COMMONWEALTH v. LOZADA (2025)

The defendant, Sammy Lozada, was convicted of murder in the first degree for the stabbing death of Carlos Ramos (victim). The stabbing occurred in the Holyoke apartment of Maria Samot, who was the prosecution's key identification witness at trial. Samot is deaf, illiterate, and severely language deprived; she lacks the ability to communicate in any recognized language, including American Sign Language (ASL). Instead, Samot communicates using a limited set of idiosyncratic gestures grounded in her Hispanic cultural background. At trial, her testimony was presented by a team of two certified deaf interpreters and two ASL interpreters.

No determination regarding the appropriateness of these interpreters in view of Samot's severe communication challenges was made as required by G. L. c. 221, § 92A (§ 92A or statute). Specifically, the statute mandates that “no testimony shall be admitted as evidence until” the trial judge determines that an interpreter can communicate accurately with, and translate to and from, a deaf witness. G. L. c. 221, § 92A, third par. This lapse proved especially problematic during Samot's testimony on cross-examination when trial counsel asked her questions that elicited dozens of nonresponsive answers repeatedly stating that the defendant stabbed the victim.

Following his conviction, the defendant filed a motion for a new trial, contending that “justice had not been done” because of noncompliance with the statute. See Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). The motion judge, who was also the trial judge, held an evidentiary hearing at which experts specializing in communications with severely language deprived persons testified as to the extent of Samot's communications challenges and opined that the team of interpreters provided to Samot at trial often were unable to communicate with Samot or translate to and from her accurately. The judge, who herself had observed the communication missteps during the trial, credited the experts’ testimony and found, inter alia, that the error in failing to make the determination required under § 92A, third par., raised a substantial risk of a miscarriage of justice. Accordingly, she allowed the defendant's motion.

The Commonwealth appealed. Concluding that the judge did not abuse her discretion in allowing the motion, we affirm.

1. Background. a. Facts. We summarize the facts as the jury could have found them, reserving certain details for later discussion. See Commonwealth v. Wiggins, 477 Mass. 732, 734, 81 N.E.3d 737 (2017).

In the early morning of April 28, 2017, Jose Espada was walking on Maple Street in Holyoke when he encountered the defendant and his associate, Madeline Garcia. Espada, who was homeless, was on his way to a friend's vehicle to sleep; he was carrying a brown-handled knife with a one-inch wide blade and his tablet computer device. The defendant took the tablet from him, saying, “Now this is mine.” After a failed attempt to recover his property, Espada went to a nearby corner store. A few moments later, however, the defendant and Garcia found Espada and asked him to unlock his tablet so that they could “hock” it for twenty dollars. Espada acquiesced, in part because the defendant offered to let him sleep at the defendant's home.

The defendant, Garcia, and Espada walked to an apartment building on Maple Street. The defendant and Garcia entered an apartment while Espada remained outside the apartment door. Approximately five minutes later, the defendant and Garcia emerged from the apartment without the tablet. The trio then proceeded to the defendant's home on High Street. Espada had planned to sleep on the defendant's couch but decided against it, telling the defendant that he was going to sleep in his friend's vehicle. In response, the defendant announced his intent to get the tablet back right then.

The cohort returned to the apartment building on Maple Street and ascended the stairs to the apartment they had visited previously. After knocking on the door and receiving no answer, the defendant kicked the door open and asked Garcia, “Baby, are you ready?” The defendant and Garcia then entered the apartment, while Espada remained outside on the porch. From outside, Espada heard someone asking, “Sammy, what's going on?” Then he heard screaming. Espada peered inside; he saw the defendant holding a black-handled knife and the victim leaning over the sink with blood on the front of his shirt. He also saw Samot in the room. The defendant demanded to know where the tablet was. In response, the victim asked “Sammy” not to stab him again because, in his words, he was “already dying.”

Espada saw the defendant leave the apartment, tablet in hand. By then, the victim had made his way to the porch; he grabbed onto Espada before falling on the ground face first. Believing that the victim was dead, Espada fled down Maple Street; in his flight path, he tossed the brown-handled knife he had been carrying into bushes, where it was subsequently recovered by police.

