Commonwealth v. Sergio Cardona-Guevara.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-612

COMMONWEALTH

vs.

SERGIO CARDONA-GUEVARA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of assault

and battery by means of a dangerous weapon, witness

intimidation, and threatening to commit a crime. 1 Prior to

trial, the defendant moved to suppress statements he made to the

police. After an evidentiary hearing, a Superior Court judge

denied the motion in a thorough written memorandum of decision

and order. On appeal, the defendant claims error in the denial

of his motion to suppress, and that the admission of his

1The defendant was acquitted of armed assault with intent
to murder, possession of a firearm while committing a felony,
possession of a loaded firearm while not at home or work, and
possession of ammunition without a firearm identification card.
statements in evidence was not harmless beyond a reasonable

doubt. We affirm.

Discussion. The defendant claims the motion judge should

have allowed his motion to suppress his statements made to the

police because he did not knowingly and intelligently waive his

Miranda 2 rights, which were provided to him in his native

language of Spanish, prior to being interviewed. 3 We disagree.

A defendant's waiver of his Miranda rights must be made

knowingly, intelligently, and voluntarily. Commonwealth v.

Delossantos, 492 Mass. 242, 247 (2023). "The Commonwealth must

prove beyond a reasonable doubt that the defendant's waiver of

Miranda rights was valid, and 'must demonstrate not only what

warnings were provided to the defendant, but also that the

defendant understood such warnings.'" Commonwealth v. Escobar,

493 Mass. 694, 700 (2024), quoting Delossantos, supra. "In

reviewing a judge's determination regarding a valid waiver of

Miranda rights and voluntariness, we accept the judge's

subsidiary findings of fact absent clear error,[4] give

2 Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).

3 The defendant does not challenge the voluntariness of his
waiver of the Miranda rights. He does challenge the
voluntariness of his statements to the police.

4 "A finding is clearly erroneous when 'although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.'" Commonwealth v. Castillo, 89

2
substantial deference to the judge's ultimate findings and

conclusions of law, but independently review the correctness of

the judge's application of constitutional principles to the

facts found" (quotation and alterations omitted). 5 Delossantos,

supra at 250. "The determination of the weight and credibility

of the testimony is the function and responsibility of the judge

who saw and heard the witnesses, and not of this court"

(citation omitted). Commonwealth v. Gonzalez, 487 Mass. 661,

668 (2021).

Here, the motion judge's determination that the defendant

understood his Miranda rights is fully supported by the record.

Because the defendant's native language is Spanish, 6 Officer

Victor Martinez-Pietr 7 read the Miranda rights in Spanish from a

Mass. App. Ct. 779, 781 (2016), quoting Green v. Blue Cross &
Blue Shield of Mass., Inc., 47 Mass. App. Ct. 443, 446 (1999).

5 We also take an independent view of the video evidence.
Commonwealth v. Bermudez, 83 Mass. App. Ct. 46, 50 (2012).

6 The defendant grew up in Honduras and attended school
there from ages five to twelve, but left school in the sixth
grade. At the age of twelve, he immigrated to the United
States, was placed in foster care, and eventually moved to
Worcester. In Worcester, he spent three and one-half years in a
bilingual program before transferring to public schools, where
he also participated in a bilingual program, speaking Spanish
and English. He attended high school until he was eighteen, but
he dropped out because he could not pass the MCAS exam.

7 Officer Martinez-Pietr is bilingual, fluent in both
English and Spanish.

3
Spanish-language Miranda form. Following the recitation of each

right, the defendant confirmed his understanding. The defendant

signed the form, stating his comprehension of his Miranda

rights, and that he wished to speak with the police.

After waiving Miranda, the defendant gave a video recorded

interview of the incident with questions posed in English, which

were translated into Spanish, answered in Spanish, and

translated back into English. At no time during the

interrogation did the defendant express any difficulty

understanding Officer Martinez-Pietr, and his answers to the

questions were appropriate. Neither of the officers 8 conducting

the interview raised their voices, behaved aggressively, or

attempted to induce the defendant into answering questions. The

defendant's demeanor was calm, he was not confused, he did not

ask for any question to be repeated, and he neither requested to

stop the interview, nor did he request to speak to an attorney.

