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SJC-12383

COMMONWEALTH vs. SIFA LEE.1

Essex. May 10, 2019. - November 12, 2019.

Present: Gants, C.J., Gaziano, Budd, & Cypher, JJ.

Homicide. Stealing by Confining or Putting in Fear. Armed 

Assault with Intent to 

Murder. Interpreter. Constitutional Law, Fair trial, 

Assistance of counsel, Self-incrimination, Waiver of 

constitutional rights. Due Process of Law, 

Interpreter. Fair Trial. Jury and Jurors. Witness, Selfincrimination. Practice, Criminal, Capital case, 

Interpreter, Fair trial, Assistance of counsel, 

Instructions to jury, Empanelment of jury, Waiver.

Indictments found and returned in the Superior Court 

Department on December 28, 2011.

The cases were tried before David A. Lowy, J., and a motion 

for a new trial, filed on September 19, 2017, was considered 

by Timothy Q. Feeley, J.

Russell C. Sobelman for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the 

Commonwealth.

 1 As is our custom, we spell the defendant's name as it 

appears on the indictments.
2

GAZIANO, J. In the early morning hours of September 27, 

2011, three robbers broke into a restaurant by climbing through 

a rooftop ventilation shaft. Once inside, the robbers 

encountered the sixty-two year old victim, restaurant owner Shui 

Woo, who had slept in his office that night. One robber, later 

identified as the defendant, struck the victim, bound his feet 

and hands, and ordered him to open a safe. When the victim 

failed to do so, the robbers beat him to death with a crowbar 

and a hammer.

A Superior Court jury convicted the defendant of murder in 

the first degree on theories of extreme atrocity or cruelty and 

felony-murder, stealing by confining or putting in fear, and 

armed assault with intent to murder a person age sixty or older. 

In this direct appeal, the defendant contends that he was 

deprived of his constitutional rights to a competent interpreter 

to interpret the trial proceeding into his native language. He

argues also that he is entitled to a new trial because trial 

counsel provided ineffective assistance; several jury 

instructions were erroneous; and the trial judge abused his 

discretion in making certain rulings concerning the conduct of 

the trial. In addition, the defendant asks this court to use 

our extraordinary power under G. L. c. 278, § 33E, to reduce the 

verdict or to order a new trial. For the reasons that follow, 
3

we affirm the convictions and decline to exercise our authority 

under G. L. c. 278, § 33E.

1. Prior proceedings. In December 2011, a grand jury 

returned indictments charging the defendant, Cheng Sun (Sun), 

and Jun Di Lin (Lin) with murder, G. L. c. 265, § 1; stealing by 

confining or putting in fear (stealing), G. L. c. 265, § 21; and 

armed assault with intent to rob a person age sixty or older

(armed assault), G. L. c. 265, § 18 (a). In September 2014, Lin 

pleaded guilty to manslaughter, stealing, and armed assault in 

exchange for an agreement to testify against his codefendants. 

In January 2016, a joint trial commenced against the defendant 

and Sun. The judge was required to continue the case after 

seven days of empanelment because it was difficult to locate the 

necessary multiple Chinese-language interpreters for the 

defendant and Sun. Thereafter, the two cases were severed; Sun 

was convicted on all charges at his trial in January and 

February 2016.

In May 2016, following a twenty-nine day trial, a jury 

convicted the defendant on all charges. The defendant filed a 

timely notice of appeal. In September 2017, before his direct 

appeal had been briefed, he moved for a new trial on multiple 

grounds. A Superior Court judge, who was not the trial judge,

denied the defendant's motion without a hearing. We 
4

consolidated the defendant's direct appeal from his convictions

and his appeal from the denial of the motion for a new trial.

2. Background. We summarize the facts the jury could have 

found, reserving additional facts for our discussion of the

issues. The victim owned and operated a restaurant located on 

Route 1 in Ipswich. He had been born in China in 1949, had 

immigrated to the United States as a teenager, and had purchased 

the restaurant in 1987. The victim lived in Quincy with his 

family, but spent the majority of his time at the restaurant, 

which was open 364 days a year. He slept at the restaurant four 

to five nights a week, on a make-shift bed in his office, 

because he wanted to "know everything that was going on," as 

well as to accommodate early morning deliveries. When he stayed 

at the restaurant overnight, the victim locked the doors from 

the inside prior to going to sleep.

The office, which was next to the kitchen, contained a 

large, metal safe. Inside the kitchen, a portion of the 

suspended ceiling had been removed to expose a crude ventilation 

shaft cut into the roof. At the end of the work day, or when it 

rained, restaurant workers went onto the roof through an access 

door and covered the ventilation shaft with an unsecured wooden 

cover.

The victim employed a few long-term employees, including a 

head chef, a hostess, and a waitress. The majority of the 
5

workers, however, were temporary; they were drawn from Boston's 

Chinatown neighborhood and transported to Ipswich by a company 

van. The victim had employed hundreds of temporary workers over 

the course of the twenty years that he operated the restaurant. 

The defendant was one such employee; he had washed dishes at the 

restaurant for two days either in 2010 or 2011.

On Monday, September 26, 2011, the victim's son, a 

restaurant manager, worked with his father until sometime 

between 11:30 P.M. and midnight. At 12:30 A.M., on his way 

home, the son drove a group of employees back to Chinatown. The 

victim stayed behind, locked the doors, and went to sleep. The 

next morning, an employee found the victim's bloody body in the 

office. The victim's ankles were bound with a black power cord

and his wrists were bound with a computer cord and a belt. A 

medical examiner later determined that the victim had suffered 

extensive injuries including two skull fractures, a fractured 

arm, twelve rib fractures, and stab wounds to the back and 

extremities. He died as a result of multiple blunt and sharp 

force injuries and asphyxia due to strangulation.

The handle and keypad to the office safe were stained with 

the victim's blood. The police recovered a bloody knife on the 

office floor near the victim's body and the safe. In the 

kitchen, police found tin snips (a tool capable of cutting wire)

and a baseball hat on a table underneath the ventilation shaft. 
6

The wooden cover to the ventilation shaft had been removed.

Investigators found approximately $2,800 in cash under the 

cushions of the victim's make-shift bed, and $50,000 in cash in 

the safe.

