Commonwealth v. Tejada

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SJC-11951

COMMONWEALTH vs. JOSE TEJADA.

Essex. October 7, 2019. - January 23, 2020.

Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.

Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement. Evidence, Admissions and
confessions, Voluntariness of statement. Practice,
Criminal, Capital case, Motion to suppress, Admissions and
confessions, Voluntariness of statement, Voir dire,
Empanelment of jury.

Indictments found and returned in the Superior Court
Department on December 28, 2011.

A pretrial motion to suppress evidence was heard by Mary K.
Ames, J., and the cases were tried before Howard J. Whitehead,
J.

David H. Mirsky (Joanne T. Petito also present) for the
defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.

LENK, J. The defendant was convicted of three counts of

murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty. On appeal, he
 2

argues that (1) there was insufficient evidence to sustain his

convictions; (2) his statements to police on the night of his

arrest should have been suppressed; and (3) the trial judge

erred by declining to ask a requested question about anti-

Hispanic juror bias during voir dire. Separately, the defendant

asks us to order a new trial or to reduce the degree of guilt

pursuant to G. L. c. 278, § 33E. We affirm the convictions and

decline to exercise our powers under G. L. c. 278, § 33E, to

grant the requested relief.

Background. We recite the facts as the jury could have

found them, reserving certain details for subsequent discussion.

In the early morning hours of September 5, 2011, Lawrence police

arrested the defendant after he said that he had killed his wife

and her two teenage children. At approximately 2 A.M. that

morning, a neighbor was returning home with his family when the

defendant approached him in a parking lot and asked to be taken

to the police station because "he had just killed three people."

The neighbor (who did not know the defendant) agreed to

telephone the police, and waited with the defendant until they

arrived. When the neighbor asked the defendant what had

happened, the defendant responded that he had killed his family

because they were "talking down to him." The neighbor was

unsure whether to believe the defendant, who was shaking and

whose eyes were "bugging out."
 3

When the police arrived, the neighbor remained to translate

for the defendant, whose native language is Spanish and who did

not speak English. Police asked the defendant what had

happened; through the neighbor's efforts at translation, the

defendant repeated the substance of what he had told the

neighbor, and provided an address to a nearby apartment building

where he said the shootings had taken place. He also told the

officers that he had tried to shoot himself, but had run out of

bullets. When officers asked the defendant what he had done

with the weapon, the defendant told them that he had discarded

it after leaving the house to go for a walk. Although the

defendant seemed anxious, he was cooperative and calm, and he

maintained an even tone throughout the conversation.

Officers eventually decided to investigate the accuracy of

the defendant's statements; they pat frisked and handcuffed him,

placed him in the back seat of a police cruiser, and drove the

few blocks to the address the defendant had provided. After

knocking on the apartment door and receiving no response, police

broke down the door. Inside the apartment, they found the three

victims, all deceased, in an upstairs bedroom.

Police recovered a variety of forensic evidence from the

scene and the defendant's person. First, officers observed

bloody footprints on the stairs, going through the kitchen, and

heading toward the back door; forensic analysis later determined
 4

that the footprints were consistent with the type of shoes the

defendant had been wearing.1 In addition, the defendant's hands

tested positive for gunshot residue, and there were traces of

the victims' blood on the defendant's clothing. In the grass

behind the apartment building, police found a revolver

containing six spent shell casings that matched bullets

recovered from the scene. The revolver had traces of blood on

it from at least two people. The defendant's wife's blood

matched the major female profile.

Prior proceedings. Before trial, the defendant moved to

suppress his statements to police. The motion was denied with

respect to the defendant's statements while he was seated on the

curb speaking with police; the motion was allowed with respect

to statements made once the defendant was handcuffed and seated

in the police cruiser.

Following the partial denial of the defendant's motion to

suppress, a Superior Court jury convicted him of three counts of

1 At trial, a forensic analyst described the defendant's
shoes as a "class match" for the footprints found at the scene.
The analyst explained that a "class match" means that the
defendant's shoes shared features such as size, design features,
and wear with the footprints recovered at the scene. Although a
"class match" is not a conclusive determination that only a
particular shoe could have left the footprints, the analyst
stated that a class match still has "great significance."
 5

murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty.