In fact, the defendant's comprehension of the Spanish and

English interrogation was so keen that he even corrected Officer

Martinez-Pietr when the defendant believed his answer had not

been properly translated into English. This demonstrated that

the defendant was following the conversation in both languages.

8 Worcester police Sergeant Sean Riley participated in the
interview.

4
In support of the motion to suppress, Dr. Michael

O'Laughlin, 9 the director of the interpreter training program at

Boston University, testified that it was his opinion that the

defendant did not have a complete understanding of the Miranda

rights. O'Laughlin's opinion was based on language tests in

Spanish and English he had administered to the defendant.

Additionally, O'Laughlin quizzed the defendant on the meaning of

the Miranda rights, and he concluded that the defendant only

understood two out of the five warnings. O'Laughlin's report

was made an exhibit at the hearing. Despite this, O'Laughlin

testified on cross-examination that he had conducted his entire

interview with the defendant in Spanish, that he never had any

difficulty understanding the defendant as he spoke, that the

defendant never expressed confusion or asked for clarification

of anything that O'Laughlin said in Spanish, and that there were

no fatal errors in Spanish Miranda form.

On appeal, the defendant challenges the following three

findings made by the motion judge: (1) O'Laughlin did not

obtain the defendant's complete personal and educational

9 O'Laughlin holds bachelor's, master's, and doctoral
degrees in the fields of religious studies or Biblical
scholarship. According to O'Laughlin, "Biblical scholars are
language experts." He is also a member of the American Council
on the Teaching of Foreign Languages, the New England
Translators Association, the International Association of
Foreign Linguists, and sat on the board for the Massachusetts
Association of Court Interpreters.

5
history; (2) O'Laughlin did not determine the percentage of time

that the defendant spoke English and Spanish at home; and

(3) O'Laughlin's conclusion as to the defendant's ability to

understand the Miranda warnings was unsupported absent objective

testing. We discern no error.

First, the motion judge's finding that O'Laughlin did not

obtain a full history was supported by his testimony on cross-

examination. O'Laughlin conceded that he did not determine what

language the defendant spoke while he was in foster care, and he

did not obtain any details of the defendant's bilingual

education, including his grade level when he left high school.

In this light, we are not left with the definite and firm

conviction that the motion judge made a mistake in her finding

that O'Laughlin's did not obtain the defendant's complete

personal and educational history.

Second, again, O'Laughlin conceded on cross-examination

that he did not actually ask the defendant whether he and his

wife primarily spoke Spanish as opposed to English at home.

Despite this, O'Laughlin opined that the defendant's family

spoke sixty percent Spanish at home, and overall, the defendant

spoke approximately fifty percent English and fifty percent

Spanish. Also, these estimations of what percentage each

language was spoken in and out of the home were not mentioned in

O'Laughlin's report. Accordingly, we are not left with the

6
definite and firm conviction that the motion judge made a

mistake in discounting O'Laughlin's opinion of the percentages

of each language spoken by the defendant as she was not required

to credit what appears to have been speculation. Moreover, as

the Commonwealth notes, neither the first nor the second

challenged findings addressed whether the defendant understood

spoken Spanish well enough to knowingly and intelligently waive

his Miranda rights.

Finally, the motion judge found that O'Laughlin's

determination of the defendant's inability to understand spoken

Spanish was not supported by objective testing. This finding is

fully supported by the record. Even though O'Laughlin did

objective testing of the defendant's ability to read Spanish,

and read and write English, he did not objectively test the

defendant's "oral literacy" in Spanish. In fact, O'Laughlin

testified that he never administered a "Spanish literacy oral

[test]" because he "concentrated on" the defendant's "weak

language, which was English." As the motion judge noted, the

absence of such an examination was significant, because

O'Laughlin administered objective assessments of the defendant's

English reading and listening skills, and his Spanish reading

skills. 10

10Despite the absence of objective testing on spoken
Spanish, O'Laughlin still opined that the defendant could not

7
The motion judge's conclusion that the defendant understood

the spoken and written Miranda warnings and voluntarily waived

them was amply supported by the evidence. As she noted, the

defendant's answers to the questions that followed "indicated a

comprehension of the questions, were logical responses, and

reflected an effort to exonerate himself." Commonwealth v. Siny

Van Tran, 460 Mass. 535, 559 (2011). What the defendant

requests this court to do is to substitute O'Laughlin's

conclusions for the motion judge's findings, which we cannot do.