The investigating officers were able to establish a likely 

timeline for the robbery. At 3:15 A.M., the robbers cut the 

restaurant's telephone lines and electrical power wires at the

utility panel located in the back parking lot. At 3:30 A.M., a 

truck driver pulled into the parking lot belonging to the pipe 

supply company next door to the restaurant to begin a morning 

delivery. The driver noticed a white taxicab parked on the side 

of the warehouse that abuts the restaurant. The taxicab had 

"Boston Cab Assoc" written in red letters on the passenger's

side door; it was unoccupied.

Officers did not identify a suspect in the first few days 

of the investigation. That changed on September 29, when Lin 

contacted the police, identified himself as the operator of the 

white taxicab, and provided information about his two 

accomplices in the robbery. Lin consented to the search of his 

taxicab, a hand-held global positioning system (GPS) device, and 

his home. Police also obtained records from a "CMT" device 

installed in Lin's taxicab, which captured and transmitted, at 

least once every three minutes, "extremely accurate" information 
7

about the location of the taxicab, its speed and direction, and 

meter activity.

At trial, Lin provided the following account.2 

Approximately two weeks before the robbery, Lin met the 

defendant and Sun at a casino in Connecticut. They spent a few 

days gambling together, and exchanged telephone numbers. The 

defendant asked Lin if he knew any "wealthy people." They also 

discussed "well-known" restaurant owners. Thereafter, Lin drove 

the defendant and Sun to Boston-area restaurants in his taxicab, 

presumably searching for likely places to rob.

On September 27, 2011, at approximately 2 A.M., while Lin 

was at his home in Malden, he received telephone calls from the 

defendant and Sun. Lin agreed to meet them in Boston. Either 

the defendant or Sun brought a black bag, which was placed in 

the trunk of the taxicab. The defendant directed Lin to the 

restaurant in Ipswich. They arrived at 3 A.M. Lin parked the 

taxicab next door to the restaurant, near the side of the pipe 

supply building. The defendant and Sun retrieved items from the 

black bag; they told Lin to wait for them, and walked toward the 

rear of the restaurant.

 2 In exchange for Lin's cooperation, the Commonwealth agreed 

to reduce the murder indictment to the lesser included offense 

of manslaughter, and to a combined sentence of from fifteen to 

twenty-five years for manslaughter and stealing, and five years 

of probation for the armed assault.
8

When they returned, the defendant was carrying a crowbar,

and both wore gloves and masks. Either the defendant or Sun

asked Lin to help them steal a safe containing "a lot of money." 

Wearing a baseball hat supplied by the defendant, and gloves,

Lin followed the defendant and Sun to the rear of the 

restaurant.3 The three climbed up the roof by stepping onto an 

ice machine condenser, and dropped into the kitchen through the 

ventilation shaft.

While walking alone through the dining room, Lin heard the 

victim screaming "very loudly" in the office. Lin entered the 

office and saw Sun holding a knife to the injured victim's 

throat. The defendant beat the victim with the crowbar on the

abdomen and legs. The victim was pleading, "What do you want?"; 

"Don't hurt me"; "Whatever you want I will give you everything." 

The victim promised to open the safe. At Sun's suggestion, Lin 

and the defendant bound the victim's ankles and hands. Lin 

helped drag the victim, who was unable to walk, to the safe. 

The victim was propped up facing the safe; he twice attempted to 

enter a code on the keypad. Upset that the victim was "playing 

games," the defendant beat him with the crowbar. Lin took the 

 3 A scraping from the interior headband of the baseball hat 

found inside the restaurant contained a mixture of 

deoxyribonucleic acid (DNA) from at least two individuals. The 

defendant's DNA matched the major profile, and Lin matched the 

minor profile.
9

crowbar away, but the defendant then beat the victim with a 

hammer retrieved from the black bag.

The three departed the restaurant through the ventilation 

shaft, leaving the victim unconscious on the office floor. Upon 

returning to the taxicab, the defendant expressed frustration 

that "after all that work" they had been unable to steal the 

large sum of money he believed had been in the safe. Sun's hand 

was injured, and their clothing had been stained with the 

victim's blood.

Lin drove the defendant and Sun to casinos in Connecticut. 

The three men obtained clean clothing, some from one of the 

defendant's friends, and some that was purchased in the casino 

shops. After changing, they washed the bloodstained clothes at 

a laundromat, and disposed of other evidence in a nearby 

Dumpster.4

The defendant testified in his own defense. He admitted 

that he, Lin, and Sun drove to the restaurant on September 27, 

2011. He maintained, however, that Lin and Sun had planned the 

robbery. He had been unaware of the plan, because Lin and Sun 

 4 The Commonwealth offered evidence that, it contended, 

corroborated Lin's testimony. The evidence included 

surveillance video footage taken from businesses located on 

Route 1 near the restaurant, two Connecticut casinos, and the 

businesses near the laundromat. The Commonwealth also 

introduced evidence from Lin's GPS device and the taxicab's CMT 

system that showed its path of travel on September 27, 2011.
10

spoke to each other in the Fuzhou dialect, which the defendant

does not understand. The defendant also testified that Lin and 

Sun entered the restaurant while he remained outside,

"foolishly" playing video games on his cellular telephone "to 

calm [himself] down." The defendant maintained that he had not

touched the victim.

3. Discussion. After he filed his direct appeal, but 

before briefs had been submitted, the defendant filed a motion 

for a new trial in this court. We stayed the appeal and 

remanded the motion to the Superior Court.

In his motion for a new trial, the defendant raised eight 

issues. He argued that (1) the judge did not appoint a 

competent interpreter; (2) trial counsel was ineffective; 

(3) certain of the jury instructions were erroneous; (4) the 

judge erred in denying the defendant's motions for a mistrial; 

(5) the judge did not use the Walker method of jury empanelment, 

see Commonwealth v. Walker, 379 Mass. 297, 299 n.1 (1979); 

(6) the judge's vacation unnecessarily delayed the trial; 

(7) the "jury was infected with prejudicial bias based on 

certain rulings by the judge"; and (8) the defendant should not 

have been sentenced on the second and third indictments. The 

motion judge, who was not the trial judge, denied the motion

without a hearing because he found that "the [ineffective 

assistance] claim is not a substantial issue raised by the 
11

motion or affidavit, and is not supported by a substantial 

evidentiary showing." Citing the availability of appellate 

review, the judge declined to rule on the other asserted grounds 

for a new trial.

