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Norfolk.
Present:
vs.
GLENIS A. ADONSOTO.
HINES, J.
The
The
We
3
We affirm the conviction based on our conclusions that the
failure to properly perform a breathalyzer test after giving
consent is not inadmissible as refusal evidence; that the
police-appointed interpreter acted as the defendant's agent in
the circumstances of this case, and thus, the statements were
not hearsay; that the defendant's unpreserved confrontation
claim is unavailing, as there is no showing of a substantial
risk of a miscarriage of justice; that the evidence was
sufficient to establish her impairment; and that the jury
instructions did not create prejudicial error.2
Background.
Stoughton resident who had just left his home to drive to work
noticed the defendant driving down the middle of a two-lane
road, straddling the solid double-yellow line.
A tractor-
4
While following the defendant, the resident called the
Stoughton police.
stopped his police cruiser in the roadway along the route that
the defendant's vehicle was traveling.
stopped.
The defendant was alone in the vehicle.
The officer
The
police station.
When they arrived, the officer telephoned a telephonic
language interpreter service to speak to a "registered,
certified interpreter."
The
5
the interpreter relayed them to the defendant in Spanish.
The
defendant nodded her head up and down while the interpreter was
speaking and when asked if she understood, she responded, "Yes,"
in Spanish.
The defendant did not properly seal her lips during the
6
test a second and third time.
There were no
1.
The
7
refuse and have adverse testimonial evidence used against him at
trial."
Id. at 1209.
8
judge relied in allowing the Commonwealth's motion in limine to
admit the disputed evidence.
Id.
The court
See id.
9
understanding of the verbal instructions by stating "Yes," the
police officer physically demonstrated the instructions, and the
defendant acknowledged her understanding of the physical
instructions by "nodd[ing] 'Yes' up and down."
2.
The
The
Hearsay.
Statements
We
10
previously have considered an interpreter to be a "joint agent"
for persons choosing to speak through an interpreter, and
therefore, admitted the translated statements as those of the
speaker.
See also
Vidacak, 553 F.3d 344, 352 (4th Cir. 2009) (governmentcontracted interpreter "language conduit" for speaker); United
States v. Sanchez-Godinez, 444 F.3d 957, 960-961 (8th Cir. 2006)
11
(Federal agent was agent for defendant in "language conduit"
capacity but was not as interrogating officer); United States v.
Beltran, 761 F.2d 1, 5, 9 (1st Cir. 1985) (State-appointed
interpreter agent of, or authorized by, defendant).
We agree with the defendant that a government-appointed
interpreter should not always to be considered an agent for the
speaker, but in the circumstances of this case, we conclude that
the interpreter acted as an agent of the defendant.
To
Nazemian, 948 F.2d 522, 527 (9th Cir. 1991), cert. denied, 506
U.S. 835 (1992).
Although the police supplied the interpreter, and thus, the
first factor weighs in favor of the defendant's claim, on the
specific facts of this case, the remaining factors demonstrate
that the interpreter was acting as an agent of the defendant.
12
First, the defendant's actions were consistent with the
statements as translated.
The defendant
failed to properly seal her lips around the mouthpiece, but her
conduct indicated that the translator properly relayed at least
part of the instructions.
Last, there is no
801(d)(2)(D).
13
b.
Confrontation clause.
Crawford v.
The
Commonwealth v.
Zeininger, 459 Mass. 775, 785 n.15, cert. denied, 132 S. Ct. 462
(2011), quoting Commonwealth v. De Oliveira, 447 Mass. 56, 57n.1
(2006).
Mass. 600, 606 n.13, cert. denied, 133 S. Ct. 487 (2012). The
judge also must instruct the jury to consider the evidence only
if they find the same. Id. The defendant did not claim any
error in this regard, and we conclude that any error did not
create a substantial risk of a miscarriage of justice for the
reasons discussed in this decision. Judges considering
admissibility of translated statements through an alleged agent
should analyze the factors discussed in United States v. Orm
Hieng, 679 F.3d 1131, 1139 (9th Cir.), cert. denied, 133 S. Ct.
775 (2012), as set forth above, in making such a determination.
14
quoting Commonwealth v. LaChance, 469 Mass. 854, 857 (2014),
cert. denied, 136 S. Ct. 317 (2015).
As discussed above, the defendant's statements in this case
are not hearsay because the interpreter was acting as an agent
of the defendant.
See Crawford,
15
States v. Charles, 722 F.3d at 1324-1325, in which the United
States Court of Appeals for the Eleventh Circuit concluded that
the defendant has a right to cross-examine an interpreter where
the interrogating officer testified to the English language
version of the defendant's Creole language statements because
the interpreter was the "declarant" of English language
statements.7
16
confrontation clause issue because the analysis was the same for
hearsay and confrontation clause purposes.
1140-1141.
We have not previously considered whether, for the purposes
of the confrontation clause, an interpreter is the "declarant,"
in which case the defendant would be entitled to the right of
confrontation, unless the witness is unavailable and the
defendant has had an opportunity for cross-examination.
Although the issue is significant for the development of our
criminal and constitutional jurisprudence, we decline to wade
into this thicket of unsettled constitutional principles where,
at least as concerns the Sixth Amendment, the Supreme Court has
not yet provided guidance, and where, in any event, it is
unnecessary to do so because we can decide the issue in this
case on State constitutional grounds.
See Commonwealth v.
17
practicable, the recording of a defendant's statement for which
an interpreter is employed, would satisfy future concerns about
reliability, such as those asserted by the defendant in this
appeal.
Here, the defendant's statements to the police as reported
by the interpreter were not inculpatory on the central issue at
trial:
impairment.
The
18
the breathalyzer test is potentially relevant to the impairment
issue in that, if the jury believed that the defendant
understood the instructions, they could interpret the
defendant's failure to perform the test correctly either to mean
that the defendant was too impaired to properly follow the
directions or to suggest a consciousness of guilt.
In either
19
will be recorded.9
See Commonwealth
This new
See
id. at 449.
This protocol should not impose undue burden on police
departments.
20
communicate with speakers of many different foreign languages in
a prompt and efficient manner.11
In those
Thus, it will
be the rare case where the police will be unable to record the
interview.
The implementation of this protocol will provide
significantly enhanced protections and assurances of reliability
for defendants who speak through an interpreter.
Reliability is
See
21
interpreter services.
324, 332 (2012).
22
officer's testimony in this regard was dependent upon the jury
accepting the accuracy of the translation.
See generally
Rather, she
23
in the light most favorable to the Commonwealth.
v. Latimore, 378 Mass. 671, 676-677 (1979).
Commonwealth
24
driving:
The police
See
481.
5.
Jury instructions.
25
reversible error where there is little chance that the jury
would have misunderstood the correct import of the charge."
Commonwealth v. Oliveira, 445 Mass. 837, 844 (2006), citing
Commonwealth v. Owens, 414 Mass. 595, 607 (1993).
The record reflects that the judge omitted words from the
model jury instructions in three instances.
First, when
Last,
the judge omitted the words "a reasonable" from the following
sentence in the reasonable doubt instruction:
mean by proof beyond a reasonable doubt."
"That is what we
26
Each of these omissions is properly characterized as a
"slip of the tongue" and was not likely to mislead the jury
where the charge as a whole properly conveyed the instructions.
See Commonwealth v. Grant, 418 Mass. 76, 84 (1994).
Accordingly, the jury instructions did not create a substantial
risk of a miscarriage of justice.
Judgment affirmed.