Commonwealth v. Chicas , 481 Mass. 316 ( 2019 )

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revision and are superseded by the advance sheets and bound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; SJCReporter@sjc.state.ma.us
SJC-10986
COMMONWEALTH vs. FREDYS ALEXANDER CHICAS.
Suffolk. November 9, 2018. - January 30, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Constitutional Law, Confrontation of witnesses.
Evidence, Cross-examination. Due Process of Law,
Interpreter. Practice, Criminal, Confrontation of
witnesses, Interpreter, Capital case.
Indictment found and returned in the Superior Court
Department on March 28, 2006.
The case was tried before Margaret R. Hinkle, J., and a
motion for a new trial, filed on May 15, 2015, was considered by
Christine M. Roach, J.
Janet H. Pumphrey for the defendant.
Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. A jury convicted the defendant, Fredys
Alexander Chicas, of murder in the first degree by extreme
atrocity or cruelty as a joint venturer for the killing of the
victim. We consolidated the defendant's direct appeal with his
2
appeal from the denial of his motion for a new trial. On
appeal, the defendant contends that (1) he was denied his
constitutional right to confront witnesses when the judge
prohibited him from cross-examining several of the
Commonwealth's witnesses on their citizenship statuses; and (2)
the use of multiple interpreters by the judge violated his
constitutional right to due process.
For the reasons stated infra, we affirm the defendant's
conviction and the denial of the defendant's motion for a new
trial. After a thorough review of the record, we also decline
to exercise our authority under G. L. c. 278, § 33E, to grant a
new trial or to reduce the verdict of murder in the first
degree.
1. Background. We summarize the facts that the jury could
have found, reserving pertinent facts for the discussion of the
defendant's arguments. On Christmas Eve in 2005, the victim and
the defendant attended a party at Jose Castillo's house in
Chelsea. At some point in the evening, the victim, who was
intoxicated, made inappropriate comments to the defendant's girl
friend, Catea Travassas, and her sister, Lisette Santos. The
victim also touched Travassas's buttocks. The defendant
3
intervened and implored the victim not to disrespect Travassas.1
Eventually, tempers boiled over and the defendant punched the
victim in the face. The fight escalated and other partygoers
got involved, including the defendant's coventurer, Jesus
Villanueva. The men brought the victim outside the house, where
they hit him with bottles of beer.
After the fight, the victim ran away. He returned a short
time later looking for his cellular telephone. He was not
allowed back into the house, and a few men, including the
defendant, went outside and began to kick the victim. As a
result, the victim left and returned again. He started smashing
Castillo's vehicle with rocks, a bottle, and a stick. The
defendant and Villanueva confronted the victim. The defendant
was armed with a baseball bat. The defendant beat the victim
with the bat, and Villanueva kicked him. The victim ran away,
but the defendant and Villanueva pursued him. The men caught
the victim in a parking lot that was one and one-half blocks
away. The defendant and Villanueva beat him with the bat and a
stick then "left [him] . . . [a]ll bloodied on the ground."
Approximately ten to fifteen minutes later, the defendant
and Villanueva returned to the party with blood on their
1There was evidence that the victim and the defendant were
arguing because the victim owed the defendant money or stole
forty dollars from him.
4
clothing. Castillo gave the defendant clean clothes and told
him to change. The defendant stated: "I killed him"; "[w]e
killed [him]"; and "don't talk about this." When Santos started
crying, the defendant responded, "You don't have to be crying
for that mother fucker."
After he changed his clothes, the defendant, Villanueva,
the sisters, and another partygoer, Ricardo Mendoza, left the
party. On the way to Mendoza's house, the defendant stopped his
vehicle underneath a nearby bridge to retrieve the baseball bat
used against the victim. The defendant was concerned that his
fingerprints were on the bat. The defendant gave the bat to
Mendoza and told him to hide it at his residence. The defendant
threatened Santos, telling her that he would run her over if she
told the police what had happened.
The defendant and Villanueva then returned to the parking
lot. Upon arriving, the men realized that the victim was alive.
The victim was speaking and moving. For the next ten minutes,
the defendant hit the victim on the back and Villanueva hit him
on the head. The defendant later told Santos that, "We [had] to
kill him so he [would] not say anything."
The next morning, Santos witnessed Villanueva burning a
wooden stick. Villanueva claimed that the stick had blood on
it. Villanueva packed a bag of his belongings, and the
defendant picked him up and took him to the bus station.