On appeal, the defendant pursues the first six of the 

issues that he raised in his motion for a new trial. Focusing 

in particular on his constitutional arguments with respect to 

the interpreters, the defendant contends that "the original 

criminal proceeding was infected with prejudicial constitutional 

error" due to inadequacies with the interpreters provided. In 

addition to raising all the arguments from his motion for a new 

trial except for his claims of prejudicial bias and sentencing 

on the second and third indictments, the defendant also raises 

one new claim on appeal. He argues that a new trial is required 

because the judge did not sua sponte conduct a colloquy of the 

defendant before he testified, to ensure that the decision to 

waive his right to silence was voluntarily made. The defendant 

also asks this court to exercise its authority pursuant to G. L. 

c. 278, § 33E, to order a new trial or to direct the entry of a 

lesser degree of guilt.

a. Whether the defendant was deprived of his right to a 

competent interpreter. i. Background. The judge confronted

numerous issues surrounding the interpreters throughout the twomonth trial. At the conclusion of the trial, the judge made
12

detailed findings of fact to explain his rulings. We briefly 

summarize these findings, supplemented with uncontroverted 

evidence from the record.

The defendant, who was born in China, does not speak 

English. At his January 2012 arraignment in the Superior Court, 

he filed a motion requesting funds for an interpreter because 

"his native language is Cantonese[]." In subsequent pretrial 

motions, the defendant continued to represent that "his native 

language is Cantonese[]" and "his native language is the 

Cantonese dialect of Chinese." As a result, the judge appointed 

Cantonese interpreters to interpret for the defendant in twentythree court appearances. These pretrial matters included a 

complex motion to suppress raising issues of cell site location 

information.

On January 13, 2016, the judge began to empanel a jury in 

the joint trial of the defendant and Sun. During seven days of 

jury selection, the judge provided the defendant with Cantonese 

interpreters, and Sun with Mandarin interpreters. On January 

20, 2016, the defendant objected to the qualifications of one of 

the Cantonese interpreters. He did not, however, indicate that 

he was unable to understand this interpreter's Cantonese.

The defendant's severed trial commenced on March 8, 2016,

with two Cantonese interpreters, Lewanna Li (Li) and Melissa Lo

(Lo). On the fourth day of empanelment, the defendant asserted 
13

that "some of the interpretation" by Li was inaccurate. Defense 

counsel informed the judge that the defendant "does speak 

Cantonese, but that is not his native Chinese language. His 

native Chinese language is [Taishanese]. The language spoken in 

the Province of [Taishan], China. . . . [A] [Taishanese]

interpreter would be more suitable for [the defendant]."5 The 

judge continued to empanel with Lo as the sole interpreter, and 

scheduled a hearing for the following day.

The next day, counsel stated that he had spoken to the 

defendant regarding "the [e]mpanelment process, his 

understanding of the process and the potential for errors in 

translation." After these discussions, trial counsel explained, 

the defendant had "clearly and unequivocally conveyed to [trial 

counsel] that he understood the [e]mpanelment process." Counsel 

added that the defendant was "raising no issues with regard to 

that whatsoever."

The judge conducted a colloquy with the defendant to 

confirm that he had knowingly and voluntarily withdrawn his 

objection to the interpretation of the proceedings. The 

 5 The defendant's language is spoken in the southern portion 

of the Guangdong province in China. See C. Szedo, Testing 

Intelligibility Among Sinitic Dialects, Proceedings of the 2000 

Conference of the Australian Linguistic Society 1 (Szedo). It 

has a number of spellings in written English. Trial counsel 

referred to the defendant's language as "Taosenese." For 

consistency, we use the spelling "Taishanese" throughout.
14

defendant said that he was born in China, and speaks Cantonese 

and Taishanese. When asked about the conduct of the interrupted

trial, the defendant stated that he had had "a little bit" of 

"difficulty" with the interpretation because some of the words 

spoken during jury voir dire were not, in his opinion, 

interpreted. With respect to this trial, the defendant 

indicated that he understood that he had a right to "be present 

during a trial, to understand what is happening and to be able 

to assist meaningfully with . . . [his] defense." After the 

colloquy, the judge found that "the defendant [had] been able to 

understand what [was] going on . . . and that the defendant 

[had] knowingly, willingly and voluntarily answered the 

[c]ourt's questions and the [c]ourt [was] comfortable to make a 

finding that the defendant [was] able to fully participate in 

the proceedings."

On April 5, 2016, the judge found Cantonese interpreter 

Stephanie Liu (Liu) to be qualified to interpret pursuant to 

G. L. c. 221, § 92, and Mass. R. Crim. P. 41, 378 Mass. 918 

(1979). The defendant informed the judge that "he [was] much 

more comfortable with [Taishanese] than he [was] in Cantonese," 

and would "prefer a [Taishanese] interpreter." Thereafter, the 

defendant expressed his dissatisfaction with Liu. The defendant 

contended that "he did not understand, because of poor 

interpretation, much of what was said during the opening 
15

statements of counsel and during the testimony of the witness 

[on the first day of trial]." The judge observed that he did 

not credit the defendant "for so many reasons," but would make 

specific findings of fact at a later point. The defendant

asserted that he required a Taishanese interpreter "to vindicate 

his constitutional rights."

On April 12, 2011, the defendant renewed his request for a 

Taishanese interpreter because he had "only understood [ninety]

percent of what was translated to him on the day before." The 

judge conducted a voir dire hearing to address the defendant's 

contention that he did not understand the Cantonese 

interpreters. The defendant waived the interpreter privilege, 

see Mass. G. Evid. § 522(b) (2019), and Liu and Lo testified 

that they were both able to speak to the defendant in Cantonese 

and understood his Cantonese responses. Lo added that she also 

spoke Taishanese, which she had learned at a young age from her 

greatgrandmother. She had not, however, interpreted words into 

Taishanese until the day of the voir dire hearing.

The judge found "that the defendant speaks Cantonese 

fluently" and that the defendant's claim he did not understand 

the proceedings was not credible "to an exponential degree." 

