Commonwealth v. Morris ( 2023 )

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SJC-12835
COMMONWEALTH vs. JEROME MORRIS.
Plymouth. November 7, 2022. - July 25, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, Wendlandt, &
Georges, JJ.
Homicide. Firearms. Electronic Surveillance. Telephone.
Constitutional Law, Admissions and confessions, Waiver of
constitutional rights. Evidence, Admissions and
confessions, Tape recording, Redirect examination.
Practice, Criminal, Capital case, Motion to suppress,
Admissions and confessions, Argument by prosecutor.
Indictments found and returned in the Superior Court
Department on January 2, 2015.
A pretrial motion to suppress evidence was heard by
Cornelius J. Moriarty, II, J., and the cases were tried before
Gregg J. Pasquale, J.
Cathryn A. Neaves for the defendant.
Mary Nguyen, Assistant District Attorney, for the
Commonwealth.
WENDLANDT, J. The defendant, Jerome Morris, was convicted
of murder in the first degree on the theory of deliberate
premeditation in connection with the August 2014 shooting of the
2
victim, Quentin Phillip.1 Following a verbal altercation with
the victim outside a bar in Brockton, the defendant walked away,
retrieved a firearm from a friend, and converged on a vehicle in
which the victim and his three friends were sitting. The victim
was seated in the rear passenger's seat; the defendant took aim
at the rear passenger's seat window and fired at least two shots
at the window. One hit the victim in the chest, killing him.
The defendant, who was caught on a video surveillance camera
arguing with the victim and then retrieving a firearm just prior
to the killing, admitted to discharging the firearm at the
vehicle's window during a police station interrogation following
his arrest and waiver of his Miranda rights; the surveillance
camera footage and a recording of the interrogation were
introduced at trial. The defendant argued at trial that the
killing occurred in self-defense, contending that he believed
the victim was armed.
On his direct appeal, the defendant contends that his
statement at the police station should have been suppressed
because police officers impermissibly recorded it without his
express consent, in violation of G. L. c. 272, § 99 (wiretap
statute). In addition, he maintains that the statement should
1 The defendant also was convicted of unlawful possession of
a firearm and unlawful discharge of a firearm within 500 feet of
a building.
3
have been suppressed because he was not informed promptly of his
right to make a telephone call and only was permitted a call
after his interrogation, in violation of G. L. c. 276, § 33A.
He further asserts that the prosecutor improperly referred to
omissions in his statement to police officers. The defendant
also asks the court to exercise its authority under G. L.
c. 278, § 33E, to reduce the degree of guilt or order a new
trial. Finally, the defendant requests that we vacate his
conviction of unlawful possession of a firearm in light of our
recent opinion in Commonwealth v. Guardado, 491 Mass. 666(2023). We affirm the convictions other than the unlawful
possession conviction and discern no reason to grant relief
under G. L. c. 278, § 33E.
1. Background. a. Facts. The following facts are
supported by the evidence admitted at trial. Certain details
are reserved for discussion of specific issues.
i. Surveillance footage and witness testimony. Shortly
after 2:10 A.M. on August 9, 2014, the victim was fatally shot
in the chest while seated in the rear passenger's seat of a
vehicle that was exiting the parking lot of a Brockton bar.
Approximately twenty minutes prior to the killing, the
victim and the defendant verbally argued outside the bar.
During the confrontation, which lasted several minutes, the
victim looked angry, but the defendant appeared calm. The
4
victim called the defendant a "bitch" in an aggravated tone.
Surveillance footage of the argument captured the victim waving
his arms and appearing to push the defendant.
The defendant and the victim separated; the victim went to
a vehicle with his friends. The victim initially stood outside
the vehicle, seemingly frustrated and angry. The victim then
sat in the rear passenger's seat, talking to his friends, and
making plans for where next to go. The vehicle doors were
closed, and the windows, which were "very" tinted, were shut.
The victim asked one friend to "pass [him] that"; the friend
responded by telling the victim, "Chill." The victim said, "I
don't trust these n*ggas," a phrase he repeated multiple times.
Meanwhile, the defendant retrieved an item, later
determined to be a firearm, from one of his friends in the
parking lot. With the firearm in hand, the defendant walked
toward the vehicle in which the victim's group were sitting.
The victim's group, which had been waiting in the vehicle
for another friend, soon learned that the friend would not join
them; the defendant silently approached the rear passenger's
window next to where the victim was sitting. The victim either
was using his cell phone or was talking to the other passengers
about their plans. The victim had his hand in his pocket. He
5
was not facing the window.2 Upon noticing the defendant
approaching, the victim said, "What's wrong with these dudes?"
and one of the victim's friends either warned, "[Y]our people's
coming to the door," or asked, "What does he want?" As the
vehicle was slowly driven out of the parking lot, the defendant
fired multiple gunshots into the rear passenger's side window;
one bullet struck the victim in the chest.
The defendant fled. Surveillance footage shows the
defendant handing the firearm to someone and continuing to run
away.
Minutes later, the victim arrived at a hospital, where he
was pronounced dead. The cause of death was a gunshot wound to
the chest.
The victim was not seen with a firearm that night, no
firearm was seen or found in the vehicle, and no gunshot residue
was found on the victim's hands.
ii. Defendant's statement. The defendant was identified
from the surveillance footage by the mother of one of his
children. He was arrested, and after being given the Miranda
warnings and waiving his rights, the defendant was interviewed
at a police station. The interrogation was audio and video
2 A medical examiner later testified that the victim was
shot from the front, but at an angle, with the bullet entering
the top of his right chest and exiting the bottom of his left
chest.
