NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us SJC–12597 COMMONWEALTH vs. ARISMENDY ESPINAL. Essex. December 6, 2018. - May 6, 2019. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Indecent Assault and Battery. Jury and Jurors. Interpreter. Practice, Criminal, Jury and jurors, Empanelment of jury, Examination of jurors, Voir dire, Interpreter, Instructions to jury. Evidence, Inflammatory evidence, First complaint. Complaint received and sworn to in the Lawrence Division of the District Court Department on December 14, 2015. The case was tried before Michael A. Uhlarik, J. The Supreme Judicial Court granted an application for direct appellate review. Rebecca Kiley, Committee for Public Counsel Services, for the defendant. Catherine Patrick Sullivan, Assistant District Attorney, for the Commonwealth. J. Anthony Downs, for Lawyers for Civil Rights & others, amici curiae, was present but did not argue. LENK, J. A jury in the District Court convicted the defendant of indecent assault and battery on a twelve year old 2 child. On appeal, the defendant, whose native language is Spanish, maintains that the judge erred in denying his request that a question be posed collectively to potential jurors about bias toward non-English speakers. He argues further that the judge abused his discretion by allowing the introduction of prejudicial testimony from an investigator and testimony that amounted to improper bolstering by the first complaint witness. Finally, the defendant contends that the judge should have given the jury a modified form of the first complaint instruction. While we recognize that there may well be bias toward non- English speakers, and that a thorough voir dire is necessary to ensure an unbiased jury, in the circumstances here, we discern no abuse of discretion by the trial judge in declining to ask the requested question. We conclude further that the defendant's other arguments are unavailing, and affirm the conviction. Going forward, however, we anticipate that where a defendant is entitled to the services of a translator because of an inability to speak English, the judge will, on request, ordinarily pose a question to the venire regarding language- related bias.1 1. Facts. We summarize the facts that the jury could have found, reserving additional details for discussion of specific 1 We acknowledge the amicus brief submitted by Lawyers for Civil Rights, Centro Presente, and Brazilian Workers Center. 3 issues. See Commonwealth v. Clemente, 452 Mass. 295, 299 (2008), cert. denied, 555 U.S. 1181 (2009). a. Assault. At the time of the complaint, the victim, Sofia2 was twelve years old. She recently had moved to the United States from Spain and was living with her single father in Lawrence. When her father was at work, the victim often was looked after by her father's friend, Eusabia ...
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