Discussion. On appeal, the defendant argues that there was

insufficient evidence to sustain his convictions of murder in

the first degree. The defendant contends also that his motion

to suppress should have been allowed, because his statements to

police were inadmissible as the product of a custodial

interrogation where no Miranda warnings were given, and because

his statements to police were involuntary. He argues further

that the judge's decision not to ask the venire a requested

question concerning juror bias constituted reversible error. In

addition, the defendant asks that we exercise our authority

under G. L. c. 278, § 33E, to reduce the degree of guilt or to

order a new trial pursuant to our authority under G. L. c. 278,

§ 33E.

1. Sufficiency of the evidence. The defendant argues that

there was insufficient evidence to convict him of murder in the

first degree under either a theory of deliberate premeditation

or a theory of extreme atrocity or cruelty. Where, as here, a

trial judge denies a defendant's motion for a required finding,

we view the evidence in the light most favorable to the

Commonwealth and determine whether "any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt" (citation omitted). Commonwealth v. Latimore,
 6

378 Mass. 671, 677 (1979). As long as there is sufficient

evidence of one theory, the convictions remain undisturbed on

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

We turn to consider whether there was sufficient evidence

to establish murder in the first degree on a theory of

deliberate premeditation.2 To sustain the convictions under this

theory, the Commonwealth was required to prove that the

defendant (1) caused the death of the victims; (2) intended to

kill the victims; and (3) acted with deliberate premeditation.

See Model Jury Instructions on Homicide 44 (2018); Model Jury

Instructions on Homicide 37 (2013). As there is no claim that

the defendant did not cause the death of the victims, what

remains is to consider whether the defendant intended to kill

them, and whether he acted with deliberate premeditation.

The defendant's neighbor testified that the defendant told

him that he had shot the victims because he had grown tired of

them "talking down to him." Another witness testified that the

defendant and his wife had argued in the hours prior to her

2 Because we conclude, see infra, that there was sufficient
evidence to establish deliberate premeditation, we need not
address whether there was sufficient evidence to establish
extreme atrocity or cruelty. See Commonwealth v. Smith, 459
Mass. 538, 548 (2011); Commonwealth v. Freeman, 430 Mass. 111,
123 (1999); Commonwealth v. Chipman, 418 Mass. 262, 270 n.5
(1994).
 7

death, when she insisted on taking the defendant's keys to

prevent him from drinking and driving. The jury also heard

evidence that the victims were shot at close range, and that the

victims were found lying in close proximity to one another, in a

single bedroom.3

To establish the intent to kill, the Commonwealth must

prove that the defendant "consciously and purposefully intended"

to kill the victims. See Model Jury Instructions on Homicide,

supra at 44; Model Jury Instructions on Homicide, supra at 37.

Here, the jury could infer from the neighbor's testimony that

the defendant shot his family because he had grown tired of them

criticizing him or "talking down to him." Moreover, as we

previously have held, the use of a firearm at close range

provides strong evidence of an intent to kill. See Commonwealth

v. Andrews, 427 Mass. 434, 440 (1998) (shooting victim at close

range warranted finding of intent to kill). Thus, the evidence

was sufficient to establish that the defendant intended to kill

his victims.

3 The Commonwealth acknowledges that a subsequent review of
the forensic analysis indicated that the expert opinion
estimating that the shots were fired from between three and nine
inches away was inaccurate, and that a proper estimate would
have been between three and twenty-four inches. Even absent
this specific testimony, however, independent evidence that the
gunshot wounds contained markings consistent with close- or
intermediate-range gunfire was sufficient for the jury to
conclude that the victims had been shot at close range.
 8

The defendant contends, however, relying upon Commonwealth

v. Mills, 400 Mass. 626, 627 (1987), that the evidence was

insufficient because his intoxication and his mental state

indicate that he lacked the mental capacity to form the intent

to kill. The defendant's reliance on Mills is misplaced.

Unlike Mills, supra, where the defendant sought, and was denied,

an instruction on criminal responsibility, the defendant in this

case did not pursue a defense of criminal responsibility or

diminished capacity, nor did he seek an instruction on criminal

responsibility.4 Compare id. at 627, 630.

