Opinion
19-P-1240
07-16-2020
COMMONWEALTH v. YEFFRY DELACRUZ.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Yeffry Delacruz, appeals from convictions of attempting to commit a larceny over $250, see G. L. c. 274, § 6, and uttering a false check, see G. L. c. 267, § 5. On appeal, the defendant contends that the judge erred by (1) admitting a police officer's hearsay testimony recounting a volunteer interpreter's translation of the defendant's statements to the police during a field interview; (2) failing to suppress the interpreter's statements where no recording had been made; and (3) failing to instruct the jury that the interpreter's out-of-court statements should be weighed with care because they had not been recorded. He also claims that the offenses were mischarged, and that if properly charged, the offenses were duplicative. We affirm.
Background. "The jury could have found the following facts based on the evidence presented at trial." Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 475 (2017). On January 13, 2017, the defendant, who spoke Spanish and some English, attempted to cash a check made out to him in the amount of $7,420 at a bank. An assistant branch manager attempted to verify the authenticity of the check by comparing signatures, looking for printed security features, and by calling the account holder. The check presented by the defendant differed from prior checks issued by the account holder in a number of respects, and an authorized signer on the account told her that the check was fraudulent. While the assistant branch manager attempted to authenticate the check, a second assistant branch manager, who was fluent in Spanish, served as an interpreter, translator, and intermediary (interpreter). With the defendant still at the bank counter, the assistant branch manager called the police, but the interpreter did not inform the defendant that she had done so.
The authorized signer testified at trial about various ways in which the defendant's check differed from checks issued on the account.
Swampscott police Officer Brendon Reen arrived and spoke with the defendant. The interpreter continued to assist, translating the conversation between the officer and the defendant "fairly and accurately." The defendant told the officer that he was attempting to cash a check that was written out to him from a realty company; and that the particular check was for a mortgage that he has on a property in Boston, but that he could not tell the officer the address of the property. After Officer Reen notified the defendant that the check was fraudulent, the defendant stated that it had been given to him by a person by the name of Miguel Delacruz.
The interpreter testified after Officer Reen, but his only testimony regarding the content of the conversation he translated for the defendant and Officer Reen was: "I was explaining, he was explaining to me that he was trying to call somebody because I was telling the customer. He was on the phone, you know, trying to reach that somebody. And just stuff like that, just basic translation."
Discussion. 1. Hearsay. The defendant contends that Officer Reen's testimony recounting the conversation he had with the defendant through the interpreter was inadmissible hearsay. Because he did not object to the admission of the testimony at trial, we review any error resulting in "the jury's consideration of objectionable hearsay" for "a substantial risk of a miscarriage of justice" (citation omitted). Commonwealth v. DeJesus, 87 Mass. App. Ct. 198, 202 (2015).
Officer Reen's testimony was hearsay unless the interpreter was acting as an agent for the defendant during the interview. See Commonwealth v. AdonSoto, 475 Mass. 497, 502 (2016); Mass. G. Evid. § 801(d)(2)(D) (2020). "To determine whether an interpreter acts as an agent or language conduit for the speaker, we rely on the factors outlined by the United States Court of Appeals for the Ninth Circuit in United States v. Orm Hieng, 679 F.3d 1131, 1139 (9th Cir.), cert. denied, 133 S. Ct. 775 (2012). The relevant factors include 'which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter's qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.' Id., quoting United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992)." AdonSoto, supra at 503.
Both parties have proceeded on appeal on the basis that AdonSoto applies to preliminary field interviews. We need not decide whether AdonSoto applies to preliminary field inquiries, rather than to more formal interviews in which the defendant is questioned in a police station through a "telephonic language interpreter service," see AdonSoto, 475 Mass. at 499, because we discern no substantial risk of a miscarriage of justice in the admission of the evidence.
Assuming without deciding that AdonSoto applies to preliminary field inquiries, our application of the factors in AdonSoto casts significant doubt that the interpreter was acting as the defendant's agent. Id. at 503. The assistant branch manager called the police, but the interpreter did not translate this conversation. Although there was no apparent motive for the interpreter to mislead or distort the later conversation between Officer Reen and the defendant, and the defendant treated the translation as accurate, the fact that the interpreter ceased translating while the police were called draws into question the proposition that he was the defendant's agent during the later conversation.
The defendant's actions during the encounter were consistent with the translation insofar as the defendant attempted to make a call while the interpreter informed Officer Reen that he was calling the person he claimed gave him the fraudulent check.
Were we to conclude that the interpreter was not the defendant's agent, however, Officer Reen's testimony regarding the interpreter's translation of the defendant's statements did not create a substantial risk of a miscarriage of justice. The theory of the defense was that the defendant was duped, and that a third party had forged the check. This defense was predicated on the fact that the translated statements were accurate and consistent with his innocence. Having relied on the accuracy of the translation at trial, he cannot now contend that the translation was inadmissible. "The theory on which a case is tried below cannot be changed on appeal." Commonwealth v. James, 424 Mass. 770, 789 n.31 (1997), citing Commonwealth v. Fano, 400 Mass. 296, 306 (1987), and cases cited.