5
Villanueva said that he was going to San Francisco and then
returning to his native El Salvador. Although Villanueva was
indicted for murder, he has not been seen since he left for San
Francisco.
A few days later, the defendant, Travassas, Santos, and her
boyfriend fled to New Jersey. During the trip, the defendant
reiterated his threat to the group that no one should talk to
the police or the same thing that happened to the victim would
happen to them.
Two weeks later, the defendant turned himself in to the
police. He told the others that he would tell the police that
Villanueva killed the victim.
2. Discussion. a. Confrontation rights. In his direct
appeal, the defendant contends that the judge violated his right
to confrontation by limiting the cross-examination of several of
the Commonwealth's witnesses. He argues that because a
defendant is entitled to a reasonable cross-examination of a
prosecution witness for the purpose of showing bias, the judge
abused her discretion by precluding him from inquiring about the
citizenship or immigration status of certain witnesses. The
Commonwealth asserts that the judge properly exercised her
discretion in limiting cross-examination because the citizenship
or immigration status of the witnesses was not relevant. We
review the judge's decision to limit the defendant's cross-
6
examination for an abuse of discretion. See Commonwealth v.
McGhee, 472 Mass. 405, 426 (2015).
The Commonwealth anticipated that six or seven of its
witnesses would be undocumented immigrants. The Commonwealth
disclosed that during trial preparation, a detective told one of
those witnesses that the detective would be willing to write him
a letter if he decided to apply for United States citizenship in
the future. At trial, the defendant sought to ask all of the
Commonwealth's witnesses whether they were citizens of the
United States in an attempt to put forth the inference that they
were undocumented and, because they were undocumented, they may
be inclined to cooperate with the Commonwealth. When defense
counsel began to cross-examine the first such witness, he asked
whether the witness was a citizen of the United States. The
Commonwealth objected, and the judge sustained the objection.
During a sidebar discussion, the judge ruled that she would
permit the defendant to probe a witness's citizenship status "in
any instance where [he knew or had a good faith basis in
believing that] there ha[d] been any discussion with any member
of law enforcement about [the witness's] citizenship status."
The judge allowed the defendant to explore "any conceivable
bias" by asking whether a witness had "ever had any discussion
with any of the police officers or the prosecutors in this case
about [his or] her citizenship status." If the witness answered
7
yes, and established a foundation for further inquiry, the judge
would decide how much further the defendant would be permitted
to explore.
The judge noted that the defendant did not have any legal
authority to support his position that he should be allowed to
question whether a witness was an undocumented immigrant on
cross-examination. She concluded:
"[T]his is not a case where there is any evidence at all
that any of these witnesses are testifying voluntarily for
the Commonwealth. In other words, there is no potential
hint here of an effort to curry favor from the
Commonwealth; to the contrary. The record reflects, based
on what I know pretrial, that there was an unwillingness --
I don't want to overstate this, but that there was an
unwillingness on the part of the illegal aliens to
cooperate with the government and testify, which seems to
me to be logical. . . . So, again, my decision is grounded
on the fact there is no controlling authority at the
appellate level in the Commonwealth and the fact that in my
view, the relevance, in terms of bias, is only tenuous;
it's marginal, and that permitting that inquiry would be
outweighed by the potentially harassing nature of this in
terms of the witnesses."
The Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights entitle a
defendant to cross-examine prosecution witnesses for bias or
prejudice. Commonwealth v. Avalos, 454 Mass. 1, 6–7 (2009),
citing Commonwealth v. Allison, 434 Mass. 670, 681 (2001). A
judge may not "bar all inquiry into the subject" if the
defendant demonstrates "a possibility" of bias. Commonwealth v.
Magadini, 474 Mass. 593, 604 (2016), quoting Commonwealth v. Tam
8
Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). The
right to cross-examination, however, "is not without limits, and
it 'must be accommodated to other legitimate interests.'"
Commonwealth v. Johnson, 431 Mass. 535, 540 (2000), quoting
Commonwealth v. Clifford, 374 Mass. 293, 305 (1978). Those
limits are "based on concerns about . . . harassment, prejudice,
confusion of the issues, the witness's safety, or interrogation
that is repetitive or only marginally relevant" (citation
omitted). Johnson, supra. Moreover, a judge has discretion to
limit questions that involve collateral issues and questions
where the connection to the evidence of bias is too speculative.
