Commonwealth v. Tejada ( 2020 )

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SJC-11951
COMMONWEALTH vs. JOSE TEJADA.
Essex. October 7, 2019. - January 23, 2020.
Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement. Practice,
Criminal, Capital case, Motion to suppress, Admissions and
confessions, Voluntariness of statement, Voir dire,
Empanelment of jury.
Indictments found and returned in the Superior Court
Department on December 28, 2011.
A pretrial motion to suppress evidence was heard by Mary K.
Ames, J., and the cases were tried before Howard J. Whitehead,
J.
David H. Mirsky (Joanne T. Petito also present) for the
defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
LENK, J. The defendant was convicted of three counts of
murder in the first degree on theories of deliberate
premeditation and extreme atrocity or cruelty. On appeal, he
2
argues that (1) there was insufficient evidence to sustain his
convictions; (2) his statements to police on the night of his
arrest should have been suppressed; and (3) the trial judge
erred by declining to ask a requested question about anti-
Hispanic juror bias during voir dire. Separately, the defendant
asks us to order a new trial or to reduce the degree of guilt
pursuant to G. L. c. 278, § 33E. We affirm the convictions and
decline to exercise our powers under G. L. c. 278, § 33E, to
grant the requested relief.
Background. We recite the facts as the jury could have
found them, reserving certain details for subsequent discussion.
In the early morning hours of September 5, 2011, Lawrence police
arrested the defendant after he said that he had killed his wife
and her two teenage children. At approximately 2 A.M. that
morning, a neighbor was returning home with his family when the
defendant approached him in a parking lot and asked to be taken
to the police station because "he had just killed three people."
The neighbor (who did not know the defendant) agreed to
telephone the police, and waited with the defendant until they
arrived. When the neighbor asked the defendant what had
happened, the defendant responded that he had killed his family
because they were "talking down to him." The neighbor was
unsure whether to believe the defendant, who was shaking and
whose eyes were "bugging out."
3
When the police arrived, the neighbor remained to translate
for the defendant, whose native language is Spanish and who did
not speak English. Police asked the defendant what had
happened; through the neighbor's efforts at translation, the
defendant repeated the substance of what he had told the
neighbor, and provided an address to a nearby apartment building
where he said the shootings had taken place. He also told the
officers that he had tried to shoot himself, but had run out of
bullets. When officers asked the defendant what he had done
with the weapon, the defendant told them that he had discarded
it after leaving the house to go for a walk. Although the
defendant seemed anxious, he was cooperative and calm, and he
maintained an even tone throughout the conversation.
Officers eventually decided to investigate the accuracy of
the defendant's statements; they pat frisked and handcuffed him,
placed him in the back seat of a police cruiser, and drove the
few blocks to the address the defendant had provided. After
knocking on the apartment door and receiving no response, police
broke down the door. Inside the apartment, they found the three
victims, all deceased, in an upstairs bedroom.
Police recovered a variety of forensic evidence from the
scene and the defendant's person. First, officers observed
bloody footprints on the stairs, going through the kitchen, and
heading toward the back door; forensic analysis later determined
4
that the footprints were consistent with the type of shoes the
defendant had been wearing.1 In addition, the defendant's hands
tested positive for gunshot residue, and there were traces of
the victims' blood on the defendant's clothing. In the grass
behind the apartment building, police found a revolver
containing six spent shell casings that matched bullets
recovered from the scene. The revolver had traces of blood on
it from at least two people. The defendant's wife's blood
matched the major female profile.
Prior proceedings. Before trial, the defendant moved to
suppress his statements to police. The motion was denied with
respect to the defendant's statements while he was seated on the
curb speaking with police; the motion was allowed with respect
to statements made once the defendant was handcuffed and seated
in the police cruiser.
Following the partial denial of the defendant's motion to
suppress, a Superior Court jury convicted him of three counts of
1 At trial, a forensic analyst described the defendant's
shoes as a "class match" for the footprints found at the scene.
The analyst explained that a "class match" means that the
defendant's shoes shared features such as size, design features,
and wear with the footprints recovered at the scene. Although a
"class match" is not a conclusive determination that only a
particular shoe could have left the footprints, the analyst
stated that a class match still has "great significance."