Responding Holyoke police officers found the victim prone and bleeding. He was taken to a hospital, where he was pronounced dead at 3:13 a.m. that same early morning. On entering the Maple Street apartment, police found Samot in a frantic state. She was taken to the police station, where officers interviewed her with the assistance of two interpreters -- both of whom would subsequently provide interpretation services for Samot during her testimony at the defendant's trial. During the police interview, Samot identified photographs of both the defendant and Garcia from two different photographic arrays.¹

Although police secured the crime scene, an officer later located Marie Karbone hiding inside a closet in the apartment. Karbone led police to a trash chute on the third floor, where they found a bent, black-handled knife with blood on its one-half inch wide blade. Deoxyribonucleic acid (DNA) testing showed that the blood was consistent with the victim's DNA; no forensic evidence tied the black-handled knife to the defendant.² A medical examiner testified to a reasonable degree of medical certainty that the fatal wound was more consistent with the thinner blade of the black-handled knife than that of the brown-handled knife discarded by Espada, which, the examiner noted, tested negative for blood.

b. Samot's trial testimony. At trial, Samot was the prosecution's key identification witness. The crime occurred at her apartment, and she testified that it occurred in her presence. Samot's testimony, unlike that provided by Espada, the prosecution's other identification witness,³ was not given pursuant to a cooperation agreement with the prosecution. Samot testified at trial through the assistance of two certified deaf interpreters and two ASL interpreters. As noted supra, no one requested a determination under § 92A, third par., and the trial judge did not make the required determination.

Because of Samot's linguistic limitations, including that she was severely language deprived, deaf, and did not communicate through ASL, the interpreters utilized various strategies to attempt to communicate with and translate to and from Samot, including the use of photographs, gestures, and miming certain actions, such as the thrusting of a knife.⁴ Through this interactive process, Samot testified on direct examination that the defendant had pushed open the apartment door, removed a black-handled knife from his pocket, and stabbed the victim. She pointed repeatedly at the defendant to indicate that he was the perpetrator.

Nevertheless, despite the use of some props and the interpreters’ efforts, Samot's answers to several of the prosecutor's questions were nonresponsive. For example, when the prosecutor asked Samot if the defendant's appearance had changed since she had last seen him, Samot answered only, “That's him.” When asked why the victim had been at her apartment, Samot did not explain the victim's presence in her apartment and instead replied, “He was stabbed there.” And when asked where the defendant went after the stabbing, Samot did not indicate the direction of the defendant's flight and instead answered, “He stabbed him.” After a series of nonresponsive answers, the trial judge noted the communication difficulties.⁵

The moments of disconnection that occurred during Samot's direct examination paled in comparison to what transpired on cross-examination by trial counsel, who, unlike the prosecutor, did not work with Samot pretrial in order to develop props or other tools.⁶ During cross-examination, after Samot acknowledged that a woman -- Karbone -- had been found in her apartment two hours after officers secured the crime scene, trial counsel asked Samot how she had learned of Karbone's presence. Rather than provide any information about Karbone, Samot stated, “I saw him.” While trial counsel eventually was able to have Samot acknowledge that a woman had been found in her apartment, he could not obtain further details regarding their relationship despite several attempts at rephrasing the question.

Trial counsel encountered similar problems when he asked Samot to identify who came through the front door of her apartment and who was present in the kitchen during the stabbing. Out of seven questions regarding who was in the kitchen, Samot gave six nonresponsive answers and, in three of those answers, stated that the defendant stabbed the victim.⁷ Despite his efforts, trial counsel did not receive a responsive answer to his question as to who was in the kitchen.