The judge nonetheless agreed to appoint the defendant a 

Taishanese interpreter. The next day, the judge conducted a 

hearing and appointed Taishanese interpreter Way Moy (Moy), who 
16

recently had retired as a staff interpreter for the New York

Supreme Court. The defendant objected to Moy's lack of 

certification in Massachusetts. The following day, April 14, 

2016, the defendant expressed dissatisfaction with Moy's 

interpretation. He said that "he speaks a variation of 

[Taishanese]" that [Moy] does not speak." The defendant 

characterized Moy's Taishanese as "broken" or "very old 

school[]," dating to the 1920s and 1930s. The judge found that 

Moy was highly qualified in Taishanese and that the defendant 

had received "the interpreter that he wanted."

ii. Analysis. A failure to provide a non-English speaker 

with a competent interpreter implicates multiple constitutional 

rights. As a matter of fundamental fairness, a defendant has a 

due process right to understand the proceedings. See United 

States v. Lopez-Collazo, 824 F.3d 453, 460-461 (4th Cir. 2016), 

cert. denied, 137 S. Ct. 628 (2017). See also United States ex 

rel. Negron v. New York, 434 F.2d 386, 388 (2d Cir. 1970) (for

non-English speaker deprived of adequate interpreter, most of 

trial is "[a] babble of voices"). A judge also is required to 

provide a non-English speaker with a competent interpreter in 

order to safeguard the defendant's rights under the Sixth 

Amendment to the United States Constitution, and art. 12 of the 

Massachusetts Declaration of Rights, to be present at trial and 

to confront adverse witnesses. Commonwealth v. Garcia, 379 
17

Mass. 422, 437 (1980). See United States v. Carrion, 488 F.2d 

12, 14 (1st Cir. 1973), cert. denied, 416 U.S. 907 (1974)

("right to confront witnesses would be meaningless if the 

accused could not understand their testimony, and the 

effectiveness of cross-examination would be severely hampered"). 

A non-English speaker also is entitled to competent 

interpretation in order to consult meaningfully with counsel 

during the trial. United States ex rel. Negron, supra at 389.

In addition, a non-English speaker has a statutory right to 

a court-appointed qualified interpreter. See G. L. c. 221C, 

§§ 1-2; G. L. c. 221, § 92. General Laws c. 221C, § 2, provides 

that "[a] non-English speaker, throughout a legal proceeding, 

shall have a right to the assistance of a qualified 

interpreter." A "qualified interpreter" is defined as "a 

certified interpreter who has also passed the examination [given 

by the office of court interpreter services] and been qualified 

for interpreting in the [F]ederal courts by the United States 

[D]istrict [C]ourt of the [D]istrict of Massachusetts." G. L. 

c. 221C, § 1. In the event that a "qualified interpreter" is 

not "reasonably available," a judge shall appoint a "certified 

interpreter." G. L. c. 221C, § 2. Under G. L. c. 221C, § 1, a 

"certified interpreter" is "an interpreter who has been duly

trained and certified" by the office of court interpreter 

services.
18

Pursuant to G. L. c. 221, § 92, a Superior Court judge "may 

appoint such official interpreters as they may deem necessary 

for the sessions of the court." The judge also has authority to 

appoint "other interpreters when the services of the official 

interpreters are not available." G. L. c. 221, § 92. See Mass. 

R. Crim. P. 41 ("The judge may appoint an interpreter or expert 

if justice so requires and may determine the reasonable 

compensation for such services and direct payment therefor"). 

Implicit in the judge's authority to appoint an interpreter 

pursuant to G. L. c. 221, § 92, and Mass. R. Crim. P. 41, is the 

understanding that the individual appointed to interpret is 

competent. See United States v. Villegas, 899 F.2d 1324, 1348 

(2d Cir.), cert. denied, 498 U.S. 991 (1990).6

The issue raised in this appeal is whether any inadequacy 

in the interpretation of the proceedings "made the trial 

fundamentally unfair." See United States v. Tapia, 631 F.2d 

1207, 1210 (5th Cir. 1980). According to the defendant, the 

trial record "contains a plethora of examples of the defendant's 

 6 In passing, the defendant asserts that G. L. c. 221, §§ 1-

7, in effect, supersede G. L. c. 221, § 92, and Mass. R. Crim. 

P. 41. He does not, however, argue that the judge improperly 

certified the interpreters pursuant to G. L. c. 221, § 92, and 

Mass. R. Crim. P. 41. As the defendant contends that the issue 

is whether he was deprived of his constitutional right to a fair 

trial due to inadequacies in the interpretation, we need not 

address the defendant's statutory argument.
19

struggle to understand what was going on."7 The judge, he 

alleges, "tolerate[d]" incompetent interpreters for the sake of 

expediency, without regard to the defendant's ability to 

understand the proceedings. More particularly, the defendant 

argues that the judge erred in finding that (1) the defendant 

spoke fluent Cantonese and, therefore, did not need a Taishanese 

interpreter; (2) the defendant was able to understand Cantonese 

interpreter Liu; and (3) the defendant was able to understand 

Taishanese interpreter Moy. We evaluate each of the defendant's 

claims under an abuse of discretion standard. See Commonwealth

v. Garcia, 379 Mass. 422, 437 (1980) (judgments concerning 

defendant's need for interpreter "uniquely within the province 

of the trial judge"). See also Valladares v. United States, 871 

F.2d 1564, 1566 (11th Cir. 1989) (judge in direct contact with 

defendant is given wide discretion to decide adequacy of 

interpreter); Chee v. United States, 449 F.2d 747, 748 (9th Cir. 

 7 We have carefully examined the seventy-five instances 

cited by the defendant as "examples of the defendant's struggle 

to understand what was going on." These portions of the trial 

transcript include counsel's objections, a pause in the trial so 

that the interpreter could explain the word "postmortem" to the 

defendant, the interpreter asking a witness to clarify the 

pronunciation of a surname, and the interpreter indicating that 

he could not hear part of an answer.
20

1971) (per curiam) (trial judge has broad discretion in 

determining fitness and qualifications of interpreters).8

The defendant concedes that he understands "some 

Cantonese." He argues, however, that he does not speak 

Cantonese well enough "to be comfortable understanding it at 

trial without an interpreter translating."9 The judge's finding 

 8 In a related claim, the defendant contends that he was 

deprived of a fair trial by the judge's denial of a continuance 

prior to beginning cross-examination of Lin on the ninth day of 

testimony. Counsel believed that the defendant had prepared 

certain questions he wanted counsel to ask on cross-examination 

of Lin. Before cross-examination began, counsel sought a 

continuance so that he could review those questions with an 

interpreter and his client. The judge denied the motion, 

pointing to the inconvenience to the jury in dismissing them 

early, and instructed trial counsel to question Lin for the 

forty-five minutes remaining in the court day, and then to 

discuss the questions with the defendant thereafter. The judge 

noted also that defense counsel had had nine days to prepare for 

the cross-examination, and that he had had access to daily 

transcripts of the majority of the testimony. In addition, the 

judge pointed out that the cross-examination was likely to be 

lengthy, and to continue over more than one day.