Avalos, supra at 7. "A defendant must make a 'plausible
showing' of alleged bias, with a factual basis for support";
otherwise, the judge may restrict or entirely exclude the
inquiry. Commonwealth v. Sealy, 467 Mass. 617, 624 (2014),
quoting Tam Bui, supra at 401. The judge has broad discretion
to determine the scope and extent of cross-examination. See
Commonwealth v. Jones, 478 Mass. 65, 73 (2017); Commonwealth v.
Meas, 467 Mass. 434, 450, cert. denied, 135 S. Ct. 150 (2014).
The defendant asks this court to hold that a witness's
status as an undocumented immigrant impugns that witness's
credibility -- even without the specifically articulated
expectation of favorable treatment with respect to his or her
citizenship status. The defendant contends that he should be
9
able to draw out a witness's citizenship status on cross-
examination to explore bias. We conclude that this argument
depends on a showing that the witness was testifying in order to
curry favor with the Commonwealth. See Meas, 467 Mass. at 450.
Here, the judge permitted the defendant to ask whether each
witness discussed his or her citizenship status with the police
or the prosecution. If the witness had not, the defendant was
not permitted to inquire further. Once the witness testified
that he or she had not conversed with the Commonwealth or
curried any favor, there was no longer a "plausible connection"
between the witness's citizenship status and potential bias
(citation omitted). See Sealy, 467 Mass. at 624. Put another
way, after the witnesses testified that they had not talked
about their citizenship status with the Commonwealth, their
status became irrelevant as a motive to lie. Id. at 624-625.
See Johnson, 431 Mass. at 538 (affirming exclusion of cross-
examination where "the import of the question was too attenuated
to create a remote possibility of . . . bias").
In one instance, a detective told a witness for the
Commonwealth that he would be willing to write that witness a
letter if the witness decided to apply for citizenship. At that
point, that witness's citizenship status was relevant to a
potential bias in his testimony. The judge expressed her
willingness to allow the defendant to explore this bias in
10
cross-examination. We agree with the defendant that the fact
the Commonwealth had the appearance of a quid pro quo with one
of its witnesses suggests that inducements may have been made to
other witnesses. Contrary to the defendant's position, however,
the judge did not foreclose the potential bias line of
questioning with other witnesses. Instead, she permitted the
defendant to lay the foundation for potential bias by inquiring
if the witnesses had spoken with police or prosecutors about
their citizenship status. It was a necessary preliminary
question that needed to be answered in the affirmative to
demonstrate a possibility of bias before the judge would allow
the defendant to further explore bias. See Magadini, 474 Mass.
at 603-605. The defendant's claims that other witnesses were
biased are "grounded only in speculation." Meas, 467 Mass. at
451.
In addition, the judge was permitted to limit the
defendant's cross-examination of the witnesses to prevent
embarrassment and harassment. See Mass. G. Evid. § 611(a)(3)
(2018). There is no reason to believe that the fact that the
witnesses may not have been legal residents of the United States
was evidence of their ability to be truthful. In reality, a
witness's status as an undocumented immigrant, for a variety of
reasons, would make the witness less likely to cooperate with
the government. See Commonwealth v. Morgan, 449 Mass. 343, 364
11
n.17 (2007) (fact that witness was aware that he might be
subject to prosecution for illegal entry into country "adds
nothing" to discussion of bias).
The judge's well-reasoned balancing of the defendant's
rights with the interests of the Commonwealth and its witnesses
was commendable. The judge did not abuse her discretion in
limiting the defendant's cross-examination of the Commonwealth's
witnesses.
b. Use of interpreters. In his appeal from the denial of
his motion for a new trial, the defendant argues that the
procedure suggested by the trial judge, and approved by defense
counsel, of using two interpreters, one for the non-English
speaking witnesses and one for the defendant at counsel's table,
violated his constitutional right to due process of law. He
suggests that he was not allowed to hear actual witness
testimony, but rather testimony that went through two
translators -- Spanish translated into English for the jury,
which was then translated back into Spanish for the defendant.