5
murder in the first degree on theories of deliberate
premeditation and extreme atrocity or cruelty.
Discussion. On appeal, the defendant argues that there was
insufficient evidence to sustain his convictions of murder in
the first degree. The defendant contends also that his motion
to suppress should have been allowed, because his statements to
police were inadmissible as the product of a custodial
interrogation where no Miranda warnings were given, and because
his statements to police were involuntary. He argues further
that the judge's decision not to ask the venire a requested
question concerning juror bias constituted reversible error. In
addition, the defendant asks that we exercise our authority
under G. L. c. 278, § 33E, to reduce the degree of guilt or to
order a new trial pursuant to our authority under G. L. c. 278,
§ 33E.
1. Sufficiency of the evidence. The defendant argues that
there was insufficient evidence to convict him of murder in the
first degree under either a theory of deliberate premeditation
or a theory of extreme atrocity or cruelty. Where, as here, a
trial judge denies a defendant's motion for a required finding,
we view the evidence in the light most favorable to the
Commonwealth and determine whether "any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt" (citation omitted). Commonwealth v. Latimore,
6
378 Mass. 671, 677 (1979). As long as there is sufficient
evidence of one theory, the convictions remain undisturbed on
appeal. See Commonwealth v. Nolin, 448 Mass. 207, 220 (2007).
We turn to consider whether there was sufficient evidence
to establish murder in the first degree on a theory of
deliberate premeditation.2 To sustain the convictions under this
theory, the Commonwealth was required to prove that the
defendant (1) caused the death of the victims; (2) intended to
kill the victims; and (3) acted with deliberate premeditation.
See Model Jury Instructions on Homicide 44 (2018); Model Jury
Instructions on Homicide 37 (2013). As there is no claim that
the defendant did not cause the death of the victims, what
remains is to consider whether the defendant intended to kill
them, and whether he acted with deliberate premeditation.
The defendant's neighbor testified that the defendant told
him that he had shot the victims because he had grown tired of
them "talking down to him." Another witness testified that the
defendant and his wife had argued in the hours prior to her
2 Because we conclude, see infra, that there was sufficient
evidence to establish deliberate premeditation, we need not
address whether there was sufficient evidence to establish
extreme atrocity or cruelty. See Commonwealth v. Smith, 459
Mass. 538, 548 (2011); Commonwealth v. Freeman, 430 Mass. 111,
123 (1999); Commonwealth v. Chipman, 418 Mass. 262, 270 n.5
(1994).
7
death, when she insisted on taking the defendant's keys to
prevent him from drinking and driving. The jury also heard
evidence that the victims were shot at close range, and that the
victims were found lying in close proximity to one another, in a
single bedroom.3
To establish the intent to kill, the Commonwealth must
prove that the defendant "consciously and purposefully intended"
to kill the victims. See Model Jury Instructions on Homicide,
supra at 44; Model Jury Instructions on Homicide, supra at 37.
Here, the jury could infer from the neighbor's testimony that
the defendant shot his family because he had grown tired of them
criticizing him or "talking down to him." Moreover, as we
previously have held, the use of a firearm at close range
provides strong evidence of an intent to kill. See Commonwealth
v. Andrews, 427 Mass. 434, 440 (1998) (shooting victim at close
range warranted finding of intent to kill). Thus, the evidence
was sufficient to establish that the defendant intended to kill
his victims.
3 The Commonwealth acknowledges that a subsequent review of
the forensic analysis indicated that the expert opinion
estimating that the shots were fired from between three and nine
inches away was inaccurate, and that a proper estimate would
have been between three and twenty-four inches. Even absent
this specific testimony, however, independent evidence that the
gunshot wounds contained markings consistent with close- or
intermediate-range gunfire was sufficient for the jury to
conclude that the victims had been shot at close range.
8
The defendant contends, however, relying upon Commonwealth
v. Mills, 400 Mass. 626, 627 (1987), that the evidence was
insufficient because his intoxication and his mental state
indicate that he lacked the mental capacity to form the intent
to kill. The defendant's reliance on Mills is misplaced.