Moreover, the jury in fact were instructed to consider

whether the defendant's intoxication and his mental state would

have prevented him from forming the intent to kill. See

Commonwealth v. Grey, 399 Mass. 469, 470-471 (1987) (evidence of

intoxication and mental impairment relevant to question whether

defendant formed intent to kill); Commonwealth v. Henson, 394

4 Although we have not required a judge to instruct on
criminal responsibility absent a request, see Commonwealth v.
Genius, 387 Mass. 695, 697-699 (1982), we have concluded that,
in limited circumstances, evidence of intoxication or mental
impairment may be so severe as to warrant a reduction in the
verdict pursuant to G. L. c. 278, § 33E, where no instruction on
the effect of intoxication was requested or given. See
Commonwealth v. King, 374 Mass. 501, 507-508 (1978). As
discussed, see note 5, infra, in this case the conflicting
evidence of the defendant's intoxication is insufficient to
warrant relief under G. L. c. 278, § 33E.
 9

Mass. 584, 592 (1985) (if there is evidence that defendant was

under influence of alcohol or drugs at time of crime, judge

should instruct jury to consider that evidence on question

whether Commonwealth has proved specific intent beyond

reasonable doubt). While there was conflicting evidence as to

the defendant's condition, the jury were free to weigh that

evidence as they saw fit.5 See Commonwealth v. Vasquez, 419

Mass. 350, 352-353 (1995) (specific intent to kill, as

demonstrated by defendant's repeated infliction of serious

injuries, was not negated by evidence of voluntary

intoxication). Notwithstanding the evidence of the defendant's

intoxication, the jury could have concluded that the defendant's

statements and his use of a firearm at close range established

an intent to kill.

To establish that a defendant acted with deliberate

premeditation, the Commonwealth must show that "the plan to kill

was formed after deliberation and reflection" (citation

5 The defendant's neighbor testified that the defendant was
agitated, that his eyes were "bugging out," that he might have
been intoxicated, and that he had admitted to attempting
suicide. One police officer noted that, when he was arrested,
the defendant had been in possession of what the officers
suspected was cocaine; there was no evidence that the defendant
had cocaine in his system. The responding officers described the
defendant as anxious but calm, and disputed that the defendant's
eyes had been "widening." Another witness testified that,
although the defendant had been drinking a few hours earlier, he
had not appeared drunk at that time.
 10

omitted). See Commonwealth v. Johnson, 435 Mass. 113, 118-119

(2001). Such reflection can occur over "days, hours, or even

seconds." Id. at 119. Here, the jury could have found that the

defendant acted with deliberate premeditation when shooting his

family in response to them "talking down to him" and in response

to his earlier dispute with his wife. The jury also could have

found that the defendant shot the victims from close range in

the same room. From this, they could have concluded that the

defendant shot the victims in succession, which was sufficient

to establish deliberate premeditation. See id. (obtaining and

repeatedly firing gun at close range was sufficient to establish

deliberate premeditation); Andrews, 427 Mass. at 440 (firing

multiple shots at unarmed victim at close range was sufficient

to establish deliberate premeditation). There was no need for

the jury to know the precise positions of the defendant and the

victims in order to establish deliberate premeditation; the

defendant's argument to the contrary is without merit.

2. Whether the defendant's statements prior to his arrest

should have been suppressed. The defendant argues that his

statements to police near the scene were inadmissible because

the officers failed to advise him of his Miranda rights. See

Miranda v. Arizona, 384 U.S. 436 (1966). The defendant also

contends that his statements to police were involuntary, and
 11

that the judge's decision not to conduct a voir dire on the

issue requires a new trial.

a. Whether Miranda warnings were necessary. When

reviewing the denial of a motion to suppress, we accept the

motion judge's findings of fact absent clear error, but

independently review the judge's ultimate findings and

conclusions of law. Commonwealth v. Scott, 440 Mass. 642, 646

(2004). If we determine that the statements should have been

suppressed, we then must decide whether their introduction at

trial was harmless beyond a reasonable doubt. See Commonwealth

v. Monroe, 472 Mass. 461, 472-473 (2015).

