Opinion
21-P-481
01-20-2023
COMMONWEALTH v. ANGEL MATEO.
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 2 3.0
Following a jury trial, the defendant was convicted of statutory rape and indecent assault and battery on a thirteen year old girl (KG convictions), and assault and battery on a twenty-seven year old woman (LB conviction). On appeal, he argues that (1) the admission of global positioning system (GPS) data showing him at the crime scenes and the use of a single interpreter at trial violated his constitutional rights, and (2) he was prejudiced by the admission of hearsay testimony. We affirm.
We use initials throughout this decision.
The defendant was indicted on sixteen charges: (1) forcible rape of a child (two counts); (2) indecent assault and battery on a child under fourteen; (3) assault with intent to rape (three counts); (4) indecent assault and battery on a person over fourteen (two counts); (5) assault by means of a dangerous weapon; (6) assault and battery by means of a dangerous weapon; (7) assault and battery (five counts); and (8) unarmed robbery. The charges related to four separate attacks against four different victims that occurred between May and October 2016. The defendant was convicted of statutory rape as a lesser included offense of forcible rape of a child, and was acquitted of the other thirteen charges, which related to two other victims.
Background. We summarize the evidence as the jury could have found it, reserving additional facts for later discussion. In April 2016, a GPS monitoring device was placed on the defendant pursuant to G. L. c. 276, § 58A, as a condition of his pretrial release in an unrelated case. Months later, while he was still subject to GPS monitoring, the defendant was indicted for the crimes in this case, against four victims.
The earliest offenses with which the defendant was charged took place in May and June 2016, respectively. The victims, both women in their twenties, separately accused the defendant of attacking them within one block of the defendant's home. The jury acquitted the defendant of all counts involving those victims.
1. LB offense. The defendant was convicted of three offenses involving the two remaining victims. The first attack occurred around 2 A.M. on July 17, 2016, when LB was walking alone near the defendant's home. LB testified that she noticed the defendant following her from across the street, and, when she eventually turned around to face him, he was only one foot away. The defendant grabbed LB by the hair and punched her repeatedly. After getting the attention of two bystanders, LB pushed herself free from the defendant and saw him escape towards Phillips Street with her purse and her cellular telephone. A police officer on patrol saw the defendant carrying a woman's purse. On hearing the bystanders scream "That's him! Get him!" and seeing the defendant drop the purse, the officer pursued the defendant on foot but failed to catch him. He returned to LB, who was crying and bleeding from her lip.
While in the officer's presence, LB used her credentials to log into the "Find my iPhone" application (app), which, she testified, would show where her cell phone last connected. The app showed her phone nearby on Grainger Street. When she checked again the next day, the app showed her phone at 7 6 Phillips Street. LB contacted the police again months later when she saw a photograph of the defendant on television and learned that KG had been attacked at 7 6 Phillips Street.
2. KG offenses. On the morning of October 20, 2016, the defendant sexually assaulted KG, a thirteen year old girl. KG had met the defendant two days prior to the attack when she passed by his home -- 76 Phillips Street -- on her way to school. After a brief conversation, KG gave the defendant her telephone number and the two texted about meeting up. Between the afternoon of October 18 and the morning of October 20, the defendant called KG fifty-five times, with only one call connecting.
KG explained that, in an attempt to avoid the defendant, who had told her to come over, she skipped school on October 19. The defendant continued to text with KG about meeting up, and when she saw him waiting outside on her walk to school the next morning, she went in his home with him. Once inside, the defendant took KG's phone away and, despite her efforts to leave, demanded that she stay. She described how he then threw her on the bed, took off her clothes, covered her mouth with her scarf, and vaginally and orally raped her. At some point during the assault, KG noticed that the defendant was recording her on his phone. After the assault, the defendant gave KG her phone back and let her leave for school.
When KG left the defendant's house, she walked on Boxford Street toward school and called her uncle, who immediately notified KG's mother that something had happened. At 9:55 A.M., KG's mother called her daughter, who was "crying" and sounded "desperate." Shortly thereafter, her mother arrived at the school to find KG crying on the ground, trying to make herself vomit. While on the way home from school with her mother, KG identified 76 Phillips Street as the house where she was attacked.
Responding to a call from KG's mother, police officers arrived at KG's home and took KG's description of the defendant as being in his mid to late twenties, Hispanic, and wearing an ankle bracelet. KG also described the defendant's home, noting details about the walls, furniture, and bedroom. After speaking to the officers, KG was taken to the hospital for a sexual assault examination, which showed the defendant's semen on her breasts and in her vaginal cavity.