6
recorded; a redacted copy of the recording was played for the
jury. In the interrogation, the defendant admitted that he
fired two shots at the vehicle window, behind which sat the
victim.
The defendant explained that, prior to the shooting, he
"went outside to talk with" the victim after the victim "called
[him] outside." The victim asked the defendant if the two of
them "had a problem"; the defendant responded that if they did,
he "would've [already] did [sic] something to [the victim]."
The victim called the defendant "soft" and a "bitch," and he
stated that the defendant would not have done anything. At that
moment, the defendant offered to fight the victim; but the
victim refused, asserting that he did not want to ruin his
night. The victim also said, "I'm a see you when I see you,"
"You already know what time it is with me," and "When I see you,
it's on." The victim told the defendant that he "stays with
it," which the defendant understood to mean that the victim had
a firearm that night.
The defendant claimed that he was worried that something
would happen to him -- that he would be "caught in the
crossfire" -- and that he "just honestly thought about [his]
kids." The defendant explained that the victim was "a shooter,"
unlikely to engage in hand-to-hand fighting; the defendant did
7
not want someone like that "on [his] back . . . [t]rying to
shoot at [him] while [he's] with [his] family."
The defendant continued, asserting that he saw the victim
behind a vehicle looking at him, "acting mad shifty," and
"making motions . . . like he was about to do something" or
"take cover." The defendant thought the victim was "acting
kinda funny like he got somethin' or somethin'," as if "he had a
weapon." The defendant claimed that he was going to leave,
because he did not have a weapon and he thought that the victim
did, but he was worried that the victim was waiting for him.
The defendant said that he had told his friends what had
transpired with the victim; they asked him if he was going to
"let that shit ride." Responding, he said he was not going to
"try to run up on somebody [he felt] as though had a weapon on
him." One of the defendant's friends offered the defendant a
firearm, which he took, saying, "Let me see it. I'm gonna go
see what's up." The defendant walked to the passenger's side of
a vehicle and shot twice at the rear window, behind which sat
the victim. The defendant then handed the firearm to someone
and fled.
b. Procedural history. The defendant was indicted on one
count of murder, in violation of G. L. c. 265, § 1; one count of
unlawful possession of a firearm, in violation of G. L. c. 269,
§ 10 (a); and one count of unlawful discharge of a firearm
8
within 500 feet of a building, in violation of G. L. c. 269,
§ 12E. The defendant filed a motion to suppress his postarrest
statement to investigators, which was denied after an
evidentiary hearing.
At trial, the Commonwealth introduced a redacted recording
of the defendant's interrogation. The jury found the defendant
guilty of murder in the first degree on the theory of deliberate
premeditation; the defendant was sentenced to life without
parole.3 The defendant timely appealed, and subsequently filed
in this court a motion for a new trial, submitting arguments
pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209
(1981).4
2. Discussion. On appeal, the defendant raises several
issues, as set forth supra. We address each in turn.
a. Motion to suppress statements made to investigators.
The defendant argues that the motion judge erred in denying his
3 The defendant also was found guilty of unlawful possession
of a firearm and unlawful discharge of a firearm within 500 feet
of a building. The defendant was sentenced to a term of from
two and one-half years to two and one-half years and a day in
State prison, concurrent with his life sentence, as to the
former, and to a term of three months in the house of correction
as to the latter, deemed served at the time of sentencing.
4 See Moffett, 383 Mass. at 208 ("If appointed counsel, on
grounds of professional ethics deems it absolutely necessary to
dissociate himself or herself from purportedly frivolous points,
counsel may so state in a preface to the brief," but still
should "present the [points] succinctly in the brief").
9
motion to suppress his postarrest statements to investigators on
two grounds, discussed infra. "In reviewing a decision on a
motion to suppress, we accept the judge's subsidiary findings
absent clear error but conduct an independent review of [the]
ultimate findings and conclusions of law" (citation and
quotations omitted). Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015).5 We review video footage independently. See
Commonwealth v. Yusuf, 488 Mass. 379, 380-381 (2021). And "[w]e
review questions of statutory interpretation de novo."
Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 331
(2021).
i. Recording under wiretap statute. The defendant argues
that the recording of his police station statement, after police
officers read to him, and he waived, his Miranda rights, was a
"secret recording" prohibited by the wiretap statute.
5 We supplement the motion judge's subsidiary findings with
"evidence from the record that 'is uncontroverted and undisputed
and where the judge explicitly or implicitly credited the
witness's testimony.'" Jones-Pannell, 472 Mass. at 431, quoting
Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450
Mass. 818 (2008). We do so "only so long as the supplemented
facts 'do not detract from the judge's ultimate findings.'"
Jones-Pannell, supra, quoting Commonwealth v. Jessup, 471 Mass.
121, 127-128 (2015).
10
Accordingly, he maintains that his motion to suppress the
recording should have been allowed.6
A. Wiretap statute. The wiretap statute makes it a crime
to "willfully commit[] an interception . . . of any . . . oral
communication." G. L. c. 272, § 99 C 1. The term
"interception" is defined as "to . . . secretly record . . . the
contents of any . . . oral communication through the use of any
intercepting device by any person other than a person given
prior authority by all parties to such communication." G. L.
c. 272, § 99 B 4. A defendant whose oral communications have
been intercepted in violation of the statute may bring a motion
to suppress the contents of unlawfully intercepted
communications and evidence derived therefrom. G. L. c. 272,
§ 99 P.