2. Recording. In AdonSoto, the Supreme Judicial Court "announce[d] a new protocol," stating that "[g]oing forward, and where practicable, we expect that all interviews and interrogations using interpreter services will be recorded. We have long recognized that recording interviews and interrogations enhance reliability by providing a complete version of a defendant's statements." AdonSoto, 475 Mass. at 507. See Commonwealth v. DiGiambattista, 442 Mass. 423, 441-442 (2004). "This new protocol fits squarely in the line of cases recognizing the value of recordings to the fairness of criminal proceedings, but stopping short of requiring recordings for admissibility." AdonSoto, supra, citing DiGiambattista, supra at 449.
The defendant contends that the protocol announced in AdonSoto requires that his unrecorded interpreted statements to the police must be suppressed. Again assuming, without deciding, that AdonSoto applies to preliminary field inquiries in addition to the more formal interrogation setting of AdonSoto, there was no substantial risk of a miscarriage of justice in admitting the translated testimony without a recording. The court in AdonSoto promulgated a standard of practice intended to ensure the reliability of a translation. AdonSoto, 475 Mass. at 508 ("implementation of this protocol will provide significantly enhanced protections and assurances of reliability for defendants who speak through an interpreter"). Where, as here, the defendant does not contest the reliability of the translation, and in fact relied on the translation at trial, there is no substantial risk of a miscarriage of justice in admitting testimony regarding the translated conversation without a recording.
AdonSoto primarily discusses interviews conducted in a police station equipped with recording equipment: "Police departments record interviews regularly at station houses, and as here, the use of these services often takes place at the station. In those circumstances, all that would be required is for police to conduct the speakerphone translation in a room equipped for recording and to engage the recording equipment. Thus, it will be the rare case where the police will be unable to record the interview." AdonSoto, 475 Mass. at 508.
3. Jury instruction. The defendant further maintains that the trial judge should have given a DiGiambattista instruction because the interpreted interview was not recorded, urging them to "weigh evidence of the defendant's alleged statement with great caution and care." DiGiambattista, 442 Mass. at 448. Because the defendant did not object, we review any error in the jury instructions for whether it creates a substantial risk of a miscarriage of justice. Commonwealth v. Silvelo, 96 Mass. App. Ct. 85, 93 (2019). There was no error in not giving, sua sponte, a DiGiambattista instruction. DiGiambattista only requires such a jury instruction "on request," and the defendant did not request such an instruction. DiGiambattista, supra at 447-448. His defense at trial, that the police had failed adequately to investigate his claims, assumed the accuracy of the translation. See generally Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Consequently, "if the judge had given such an instruction on [his] own, [he] might well have interfered with the defendant['s] right to present [his] chosen defenses." Commonwealth v. Norris, 462 Mass. 131, 144 (2012). "The consequences of trial tactics may not be converted after conviction into alleged errors by the judge." Commonwealth v. Roderiques, 462 Mass. 415, 428 (2012), quoting Commonwealth v. Simcock, 31 Mass. App. Ct. 184, 196 (1991).
4. Larceny charges. The defendant contends that he should have been charged with larceny by false pretenses rather than attempted larceny by stealing. "The elements of larceny (by stealing) are (1) the unlawful taking and (2) carrying away (asportation) (3) of personal property of another (4) with the specific intent to deprive the person of the property permanently." Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 27 (2003). See G. L. c. 266, § 30. Here, the jury were properly instructed on the elements of attempted larceny by stealing. The defendant requested cash and would have left with several thousand dollars in cash if he had been successful in negotiating the check. The intent to deprive the bank or the realty company of the property permanently may be inferred from the fact that the defendant sought to cash the check. See Commonwealth v. Bonilla, 89 Mass. App. Ct. 263, 264-265 (2016).
Likewise, "[t]he elements of attempt . . . are (1) the specific intent to commit the substantive crime at issue, and (2) an overt act toward completion of the substantive crime." Commonwealth v. LaBrie, 473 Mass. 754, 764 (2016). Here, "the defendant intended to take the property of the bank permanently and committed the overt act of trying to [cash] a counterfeit check in furtherance of that intent." Commonwealth v. Green, 66 Mass. App. Ct. 901, 903 (2006). There was no error in the instruction on attempted larceny by stealing.
Because there was no error in permitting the Commonwealth to proceed on a theory of attempted larceny by stealing, we need not reach the defendant's derivative argument that the charges of uttering and attempted larceny by false pretenses were duplicative.
Judgments affirmed.
By the Court (Sullivan, Blake, Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 16, 2020.