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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.