Unlike Mills, supra, where the defendant sought, and was denied,
an instruction on criminal responsibility, the defendant in this
case did not pursue a defense of criminal responsibility or
diminished capacity, nor did he seek an instruction on criminal
responsibility.4 Compare id. at 627, 630.
Moreover, the jury in fact were instructed to consider
whether the defendant's intoxication and his mental state would
have prevented him from forming the intent to kill. See
Commonwealth v. Grey, 399 Mass. 469, 470-471 (1987) (evidence of
intoxication and mental impairment relevant to question whether
defendant formed intent to kill); Commonwealth v. Henson, 394
4 Although we have not required a judge to instruct on
criminal responsibility absent a request, see Commonwealth v.
Genius, 387 Mass. 695, 697-699 (1982), we have concluded that,
in limited circumstances, evidence of intoxication or mental
impairment may be so severe as to warrant a reduction in the
verdict pursuant to G. L. c. 278, § 33E, where no instruction on
the effect of intoxication was requested or given. See
Commonwealth v. King, 374 Mass. 501, 507-508 (1978). As
discussed, see note 5, infra, in this case the conflicting
evidence of the defendant's intoxication is insufficient to
warrant relief under G. L. c. 278, § 33E.
9
Mass. 584, 592 (1985) (if there is evidence that defendant was
under influence of alcohol or drugs at time of crime, judge
should instruct jury to consider that evidence on question
whether Commonwealth has proved specific intent beyond
reasonable doubt). While there was conflicting evidence as to
the defendant's condition, the jury were free to weigh that
evidence as they saw fit.5 See Commonwealth v. Vasquez, 419
Mass. 350, 352-353 (1995) (specific intent to kill, as
demonstrated by defendant's repeated infliction of serious
injuries, was not negated by evidence of voluntary
intoxication). Notwithstanding the evidence of the defendant's
intoxication, the jury could have concluded that the defendant's
statements and his use of a firearm at close range established
an intent to kill.
To establish that a defendant acted with deliberate
premeditation, the Commonwealth must show that "the plan to kill
was formed after deliberation and reflection" (citation
5 The defendant's neighbor testified that the defendant was
agitated, that his eyes were "bugging out," that he might have
been intoxicated, and that he had admitted to attempting
suicide. One police officer noted that, when he was arrested,
the defendant had been in possession of what the officers
suspected was cocaine; there was no evidence that the defendant
had cocaine in his system. The responding officers described the
defendant as anxious but calm, and disputed that the defendant's
eyes had been "widening." Another witness testified that,
although the defendant had been drinking a few hours earlier, he
had not appeared drunk at that time.
10
omitted). See Commonwealth v. Johnson, 435 Mass. 113, 118-119
(2001). Such reflection can occur over "days, hours, or even
seconds." Id. at 119. Here, the jury could have found that the
defendant acted with deliberate premeditation when shooting his
family in response to them "talking down to him" and in response
to his earlier dispute with his wife. The jury also could have
found that the defendant shot the victims from close range in
the same room. From this, they could have concluded that the
defendant shot the victims in succession, which was sufficient
to establish deliberate premeditation. See id. (obtaining and
repeatedly firing gun at close range was sufficient to establish
deliberate premeditation); Andrews, 427 Mass. at 440 (firing
multiple shots at unarmed victim at close range was sufficient
to establish deliberate premeditation). There was no need for
the jury to know the precise positions of the defendant and the
victims in order to establish deliberate premeditation; the
defendant's argument to the contrary is without merit.
2. Whether the defendant's statements prior to his arrest
should have been suppressed. The defendant argues that his
statements to police near the scene were inadmissible because
the officers failed to advise him of his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436 (1966). The defendant also
contends that his statements to police were involuntary, and
11
that the judge's decision not to conduct a voir dire on the
issue requires a new trial.
a. Whether Miranda warnings were necessary. When
reviewing the denial of a motion to suppress, we accept the
motion judge's findings of fact absent clear error, but
independently review the judge's ultimate findings and
conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646
(2004). If we determine that the statements should have been
suppressed, we then must decide whether their introduction at
trial was harmless beyond a reasonable doubt. See Commonwealth
v. Monroe, 472 Mass. 461, 472-473 (2015).