KG's mother identified 76 Phillips Street to the officers as the defendant's home. The officers found the defendant's apartment empty and unlocked; its interior matched KG's description and the defendant's passport was found in one of the rooms. During the search, police intercepted a man who looked like the person pictured in the defendant's passport photograph as he approached the home. Although the man gave a different name and denied living at 76 Phillips Street, he was wearing a GPS bracelet, matched KG's description, and had identification consistent with the passport. In fact, it was the defendant, who was arrested and taken to the Lawrence police station where he gave an audio-recorded interview.
There were many contradictions in the defendant's interview. The defendant eventually admitted to meeting KG three days prior, texting with her, and having "normal sexual relations" with her. The defendant also admitted that he "erased everything" from his cell phone.
3. The GPS records. The jury heard that, once every minute, the GPS device recorded and stored the defendant's precise location, including the direction and speed at which he was moving. The defendant's locations, based on GPS monitoring records from the specific time frames of the four charged attacks, were reflected on maps and introduced at trial without objection. The maps placed the defendant at the scenes of the LP and KG assaults, as well as at the scenes of the attacks from May and June of 2 016.
Discussion. 1. Standard of review. Our review is limited to determining whether error occurred and, if so, whether the error created a substantial risk of a miscarriage of justice.See Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). To create a substantial risk of a miscarriage of justice, the error must be "sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error" (citation omitted). Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) .
We are unpersuaded by the defendant's argument that his objection to the admission of GPS evidence was preserved despite his lack of objection at trial. The clairvoyance exception does not apply in cases where, as here, the constitutional rights at issue have already been defined or clarified. Commonwealth v. Francis, 485 Mass. 86, 112 (2020).
2. GPS evidence. Because, on the facts of this case, we see no prejudice, we pass the question whether there was error in admitting the GPS evidence. The evidence of the defendant's guilt was strong. With respect to the KG convictions, the defendant's deoxyribonucleic acid (DNA) was found on and in KG's body; she accurately identified the defendant, his address, and the details of his home; a video recording taken during the assault was recovered from the defendant's phone; the defendant called KG fifty-five times in two days; and the defendant admitted on audiotape to having "normal sexual relations" with her. In light of this overwhelming evidence, the only question before the jury was whether the intercourse was forcible, as the Commonwealth maintained, or consensual, as the defendant claimed. The GPS evidence added nothing to this analysis. See Commonwealth v. Wall, 469 Mass. 652, 668 (2014) (improper admission of medical record did not create substantial risk of miscarriage of justice where evidence against defendant was overwhelming).
The evidence of the defendant's assault and battery on LB was also strong. LB accurately described the defendant after the attack, noting his height, weight, outfit, and the fact that he was "Hispanic"; she positively identified him from seeing his image on television after the KG rape; she was attacked within one block of his apartment; and she testified that the Find my iPhone app placed her phone at his apartment within one day after the attack. GPS evidence placing the defendant at the scene of the crime did not cause the defendant appreciable prejudice where it merely added to the already-substantial evidence against him.
In addition to the powerful evidence of the defendant's guilt, the facts suggest that the jury gave the evidence minimal weight. Notably, the judge instructed the jury to consider the records only as they "bear on the defendant's physical location at the time of the various alleged offenses in this case," and they acquitted the defendant of two of the four offenses for which GPS data also placed him at the scene. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997) ("[w]e presume that a jury follow all instructions given to it"); Commonwealth v. Crowder, 49 Mass.App.Ct. 720, 722 n.3 (2000) (split verdicts suggestive of impartial jury). Admission of the records did not force the jury to consider that the defendant had a criminal charge pending in the same court, and did not further prejudice the defendant, as he argues, especially where the jury already heard about the case and his GPS monitoring.
3. Interpreter. KG's mother, a Spanish speaker, required the assistance of an interpreter to testify. An interpreter had been assisting the defendant during the trial, and the court, noting that it "just use[s] the one interpreter" and the defendant, a native Spanish speaker, "will be able to understand" KG's mother's testimony without assistance, arranged for that interpreter to swear in, sit with, and interpret for KG's mother during her testimony. There was no second interpreter.
This issue relates only to the KG convictions.
A non-English speaking criminal defendant has both a constitutional and statutory right to the assistance of a qualified interpreter at trial. Commonwealth v. Sifa Lee, 483 Mass. 531, 540 (2019). This right derives in large part from the defendant's right to confront witnesses and be present at his own trial. See J_d.; Commonwealth v. Garcia, 379 Mass. 422, 437 (1980). Where non-English speaking witnesses testify, it is the English "translation of the witnesses' testimony that [is] to be considered as evidence." Commonwealth v. Chicas, 481 Mass. 316, 324 (2019).