B. Motion judge's findings and video footage. The motion
judge made the following findings of fact. The defendant was
arrested at approximately 12:30 P.M. and taken to the Brockton
police station and into an interview room, where an
interrogation began at 1:11 P.M. The defendant was advised of
6 The defendant also argues cursorily that the investigators
failed to inform the defendant of the camera in order to "lull[
the defendant] into a false sense of security that they were
having a 'cozy chat.'" The defendant cites nothing in the
record to buttress this allegation, and the tenor of the
interrogation, as reflected in the recording, does not support
the defendant's claim of an illicit scheme.
11
his Miranda rights and his right to a prompt arraignment; he
indicated that he understood his rights and signed written
waivers of these rights. The interrogation, which was recorded
by an audio-visual electronic recording device in the
interrogation room, lasted a little longer than one hour.
The recording device did not look like a traditional
camera; instead, its physical structure resembled a thermostat
or motion sensor. The defendant was not notified that his
statement was being recorded by electronic means. There was no
sign indicating that there was a recording device in the
interrogation room. The motion judge rejected the
Commonwealth's suggestion that a small sign on the door between
the garage and adjacent police station, which stated "Audio
Monitoring on These Premises," was sufficient to notify the
defendant that his interrogation was being recorded by
electronic means.7
Although finding that the defendant did not receive actual
or constructive notice of the electronic recording, the motion
7 In discussing the defendant's Miranda waiver, the motion
judge noted that the defendant "has extensive experience with
the criminal justice system," having signed Miranda waivers on
six prior occasions. Each of these occasions occurred after the
court's decision in Commonwealth v. DiGiambattista, 442 Mass.
423, 447-448 (2004) (expressing "preference that [custodial
interrogations] be recorded whenever practicable"). The
officers knew of at least some of the defendant's prior criminal
justice system history.
12
judge concluded that, because the defendant was advised that
anything he said could and would be used against him in court,
the recording was not surreptitious eavesdropping in violation
of the wiretap statute.
In addition, the interrogation footage captured each
officer taking written notes during portions of the
interrogation. Before the defendant's admission that he twice
shot at the victim, the defendant was prompted by one police
officer: "This is where the people that listen to your story
later on determine whether you really care about someone other
than yourself, and you want to tell the truth and . . . be
remorseful . . . and explain what you did and why you did it.
That's where your role comes in now." A short while later, the
officer added, "[I]f you're not gonna tell the truth, it's not
gonna look good for you."
C. Recording of interrogation. The defendant's argument
requires us to construe the wiretap statute and determine
whether the statute criminalizes the electronic recording of a
defendant's voluntary statement to police officers under
circumstances where the defendant understands that the statement
can and will be used against him and nonetheless decides to
proceed with the interrogation, the defendant is informed that
the interrogation presents an opportunity to relay his narrative
for future listening, and the defendant understands that
13
officers are recording the statement (or parts thereof) in
writing. This requires a legal determination, which we consider
de novo, Pesa, 488 Mass. at 330-331; Jones-Pannell, 472 Mass. at
431, based on the factual findings by the motion judge.
Our opinion in Commonwealth v. Rainey, 491 Mass. 632(2023), is instructive. There, unbeknownst to the person giving
a statement to police officers (a victim of domestic violence),
her voluntary statement was recorded by an electronic recording
device -- a body-worn camera. Id. at 634. Nonetheless, the
victim, like the defendant in this case, understood that her
statement was being preserved; indeed, the victim, like the
defendant here, spoke to the police officers for the purposes of
memorializing her statement, and the video footage shows police
officers taking written notes during portions of her statement.
Id. at 635, 643-644. The defendant in Rainey, like the
defendant here, nonetheless maintained that the recording was a
"secret recording" in violation of the wiretap statute because
the victim was unaware of the police officer's electronic
recording device. Id. at 640.
We acknowledged in Rainey that "subsection 99 C of the
wiretap statute could be construed literally as the defendant
suggests" to criminalize the recording of the victim's voluntary
statement. Id. at 642. However, given the absurdity of such a
result, we declined to adopt such a construction because "in the
14
absence of more specific statutory language to that effect
. . . , we [were] unwilling to attribute that intention to the
Legislature." Id., quoting Commonwealth v. Gordon, 422 Mass.
816, 832-833 (1996). Rather, we concluded that the statute did
not prohibit the admission of the recording in question because
"nothing in the wiretap statute as a whole, including its
codified preamble, evince[d] an intent to prohibit recording a
victim's volunteered report of a crime where . . . the victim
was aware that officers already were memorializing her report in
writing." Rainey, supra at 643. Indeed, as we explained, the
"legislative focus [of the wiretap statute, as set forth in the
statute's preamble,] was on the protection of privacy rights and
the deterrence of interference therewith by law enforcement
officers' surreptitious eavesdropping as an investigative tool."8
Id., quoting Gordon, supra at 833. See Gordon, supra8 "In pertinent part, the preamble of the wiretap statute
codified the Legislature's finding that 'organized crime'
existed in the Commonwealth and was 'a grave danger to the
public welfare and safety.' G. L. c. 272, § 99 A. The
Legislature concluded that '[n]ormal investigative procedures'
were 'not effective in the investigation of illegal acts
committed by organized crime' and that 'law enforcement
officials must be permitted to use modern methods of electronic
surveillance, under strict judicial supervision, when
investigating these organized criminal activities.' Id. The
preamble also codified the Legislature's recognition that 'the
uncontrolled development and unrestricted use of modern
electronic surveillance devices pose grave dangers to the
privacy of all citizens of the [C]ommonwealth.' Id." Rainey,
491 Mass. at 643 n.20.
15
(concluding, in view of legislative purpose of wiretap statute,
that it does not prohibit recording of booking procedures in
police station).9 See also Rainey, supra at 642 (collecting
cases turning to preamble to inform analysis of wiretap
statute). The Legislature, we concluded, did not have in mind
the type of voluntary statement given by the victim, much less
to sanction criminally the conduct of police officers who
preserved the victim's voluntary statement to them. Rainey,
supra at 643-644.