According to the defendant, this "showed a total lack of 

sensitivity to . . . interpretation issues." The defendant has 

not shown that the judge abused his discretion in ordering the 

forty-five minutes of cross-examination before counsel had 

reviewed the questions that the defendant wanted him to ask. 

See Commonwealth v. Fernandez, 480 Mass. 334, 340 (2018). Due 

to planned delays in the trial, counsel had ample time to 

consult with the defendant and to prepare his cross-examination 

of Lin, and was able to resume cross-examination four days later 

having fully consulted with his client.

9 While the defendant speaks Cantonese and Taishanese, the 

two are very different languages. In general, Cantonese 

speakers comprehend approximately 31.3 percent of what they hear 

in Taishanese. See Szedo, supra at 4.
21

that the defendant spoke fluent Cantonese, and understood the 

proceedings interpreted from English into Cantonese, is well 

supported by the record. Over the course of the four years 

prior to his trial, the defendant represented to the judge that 

"his native language is Cantonese." On the fifth day of trial, 

the judge conducted a colloquy of the defendant, where the 

defendant withdrew his objections to the Cantonese interpreters. 

In addition, while seeking a Taishanese interpreter for himself, 

the defendant also requested that the court assign Cantonese 

interpreter Lo.10

The judge's denial of the defendant's motion to remove Liu, 

and the judge's decision that Liu was competent, are also well 

supported by the record and indicate no abuse of discretion. 

The judge found that Liu is an experienced Cantonese interpreter 

who has been certified by the office of court administration in 

New York. He also credited Liu's testimony that she always 

understood the defendant's Cantonese.

As evidence that Liu was inadequate, on appeal the 

defendant points to a "serious misinterpretation" of Lin's 

testimony. On that occasion, the prosecutor asked Lin where the 

 10 Although not before the trial judge, we note that, in 

postconviction proceedings, appellate counsel filed a motion for 

funds to retain the services of an interpreter. Appellate 

counsel represented that "the defendant does not speak English 

well and requires the services of a Cantonese or [Taishanese]

interpreter in order to communicate with his attorney."
22

defendant had directed him to go. Lin answered, as interpreted 

by Liu, "In the beginning he asked me if I knew how to go to 

Route One and then we would go to" the victim's restaurant. Lin 

shook his head at this interpretation, and Liu corrected 

herself, apologizing and asking if Lin had meant the proper name 

"Kowloon." Lin in fact had said, "In the beginning he asked me 

if I knew how to go to Route One and then we would go to the 

Kowloon," an unrelated but well-known restaurant on Route 1. 

Trial counsel renewed his "motion to have [Liu] stricken as the 

interpreter." The judge conducted a voir dire; he then credited 

Liu's explanation that "kowlong" means "dragon" in Cantonese, so 

she thought Lin had been referring to the victim's restaurant, 

the name of which included the word "dragon." We discern no 

basis to disturb the judge's factual finding that there was 

"absolutely no issue as it relates to [Liu's] ability."

The defendant contends further that the judge erred in 

finding that Moy was a competent Taishanese interpreter. He 

argues, "At no time during the trial of this matter did the 

defendant receive translation from an interpreter capable of 

speaking Taishanese fluently." The judge made detailed findings 

regarding the defendant's ability to understand Moy's Taishanese 

interpretation. He found, for example, that the defendant had 

no difficulty answering approximately 625 questions posed by his 

counsel on direct examination. The judge reasoned, "It would 
23

have been impossible for him to have answered those 625 

questions . . . if he did not understand the interpretation." 

The judge noted that the defendant, again with Moy interpreting, 

had little difficulty understanding the 300 questions asked by 

the prosecutor on cross-examination. The defendant has not 

demonstrated that the judge's findings are erroneous.

b. Ineffective assistance of counsel. The defendant

claims that a new trial is required because of trial counsel's 

asserted failures effectively to cross-examine two witnesses. 

In his decision on the defendant's motion for a new trial, the 

motion judge noted that the defendant had not submitted an 

affidavit from trial counsel or from any other person to provide 

the court with "specific facts supporting the ineffectiveness 

claim." In the judge's view, the defendant's assertions had not 

"come close to suggesting that he could conceivably overcome the 

stringent standard of review applied to claims of ineffective 

assistance because of a failure to impeach a witness"

(quotations and citation omitted).11 See Commonwealth

v. Jenkins, 458 Mass. 791, 805 (2011).

 11 The defendant also argues, for the first time on appeal, 

that he was deprived of effective assistance because trial 

counsel visited him in jail eighteen times (over a four-year 

period of pretrial detention), and that an interpreter was 

present for only eight visits. Our case law strongly disfavors 

raising an ineffective assistance claim on direct appellate 

review because the record is "bereft of any explanation by trial 

counsel for his actions" (citation omitted). Commonwealth v. 
24

In reviewing a claim of ineffective assistance in a case of 

murder in the first degree, we apply the more favorable standard 

of review for a substantial likelihood of a miscarriage of 

justice, pursuant to G. L. c. 278, § 33E. See Commonwealth

v. Vargas, 475 Mass. 338, 358 (2016). "We consider whether 

there was an error in the course of the trial (by defense 

counsel, the prosecutor, or the judge) and, if there was, 

whether that error was likely to have influenced the jury's 

conclusion." Id., quoting Commonwealth v. Lessieur, 472 Mass. 

317, 327, cert. denied, 136 S. Ct. 418 (2015).