At the outset, it is necessary to clarify specifically
which of his statements the defendant seeks to suppress. The
statements the defendant made on the night of the shooting can
be divided into three categories: (1) statements to his
neighbor prior to the arrival of the police; (2) statements to
police (with the assistance of his neighbor and, subsequently, a
Spanish-speaking police officer who translated the defendant's
statements into English); and (3) statements after the defendant
was placed in a police cruiser. The defendant concedes that the
first set of statements did not require Miranda warnings because
they were not made to law enforcement; the third set of
12
statements was suppressed. Thus, the defendant's challenge only
extends to the second group of statements.6
Miranda warnings are required when "a reasonable person in
the defendant's position would have believed he was in custody"
(citation omitted). Commonwealth v. Groome, 435 Mass. 201, 211
(2001). We consider four factors when determining whether an
interrogation was custodial in nature:
"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."
Id. at 211-212 (Groome factors). No single factor is
dispositive. See Commonwealth v. Bryant, 390 Mass. 729, 737
(1984).
Custodial interrogations are "questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his [or her] freedom of action in any
6 We note that many of the statements the defendant made to
the officers were duplicative of those he made to the neighbor
prior to the arrival of the police. The specific statements
that the defendant challenges are those pertaining to his use --
and disposal -- of a gun, and his explanation that he had
attempted to shoot himself but had run out of bullets.
13
significant way." Commonwealth v. Jung, 420 Mass. 675, 688
(1995), quoting Miranda, 384 U.S. at 444. Whether an
interrogation is custodial "depends on [whether] the objective
circumstances of the interrogation" engender unduly "compulsive"
pressures. Commonwealth v. Morse, 427 Mass. 117, 124 (1998),
quoting Stansbury v. California, 511 U.S. 318, 323 (1994).
In this case, the motion judge's findings of fact were well
grounded in the evidence. She found that four Lawrence police
officers, responding to a radio dispatch alerting them to a man
who claimed to have killed someone, located the defendant and
his neighbor in a parking lot. After the neighbor told the
officers that the defendant had asked the neighbor to call the
police because he had killed someone, one of the officers asked
the defendant what had happened, whom he had killed, and where
he lived. The defendant, speaking in Spanish with the neighbor
translating, told the officer that he had killed his family and
provided an address where he said the shootings had taken place.
In response to further questions, the defendant said that he had
shot his family because they would not stop yelling at him, that
he had tried to shoot himself but had run out of bullets, and
that he had discarded the gun upon leaving the house to go for a
walk.
The motion judge found that, throughout this initial
exchange, the defendant was seated on a curb with multiple
14
police officers standing around him. Although the officers were
not sure they believed the defendant, they had noticed a small
amount of blood on his clothes and acknowledged that they would
not have let him leave had he requested to do so. The officers
did not, however, order the defendant to remain seated or
physically restrain him. Absent any independent corroboration
of the defendant's claims, they decided to relocate to the
address he provided in order to investigate whether anyone there
needed assistance. At that point, the defendant was frisked,
handcuffed, and placed in a police cruiser. Once the officers
entered the apartment and found the victims, they arrested the
defendant and, for the first time, advised him of his Miranda
rights.
Weighing the Groome factors, we conclude, as did the motion
judge, that, on balance, the initial interrogation in the
parking lot was not custodial and thus did not require Miranda
warnings. The first three factors all weigh against a
determination that the defendant had been subject to a custodial
interrogation at that point. The interrogation was in a public
parking lot, not in a police station or other secluded area.
There was no evidence that the defendant was "either mentally or
physically intimidated." See Bryant, 390 Mass. at 739. Rather,
the evidence indicated that the defendant was not "restrained"
and did not "reasonably perceive[] himself to be restrained,"
15
thus cutting against a finding that the questioning exemplified
the "compulsive aspect of custodial interrogation." See id. at
739-740, and cases cited.
Regardless of whether the officers would have allowed the
defendant to leave, there is no indication that he was
considered a suspect during the initial conversation in the
parking lot. Moreover, there is no evidence that the officers
ever communicated to the defendant that he was a suspect or that
he was not free to leave. See Morse, 427 Mass. at 123-124
(officer's subjective view that individual being questioned was
suspect relevant only to extent that officer communicated this
belief to individual). In addition, there was no evidence that
the officers were accusatory or aggressive; upon arriving on the
scene and being unsure whether a crime had been committed, they
simply asked the questions necessary to assess the situation.