Similarly, here nothing in the statute as a whole,
including its codified preamble, supports the conclusion that
the Legislature intended to criminalize the police officers'
recording of the defendant's voluntary statement, which the
9 Our decision in Gordon did not rest, as the defendant
suggests, on the ground that the electronic recording in that
case "did not capture or reveal the defendants' thoughts or
knowledge about some fact or subject." Gordon, 422 Mass. at
833. Indeed, it is pellucid that the wiretap statute does not
use the content of the recording as a trigger for a violation.
See G. L. c. 272, § 99 C 1 ("Proof of the installation of any
intercepting device by any person under circumstances evincing
an intent to commit an interception . . . shall be prima facie
evidence of a violation . . ." [emphasis added]). Our reasoning
in Gordon, as we explained in Rainey, centered on the
Legislature's intent, as evinced in the wiretap statute's
preamble, see note 8, supra, to prohibit surreptitious
eavesdropping, see Rainey, 491 Mass. at 643, citing Gordon,
supra at 832-833; because the Legislature did not appear to have
in mind the recording of a booking procedure at the police
station, we did not adopt the literal construction urged by the
defendant, Gordon, supra at 832-833.
16
defendant understood was being preserved for future use in
connection with the investigation of the crime about which the
defendant was speaking voluntarily. The recording "was not used
as an investigative tool to secretly eavesdrop on an otherwise
private conversation";10 rather, it captured the defendant's
"voluntary statement to police officers, which [the defendant]
knew was being memorialized by them in writing." Rainey, 491
Mass. at 643-644. Indeed, the officers explained to the
defendant that the interrogation provided him an opportunity to
tell his own story, and the defendant proceeded to do so knowing
10We agree with the defendant that the relevant question
for purposes of the wiretap statute is not whether the defendant
had a reasonable expectation of privacy. See Rainey, 491 Mass.
at 644 n.21; Commonwealth v. Jackson, 370 Mass. 502, 506 (1976)
("we would render meaningless the Legislature's careful choice
of words if we were to interpret 'secretly' as encompassing only
those situations where an individual has a reasonable
expectation of privacy"). Thus, our conclusion does not rest on
a determination whether the defendant's rights under the Fourth
Amendment to the United States Constitution or art. 14 of the
Massachusetts Declaration of Rights were violated. See, e.g.,
Commonwealth v. DeJesus, 489 Mass. 292, 295 (2022) (defendant
may challenge search or seizure under Fourth Amendment or art.
14 only if defendant has reasonable expectation of privacy).
The wiretap statute evinces the Legislature's intent to provide
broader protections than those provided by the State and Federal
Constitutions. Accordingly, our analysis is guided by the
Legislature's intent as set forth in the words of the statute,
in the context of the statute as a whole. See Harvard Crimson,
Inc. v. President & Fellows of Harvard College, 445 Mass. 745,
749 (2006) ("Courts must ascertain the intent of a statute from
all its parts and from the subject matter to which it relates,
and must interpret the statute so as to render the legislation
effective, consonant with sound reason and common sense").
17
that the statement would be preserved for later review. In
particular, the defendant was warned that his statements could
and would be used against him in a court of law and was reminded
that individuals would "listen" to his statement. Presumably,
he also saw the police officers, who were seated next to him,
taking notes during his statement.11 Regardless of whether the
defendant recognized the electronic recording device as a
thermostat, motion sensor, or camera, it strains credulity to
conclude that the defendant did not understand that his
statement was being memorialized. "The resulting video footage
was not a clandestine recording precluded by the wiretap
11We do not, as the concurring justice suggests, ignore
that the wiretap statute prohibits both secretly hearing and
secretly recording. See G. L. c. 272, § 99 B 4 (defining
"interception" as to "secretly hear" or "secretly record"). Our
decision does not rest on the fact that the officers heard the
defendant's statement. As in Rainey, we simply decline to
attribute to the Legislature an intent to prohibit
electronically recording a defendant's voluntary statement in
circumstances where the defendant knows that his statement is
being recorded by other means -- here, by use of a writing
implement and paper. See Rainey, 491 Mass. at 644 n.22, quoting
Commonwealth v. Moody, 466 Mass. 196, 209 (2013) ("'record' as
used in the wiretap statute should be given its plain and
ordinary meaning to 'mean, "to set down in writing" or "to cause
[sound, visual images] to be transferred to and registered on
something by electronic means in such a way that the thing so
transferred and registered can . . . be subsequently
reproduced"'"). See Moody, supra ("secretly record" as used in
wiretap statute "includes the interception of text messages by
viewing and transcribing them for use at a later date" [emphasis
added]). A reading requiring suppression under the
circumstances is without any foundation in the Legislature's
intent, as expressed in the codified preamble.
18
statute; rather, it merely preserved the statement (albeit
through an alternative, electronic medium) that the [defendant]
voluntarily gave to law enforcement officers and which []he
understood was being recorded by them by means of paper and
pen." Id. at 644. See Commonwealth v. Ashley, 82 Mass. App.
Ct. 748, 762 (2012), cert. denied, 571 U.S. 838 (2013) (wiretap
statute did not criminalize use of camera in police station
interrogation room to record defendant's volunteered statement
to officers when officers "repeatedly expressed their intention
to get it 'down on paper' and memorialize the interview").
