A jury сonvicted the defendant, Ely Iglesias, of murder in the first degree by reason of deliberate premeditation in connection with the shooting of the victim, Jose Garcia Dominquez. Represented by new counsel on appeal, the defendant claims that his postarrest statement to the police should have been suppressed because the Miranda warnings, given to him in English without the aid of an interpreter, were insufficient to protect his constitutional rights. The defendant also argues that
§ 33E. Accordingly, we affirm the defendant’s conviction.
The jury were warranted in finding the following facts. On . March 2, 1994, the victim died at a hospital of a single gunshot wound to the back of his head. A single bullet casing was found on the floor of the front passenger side of the car, a burgundy Honda Accord, in which the victim had been brought to the hospital. Information obtained from the driver of the car, Fausto Velez, and from a friend of the defendant, Ramon Soto, gave the police probable cause to arrest the defendant at approximately 4:30 a.m. on March 3, 1994. As the police approached the defеndant at the time of arrest with their guns drawn, after first identifying themselves as police officers, the defendant stated, in English, “You got the right guy.” After being taken into custody, the defendant indicated that he wanted to talk to someone about the homicide. The defendant was given his Miranda rights, signed a waiver of the rights, and gave a stаtement consisting of the following information.
The defendant came to the United States from Puerto Rico in November, 1993. The defendant met the victim approximately one month later, and immediately disliked the victim because of his “attitude.” During the three weeks prior to the shooting, the defendant grew aingry with the viсtim because he “started to talk shit about [the defendant’s] friend.”
The defendant first started thinking about shooting the victim on Tuesday, March 1, 1994. On that same day, the defendant and a friend, James Rosario, reserved two airline tickets to Puerto Rico on a plane scheduled to leave from John F. Kennedy Airport in New York at 5:45 p.m. on Thursday, March 3, 1994. On Wednesday, March 2, 1994, the defendant and Rosario paid
At approximately 3 p.m. on March 2, 1994, the defendant and Rosario were on Franklin Street, near High Street in Holyoke, when Rosario asked the defendant what he was going to do with the gun. The defendant said that he did not know, but that he had a “bad feeling.” At some point, the defendant told Rosario that he was going to shoot the victim.
While the defendant and Rosario were standing on the street, Velez drove up in his burgundy Honda Accord with the victim in the front passenger seat. The defendant asked Velez to give them a ride to the “Flats,” another section of Holyoke. The only reason they wanted to go to the Flats was to be in the car with the victim.. The defendant and Rosario got into the back seat, with the defendant seated behind the victim.
During the drive, the victim “started to talk shit again about [the defendant’s] friend.” The defendant “got mad” and “confused,” and “kept thinking about shooting [the victim].” At some point during the ride, the defendant “took the gun out of the front of [his] pants and slowly put it on [his] right side by [his] leg.” When they reached the Flats, Rosario gоt out and went into an apartment building for a short time. When he returned to the car, the defendant “raised the gun up and put it right to [the victim’s] neck and pulled the trigger.” The defendant and Rosario got out of the car and walked back to Franklin Street.
Testimony at trial corroborated the defendant’s statement. Twо witnesses identified the defendant as one of four men in a Honda Accord driven by Velez on the afternoon of March 2, 1994, with the defendant in the rear passenger seat. The defendant’s fingerprint was also recovered from the outside metal molding of the rear passenger side door of the Honda Ac- . cord. Ramon Soto testified that Rosario and the defendant came to his apartment at sundown on March 2, 1994, and that the defendant had a gun. The two were nervous, and Soto persuaded them to leave the gun with him. Soto called the police at approximately 4 a.m. the next morning, and told the police where to find Rosario and the defendant. The police also recovered the handgun from Soto. Police experts later matched this handgun with the casing found in the Honda and the bullet fragments from the victim’s brain.
The fact that Miranda warnings arе given in a language other than the native language of the defendant does not render a subsequent waiver of Miranda rights invalid if it is otherwise shown that a valid Miranda waiver has occurred, that is, a waiver “made knowingly, intelligently, and in all respects, voluntarily.” Commonwealth v. Selby,
The fact that an interpreter was provided for the defendant, at the defendant’s request, during the evidentiary hearing on the validity of his statement, and during trial, does not establish that the defendant did not understand English sufficiently for a valid Miranda waiver. The defendant’s trial counsel asked for an interpreter as a precaution since the defendant’s native language was Spanish. However, even the defеndant’s trial counsel admitted that the defendant spoke English, stating, “I never had any difficulty communicating with him.”