Later, when Samot appeared to suggest that the defendant was the sole intruder to come through the front door before the stabbing,⁸ trial counsel asked her about her prior statement to police officers that three people -- two men, the defendant and Espada, and one woman, Garcia -- had entered the apartment. Samot's explanations were conflicting and inconsistent, but trial counsel was not able to confront her with her prior inconsistent statements because of the limits of the available interpretation. Similarly, trial counsel could not confront the witness that her answers at trial regarding the color of the defendant's hat and whether Garcia took money from the victim differed from the information she had previously provided to police officers.⁹

At a sidebar conference toward the end of cross-examination, the trial judge expressed serious doubt about Samot's ability to understand complex questions.¹⁰ The interpreters, who were allowed to join the attorneys at the sidebar, informed the trial judge that Samot had difficulty understanding “abstract” concepts, like space and time: “[A]bstract is hard to turn into concrete for [Samot]. So abstract questions and statements, in [her] language, it's impossible. You have to be concrete.” Despite that guidance, trial counsel was unable to obtain responsive answers from Samot. Following the sidebar, he tried once more to ask Samot about whether she had told officers that Garcia had taken money from the victim. After that attempt failed to elicit a responsive answer, trial counsel simply ended his cross-examination; he did not move to strike any of the nonresponsive answers to his questions.

The jury found the defendant guilty of murder in the first degree on the theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder, G. L. c. 265, § 1; armed robbery, G. L. c. 265, § 17; two counts of home invasion, G. L. c. 265, § 18C; and malicious destruction of property, G. L. c. 266, § 127.

c. Posttrial motion practice.¹¹ In March 2023, the defendant filed an amended motion for a new trial together with a motion for an evidentiary hearing, Mass. R. Crim. P. 30 (b), alleging, inter alia, that the testimony provided by Samot was “inadmissible and highly prejudicial” and “improperly allowed into evidence” without the preliminary determination mandated by § 92A. In November 2023, the trial judge, pointing to questions surrounding “the accuracy of the translation of the oath and testimony of a key government witness,” allowed the defendant's motion for an evidentiary hearing.¹²

d. Evidentiary hearing. The judge conducted a four-day evidentiary hearing, during which the defendant offered evidence from three expert witnesses, Drs. Judy Shepard-Kegl, Romy Spitz, and Eileen Forrestal; Fatima Silvestre, one of the interpreters who had provided translation services to Samot during her police interview and trial; and trial counsel.

The experts, each of whom possessed a background in linguistics and interpreting for language deprived individuals,¹³ testified that while Samot's testimony could have been interpreted accurately with proper preparation and appropriate props, the methods used at trial were insufficient to ensure accuracy. Specifically, the experts testified that visual gestural communication is the style of communication best suited to converse with, and translate on behalf of, language deprived persons. This method requires that the translator receive bits and pieces of information through gestures unique to the subject and then “fill in the gaps” through “inference and assuming context.”¹⁴ To do this, the interpreter must have some facility with the subject's cultural background -- in order to understand culturally based gestures -- and be able to “negotiate the meaning of certain gestures” until he or she understands what the subject means by a gesture in a given context.¹⁵

The experts also testified that while the gestures used by a deaf and language deprived person may overlap with ASL, the gestures are ultimately idiosyncratic to the subject, and one gesture may have several different meanings depending on the context in which it is used. Additionally, persons who are both deaf and severely language deprived, unlike persons who communicate through ASL, lack a system of grammar. Thus, they are unable to convey information using prepositional phrases (e.g., “who did what to whom”), time, sequence of events, and cause and effect unless aided by props or other tools. Shepard-Kegl testified that, for this reason, Samot provided several of her nonresponsive answers at trial; specifically, Samot would focus on “one or two little pieces” of information from the larger question, such as the gesture for “to stab,” and give “what she can in terms of information.”¹⁶

The experts testified that, based on their review of the videotape of Samot's police interview following the stabbing, there were numerous translation deficiencies that occurred. For example, Spitz testified that the interpreters mistranslated Samot's gesture for “man” or “boy,” which was a common gesture grounded in her Hispanic culture, to mean “hat” or “baseball hat.” The experts agreed, however, that Samot had identified the defendant as the person she “believe[d]” committed the murder.¹⁷

The experts could not conduct a similar analysis of Samot's trial testimony because the trial was not videotaped.¹⁸ Nonetheless, based on their review of the transcripts, the experts agreed that many of the same interpretation issues that affected the accuracy of the police interview also were present at trial. Spitz cited Samot's nonresponsive answers as evidence that she did not understand several questions posed by trial counsel on cross-examination. Additionally, Shepard-Kegl flagged that two of the trial interpreters had also provided their interpretation services at the police interview; in her opinion, the dual role presented a conflict of interest that, at a minimum, should have been disclosed to the parties because it could affect the accuracy of the interpretation at trial.