Accord Commonwealth v. Hyde, 434 Mass. 594, 602 & n.9 (2001)
(contrasting "clandestine recording" prohibited by wiretap
statute with "good practice" of electronic recording of police
interrogations based on presumption "that, when police
interrogations are electronically recorded, the suspect is aware
that the interrogation is being preserved").
ii. Denial of right to telephone call. The defendant next
maintains that his statement should have been suppressed because
he was denied his right to make a telephone call in violation of
G. L. c. 276, § 33A. Section 33A provides:
"The police official in charge of the station or other
place of detention having a telephone wherein a person is
held in custody, shall permit the use of the telephone, at
the expense of the arrested person, for the purpose of
allowing the arrested person to communicate with his family
or friends, or to arrange for release on bail, or to engage
the services of an attorney. Any such person shall be
19
informed forthwith upon his arrival at such station or
place of detention, of his right to so use the telephone,
and such use shall be permitted within one hour thereafter
(emphasis added)."
Although the statute does not set forth a statutory remedy for a
violation of the defendant's right, we have applied the
exclusionary rule to evidence gathered as a result of a
violation of the statute where the defendant can show that the
violation was intentional. See Commonwealth v. Walker, 466
Mass. 268, 278 (2013); Commonwealth v. Alicea, 428 Mass. 711,
716 (1999); Commonwealth v. Jones, 362 Mass. 497, 502 (1972).
A. Motion judge's findings. The motion judge made the
following findings of fact. After the defendant, at the
Brockton police station, waived his Miranda and prompt
arraignment rights, at 1:13 P.M., the defendant was advised that
he would be afforded a telephone call when he was taken to
booking; but the defendant was not told when he would be taken
to booking. More than one hour later, toward the end of the
interrogation, an officer asked the defendant if he wanted to
call his parents; the defendant responded that he would like to
call his children and the mothers of his children, but "not
right [then]." The defendant soon thereafter was taken to
booking and advised of his right to make a telephone call.
The defendant had prior experience with the criminal
justice system. In particular, on ten prior occasions, after
20
being arrested and booked at the Brockton police station, the
defendant had been informed of, and utilized, his right to make
a telephone call.
The motion judge concluded that G. L. c. 276, § 33A, was
violated because the defendant neither was advised of his right
to make a telephone call upon his arrival at the police station
nor afforded the right to use a telephone within one hour of his
arrival. The motion judge found that the violation, however,
was unintentional, relying on the testimony of the police
officers, corroborated by the video footage, that they promptly
informed the defendant of his Miranda and arraignment rights.
The motion judge also relied on the defendant's "prior
experience with the criminal justice system," specifically his
prior bookings.12 Accordingly, the motion judge denied the
defendant's motion to suppress.
B. Unintentional violation of telephone call right. The
defendant contends that the motion judge's finding that the
violation of G. L. c. 276, § 33A, was unintentional was
erroneous. We review the finding of the motion judge, who
directly heard the testimony of the arresting officers, for
clear error. Jones-Pannell, 472 Mass. at 431. See Ashley, 82
12The motion judge made no finding as to whether the
officers knew of this criminal history, outside of the
defendant's outstanding probation arrest warrant.
21
Mass. App. Ct. at 759 (reviewing judge's rejection of
intentional motive for clear error). In support of this
argument, the defendant points to the evidence that one of the
police officers told the defendant that he would have the
"opportunity" to make a telephone call later but did not, at
that time, inform him of his "right" to make a telephone call.
He maintains that the statutory violation, in conjunction with
the electronic recording of his statement, constituted an
intentional plan to extract a confession. The defendant also
contends that the motion judge erred in relying on his prior
arrest history, including his prior exercise of his statutory
right to make a telephone call; this history, the defendant
asserts, has no bearing on the question whether the officers
intentionally violated the statute.
We have concluded previously that a finding that a
violation of § 33A was unintentional may be supported by
evidence that officers informed a defendant of other rights.
See, e.g., Walker, 466 Mass. at 278-279 ("The judge's reliance
on the fact that the [officers] informed the defendant of . . .
other rights is not misplaced, nor was the judge's consideration
of the defendant's prior experience in the criminal justice
system"). We also have concluded that, where the defendant
previously has been informed of his right to a telephone call
because, inter alia, the defendant has "prior experience in the
22
criminal justice system," the motion judge's consideration of
the prior experience in determining whether to impose the
exclusionary remedy is apt. See id. See also Commonwealth v.
Leahy, 445 Mass. 481, 490 (2005) (where defendant "told the
investigating officer that he knew his rights and had been
arrested before" and defendant previously was seated across from
large poster explaining telephone rights, "it was reasonable for
the officer to assume that [the defendant] was well aware of his
right to make a telephone call").
The defendant points to nothing in the record to support
his contention that the violation was intentional, let alone
that it was part of an illicit scheme.13 Contrast Jones, 362
Mass. at 500 (applying exclusionary rule to preclude admission
of defendant's statement where defendant was not allowed to make
telephone call despite repeatedly asking for opportunity). A
detainee's rights under § 33A are important. See, e.g.,
Commonwealth v. Bradshaw, 385 Mass. 244, 266 (1982), and cases
cited. However, without more than the fact of the violation
itself, the defendant has not carried his burden to show that
13The defendant's additional reliance on the electronic
recording of his statement is misplaced. As discussed supra,
the record shows the defendant was given Miranda warnings,
waived them, and understood that his voluntary statement was
being preserved.