At the outset, it is necessary to clarify specifically

which of his statements the defendant seeks to suppress. The

statements the defendant made on the night of the shooting can

be divided into three categories: (1) statements to his

neighbor prior to the arrival of the police; (2) statements to

police (with the assistance of his neighbor and, subsequently, a

Spanish-speaking police officer who translated the defendant's

statements into English); and (3) statements after the defendant

was placed in a police cruiser. The defendant concedes that the

first set of statements did not require Miranda warnings because

they were not made to law enforcement; the third set of
 12

statements was suppressed. Thus, the defendant's challenge only

extends to the second group of statements.6

Miranda warnings are required when "a reasonable person in

the defendant's position would have believed he was in custody"

(citation omitted). Commonwealth v. Groome, 435 Mass. 201, 211

(2001). We consider four factors when determining whether an

interrogation was custodial in nature:

"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."

Id. at 211-212 (Groome factors). No single factor is

dispositive. See Commonwealth v. Bryant, 390 Mass. 729, 737

(1984).

Custodial interrogations are "questioning initiated by law

enforcement officers after a person has been taken into custody

or otherwise deprived of his [or her] freedom of action in any

6 We note that many of the statements the defendant made to
the officers were duplicative of those he made to the neighbor
prior to the arrival of the police. The specific statements
that the defendant challenges are those pertaining to his use --
and disposal -- of a gun, and his explanation that he had
attempted to shoot himself but had run out of bullets.
 13

significant way." Commonwealth v. Jung, 420 Mass. 675, 688

(1995), quoting Miranda, 384 U.S. at 444. Whether an

interrogation is custodial "depends on [whether] the objective

circumstances of the interrogation" engender unduly "compulsive"

pressures. Commonwealth v. Morse, 427 Mass. 117, 124 (1998),

quoting Stansbury v. California, 511 U.S. 318, 323 (1994).

In this case, the motion judge's findings of fact were well

grounded in the evidence. She found that four Lawrence police

officers, responding to a radio dispatch alerting them to a man

who claimed to have killed someone, located the defendant and

his neighbor in a parking lot. After the neighbor told the

officers that the defendant had asked the neighbor to call the

police because he had killed someone, one of the officers asked

the defendant what had happened, whom he had killed, and where

he lived. The defendant, speaking in Spanish with the neighbor

translating, told the officer that he had killed his family and

provided an address where he said the shootings had taken place.

In response to further questions, the defendant said that he had

shot his family because they would not stop yelling at him, that

he had tried to shoot himself but had run out of bullets, and

that he had discarded the gun upon leaving the house to go for a

walk.

The motion judge found that, throughout this initial

exchange, the defendant was seated on a curb with multiple
 14

police officers standing around him. Although the officers were

not sure they believed the defendant, they had noticed a small

amount of blood on his clothes and acknowledged that they would

not have let him leave had he requested to do so. The officers

did not, however, order the defendant to remain seated or

physically restrain him. Absent any independent corroboration

of the defendant's claims, they decided to relocate to the

address he provided in order to investigate whether anyone there

needed assistance. At that point, the defendant was frisked,

handcuffed, and placed in a police cruiser. Once the officers

entered the apartment and found the victims, they arrested the

defendant and, for the first time, advised him of his Miranda

rights.

Weighing the Groome factors, we conclude, as did the motion

judge, that, on balance, the initial interrogation in the

parking lot was not custodial and thus did not require Miranda

warnings. The first three factors all weigh against a

determination that the defendant had been subject to a custodial

interrogation at that point. The interrogation was in a public

parking lot, not in a police station or other secluded area.

There was no evidence that the defendant was "either mentally or

physically intimidated." See Bryant, 390 Mass. at 739. Rather,

the evidence indicated that the defendant was not "restrained"

and did not "reasonably perceive[] himself to be restrained,"
 15

thus cutting against a finding that the questioning exemplified

the "compulsive aspect of custodial interrogation." See id. at

739-740, and cases cited.

Regardless of whether the officers would have allowed the

defendant to leave, there is no indication that he was

considered a suspect during the initial conversation in the

parking lot. Moreover, there is no evidence that the officers

ever communicated to the defendant that he was a suspect or that

he was not free to leave. See Morse, 427 Mass. at 123-124

(officer's subjective view that individual being questioned was

suspect relevant only to extent that officer communicated this

belief to individual). In addition, there was no evidence that

the officers were accusatory or aggressive; upon arriving on the

scene and being unsure whether a crime had been committed, they

simply asked the questions necessary to assess the situation.