"Where the appeal from the denial of a motion for a new trial is
considered with the direct appeal from a conviction of a capital
crime, we review the denial of that motion to determine if the
judge committed an abuse of discretion or other error of law
and, if so, whether such error created a substantial likelihood
of a miscarriage of justice." Commonwealth v. Chatman, 466
12
Mass. 327, 333 (2013), citing Commonwealth v. Leng, 463 Mass.
779, 781 (2012).
Neither the defendant nor defense counsel filed an
affidavit in support of the motion for a new trial. The only
affidavit submitted was from one of the interpreters at trial,
who, as the motion judge noted, had been dismissed by the trial
judge. The motion judge did not credit the interpreter's
affidavit and held that it was "based exclusively on [her] own
unsubstantiated and unsettled personal opinions and pure
speculation of what may have been going on in the mind of the
defendant who was represented by experienced trial counsel who
agreed to the procedure used." This uncredited affidavit is the
sole support for the defendant's argument on appeal.
Adopting the uncredited affiant's assertions, the defendant
argues that he was forced to wear a "double auricular headset"
that prevented him from hearing actual witness testimony.
Moreover, he contends that the microphones at the witness stand
were muted, which forced him to rely specifically on his
interpreter's translation of the translation of the witnesses'
interpreter.
Our review of the record, however, tells a different story.
On the first day of jury empanelment, the trial judge discussed
with the Commonwealth and defense counsel how they would like to
use interpreters for the trial. The judge stated:
13
"I think we need two interpreters for the time that we have
a Spanish-speaking witness. And the reason for this is
that the defendant, in my view, needs to hear what the
translation is, not to hear it in Spanish. I have had
experience with discrepancies not involving any of the
interpreters here but with issues of discrepancies over the
years sufficient for me to believe that to ensure,
particularly in a first-degree murder case, to ensure that
the defendant knows exactly what the interaction is because
[defense counsel] is not Spanish speaking, that we should
have two interpreters at all times. . . . I think that we
need that. . . . I mean, correct me, counsel, if you feel
to the contrary."
In response, defense counsel stated: "No. I absolutely think I
need an interpreter with me at counsel table with the
defendant." During jury selection, the judge instructed
potential jurors that there would be multiple
"interpreters . . . throughout the trial" and that they were
required to "follow what the interpreter says in English as the
response or the question even if [they] believe, based on
[their] understanding of Spanish or Portuguese, that the
interpreter is not accurate." Later, while questioning a
potential juror who was concerned because he was hard of
hearing, the judge assured the juror that "the interpreter
[would] be speaking into a microphone."
After reviewing the transcript, we discern no abuse of
discretion. First, the judge conferred with defense counsel
before implementing this procedure. Defense counsel agreed with
the procedure and did not object to its practice at any point
during trial. See Commonwealth v. Festa, 369 Mass. 419, 428
14
(1976); Commonwealth v. Boiselle, 16 Mass. App. Ct. 393, 399
(1983), citing Festa, supra. ("A barren record does not create a
presumption of prejudice in the defendant's favor").
Second, the use of multiple interpreters complied with the
governing interpreter procedures in the Trial Court. See
Standards and Procedures of the Office of Court Interpreter
Services, 973 Mass. Reg. 3 (Apr. 18, 2003), promulgated pursuant
to G. L. c. 221C, § 7. Section 14.03, which covers the
simultaneous use of multiple interpreters, states in part:
"(A) When there are multiple [limited English proficiency]
parties, an interpreter or team of interpreters, using
appropriate equipment, may interpret simultaneously for all
of the parties.
"(B) When a witness requires an interpreter, however, a
separate interpreter must be assigned to the witness to
allow parties to communicate with counsel as necessary in a
timely manner."
The judge's procedure mirrored the guidance given by the
Standards and Procedures of the Office of Court Interpreter
Services.
Finally, the judge correctly instructed the jury that it
was the translation of the witnesses' testimony that was to be
considered as evidence. Commonwealth v. Portillo, 462 Mass.
324, 328 (2012) (when witness testifies in foreign language,
English translation is only evidence, not testimony in original
language). Even if the defendant could not hear the Spanish
testimony, it was the translation of the testimony that was
15
considered by the jury, and the defendant received a Spanish
translation of the English translation provided to the jury.
3. Conclusion. For these reasons, we affirm the
defendant's conviction and the denial of his motion for a new
trial. Furthermore, we have reviewed the record in its entirety
and see no basis to grant extraordinary relief under G. L.
c. 278, § 33E.
So ordered.