23
the motion judge clearly erred in finding that the officers'
conduct was not intentional.
b. Prosecutor's comments on defendant's omissions. During
the redirect examination of one of the police officers who had
conducted the defendant's interrogation, the prosecutor asked,
"During [the defendant's] lengthy interview with you, did the
defendant ever say he saw a gun in the car that night?" The
investigator answered that he had not. Then, during her closing
statement, the prosecutor referenced this testimony, stating:
"At that point in time [the victim] doesn't point a gun at
him, doesn't shoot at him, doesn't threaten him, nothing;
and you know that because the defendant says none of that
in his statement. He has the opportunity there in the
statement to tell everything."
"The police practically beg him, tell us everything you can
to help you. Tell us every detail. They even at the end
say, you know, we're going to go do booking but if you
think of anything, we can come back. Tell us everything.
He never says that [the victim] pointed a gun at him or
threatened him or that he saw a gun." (Emphases added.)14
14 During the interrogation, the defendant did not say that
he saw the victim with a gun, but he did say that the victim
"was a shooter," was "making motions," and was "acting kinda
funny like he got somethin' or somethin' . . . actin' like he
had a weapon." Toward the end of the interrogation, one of the
investigators stated, "Tell me what we don't know. Tell me what
we didn't ask you that we should've asked you." The
investigator asked multiple times whether there was anything the
defendant wanted to "add or subtract" to his story or otherwise
change, then or after booking. It is a reasonable inference
that, if the defendant had seen the victim with a firearm, he
would have said so, rather than limiting his account to these
statements. See Commonwealth v. Doughty, 491 Mass. 788, 799
(2023), quoting Commonwealth v. Joyner, 467 Mass. 176, 189
24
The defendant contends that these statements violated his
privilege against self-incrimination, protected by the Fifth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. The Commonwealth maintains
that, because the defendant waived his Miranda rights and
decided to proceed with the interrogation, it was not improper
for the prosecutor to identify inconsistencies between omissions
during the post-Miranda interview and the trial defense.15 The
defendant did not object to either the direct examination
testimony of the officer or the closing statement; accordingly,
we review to determine whether either was improper and, if so,
whether it created a substantial likelihood of a miscarriage of
justice. See Commonwealth v. Alemany, 488 Mass. 499, 511
(2021).
"'A defendant's silence after the police have given the
warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-479
(1966), may not be used against the defendant' to impeach an
(2014) ("a prosecutor may argue reasonable inferences from the
evidence").
15In opening, the defense counsel contended that, based on
certain facts to be introduced in evidence, such as the victim
asking a friend to hand him something, the jury should ask, "Was
there a gun in the car?" And in closing, the defense counsel
argued that the police investigation was "a very shoddy way to
look for evidence of a gun in that car," and again focused on
the victim asking his friend to pass him something and putting
his hand in his pocket, inferring that the victim had a gun.
25
exculpatory explanation subsequently offered at trial."
Commonwealth v. Guy, 441 Mass. 96, 103 (2004), quoting
Commonwealth v. Waite, 422 Mass. 792, 797 (1996). See Doyle v.
Ohio, 426 U.S. 610, 619 (1976) ("the use for impeachment
purposes of [defendant's] silence, at the time of arrest and
after receiving Miranda warnings, violated the Due Process
Clause"). However, where a defendant voluntarily chooses to
speak to police officers and waives his Miranda rights, "[w]hat
the defendant thereafter [chooses] to say or not say to each
officer on the subject [can] properly be commented on by the
prosecutor to expose inconsistencies." Guy, supra at 104. "A
defendant cannot have it both ways. If he talks, what he says
or omits is to be judged on its merits or demerits, and not on
some artificial standard that only the part that helps him can
be later referred to." Id. at 104-105, quoting United States v.
Goldman, 563 F.2d 501, 503 (1st Cir. 1977), cert. denied, 434
U.S. 1067 (1978). Cf. Commonwealth v. Belton, 352 Mass. 263,
270, cert. denied, 389 U.S. 872 (1967) ("The remark complained
of was not in effect directed at the defendant's silence while
under arrest but rather at an inconsistency in his alibi which
had been brought out during the trial").
26
The defendant does not now dispute that he voluntarily
waived his Miranda rights.16 Accordingly, the prosecutor
permissibly commented on the inconsistency between the
defendant's position at trial that the victim had a firearm and
that the defendant acted in self-defense, on the one hand, and
his statement to the interrogating police officers that he
believed the victim was armed based only on his knowledge of the
victim and the victim's movements prior to the shooting, on the
other.
The defendant misapprehends our decision in Commonwealth v.
Haas, 373 Mass. 545, 559 (1977), S.C., 398 Mass. 806 (1986).
There, we held that the defendant's failure to volunteer that he
was innocent could not be used against him to imply tacit
admission of guilt. Id. at 559-560. We have distinguished
"asking the jury to infer guilt from the fact that a defendant
had not spontaneously volunteered his innocence during an
interrogation" from commenting on omissions in the defendant's
statement to officers. See, e.g., Commonwealth v. Thompson, 431Mass. 108, 118, cert. denied, 531 U.S. 864 (2000), citing Haas,
16The defendant pressed this argument below, but has
dropped it on appeal, and for good reason. His primary
challenge to the validity of the Miranda waiver was that he was
only advised that he was under arrest on his probation warrant,
but the motion judge found that he was informed that he was
under arrest for murder as well, and there is nothing in the
record to suggest that the finding was clearly erroneous.
