injury.

He argues, "[I]f more than one person was involved and there is

no proof as to what [the victim] died from, then there can be no

use of the word conspiracy was limited to their consideration of the statements by Lin and Sun. He emphasized, "Obviously, there is no separate indictment or crime before you alleging conspiracy." We presume that the jury understood and followed the judge's instruction. Commonwealth v. Maynard,

(2002). 31

conclusion that the defendant was part of what resulted in [the

victim's] death." 13

The merger doctrine is inapplicable, however, "where the

predicate felony has an intent or purpose separate and distinct

from the act causing physical injury or death." Commonwealth

v. Morin,

, 431 (2017). It is well established

that the merger doctrine does not apply to the predicate felony

of robbery, where that predicate felony plainly has a purpose

separate and distinct from the acts that caused the victim's

death. 14

citing Commonwealth v. Christian,

,

13 On appeal, the defendant argues also that one of the judge's instructions misstated the facts. The judge instructed,

"In this case, the Commonwealth alleges the following separate and distinct acts, that the defendant, allegedly as an aider and abetter, bound [the victim], brought [him] to a safe, put a knife to or close to [his] neck, struck [his] legs before [he] was brought to the safe and/or stepped on [his] upper thigh."

The defendant contends that "[t]here was no evidence at trial that the defendant [as opposed to Sun] . . . used a knife against [the victim]." Contrary to the defendant's argument, this instruction did not inform the jury that the defendant held a knife to the victim's throat; the instruction plainly referred to the defendant's participation "as an aider and abetter" in the robbery with Sun and Lin.

14 Moreover, if the jury convict a defendant on two theories of murder in the first degree, the verdict "will remain undisturbed even if only one theory is sustained on appeal." Commonwealth v. Nolin,

(2007), citing Commonwealth v. Chipman,

, 270 n.5 (1994). As the jury convicted the defendant of murder in the first degree on a theory of extreme atrocity or cruelty, we could affirm the verdict without reaching the defendant's contention that the 32

556 (2000). See Commonwealth v. Fredette,

(2018); Commonwealth v. Holley,

, 520 (2017).

iii. Highest crime. The judge instructed the jury that

they had a duty to find the defendant guilty of the most serious

offense the Commonwealth proved beyond a reasonable doubt. He

also instructed, "If the evidence does not prove beyond a

reasonable doubt that the defendant is guilty of any offense or

offenses charged, you must find him not guilty." The defendant

contends that these instructions violated the language of G. L.

c. 265, § 1, which provides that "[t]he degree of murder shall

be found by the jury."

There was no error. See Commonwealth v. Dickerson,

(1977). It is well settled that a judge may, in

the exercise of discretion, inform the jury of their duty to

return a verdict for the most serious crime proved against the

defendant beyond a reasonable doubt. See, e.g., Commonwealth

v. Nelson,

(2014); Commonwealth v. Rivera,

(2005); Model Jury Instructions on Homicide

107 (2018); Model Jury Instructions on Homicide 93-94 (2013).

d. Walker method. The defendant argues that the judge

abused his discretion in denying the defendant's request for

felony-murder conviction is precluded by the merger doctrine. See Commonwealth v. Pytou Heang,

, 860 n.36 (2011), and cases cited. 33

the Walker method of jury selection. Under the Walker method,

the parties do not begin to exercise peremptory challenges until

the number of members of the venire found indifferent equals the

total number of all peremptory challenges that may be exercised

by all the parties plus the number of indifferent jurors and

alternates needed to serve. Walker,

n.1.

The Walker method affords the parties the benefit of exercising

peremptory challenges based on the selection of the jury as a

whole instead of piecemeal. See P.M. Lauriat & D.H. Wilkins,

Massachusetts Jury Trial Benchbook § 3.1.4.4, at 107-108 (4th

ed. 2019) (Lauriat & Wilkins) (Walker method "allows the parties

to identify and evaluate the entire pool of jurors from which

the final jury will be selected").

Although he acknowledged the value of the Walker method,

the judge denied the defendant's request to empanel using

the Walker method. The judge explained that, given the number

of days anticipated for empanelment, the court did not have the

resources available to accommodate the defendant's request.

Instead, the judge required the exercise of peremptory

challenges after sixteen members of the venire had been found

indifferent. As the defendant objected to the judge's ruling,

we review for prejudicial error. Cole,

.

The defendant argues that the judge violated then-existing

Rule 6 of the Rules of the Superior Court, which "expressly 34

provide[d] that peremptory challenges start after 'the full

number of [jurors] is obtained.'" 15 He contends that the judge

improperly chose "speed" over "fairness."