See Gonzalez, 487 Mass. at 668. See also Commonwealth v. Neves,

474 Mass. 355, 361 (2016) ("Deferring to the motion judge's

assessment, we afford little weight to expert testimony

concerning the defendant's ability to comprehend and validly

waive his Miranda rights"). The motion judge found O'Laughlin's

testimony unpersuasive, and we are not free to disturb that

finding on appeal.

The defendant also claims that his statements to the police

were not voluntary. "Whether a defendant has validly waived his

rights is a separate question from whether his or her subsequent

understand the Miranda warnings based on an "in your own words"
assessment. For this assessment, O'Laughlin read the Miranda
warnings to the defendant and inquired what his understanding of
each warning was. The motion judge was free to reject
O'Laughlin's conclusions based on this assessment as
unpersuasive given the risk that the defendant's responses were
self-serving absent objective testing.

8
statements were voluntary, but one that similarly 'require[s] us

to examine the totality of the circumstances surrounding the

making of the statements to ensure that the defendant's will was

not overborne.'" Neves, 474 Mass. at 362, quoting Commonwealth

v. Hoose, 467 Mass. 395, 403 (2014). See Commonwealth v.

Estabrook, 496 Mass. 467, 477 (2025) (voluntariness of

statements and Miranda waiver turn on many similar

considerations). "'A statement is presumed voluntary until a

defendant produces any evidence showing otherwise,' at which

point the Commonwealth must prove voluntariness beyond a

reasonable doubt." Estabrook, supra, quoting Commonwealth v.

Hart, 493 Mass. 130, 135 (2023). A statement is involuntary if,

under the totality of the circumstances, "the will of the

defendant was overborne to the extent that the statement was not

the result of a free and voluntary act" (citation omitted).

Commonwealth v. Roman, 495 Mass. 412, 416 (2025). "A critical

additional factor is whether the police used coercive tactics

during the interrogation." Estabrook, supra.

The defendant's sole support for his involuntariness claim

is his low level of education, but he does not illustrate how

his lack of education rendered his statements involuntary. The

defendant's education, however, is only one factor in the

totality of the circumstances analysis required to determine

voluntariness. See Commonwealth v. Parham, 390 Mass. 833, 840-

9
841 (1984). Here, the record provides no basis to conclude that

the defendant's will was overborne. In addition to the various

factors detailed above, we also note the motion judge's finding

that the interrogation was noncoercive. Indeed, the judge found

that the defendant, who was twenty-six years old at the time of

the interview, appeared relaxed and comfortable sitting with the

officers during his interview. She further found that the tone

in the room was conversational and calm. Neither officer raised

their voices, exhibited aggression, or attempted to induce the

defendant into answering questions. 11

The fact that the defendant did not graduate from high

school, but attended until he was eighteen, was noted by the

motion judge as part of her analysis of the totality of the

circumstances. Despite that, there was no evidence that the

defendant's education level caused him to make his statements,

or that officers exploited any lack of education through

misrepresentations, minimization, or other assurances intended

to trick the defendant into making statements. See Commonwealth

v. Delacruz, 463 Mass. 504, 515–516 (2012). Rather, as the

motion judge concluded, the defendant's will was not overborne,

11In fact, in his brief, the defendant notes his agreement
with the motion judge's finding that the video of the interview
depicts a calm setting and that the officers did not raise their
voices in the interview.

10
and nothing occurred during the interview to support an argument

that his statements were anything other than of his own free

will. 12

Judgments affirmed.

By the Court (Meade,
Desmond & Wood, JJ. 13),

Clerk

Entered: January 12, 2026.

Given our resolution of the defendant's appeal, we need
12

not address whether the admission of the defendant's statements
in evidence was harmless beyond a reasonable doubt, or the
motion judge's alternative ground for denying the motion based
on the lack of a supporting affidavit signed by someone with
personal knowledge. See Mass. R. Crim. P. 13 (a) (2), as
appearing in 442 Mass. 1516 (2004).

13 The panelists are listed in order of seniority.

11