27
supra at 558-559 ("proper for the prosecutor to comment on the
fact that the defendant did not ask appropriate questions" about
what had happened to victim, his wife, during "far-ranging
statement"). A prosecutor may comment on "the fact that the
defendant did not inform the police at any time of certain
important details of [his story] which was presented at trial,"
where the defendant told some details to the police. Belton,
352 Mass. at 270.17 "The defendant had a constitutional right to
silence, not a right to tell a story and then avoid explaining
crucial omissions by stating they were an exercise of the right
17Nor are we persuaded that the reasoning of Commonwealth
v. Rivera, 62 Mass. App. Ct. 859, 862 (2005), cited by the
defendant, suggests a different holding. See id. ("The
defendant certainly was under no burden spontaneously to
volunteer potentially exculpatory information in his statement
to police"). There, the prosecutor commented on the defendant's
failure to mention during his interrogation that there were
witnesses to the event; not mentioning witnesses during the
interrogation was not inconsistent with presenting witnesses at
trial. Id. By contrast, here, the defendant specifically told
officers that he believed that the victim was armed based on the
victim's prior statements and his movements in the car; he did
not mention, as a basis for his belief that the victim was
armed, that he actually saw that the victim carrying a firearm.
At trial, the defendant's position was that one of the reasons
he thought the victim was armed was that the victim actually had
a firearm. The prosecutor's comment on the inconsistency was
fair. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 419
(2016) ("Contrary to the defendant's claim, because the
defendant waived his right to remain silent, and made a
voluntary statement about the [issue], the concerns outlined in
[Haas] do not apply here").
28
to silence." Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113
(2011).
c. Review under G. L. c. 278, § 33E. After a review of
the entire record, we discern no error warranting relief under
G. L. c. 278, § 33E.18
3. Conclusion. We affirm the defendant's convictions of
murder in the first degree and unlawful discharge of a firearm
within 500 feet of a building. We vacate and set aside the
defendant's conviction of unlawful possession of a firearm.19
The defendant's motion for a new trial is denied.
So ordered.
18We have considered the additional arguments in the
defendant's brief filed pursuant to Moffett, 382 Mass. at 207-
208, and we conclude that they do not warrant granting his
motion for a new trial.
19"[T]he defendant's rights under the Second Amendment [to
the United States Constitution] and his rights to due process
were violated when he was convicted of unlawfully possessing [a
firearm] although the jury were not instructed that licensure is
an essential element of the crime." Guardado, 491 Mass. at 693.
"[O]ur holding [in Guardado] applies prospectively and to those
cases that were active or pending on direct review as of the
date of the issuance of [New York State Rifle & Pistol Ass'n v.
Bruen, 142 S. Ct. 2111 (2022)]." Guardado, supra at 694. As to
whether retrial shall be permitted, that issue is currently
pending before the court and is scheduled for oral argument in
September 2023. See Commonwealth vs. Guardado, No. SJC-13315.
The rescript in this opinion shall be stayed pending our
decision in that case.
BUDD, C.J. (concurring). I agree that the motion judge was
correct to deny the defendant's motion to suppress and that the
defendant's convictions should be affirmed. I write separately
because, in my view, the plain and unambiguous language of the
wiretap statute, G. L. c. 272, § 99 B 4 (§ 99), should apply
even where police officers adhere to other legal requirements,
such as providing a Miranda warning. Applying the plain
statutory language in this case, I conclude that the officers
violated § 99. Nevertheless, because the officers did not
deliberately record the defendant without his knowledge during
his confession, his statements need not be suppressed.
1. Interpretation. Subject to limited, enumerated
exceptions,1 § 99 proscribes the secret recording of "the
contents of any wire or oral communication through the use of
any intercepting device by any person other than a person given
1 In summary, the act contains exceptions for (1) employees
or agents of common carriers, (2) persons possessing or using an
intercommunication system in the ordinary course of their
business, (3) United States investigative and law enforcement
officers acting pursuant to the laws of the United States and
within the scope of their authority, (4) any person authorized
by warrant to make interceptions, (5) investigative or law
enforcement officers acting to ensure the safety of another
officer or agent who is undercover or serving as a witness for
the Commonwealth, (6) financial institutions communicating with
their corporate or institutional trading partners in the
ordinary course of business, and (7) law enforcement officers
investigating certain offenses in connection with organized
crime. See G. L. c. 272, § 99 B 4 & 7, D. Neither the
Commonwealth nor the court asserts that any of the statute's
exceptions apply in this case.
2
prior authority by all parties to such communication" (emphasis
added). G. L. c. 272, § 99 B 4. See Commonwealth v. Jackson,
370 Mass. 502, 503 n.1 (1976), S.C., 391 Mass. 749 (1984). If
none of the enumerated exceptions applies, "any person" includes
law enforcement. See Commonwealth v. Burgos, 470 Mass. 133, 140
(2014) (noting that law enforcement may record with only one-
party consent when investigating certain designated offenses in
connection with organized crime). "Intercepting device" is
defined as "any device or apparatus which is capable of
transmitting, receiving, amplifying, or recording a wire or oral
communication." G. L. c. 272, § 99 B 3. As we observed in
Curtatone v. Barstool Sports, Inc., 487 Mass. 655, 658 (2021),
the statute does not define "secretly." We therefore adopt its
plain language meaning, which includes "something kept hidden or
unexplained." Id., quoting Merriam-Webster's Collegiate
Dictionary 1122 (11th ed. 2020).
With the all-party consent provision and the act's
applicability to "any person," including law enforcement
officials unless authorized, the Legislature has placed tight
controls on secretly recording oral communications.