The fourth Groome factor -- whether the defendant was free

to leave -- possibly weighs in the defendant's favor. As the

defendant argues, the officers did testify that they would not

have let the defendant leave had he tried to do so. In

addition, a person in the defendant's position, i.e., having

admitted to killing someone, reasonably might believe that he or

she was in custody. Assuming without deciding, however, that

the defendant is correct, this single factor does not transform

the interrogation into a custodial inquiry. See Commonwealth v.
 16

Cawthron, 479 Mass. 612, 624 (2018) (where environment was not

coercive and other Groome factors weigh against finding of

custody, fact that defendant was not free to leave was

insufficient to establish custodial interrogation).

Accordingly, those statements made by the defendant to

police prior to being placed in the police cruiser did not

require Miranda warnings.

b. Whether the statements were voluntary. The defendant

also argues that his statements to the police were involuntary,

and that the trial judge's decision not to conduct a voir dire

to ascertain whether the statements were voluntary requires a

new trial.

Where a question is raised as to the voluntariness of a

defendant's statement, a judge must conduct a voir dire hearing

on the issue outside the presence of the jury, and must make a

determination whether the statement was voluntary before it may

be considered by a jury. See Commonwealth v. Harris, 371 Mass.

462, 468-469 (1976). A defendant also may request that the jury

be instructed to consider the issue. When such an instruction

is given, each juror must assess the voluntariness of a

defendant's statements, and should not consider the statement as

evidence unless satisfied beyond a reasonable doubt that it was

voluntary. See Commonwealth v. Watkins, 425 Mass. 830, 836

(1997). Even where a defendant does not request a voir dire on
 17

the voluntariness of his or her statement, if the evidence

presented at trial raises "a substantial claim of

involuntariness," a judge's failure "to conduct a voir dire, to

make the necessary ruling and to instruct the jury

properly . . . on his [or her] own motion constitutes reversible

error" (emphasis added). Harris, supra at 470-471.

After the denial of his motion to suppress, at trial the

defendant did not request a voir dire on the voluntariness of

his statement. Thus, we must consider whether the evidence

introduced at trial raised a sufficiently "substantial" issue of

voluntariness so as to have required the judge to address the

issue sua sponte. We conclude that it did not.

In Harris, the "substantial claim" pertaining to

voluntariness was evidence that the defendant "confessed to the

police only after having been beaten." Id. at 472. Here, there

was no evidence of overt coercion. The defendant argues,

however, that there was evidence he had been drinking and might

have been intoxicated, that he was agitated while waiting for

police, and that he professed suicidal thoughts. Together, he

maintains, this evidence raised a substantial question whether

his statements were voluntarily made.

While "intoxication may render a confession involuntary,"

"mere evidence of drinking alcohol or using drugs" does not

trigger a trial judge's obligation to inquire into voluntariness
 18

sua sponte. Commonwealth v. Brady, 380 Mass. 44, 49 (1980).

Moreover, suicidal thoughts "do not necessarily negate the

voluntariness of a confession." See Commonwealth v. Lopes, 455

Mass. 147, 168 (2009). None of the witnesses testified that the

defendant had had difficulty interacting with the witness or

answering questions. In addition, witnesses offered competing

statements as to the defendant's demeanor.7 Unlike the clear

evidence of overt coercion in Harris, 371 Mass. at 470-472, the

inconsistent evidence regarding the defendant's intoxication and

agitated demeanor did not amount to a "substantial claim" that

his statements were involuntary. The judge thus was not

required, absent a request from the defendant, to conduct a voir

dire on the issue of voluntariness.

Moreover, the judge instructed the jury that they were not

to accept the defendant's statements as evidence unless they

were satisfied that the statements had been made voluntarily.

The jury were free to weigh the competing evidence and to decide

for themselves whether they were satisfied that the defendant's

statements were voluntary. We discern no error.