In Commonwealth v. Johnson,

(1994),

we rejected the argument that the Walker method is required, and

see no reason to disturb this precedent. "While the Walker

method of jury challenging may be a desirable strategic

tool . . . [,] in cases such as this where the total number of

peremptory challenges is great, the Walker method is likely to

be inefficient and unworkable. In any case, use of the Walker

method is not mandated by rule 6."

. See Lauriat

15At the time of the defendant's trial, in 2016, Rule 6 of the Rules of the Superior Court provided in part:

"The procedure in the matter of peremptory challenges of jurors, except when an individual voir dire is conducted, shall be as follows, unless specially otherwise ordered in a particular case. The juror shall first be called until the full number is obtained. . . . When it has been determined that all the jurors stand indifferent in the case, each plaintiff shall at one time exercise his right of peremptory challenge as to such jurors, and after others have been called to take the places of those challenged, and it has been determined that they stand indifferent in the case, shall at one time exercise his right of challenge of such others, and so on until he has exhausted his right of peremptory challenge or has ceased to challenge."

Rule 6 of the Rules of the Superior Court, Massachusetts Rules of Court, at 1693 (Thomson Reuters 2015). Rule 6 was amended on July 26, 2017, effective September 1, 2017, to provide for attorney-conducted voir dire. Commonwealth v. Dabney,

, cert. denied,

(2018). See G. L. c. 234A, § 67D; St. 2016, c. 36, § 4; St. 2014, c. 254, § 2. 35

& Wilkins, supra at 107 ("The Walker method is not mandated by

Superior Court Rule 6 . . .").

e. Break in trial due to judge's vacation. The defendant

argues that a one-week delay occasioned by the judge's vacation

created a substantial likelihood of a miscarriage of justice.

The delay, according to the defendant, "negatively impacted the

jurors," to his detriment. Because the defendant did not object

to the delay at trial, we review to determine whether any error

resulted in a substantial likelihood of a miscarriage of

justice. Commonwealth v. Wright,

(1992),

S.C.,

(2014).

The judge began to empanel the jury on March 8, 2016, and

the jury returned its verdict on May 18, 2016. On the first day

of trial, the judge informed counsel of particular days that he

was not available, which included a pre-planned vacation during

the week of April 18-22, 2016. During jury selection, the judge

told the members of the venire that it was difficult to estimate

the length of the trial, but that the court would not be in

session during the week of April school vacation. At individual

voir dire, the judge asked each potential juror whether the

trial schedule posed a substantial hardship. All of the seated

jurors responded that it did not.

Having been informed of the schedule, the jurors certainly

were not surprised by the one-week delay that indeed took place 36

during the nearly three-month trial, and the defendant has not

shown that any of the jurors were upset with this break in the

lengthy proceedings. Moreover, trial counsel did not object to

the schedule or raise a concern about the possible negative

impact on the jury. The defendant's posttrial arguments to the

contrary are speculative at best.

f. Colloquy before defendant testified. In the only issue

on appeal that the defendant did not raise in his motion for a

new trial, the defendant contends that the judge should have,

but did not, sua sponte conduct a colloquy of the defendant

before he testified, to ensure that the defendant knowingly and

voluntarily had waived the privilege against self-incrimination

when he took the witness stand. The defendant argues that the

judge was aware of the defendant's history of mental illness,

the tensions between the defendant and trial counsel, and

difficulties with the interpreters. The defendant contends that

it was not clear that he voluntarily, knowingly, and

intelligently waived his right against self-incrimination.

"A criminal defendant must decide whether to testify, as is

the defendant's constitutional right, or not to testify, which

is also a constitutional right." Commonwealth v. Ramirez,

(1990). It is an important strategic decision

made with the advice of counsel. Commonwealth v. Waters,

(1987). "It must be intelligently and 37

voluntarily made, with sufficient awareness of the relevant

circumstances and likely consequences" (quotation and citation

omitted). Commonwealth v. Medina,

(2005).

The judge was not required to engage in a colloquy with the

defendant to determine whether he voluntarily, knowingly, and

intelligently waived his right not to testify. See Ramirez,

("there is no requirement in this Commonwealth that

the trial judge engage in a colloquy with the defendant

personally about the defendant's participation in the decision

whether to testify"). See also Commonwealth v. Smith,

(2010) (whether to conduct colloquy on defendant's

decision not to testify is within judge's

discretion); Commonwealth v. Glacken,

(2008)

(trial judge need not determine whether defendant knowingly and

voluntarily waived right to testify).

g. Relief under G. L. c. 278, § 33E. We have carefully

reviewed the entire record, pursuant to G. L. c. 278, § 33E, and

discern no reason to order a new trial or to reduce the degree

of guilt. The defendant's convictions and the order denying his

motion for a new trial are affirmed.

So ordered.