In her testimony, Silvestre, who was one of the two interpreters translating during Samot's police interview, acknowledged the possibility that her trial interpretation could have been influenced by her prior experience with Samot. However, when pressed by the judge, Silvestre maintained she was “[ninety-nine percent] confident” in the accuracy of the trial translation, adding that the team of four translators, working together, “did the best [they] could do at that time.” The judge credited Silvestre's testimony as to her belief in the fidelity of the translation but found that Samot's nonresponsive answers ultimately “reflected problems” with the interpretation and that Silvestre's “dual role” raised at least the “possibility” of unconscious influence.

For his part, trial counsel testified that he had no strategic reason for not moving to strike Samot's nonresponsive answers during cross-examination, which the judge credited.

e. Allowance of amended motion and instant appeal. In July 2024, the judge allowed the defendant's amended motion for a new trial, reasoning that the admission of Samot's testimony was improper absent the determination required under § 92A, third par., and, in this case, the error created a substantial risk of a miscarriage of justice. More specifically, the judge concluded that in the course of making the statutorily required determination, the challenges in conveying abstract concepts to Samot would have been revealed; the need for counsel to supply props in order to examine her effectively would have been learned; and the difficulties and potential risks for miscommunication (e.g., addition, omission, confabulation, etc.) that come with interpreting testimony from a language deprived person would have surfaced. The judge further stated that, while an “unlikely” outcome, it was possible that a § 92A hearing could have resulted in the total exclusion of Samot's testimony. Finally, the judge concluded that the defendant had also established that he is entitled to a new trial on the grounds of ineffective assistance of counsel. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). The Commonwealth appealed.

2. Discussion. A judge may “grant a new trial at any time if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b). We review the judge's allowance of the defendant's motion “for abuse of discretion or other error of law.” Commonwealth v. Gaines, 494 Mass. 525, 536, 240 N.E.3d 193 (2024). An abuse of discretion occurs when the judge makes a “clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” Id., quoting Commonwealth v. Kolenovic, 471 Mass. 664, 672, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017). A reviewing court extends “special deference” to the decision of a motion judge who was also the trial judge, Commonwealth v. Rosario, 460 Mass. 181, 195, 950 N.E.2d 407 (2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986), and that “judge's findings of fact after an evidentiary hearing on a motion for a new trial will be accepted if supported by the record,” Rosario, supra, quoting Commonwealth v. Walker, 443 Mass. 213, 224, 820 N.E.2d 195 (2005).

The Commonwealth proffers three claims of error relating to the judge's decision to allow the defendant's motion for a new trial. We address each in turn.

a. Enforceability of § 92A. The Commonwealth first contends that § 92A, third par., provides no enforceable right to the defendant, who himself is not deaf or hearing impaired,¹⁹ to challenge noncompliance with the requirements of the statute. In the Commonwealth's view, the rights created by the statute are intended for -- and belong solely to -- the person who is deaf or hearing impaired and thus needs the services of an interpreter under § 92A.

To be sure, certain provisions of § 92A exclusively concern the rights of deaf and hearing-impaired persons. See, e.g., G. L. c. 221, § 92A, first par. (permitting deaf or hearing-impaired person to waive statutory right to qualified interpreter), second par. (providing that, inter alia, deaf or hearing-impaired arrestee is entitled to interpreter during police interrogations), seventh par. (establishing privilege for confidential communications between certified sign language interpreter and any deaf or hearing-impaired person using services of said interpreter). See also Commonwealth v. Elliott, 87 Mass. App. Ct. 520, 530 n.7, 32 N.E.3d 345 (2015) (stating, in case involving hearing-impaired defendant, “over-all objective” of § 92A is “to ensure that deaf and hearing-impaired persons can understand and fully participate in the legal proceedings in which they are involved” [citation omitted]).