The fourth Groome factor -- whether the defendant was free
to leave -- possibly weighs in the defendant's favor. As the
defendant argues, the officers did testify that they would not
have let the defendant leave had he tried to do so. In
addition, a person in the defendant's position, i.e., having
admitted to killing someone, reasonably might believe that he or
she was in custody. Assuming without deciding, however, that
the defendant is correct, this single factor does not transform
the interrogation into a custodial inquiry. See Commonwealth v.
16
Cawthron, 479 Mass. 612, 624 (2018) (where environment was not
coercive and other Groome factors weigh against finding of
custody, fact that defendant was not free to leave was
insufficient to establish custodial interrogation).
Accordingly, those statements made by the defendant to
police prior to being placed in the police cruiser did not
require Miranda warnings.
b. Whether the statements were voluntary. The defendant
also argues that his statements to the police were involuntary,
and that the trial judge's decision not to conduct a voir dire
to ascertain whether the statements were voluntary requires a
new trial.
Where a question is raised as to the voluntariness of a
defendant's statement, a judge must conduct a voir dire hearing
on the issue outside the presence of the jury, and must make a
determination whether the statement was voluntary before it may
be considered by a jury. See Commonwealth v. Harris, 371 Mass.
462, 468-469 (1976). A defendant also may request that the jury
be instructed to consider the issue. When such an instruction
is given, each juror must assess the voluntariness of a
defendant's statements, and should not consider the statement as
evidence unless satisfied beyond a reasonable doubt that it was
voluntary. See Commonwealth v. Watkins, 425 Mass. 830, 836
(1997). Even where a defendant does not request a voir dire on
17
the voluntariness of his or her statement, if the evidence
presented at trial raises "a substantial claim of
involuntariness," a judge's failure "to conduct a voir dire, to
make the necessary ruling and to instruct the jury
properly . . . on his [or her] own motion constitutes reversible
error" (emphasis added). Harris, supra at 470-471.
After the denial of his motion to suppress, at trial the
defendant did not request a voir dire on the voluntariness of
his statement. Thus, we must consider whether the evidence
introduced at trial raised a sufficiently "substantial" issue of
voluntariness so as to have required the judge to address the
issue sua sponte. We conclude that it did not.
In Harris, the "substantial claim" pertaining to
voluntariness was evidence that the defendant "confessed to the
police only after having been beaten." Id. at 472. Here, there
was no evidence of overt coercion. The defendant argues,
however, that there was evidence he had been drinking and might
have been intoxicated, that he was agitated while waiting for
police, and that he professed suicidal thoughts. Together, he
maintains, this evidence raised a substantial question whether
his statements were voluntarily made.
While "intoxication may render a confession involuntary,"
"mere evidence of drinking alcohol or using drugs" does not
trigger a trial judge's obligation to inquire into voluntariness
18
sua sponte. Commonwealth v. Brady, 380 Mass. 44, 49 (1980).
Moreover, suicidal thoughts "do not necessarily negate the
voluntariness of a confession." See Commonwealth v. Lopes, 455
Mass. 147, 168 (2009). None of the witnesses testified that the
defendant had had difficulty interacting with the witness or
answering questions. In addition, witnesses offered competing
statements as to the defendant's demeanor.7 Unlike the clear
evidence of overt coercion in Harris, 371 Mass. at 470-472, the
inconsistent evidence regarding the defendant's intoxication and
agitated demeanor did not amount to a "substantial claim" that
his statements were involuntary. The judge thus was not
required, absent a request from the defendant, to conduct a voir
dire on the issue of voluntariness.
Moreover, the judge instructed the jury that they were not
to accept the defendant's statements as evidence unless they
were satisfied that the statements had been made voluntarily.
The jury were free to weigh the competing evidence and to decide
for themselves whether they were satisfied that the defendant's
statements were voluntary. We discern no error.