The defendant contends that Lin's prior statements to 

police were "vastly different from his testimony at trial," and 

that trial counsel's failure to impeach Lin with two prior 

inconsistent statements "may have changed the results of the 

trial." The first asserted inconsistent statement concerned 

Lin's agreement with Sun to split the proceeds of the robbery. 

In a September 29, 2011 interview, Lin told police that the 

defendant and Sun returned to the taxicab after their initial 

 

Gorham, 472 Mass. 112, 116 n.4 (2015). To be entitled to 

relief, "the factual basis of the claim [must] appear[] 

indisputably on the trial record." Commonwealth v. Zinser, 446 

Mass. 807, 811 (2006). The defendant does not contend that 

counsel was unprepared in any manner. Nor does he explain how 

he was prejudiced by the lack of an interpreter. Moreover, the 

defendant does not mention that the record demonstrates that 

trial counsel visited the defendant, with an interpreter, an 

additional forty-two times in the court house holding cell.
25

entry into the restaurant. Lin said that Sun convinced him to 

break into the restaurant by telling him, "Just come in to help 

us. Go inside, get some of the money. I'll split it with you. 

So, if you don't go inside to help us, you know, the other guy 

is going to hit you with the crowbar." In a March 10, 2014 

interview, Lin denied that Sun had told him there would be money 

inside the restaurant. In that interview, Lin responded to a 

question concerning what he knew prior to their arrival at the 

restaurant. Lin insisted that the defendant and Sun "didn't

tell [him] . . . anything until [they got] there." At trial, 

Lin did not mention any prior agreement to split the proceeds of 

the robbery.

The second asserted inconsistency involved Lin's statement 

to police that he had observed "three shadows" behind the 

restaurant after the defendant and Sun left the taxicab. This 

statement is inconsistent, the defendant argues, with Lin's 

trial testimony that only the defendant and Sun were involved in 

the robbery. As the motion judge recognized, the defendant did 

not meet the stringent standard required for claims of 

ineffective assistance premised on a failure to impeach a 

witness. See Jenkins, 458 Mass. at 805. See also Commonwealth

v. Valentin, 470 Mass. 186, 191 (2014) (counsel not ineffective 

for failing to cross-examine witness concerning particular 

statement where counsel otherwise "conducted a thorough 
26

impeachment" of witness through cross-examination); Commonwealth

v. Fisher, 433 Mass. 340, 347 (2001) ("absent counsel's failure 

to pursue some obviously powerful form of impeachment . . . , it 

is speculative to conclude that a different approach to 

impeachment would likely have affected the jury's conclusion").

Here, trial counsel impeached Lin's credibility in multiple 

ways, including challenging Lin's statements that he purportedly

was unable to communicate with the defendant, that Lin was a 

heavy gambler, that Lin had attempted to flee the country after 

meeting with police, and that Lin had negotiated a favorable 

plea agreement in exchange for his testimony. During crossexamination, Lin admitted that he had lied to the police

concerning his involvement in the crime. For example, he 

falsely told the officers that the defendant forced him to 

surrender his taxicab keys when they arrived at the restaurant. 

Lin also said that he had lied about wearing gloves inside the 

restaurant. In his closing argument, trial counsel pointed out 

that Lin repeatedly "lied to the police. . . . He lied about 

the threats from the very beginning." Trial counsel emphasized 

that Lin "hasn't told the truth in . . . a lot of ways. He 

started off, as I said, not telling the truth; and he 

continued."

The defendant also argues that trial counsel's crossexamination of Yusheng Tan (Tan), the defendant's friend from 
27

the casino where the defendant, Sun, and Lin went after the 

robbery, should have been "more vigorous." Trial counsel's 

performance was deficient, the defendant argues, because counsel 

did not mention that Tan told the police that the taxicab was 

yellow; Tan told the police he was unable to get a good look at 

the driver; and Tan testified that the defendant's clothing was 

filthy even though Tan "possibly" did not have a chance to 

observe the defendant, who was "sandwiched between two other 

individuals" in the back seat of Lin's taxicab.

The defendant has not demonstrated that the absence of 

these relatively minor issues from counsel's cross-examination 

amounted to ineffective assistance of counsel. Trial counsel 

impeached Tan with multiple prior inconsistent statements

concerning the sequence of events inside the casino and the 

defendant's gambling losses. Counsel also raised the issue of 

bias because the defendant owed Tan, or Tan's mother, a gambling 

debt. In his closing argument, trial counsel maintained that 

Tan was untruthful and told a "whopper" of a lie concerning the 

defendant's gambling losses. On the issue of bias, trial 

counsel commented, "Is that a bias that he has so that he would 

frame his testimony against [the defendant]?"

c. Jury instructions. The defendant asserts that the 

judge provided a number of erroneous jury instructions as to 

joint venture liability; the merger doctrine; and the duty to 
28

find the highest crime proved beyond a reasonable doubt. 

Because the defendant objected at trial, we review for 

prejudicial error. Commonwealth v. Cole, 473 Mass. 317, 321 

(2015).

i. Joint venture liability. The defendant argues, as he 

did at trial, that it was error for the judge to instruct the 

jury on joint venture liability. He contends that the 

Commonwealth prosecuted the case on a theory of principal 

liability and did not argue, or establish, that the defendant 

aided and abetted another in the commission of the crime.

This argument mischaracterizes the Commonwealth's trial 

strategy. The prosecutor's opening statement reflected the

Commonwealth's position that the defendant, Sun, and Lin 

together committed the crime. She stated that the three men

"brutally beat [the victim]. They demanded that he open 

the safe and give them money, that [the defendant] armed 

himself with a crow bar and a hammer and that he used that 

to beat [the victim] over and over again, that [Sun] was 

armed with a knife, and that they beat [the victim] so 

badly after having bound him and dragged him and demanded 

from him, that he eventually collapsed. And the three men 

left him dead or dying on that office floor and fled back 

into the night the same way they came."

In her closing argument, the prosecutor continued to maintain 

that the defendant, Sun, and Lin robbed and killed the victim: 

"Three men assaulted [the victim] and tried to rob him. Three 

men confined him, put him in fear while they tried to steal from 
29

him. And three men brutally murdered [him]. But you are here 

to render a verdict as to just one, [the defendant]."

The judge properly instructed the jury on the theory of 

joint venture liability. See Commonwealth v. Smith, 460 Mass. 