The third paragraph of § 92A, however, is not so limited.²⁰ It sets forth an evidentiary rule that protects not only the deaf or hearing-impaired witness, but also those, like the defendant in the present action, who have a substantial interest in the outcome of the proceeding. For example, it requires that, prior to the admission of testimony, the interpreter is situated to assure effective communications “between all persons having a substantial interest in the outcome of such proceedings,” expressly acknowledging the interest of others in proceedings where an interpreter is provided to a deaf or hearing-impaired person. G. L. c. 221, § 92A, third par.

Importantly to our present analysis, § 92A, third par., also precludes testimony until the person conducting the proceeding, here the trial judge, “determines, on the basis of testimony of the interpreter and the deaf or hearing-impaired person, that such interpreter is able ․ to communicate accurately with and translate information to and from such deaf or hearing-impaired person.” Id. Contrary to the Commonwealth's suggestion, this provision is not tethered exclusively to, and does not benefit only, the deaf or hearing-impaired person herself. It broadly sets forth a prerequisite to the admission of testimony through a § 92A interpreter. Specifically, it provides that “no testimony shall be admitted as evidence” until this and the other two prerequisites are met. See Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983) (word “shall” ordinarily interpreted as having “a mandatory or imperative obligation”). See, e.g., Commonwealth v. Steeves, 490 Mass. 270, 280, 189 N.E.3d 1235 (2022), quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (State lawmakers “have broad latitude under the Constitution to establish rules excluding evidence from criminal trials”). Thus, contrary to the Commonwealth's contention, the defendant falls squarely within those the Legislature intended to benefit by virtue of the statute. In short, the defendant may challenge evidence offered against him in his own criminal case on the ground that it was erroneously admitted in violation of § 92A, third par.²¹ See Mass. G. Evid. § 103(a) (2025) (party may claim error in ruling to admit evidence if ruling, inter alia, “injuriously affects a substantial right of the party”). See also G. L. c. 231, § 119 (same).

b. Appointment of substitute interpreter. Second, the Commonwealth maintains that where a judge determines under § 92A, third par., that an interpreter cannot render an accurate translation, the remedy is the appointment of a replacement interpreter pursuant to § 92A, fourth par. The fourth paragraph of § 92A provides that

“[i]f, at any time during the proceeding, it is determined that the interpreter is no longer able to provide effective communication between the parties, the person conducting such proceeding shall appoint another qualified interpreter or an intermediary interpreter in accordance with the provisions of this section.”

The plain language of § 92A, fourth par., provides no support for the Commonwealth's argument. In particular, the phrases “during the proceeding” and “is no longer able to provide effective communication between the parties,” in § 92A, fourth par., presuppose that the determination required under § 92A, third par., has been made. That latter provision, as discussed supra, provides its own remedy: “no testimony shall be admitted as evidence until” the threshold determination has been made. See G. L. c. 221, § 92A, third par. The fourth paragraph thus, rather than providing a remedy where the threshold determination has not been made, provides a remedy for a different situation, namely, where the threshold determination required under § 92A, third par., has been made and then it becomes apparent during the proceeding that the original interpreter is no longer able to function effectively. In sum, the process of appointing a substitute interpreter has no bearing on whether a required threshold determination to establish the competency of an interpreter is a prerequisite to the admission of a deaf person's testimony.

c. New trial. Because trial counsel did not object to the failure to make a threshold determination under § 92A, third par., the defendant was entitled to relief “only if the defendant demonstrates a substantial risk of a miscarriage of justice, namely, a serious doubt whether the result of the trial might have been different had the error not been made” (quotations and citations omitted). Commonwealth v. Brescia, 471 Mass. 381, 389, 29 N.E.3d 837 (2015). See Commonwealth v. Bly, 444 Mass. 640, 648, 830 N.E.2d 1048 (2005) (“assertions of unpreserved error offered as the basis of a claim of ineffective assistance of counsel in a motion for a new trial are evaluated in a case of murder in the first degree under a substantial likelihood of a miscarriage of justice standard”). We discern no abuse of discretion in the judge's conclusion that a substantial risk of a miscarriage of justice is present here.