7 The defendant's neighbor testified that the defendant was
not calm and acknowledged that he "might have been on
something." Another witness, however, testified that the
defendant did not seem drunk when he left his sister-in-law's
house (approximately one and one-half hours before the
shootings), and a police officer testified that the defendant
had appeared calm during his interaction with police.
19
3. Requested question about juror bias. The defendant
maintains that the trial judge's denial of his request to pose a
question about anti-Hispanic bias during juror empanelment
requires a new trial. "[A]s a practical matter, when a motion
that prospective jurors be interrogated as to possible prejudice
is presented, we believe the trial judge should grant that
motion." See Commonwealth v. Espinal, 482 Mass. 190, 201
(2019), quoting Commonwealth v. Lumley, 367 Mass. 213, 216
(1975). Nonetheless, in these circumstances, the judge did not
abuse his discretion in declining to do so.
During juror voir dire, the defendant requested that the
judge ask each member of the venire whether the juror believed
that "Hispanics, from cities such as Lawrence, are more likely
to commit crimes of violence than any other ethnicity [or]
people." Stating that he had no evidence that such a bias
existed, and concerned that the impact of the question might be
to cause ethnic bias, the judge declined to pose the question.
The judge did agree, however, to ask jurors whether the fact
that the defendant would require an interpreter could affect
their ability to remain impartial; he reasoned that this
question might "overlap" with the issue of ethnic bias.
We review a trial judge's decisions regarding the scope of
jury voir dire for abuse of discretion. See Commonwealth v.
Lopes, 440 Mass. 731, 736 (2004). Where there is a "substantial
20
risk of extraneous issues that might influence the jury,"
however, we have said that, upon request, the judge must inquire
into the subject of that bias through individual questioning.
Id. at 736-737. A substantial risk exists "whenever the victim
and the defendant are of different races or ethnicities, and the
crime charged is murder, rape, or sexual offenses against
children." Espinal, 482 Mass. at 196.
"A judge need not," however, "probe into every conceivable
bias imagined by counsel," id. at 198, and "is warranted in
relying upon his [or her] final charge to the jury to purge any
bias from the jurors prior to their deliberations," Commonwealth
v. Estremera, 383 Mass. 382, 388 (1981). "A defendant's 'bare
allegation' that there exists a 'widespread belief' that could
result in bias is not sufficient to cause us to conclude that
the judge abused his [or her] discretion by declining to conduct
voir dire on the issue" (citation omitted). Espinal, 482 Mass.
at 200.
In the present case, both the defendant and the victims are
Hispanic. Thus, the case did not present the type of
"substantial risk of extraneous issues" that we held in Espinal
obligates a judge to probe ethnic or racial bias by voir dire as
a matter of law (citation omitted). See id. at 196. We discern
21
no abuse of discretion in the judge's determination not to
conduct the requested voir dire in this case.8
The defendant points to the fact that multiple jurors were
excused based on the judge's questions as proof that the jury
pool was tainted with anti-Hispanic bias. Evidence that one
question proved effective in uncovering bias does not by itself
demonstrate that a different question would have proved more
effective, or that jurors who did not disclose any bias were
being untruthful. See Commonwealth v. Entwistle, 463 Mass. 205,
221 (2012), cert. denied, 568 U.S. 1129 (2013) (where some
jurors indicated that they could not be impartial in response to
voir dire questions on pretrial publicity, there was no reason
to conclude that jurors who stated they could remain impartial
were being dishonest).
In sum, there was no abuse of discretion in the judge's
decision not to pose to the venire during juror voir dire the
requested question on anti-Hispanic bias.
4. Review under G. L. c. 278, § 33E. The defendant urges
us to order a new trial or to reduce the degree of guilt
8 Indeed, the judge opted to ferret out racial or ethnic
bias by asking each potential juror whether the juror could be
impartial notwithstanding that the defendant required an
interpreter. See Commonwealth v. Colon, 482 Mass. 162, 181 n.16
(2019) (judge excused juror who, during individual voir dire,
stated that defendant's reliance on interpreter would affect
juror's ability to remain impartial).
22
pursuant to our authority under G. L. c. 278, § 33E. Having
reviewed the entire case pursuant to our statutory obligation,
we conclude that there is no basis to grant the requested
relief.
Judgments affirmed.