Other factors examined and credited by the judge at the evidentiary hearing also supported the ruling that the defendant’s statement was voluntarily made. The defendant was treated well by the police, having beеn offered food, drink, and the chance to use the telephone. No pressure or coercion was placed on the defendant, and no deal was offered in exchange for his state
2. We next consider the defendant’s claims of ineffective assistance of counsel. Because we are reviewing a conviction of murder in the first degree, we examine the defendant’s assertions under G. L. c. 278, § 33E, and inquire “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.” Commonwealth v. Wright,
a. The defendant first argues that his trial counsel should have challenged the jury venire on the ground that it contained no Hispanic jurors and, as a result, violated his right to trial by a jury drawn from a fair cross sеction of the community.
b. The dеfendant next argues that his trial counsel’s failure to file a pretrial motion to suppress his statement, on the basis that the Miranda warnings were given to him in English without an interpreter, was ineffective assistance. The defendant’s trial counsel requested a voir dire on the issue whether the defendant’s statement was given voluntarily. This is a proper method of challenging the admissibility of a defendant’s statement. See Commonwealth v. Hunter,
c. Finally, the defendant claims that his counsel’s trial tactiсs were unreasonable and denied him effective assistance. Specifically, the defendant argues that there was no justification to support the approach, initially chosen by his trial counsel, to elicit testimony that the shooting may have been drug related, and that this line of questioning was inconsistent with trial counsel’s closing argument, intended to persuade the jury that the shooting was spontaneous. We give due deference to defense counsel’s strategic decisions and conclude that his approach was not “manifestly unreasonable.” See Breese v. Commonwealth,
The defendant’s trial counsel may havе introduced the evidence of drug dealing to suggest to the jury either that Fausto Velez, as an alleged drug dealer, may have shot the victim, and that the defendant was merely covering for him, or that the defendant was ordered to shoot the victim by Velez. This was a reasonable strategy, especially given thе overwhelming evidence against the defendant. After learning that Velez would invoke his privilege against self-incrimination under the Fifth Amendment to the United States Constitution if forced to testify, the defendant’s trial counsel may have decided that the theory that the shooting was drug related was too weak to justify its being prеssed any further. At that point, the defendant’s trial counsel may have concluded that the only reasonable approach left was to convince the jury that the shooting was not premeditated because the defendant had stated that “[i]t was on the spur of the moment.” In any event, defense cоunsel’s strategy could not have created any likelihood of a miscarriage of justice because the evidence overwhelmingly supported the jury’s verdict that the defendant had acted with deliberate premeditation.
3. We have reviewed the record as required by G. L. c. 278,
Judgment affirmed.
Notes
It is not clear whether the defendant is also challenging the admissibility of his statement, “You got the right guy,” uttered when the police were in the process of arresting him. Any challenge to this statement would fail as the judge properly found that the statement was made spontaneously and voluntarily by the defendant, and not in response to any questioning by police. See Commonwealth v. O’Brien,
The defendant also argues that his right to equal protection of the law was violated by his trial counsel’s failure to challenge the jury venire. However, an equal protection challenge to jury selection applies to the composition of a grand jury. See Commonwealth v. Bastarache,
This assertion is presumably based on the observation by the defendant’s trial counsel during voir dire that he “didn’t notice any Spanish” on the jury list, and prior to empanelment of the trial jury that “of the people who have been selected to be here, I only saw that one Sрanish [who had been excused] and no one else. In Hampden County . . . there’s a lot more than one out of sixty or seventy.” However, we have previously observed that neither visual inspection nor surname analysis are reliable indications of ethnic identity. Commonwealth v. Fryar, supra at 242.
The defendant has attached to his apрellate brief a document entitled, Results of Racial & Ethnic Survey, for the Hampden Judicial District, for the period of June 3, 1996, through February 1, 1997, which, according to the defendant, shows that Hispanics are underrepresented on juries in Hampden County. Aside from the fact that this document has not been made part оf the record and cannot be considered on appeal pursuant to Mass. R. A. R 8 (a), as amended,