To begin, the judge concluded that the failure to make a determination under § 92A, third par., as to the adequacy of the interpreter team's ability to accurately communicate with and interpret to and for Samot was error (“It is uncontroverted that the trial court did not comply with this statute”). That provision, as discussed supra, required the judge to make that determination as a prerequisite to the admission of any testimony from Samot. See G. L. c. 221, § 92A, third par. No such determination was made, and Samot testified through interpreters who may have done their best but were nonetheless ill equipped to communicate with Samot and to translate to and for her as a severely language deprived individual. This was error.

Next, the judge concluded that the failure to make the determination prior to allowing Samot to testify prejudiced the defendant. While the judge acknowledged that it was “unlikely” that a determination under the statute would have resulted in the exclusion of Samot's testimony altogether, the Commonwealth's contention that the defendant was not prejudiced ignores the prejudice, well articulated by the judge, stemming from how Samot's testimony could have come in -- a procedure that necessarily would have involved, inter alia, tools and props -- which would have been revealed during the determination that was, in error, never made. See Commonwealth v. Kelley, 404 Mass. 459, 463, 535 N.E.2d 1251 (1989) (violation of § 92A, second par., entitled hearing-impaired defendant to remedy “adequate to cure any prejudice” resulting from violation, including dismissal where apt). The judge observed that the determination under § 92A, third par.,

“would have disclosed the challenges of communicating with and interpreting [for] Samot. The assessment would have identified difficulties in conveying abstract concepts to Samot, the need to understand idiosyncrasies in [her] use of gestures, the need for props to be supplied by counsel for the party examining Samot, and the risks of the ambiguity and/or co-creation by the interpreters of Samot's testimony.”

In other words, the statutorily required determination would have revealed -- in accordance with the credited testimony of the experts -- that Samot likely could give testimony,²² but only if the proper resources for translating for a severely language deprived person were available to the interpreter, who was trained to provide translation for a person with Samot's language challenges.

The judge, who, as the trial judge, was well positioned to observe firsthand the consequences of the error in failing to make the § 92A determination, see Rosario, 460 Mass. at 195, 950 N.E.2d 407, found Samot's nonresponsive answers “reflected problems” with the translation that was provided.²³ Not only was trial counsel unable to cross-examine Samot on salient details related to the killing, but his attempts to do so were often met with nonresponsive statements that the defendant was the killer.²⁴

Relying on the experts’ testimony at the posttrial hearing, the judge found that the interpreters assigned to Samot during the defendant's trial lacked the requisite skill set to translate accurately to and for Samot. None was proficient in visual gestural communication, the mode of communication best suited to converse with and translate on behalf of a severely language deprived person, like Samot.

In addition, the judge found that two of the interpreters had already mistranslated several of Samot's culturally specific gestures during her interview with police officers, errors that went uncorrected and therefore likely were repeated at trial. The judge concluded that “[t]he proceeding required by § 92A would have informed the entire course of Samot's testimony.” A § 92A, third par., determination likely would have revealed that the assigned interpreters could not “communicate accurately with,” or “translate information to and from,” Samot. G. L. c. 221, § 92A, third par. These findings are well supported by the record.

The judge concluded that failure to comport with the statute “materially influenced the verdict.” Commonwealth v. McCoy, 456 Mass. 838, 850, 926 N.E.2d 1143 (2010). Other than Espada, who testified pursuant to a cooperation agreement, Samot was the sole witness at trial to place the black-handled knife in the defendant's hand;²⁵ moreover, she alone testified to seeing the stabbing. Samot was a critical identification witness; without her testimony, the jury's focus naturally may have shifted to Espada and Garcia, each of whom had the victim's blood on their clothing.