For the first time on appeal, the defendant claims that the absence of a second interpreter violated his constitutional rights and § 14.03 (B) of the Standards and Procedures of the Office of Court Interpreter Services (Standards), which provided that "a separate interpreter must be assigned to the witness to allow parties to communicate with counsel as necessary in a timely manner." 973 Mass. Register 3 (Apr. 18, 2003). The defendant says this was structural error because the right to an interpreter cannot be waived without a colloquy. G. L. c. 221C, § 3. We are not persuaded.
We need not, and do not, decide whether a criminal defendant has the right to appeal a claimed violation of these Standards.
The Standards serve as "guidance" for courts. Chicas, 481 Mass. at 324. They are "not controlling" but "instructive." Commonwealth v. Luj an, 93 Mass.App.Ct. 95, 102, n.6 (2018) . Ultimately, a Superior Court judge appoints interpreters "as they may deem necessary for the sessions of the court." Sifa Lee, 483 Mass. at 540, quoting G. L. c. 221 § 92. Here the judge deemed two interpreters unnecessary because the witness and defendant spoke the same language, meaning the defendant would be able to understand the testimony as it was given. There is no claim that the "evidence" -- that is, the English translation of the witness's testimony -- differed from the testimony itself, nor that the judge's decision interfered with the defendant's ability to communicate with counsel. In these circumstances, nothing in the Standards compelled the judge to act differently or conduct a colloquy before proceeding. Our conclusion is supported by the fact that the Standards were updated after the defendant's trial and now provide "[w]hen witnesses and parties in the same court events require interpreter services [that] judges . . . [only] must consider whether separate interpreters must be assigned to allow parties to communicate with counsel as necessary in a timely manner." Standards § 14.06 (B) (approved Jan. 20, 2021) . Where there was no objection to the judge's action, no request for a second interpreter, and no suggestion after the witness testified that the defendant could not understand what she said or that the translation differed from the original testimony, we review to determine whether there was a substantial risk of miscarriage of justice. See Commonwealth v. Francis, 485 Mass. 86, 102-103 (2020) .
The updated Standards do not appear to have been published in the Massachusetts Register yet but are available through the website of the Trial Court's Office of Language Access. See https://www.mass.gov/doc/standards-and-procedures-of-the-officeof-language-access/download.
In the absence of claims either that the defendant could not understand KG's mother's testimony or that the English translation differed from what the defendant heard in Spanish, we discern no such risk here. See Commonwealth v. Curran, 488 Mass. 792, 797 (2021) (circumstances of case did not suggest that outcome of trial would have been different had defendant attended in person). We are not persuaded by the defendant's claim of prejudice from the absence of a translation from English of the witness's Spanish answer back to Spanish. Where the defendant failed to object to the interpreter arrangement and there is nothing to indicate he did not hear the brief witness testimony in his native language, he has failed to articulate any potential harms flowing from the use of a single interpreter. See Weaver v. Massachusetts, 137 S.Ct. 1899, 1913 (2017). Absent a showing of prejudice, reversal is not warranted.
4. Find my iPhone. At trial, and without any objection from the defense, LB testified about what she saw on the Find my iPhone app after her attack. The defendant now claims the testimony was inadmissible hearsay.
Hearsay is a "statement that the declarant does not make while testifying . . . and a party offers in evidence to prove the truth of the matter asserted in the statement." Mass. G. Evid. § 801(c) (2022). Whether a computer record, such as a "smart phone" app, contains a "statement" for hearsay purposes depends on whether the record is "computer-generated" or "computer-stored," Commonwealth v. Thissell, 457 Mass. 191, 197 n.13 (2010), which "depends on the manner in which the content was created." Commonwealth v. Brea, 488 Mass. 150, 160 (2021), quoting Commonwealth v. Royal, 89 Mass.App.Ct. 168, 171 (2016). "Computer-generated records are created solely by the mechanical operation of a computer and do not require human participation." Commonwealth v. Davis, 487 Mass. 448, 465 (2021). Conversely, computer-stored records "merely store or maintain the statements and assertions of a human being," Brea, supra at 160, quoting Royal, supra, and implicate hearsay concerns because they consist of human statements reduced to electronic form and stored on a computer system. Thissell, supra. Like a map depicting GPS data, the records from the Find my iPhone app require no human participation and are computer- generated. See Davis, supra. "Because computer-generated records, by definition, do not contain a statement from a person, they do not necessarily implicate hearsay concerns," and their reliability is established by the rules of authentication. Thissell, supra.
The reliability of the Find my iPhone app was supported by its use of GPS technology, which is widely accepted as a "reliable relator of time and location data." Thissell, 457 Mass. at 198. Given that the "statements" of the app were entirely computer-generated and their reliability was assured by the app's use of GPS technology, they did not constitute hearsay and their admission was not error.
Judgments affirmed.
Milkey, Walsh & Hershfang, JJ.
The panelists are listed in order of seniority.