385, 389 (2011) (judge required to instruct on elements of joint 

venture where supported by evidence). "There is no requirement 

that the Commonwealth prove precisely what role the defendant 

played -- whether he acted as a principal or an accomplice (or 

joint venturer)." Commonwealth v. Silva, 471 Mass. 610, 621 

(2015). To support a conviction as a joint venturer, the 

Commonwealth was required to prove, beyond a reasonable doubt,

that the defendant "knowingly participated in the commission of 

the crime charged, alone or with others, with the intent 

required for that offense." Commonwealth v. Zanetti, 454 Mass. 

449, 468 (2009). Here, there was ample evidence that the 

defendant knowingly participated with others in the robbery and 

beating, with the requisite intent.12 See Commonwealth v. Horne, 

466 Mass. 440, 446-447 (2013).

 12 The defendant's claim that he was prejudiced by the 

portion of the judge's instructions referencing the crime of 

conspiracy is unavailing. The judge instructed the jury that 

they could consider statements made that were attributed to Sun 

if the Commonwealth established that the statements were "made 

during or in furtherance of the joint venture or conspiracy." 

The defendant objected to the judge's use of the word 

"conspiracy." He argued that conspiracy is a separate crime and 

had the potential to inject "something into the case that wasn't 

there." In response, the judge explained to the jury that his 
30

ii. Instruction on merger. The trial judge instructed the 

jury on the felony-murder merger doctrine that "[t]he act of 

violence that is an element of the underlying felony of stealing 

by confining or putting in fear may not be the same act that 

caused the victim's death. Where an act of violence is an 

element of the underlying felony, you may find felony murder 

only if you find an act that is separate and distinct from the 

violent act that resulted in [the victim's] death." 

See Commonwealth v. Gunter, 427 Mass. 259, 272 (1998) (merger 

doctrine limits application of felony-murder rule). The 

defendant objected to this instruction.

The defendant contends on appeal that the merger doctrine 

precluded a conviction of felony-murder because more than one 

person struck the victim during the robbery, and the medical 

examiner could not isolate the cause of death to any one injury. 

He argues, "[I]f more than one person was involved and there is 

no proof as to what [the victim] died from, then there can be no 

 

use of the word conspiracy was limited to their consideration of 

the statements by Lin and Sun. He emphasized, "Obviously, there 

is no separate indictment or crime before you alleging 

conspiracy." We presume that the jury understood and followed 

the judge's instruction. Commonwealth v. Maynard, 436 Mass. 

558, 570-571 (2002).
31

conclusion that the defendant was part of what resulted in [the 

victim's] death."13

The merger doctrine is inapplicable, however, "where the 

predicate felony has an intent or purpose separate and distinct 

from the act causing physical injury or death." Commonwealth

v. Morin, 478 Mass. 415, 431 (2017). It is well established

that the merger doctrine does not apply to the predicate felony 

of robbery, where that predicate felony plainly has a purpose 

separate and distinct from the acts that caused the victim's 

death.14 Id., citing Commonwealth v. Christian, 430 Mass. 552, 

 13 On appeal, the defendant argues also that one of the 

judge's instructions misstated the facts. The judge instructed,

"In this case, the Commonwealth alleges the following 

separate and distinct acts, that the defendant, allegedly 

as an aider and abetter, bound [the victim], brought [him] 

to a safe, put a knife to or close to [his] neck, struck 

[his] legs before [he] was brought to the safe and/or 

stepped on [his] upper thigh."

The defendant contends that "[t]here was no evidence at trial 

that the defendant [as opposed to Sun] . . . used a knife 

against [the victim]." Contrary to the defendant's argument, 

this instruction did not inform the jury that the defendant held 

a knife to the victim's throat; the instruction plainly referred 

to the defendant's participation "as an aider and abetter" in 

the robbery with Sun and Lin.

14 Moreover, if the jury convict a defendant on two theories 

of murder in the first degree, the verdict "will remain 

undisturbed even if only one theory is sustained on appeal." 

Commonwealth v. Nolin, 448 Mass. 207, 220 (2007), citing 

Commonwealth v. Chipman, 418 Mass. 262, 270 n.5 (1994). As the 

jury convicted the defendant of murder in the first degree on a 

theory of extreme atrocity or cruelty, we could affirm the 

verdict without reaching the defendant's contention that the 
32

556 (2000). See Commonwealth v. Fredette, 480 Mass. 75, 81 

(2018); Commonwealth v. Holley, 478 Mass. 508, 520 (2017).

iii. Highest crime. The judge instructed the jury that 

they had a duty to find the defendant guilty of the most serious 

offense the Commonwealth proved beyond a reasonable doubt. He 

also instructed, "If the evidence does not prove beyond a 

reasonable doubt that the defendant is guilty of any offense or 

offenses charged, you must find him not guilty." The defendant 

contends that these instructions violated the language of G. L. 

c. 265, § 1, which provides that "[t]he degree of murder shall 

be found by the jury."

There was no error. See Commonwealth v. Dickerson, 372 

Mass. 783, 797 (1977). It is well settled that a judge may, in 

the exercise of discretion, inform the jury of their duty to 

return a verdict for the most serious crime proved against the 

defendant beyond a reasonable doubt. See, e.g., Commonwealth

v. Nelson, 468 Mass. 1, 16-17 (2014); Commonwealth v. Rivera, 

445 Mass. 119, 131 (2005); Model Jury Instructions on Homicide

107 (2018); Model Jury Instructions on Homicide 93-94 (2013).

d. Walker method. The defendant argues that the judge 

abused his discretion in denying the defendant's request for 

 

felony-murder conviction is precluded by the merger doctrine. 

See Commonwealth v. Pytou Heang, 458 Mass. 827, 860 n.36 (2011), 

and cases cited.
33

the Walker method of jury selection. Under the Walker method, 

the parties do not begin to exercise peremptory challenges until 

the number of members of the venire found indifferent equals the 

total number of all peremptory challenges that may be exercised 

by all the parties plus the number of indifferent jurors and 

alternates needed to serve. Walker, 379 Mass. at 299 n.1. 