Finally, the judge's conclusion that trial counsel's failure to request a § 92A hearing or object to the admission of Samot's testimony was not the product of a reasonable tactical decision is unassailable. See McCoy, 456 Mass. at 850, 926 N.E.2d 1143. Trial counsel testified at the posttrial hearing that there existed no “good reason” for failing to move to strike Samot's nonresponsive answers; nor did it occur to him, either before or during trial, to move to examine her competency.

3. Conclusion. On the record before us, we discern no abuse of discretion in the judge's allowance of the defendant's amended motion for a new trial, and on that basis we affirm the order.²⁶

So ordered.

FOOTNOTES

1.   A video recording of the interview was not introduced as an exhibit at trial but was entered as an exhibit at the evidentiary hearing on the defendant's amended motion for a new trial.

2.   At trial, the prosecution relied on the testimony of Espada and Samot to tie the defendant to the black-handled knife.

3.   Garcia had pleaded guilty to armed robbery and was sentenced to a term in prison in December 2019. She did not testify at the defendant's trial.

4.   Partway through Samot's testimony, the trial judge instructed the jury as to what parts of the interpreters’ exchanges with Samot constituted evidence -- e.g., “[w]hat the interpreters say verbally was the answer of ․ Samot to the question” posed -- and what parts did not constitute evidence -- e.g., the gestures used by interpreters to “relate” questions to her.

5.   At a sidebar conversation on how best to authenticate an exhibit, the trial judge remarked that “[i]t's just so difficult to communicate with her.”

6.   To illustrate, the prosecutor came prepared with a floor plan of Samot's apartment to aid her in answering where she was in the house when the stabbing occurred. By contrast, trial counsel was unable to ask his first question as styled -- “How long had you known [the victim]?” -- because neither party had brought a visual aid, such as a calendar, that might have enabled Samot to understand the question.

7.   The following excerpt provides a representative sample of this exchange:Q.: “My question was, at the time that you went into the kitchen, who was in the kitchen?”A.: “Him[, the defendant].”․Q.: “And he was the only person in the kitchen?”A.: “I saw him. I saw him. He did it.”Q.: “My question again, who did you see in the kitchen when you first came into the kitchen?”A.: “I saw the door being pushed open and I saw him stab [the victim].”

8.   Samot testified as follows:Q.: “And after [the defendant] came in, did you see another man come in?”A.: “It was [the defendant]. It was this guy.”Q.: “And he was the only one who came through the door after the door was opened?”A.: “It was one guy. It was him.”

9.   Trial counsel was able to elicit this information from a police officer whom he called in rebuttal. The officer testified, inter alia, that Samot had not told them that Garcia had taken money from the victim and that she had said a second man had entered the apartment with the defendant.

10.   The trial judge specified that while she had no doubts that Samot was “competent” to testify, she was troubled by the fact that “complex questions are going by her”: “When she's asked about whether she talked to somebody at another time and what she told the person at another time, she doesn't seem to be getting that․ She just keeps repeating, and she gives a nonresponsive answer.”

11.   The defendant timely filed a notice of appeal. In December 2021, he filed a motion for a new trial before this court, which we remitted to the trial court.

12.   This court stayed consideration of the defendant's direct appeal pending resolution of his amended motion for a new trial.

13.   Dr. Judy Shepard-Kegl has a doctorate in linguistics from the Massachusetts Institute of Technology and advanced training in cognitive neuroscience and interpreting; she has directed the interpreter training programs at the University of Southern Maine for twenty-five years. Dr. Romy Spitz has a doctorate in psychology and has completed postdoctoral work in brain bases of language impairment; she has thirty years of experience in assessing individuals with language deprivation. Dr. Eileen Forrestal, Ph.D., coordinated the ASL and deaf studies program at Union College prior to her retirement. She has interpreted hundreds of times over the past ten years for individuals who are deaf as well as language deprived, including in court room settings.

14.   Put another way, the interpretation that is eventually conveyed is a “co-construction” by the interpreter based on information provided by the “speaker”; it is not that of the speaker alone.

