Commonwealth v. Hart , 455 Mass. 230 ( 2009 )

Marshall, C.J.

(concurring, with whom Botsford, J., joins). I fully agree with the court’s analysis on the first issue, concerning the prosecutor’s impeachment of the defendant’s alibi witnesses. With respect to the second issue, the admission in evidence of the recorded jailhouse telephone conversations between the defendant and his sister, I disagree, for the reasons stated in my dissenting opinion in Matter of a Grand Jury Subpoena, 454 Mass. 685, 693-705 (2009) (Marshall, C.J., dissenting), with the court’s conclusion that no constitutionally protected privacy rights of the defendant are implicated. I agree with the court’s conclusion, however, in its penultimate paragraph, that the admission of the recordings was harmless in the circumstances of this case.