7 The defendant's neighbor testified that the defendant was
not calm and acknowledged that he "might have been on
something." Another witness, however, testified that the
defendant did not seem drunk when he left his sister-in-law's
house (approximately one and one-half hours before the
shootings), and a police officer testified that the defendant
had appeared calm during his interaction with police.
 19

3. Requested question about juror bias. The defendant

maintains that the trial judge's denial of his request to pose a

question about anti-Hispanic bias during juror empanelment

requires a new trial. "[A]s a practical matter, when a motion

that prospective jurors be interrogated as to possible prejudice

is presented, we believe the trial judge should grant that

motion." See Commonwealth v. Espinal, 482 Mass. 190, 201

(2019), quoting Commonwealth v. Lumley, 367 Mass. 213, 216

(1975). Nonetheless, in these circumstances, the judge did not

abuse his discretion in declining to do so.

During juror voir dire, the defendant requested that the

judge ask each member of the venire whether the juror believed

that "Hispanics, from cities such as Lawrence, are more likely

to commit crimes of violence than any other ethnicity [or]

people." Stating that he had no evidence that such a bias

existed, and concerned that the impact of the question might be

to cause ethnic bias, the judge declined to pose the question.

The judge did agree, however, to ask jurors whether the fact

that the defendant would require an interpreter could affect

their ability to remain impartial; he reasoned that this

question might "overlap" with the issue of ethnic bias.

We review a trial judge's decisions regarding the scope of

jury voir dire for abuse of discretion. See Commonwealth v.

Lopes, 440 Mass. 731, 736 (2004). Where there is a "substantial
 20

risk of extraneous issues that might influence the jury,"

however, we have said that, upon request, the judge must inquire

into the subject of that bias through individual questioning.

Id. at 736-737. A substantial risk exists "whenever the victim

and the defendant are of different races or ethnicities, and the

crime charged is murder, rape, or sexual offenses against

children." Espinal, 482 Mass. at 196.

"A judge need not," however, "probe into every conceivable

bias imagined by counsel," id. at 198, and "is warranted in

relying upon his [or her] final charge to the jury to purge any

bias from the jurors prior to their deliberations," Commonwealth

v. Estremera, 383 Mass. 382, 388 (1981). "A defendant's 'bare

allegation' that there exists a 'widespread belief' that could

result in bias is not sufficient to cause us to conclude that

the judge abused his [or her] discretion by declining to conduct

voir dire on the issue" (citation omitted). Espinal, 482 Mass.

at 200.

In the present case, both the defendant and the victims are

Hispanic. Thus, the case did not present the type of

"substantial risk of extraneous issues" that we held in Espinal

obligates a judge to probe ethnic or racial bias by voir dire as

a matter of law (citation omitted). See id. at 196. We discern
 21

no abuse of discretion in the judge's determination not to

conduct the requested voir dire in this case.8

The defendant points to the fact that multiple jurors were

excused based on the judge's questions as proof that the jury

pool was tainted with anti-Hispanic bias. Evidence that one

question proved effective in uncovering bias does not by itself

demonstrate that a different question would have proved more

effective, or that jurors who did not disclose any bias were

being untruthful. See Commonwealth v. Entwistle, 463 Mass. 205,

221 (2012), cert. denied, 568 U.S. 1129 (2013) (where some

jurors indicated that they could not be impartial in response to

voir dire questions on pretrial publicity, there was no reason

to conclude that jurors who stated they could remain impartial

were being dishonest).

In sum, there was no abuse of discretion in the judge's

decision not to pose to the venire during juror voir dire the

requested question on anti-Hispanic bias.

4. Review under G. L. c. 278, § 33E. The defendant urges

us to order a new trial or to reduce the degree of guilt

8 Indeed, the judge opted to ferret out racial or ethnic
bias by asking each potential juror whether the juror could be
impartial notwithstanding that the defendant required an
interpreter. See Commonwealth v. Colon, 482 Mass. 162, 181 n.16
(2019) (judge excused juror who, during individual voir dire,
stated that defendant's reliance on interpreter would affect
juror's ability to remain impartial).
 22

pursuant to our authority under G. L. c. 278, § 33E. Having

reviewed the entire case pursuant to our statutory obligation,

we conclude that there is no basis to grant the requested

relief.

Judgments affirmed.