15.   Spitz testified that, had she been asked to translate for Samot at trial, she would have enlisted the services of someone from Samot's culture to watch for idiomatic gestures:“I would have asked for someone from her culture to give feedback to the team about any cultural signs or gestures that she has. For example, her sign for good friend[;] [h]er gesture for that looks a lot like the ASL sign for spouse. But someone from that culture could have given that information to the interpreting team.”

16.   As an example of this phenomenon, and to illustrate how Samot's grammar deficiency would impede her ability to answer a multipart question, Shepard-Kegl explained:“[W]hen someone asks a question like, ․ ‘[D]id you ever tell anyone that the woman took the money after [the victim] was stabbed?’ That ․ string[,] [a]ll [Samot] would get out of that, at best, is ‘woman’ and ‘money,’ and she would come back with whatever response she ․ was going to give, and ․ and what she's coming back with is ‘woman,’ ‘money.’ The woman took the money. So[,] it's not telling me that she's responding to the question ․”

17.   Shepard-Kegl qualified her answer with the word “believe” because it was never established at the police interview that Samot saw the stabbing.

18.   While, in this case, the motion judge was the trial judge and thus was well positioned to assess the effect of the failure to comply with § 92A, third par., in view of the posttrial evidence presented by the defendant, we recognize that that will not always be the case. A videotape of testimony of a deaf or hearing-impaired party or witness would better preserve the testimony for posttrial motions and appellate review.

19.   In this opinion, we refer to the term “hearing impaired” given that it is the term used in G. L. c. 221, § 92A.

20.   The third paragraph of § 92A provides:“In all proceedings involving an interpreter under this section, no testimony shall be admitted as evidence until:“(1) the interpreter is so situated as to assure effective communication between all persons having a substantial interest in the outcome of such proceedings,“(2) the interpreter swears under oath, that he will provide a true and accurate interpretation of the proceedings to the best of his skill and judgment, and“(3) the person conducting such proceedings determines, on the basis of testimony of the interpreter and the deaf or hearing-impaired person, that such interpreter is able in that particular proceeding, to communicate accurately with and translate information to and from such deaf or hearing-impaired person involved.” (Emphases added.)G. L. c. 221, § 92A, third par.

21.   The defendant notes that the absence of an accurate interpreter for Samot implicated his constitutional right to confront witnesses against him, and thus required a new trial. We need not reach this argument because we agree with him that the judge did not abuse her discretion in allowing his motion for a new trial on the basis of the statutory violation. See Commonwealth v. Loretta, 386 Mass. 794, 797, 438 N.E.2d 56 (1982) (“If a case can be decided on nonconstitutional grounds, the better course is to decide it by not reaching the constitutional issue”).

22.   On this point, Shepard-Kegl agreed that there was “no question” that Samot is cognitively competent and testified that Samot could “communicate with the proper resources[ and] supports.” Spitz concurred that Samot was cogitatively and communicatively competent and added that an expert “could have got the story of what happened from [her]” because “[s]he is capable of communicating it through ․ tools or strategies.” Forrestal testified that, based on her viewing of the videotape of the police interview, Samot demonstrated a “basic form” of communication and understood the questions asked of her “about half of the time.”

23.   Contrary to the Commonwealth's argument, the judge did not adopt Silvestre's self-assessment that the translation was accurate despite Silvestre's statement at the posttrial hearing that Silvestre was herself “[ninety-nine percent] confident” in the translation. While the judge found Silvestre to be a candid witness, her findings were ultimately contrary to Silvestre's self-assessment.

24.   In fact, the prosecutor highlighted Samot's nonresponsive answers in her closing argument, stating: “[A]t no point did ․ Samot falter or hesitate as she sat down in the witness stand, looked across from the defendant and said, over and over, ‘That's the man who stabbed [the victim].’ ”

25.   While stains located on the blade of the black-handled knife tested positive for the victim's DNA, the defendant's DNA was not found on the object.

26.   Because we affirm the grant of a new trial on evidentiary grounds, we need not reach the judge's subsidiary finding that trial counsel's performance was constitutionally ineffective. See Loretta, 386 Mass. at 797, 438 N.E.2d 56.

WENDLANDT, J.