The Walker method affords the parties the benefit of exercising 

peremptory challenges based on the selection of the jury as a 

whole instead of piecemeal. See P.M. Lauriat & D.H. Wilkins, 

Massachusetts Jury Trial Benchbook § 3.1.4.4, at 107-108 (4th 

ed. 2019) (Lauriat & Wilkins) (Walker method "allows the parties 

to identify and evaluate the entire pool of jurors from which 

the final jury will be selected").

Although he acknowledged the value of the Walker method, 

the judge denied the defendant's request to empanel using 

the Walker method. The judge explained that, given the number 

of days anticipated for empanelment, the court did not have the 

resources available to accommodate the defendant's request. 

Instead, the judge required the exercise of peremptory 

challenges after sixteen members of the venire had been found 

indifferent. As the defendant objected to the judge's ruling, 

we review for prejudicial error. Cole, 473 Mass. at 321.

The defendant argues that the judge violated then-existing 

Rule 6 of the Rules of the Superior Court, which "expressly 
34

provide[d] that peremptory challenges start after 'the full 

number of [jurors] is obtained.'"15 He contends that the judge

improperly chose "speed" over "fairness."

In Commonwealth v. Johnson, 417 Mass. 498, 506-508 (1994), 

we rejected the argument that the Walker method is required, and 

see no reason to disturb this precedent. "While the Walker

method of jury challenging may be a desirable strategic 

tool . . . [,] in cases such as this where the total number of 

peremptory challenges is great, the Walker method is likely to 

be inefficient and unworkable. In any case, use of the Walker

method is not mandated by rule 6." Id. at 507-508. See Lauriat 

 15 At the time of the defendant's trial, in 2016, Rule 6 of 

the Rules of the Superior Court provided in part:

"The procedure in the matter of peremptory challenges of 

jurors, except when an individual voir dire is conducted, 

shall be as follows, unless specially otherwise ordered in 

a particular case. The juror shall first be called until 

the full number is obtained. . . . When it has been 

determined that all the jurors stand indifferent in the 

case, each plaintiff shall at one time exercise his right 

of peremptory challenge as to such jurors, and after others 

have been called to take the places of those challenged, 

and it has been determined that they stand indifferent in 

the case, shall at one time exercise his right of challenge 

of such others, and so on until he has exhausted his right 

of peremptory challenge or has ceased to challenge."

Rule 6 of the Rules of the Superior Court, Massachusetts Rules 

of Court, at 1693 (Thomson Reuters 2015). Rule 6 was amended on 

July 26, 2017, effective September 1, 2017, to provide for 

attorney-conducted voir dire. Commonwealth v. Dabney, 478 Mass. 

839, 848-849, cert. denied, 139 S. Ct. 127 (2018). See G. L. 

c. 234A, § 67D; St. 2016, c. 36, § 4; St. 2014, c. 254, § 2.
35

& Wilkins, supra at 107 ("The Walker method is not mandated by 

Superior Court Rule 6 . . .").

e. Break in trial due to judge's vacation. The defendant 

argues that a one-week delay occasioned by the judge's vacation 

created a substantial likelihood of a miscarriage of justice. 

The delay, according to the defendant, "negatively impacted the 

jurors," to his detriment. Because the defendant did not object

to the delay at trial, we review to determine whether any error 

resulted in a substantial likelihood of a miscarriage of 

justice. Commonwealth v. Wright, 411 Mass. 678, 681-682 (1992), 

S.C., 469 Mass. 447 (2014).

The judge began to empanel the jury on March 8, 2016, and 

the jury returned its verdict on May 18, 2016. On the first day 

of trial, the judge informed counsel of particular days that he 

was not available, which included a pre-planned vacation during 

the week of April 18-22, 2016. During jury selection, the judge 

told the members of the venire that it was difficult to estimate 

the length of the trial, but that the court would not be in 

session during the week of April school vacation. At individual 

voir dire, the judge asked each potential juror whether the 

trial schedule posed a substantial hardship. All of the seated 

jurors responded that it did not.

Having been informed of the schedule, the jurors certainly 

were not surprised by the one-week delay that indeed took place 
36

during the nearly three-month trial, and the defendant has not 

shown that any of the jurors were upset with this break in the 

lengthy proceedings. Moreover, trial counsel did not object to 

the schedule or raise a concern about the possible negative 

impact on the jury. The defendant's posttrial arguments to the 

contrary are speculative at best.

f. Colloquy before defendant testified. In the only issue 

on appeal that the defendant did not raise in his motion for a 

new trial, the defendant contends that the judge should have, 

but did not, sua sponte conduct a colloquy of the defendant

before he testified, to ensure that the defendant knowingly and 

voluntarily had waived the privilege against self-incrimination 

when he took the witness stand. The defendant argues that the

judge was aware of the defendant's history of mental illness, 

the tensions between the defendant and trial counsel, and 

difficulties with the interpreters. The defendant contends that 

it was not clear that he voluntarily, knowingly, and 

intelligently waived his right against self-incrimination.

"A criminal defendant must decide whether to testify, as is 

the defendant's constitutional right, or not to testify, which 

is also a constitutional right." Commonwealth v. Ramirez, 407 

Mass. 553, 556 (1990). It is an important strategic decision 

made with the advice of counsel. Commonwealth v. Waters, 399 

Mass. 708, 716 (1987). "It must be intelligently and 
37

voluntarily made, with sufficient awareness of the relevant 

circumstances and likely consequences" (quotation and citation 

omitted). Commonwealth v. Medina, 64 Mass. App. Ct. 708, 723 

(2005).

The judge was not required to engage in a colloquy with the 

defendant to determine whether he voluntarily, knowingly, and 

intelligently waived his right not to testify. See Ramirez, 407 

Mass. at 556 ("there is no requirement in this Commonwealth that 

the trial judge engage in a colloquy with the defendant 

personally about the defendant's participation in the decision 

whether to testify"). See also Commonwealth v. Smith, 456 Mass. 

476, 481 (2010) (whether to conduct colloquy on defendant's 

decision not to testify is within judge's 

discretion); Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) 

(trial judge need not determine whether defendant knowingly and 

voluntarily waived right to testify).

g. Relief under G. L. c. 278, § 33E. We have carefully 

reviewed the entire record, pursuant to G. L. c. 278, § 33E, and 

discern no reason to order a new trial or to reduce the degree 

of guilt. The defendant's convictions and the order denying his 

motion for a new trial are affirmed.

So ordered.