Accordingly, this court has both consistently underscored the
act's broad prohibition against secretly recording conversations
except as authorized by the statute and maintained that the
relevant inquiry under § 99 is whether individuals being
3
recorded "have actual [or constructive] knowledge of the
recording," which may be "proved where there are clear and
unequivocal objective manifestations of knowledge" in the
speakers' statements or conduct. Jackson, 370 Mass. at 507.
See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v.
Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of
"interception" under § 99); Commonwealth v. Tavares, 459 Mass.
289, 297 (2011) ("clear legislative intent" to limit
availability of wiretapping in criminal investigations); id.,quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert.
denied, 454 U.S. 1147 (1982) ("we have stated that the one-party
consent exception is 'a narrow exception to the broad statutory
prohibition against warrantless surveillance'"). See also
Tavares, supra, quoting Thorpe, supra ("Legislature proceeded on
the premise that electronic surveillance is anathema except
within certain narrowly prescribed boundaries"). It is
undisputed that the defendant did not have actual or
constructive knowledge that he was being recorded. Given the
language of the statute, and our prior precedent interpreting
it, this finding is sufficient to conclude that an interception
was made.
As a practical matter, a textual application of the statute
in this case simply would mean that an individual being
questioned by police must be given actual or constructive notice
4
that he or she is being audio recorded (even where the
individual is aware that officers are taking notes and officers
have provided a Miranda warning). See Commonwealth v. Hyde, 434
Mass. 594, 605 (2001) (no violation of § 99 occurs when
recording is done in plain view even if actual notice is not
given).2 As this result is not illogical, we need not attribute
intent to the Legislature where the statutory language speaks
for itself. See Worcester v. College Hill Props., LLC, 465
Mass. 134, 138 (2013) (where statutory language is clear and
unambiguous, it is conclusive as to legislative intent and
should be enforced unless application would lead to absurd
result); Commissioner of Correction v. Superior Court Dep't of
the Trial Court for the County of Worcester, 446 Mass. 123, 124
(2006) (where statutory language is clear and unambiguous, our
2 The United States Court of Appeals for the First Circuit
has held that the application of the act to prohibit secret
recording of police in carrying out their public duties violates
the First Amendment to the United States Constitution. See
Project Veritas Action Fund v. Rollins, 982 F.3d 813, 833-840
(1st Cir. 2020), cert. denied, 142 S. Ct. 560 (2021) (Project
Veritas). However, this conclusion was specific to the context
of civilians recording police officers in the performance of
their public duties. See id. at 831, quoting Glik v. Cunniffe,
655 F.3d 78, 85 (1st Cir. 2011) (citation omitted) ("the
[F]ederal constitutional guarantee of freedom of speech protects
the right to record 'government officials, including law
enforcement officers, in the discharge of their duties in a
public space,' even when the recording, which there involved
both audio and video, is undertaken without the consent of the
person recorded"). See also Project Veritas, supra at 836-840.
The analysis in Project Veritas does not apply here, where the
subject of the secret recording is not a government official.
5
inquiry ends). In fact, advising suspects that their interview
is being recorded is standard practice. See Commonwealth v.
Alleyne, 474 Mass. 771, 785 (2016) (citing § 99 B 4, C 1, in
clarifying that "[p]ermission to record an interview is not
required so long as the interviewee has actual knowledge of the
recording"); Commonwealth v. DiGiambattista, 442 Mass. 423, 445
(2004) (citing § 99 in noting suspect may refuse to allow
recording).3
Nor does Commonwealth v. Gordon, 422 Mass. 816 (1996),
counsel us to go beyond the text in this case. In Gordon, we
held that the videotaping of the defendants' booking at a police
station did not violate § 99, even though the defendants had no
knowledge of the taping. Id. at 832. In reaching that
conclusion, we alluded to the act's "legislative focus . . . on
the protection of privacy rights and the deterrence of
interference therewith by law enforcement officers'
surreptitious eavesdropping as an investigative tool." Id. at
833. With that context in mind, we decided that the Legislature
did not intend the act to apply to the recording of an
administrative booking, where the "videotape did not capture or
reveal the defendants' thoughts or knowledge about some fact or
Indeed, an officer in this case testified that it is good
3
practice for the police to inform those being interviewed that
they are being recorded.
6
subject, but at best served only to exhibit the defendants'
bearing and manner of speaking which were relevant on the
question of their intoxication or sobriety at the time of the
assaults" in question. Id. But Gordon readily is
distinguishable from the present case because, here, the
defendant's interrogation, not his booking, was recorded, and
the recording plainly did capture the defendant's thoughts or
knowledge about a fact or subject, namely, his actions, state of
mind, and other circumstances during the night of the murder.
Moreover, neither Gordon nor any of the cases decided since
suggests that we intended to overrule Jackson. Instead, our
decisions have continued to follow Jackson in focusing on
whether a speaker has knowledge of the recording as the standard
for determining whether a recording has been made "secretly" in
violation of the act. See, e.g., Curtatone, 487 Mass. at 659
(defendant did not secretly record telephone call in violation
of act, where plaintiff knew that he was being recorded);
Commonwealth v. Boyarsky, 452 Mass. 700, 705-706 (2008)
(recording that is made with actual knowledge of all parties is
not "an interception" under § 99); Hyde, 434 Mass. at 600-601(where no exceptions apply, recording made without knowledge or
consent of all parties violates act even if no reasonable
expectation of privacy).
7
2. Contemporaneous note-taking. For its part, the
Commonwealth argues, and the court agrees, that because the
defendant was aware that the officers were taking notes on his
statement, and that his words could be used against him in
court, the recording of the defendant's interview does not
amount to the kind of "surreptitious eavesdropping" prohibited
by § 99. However, nowhere does the statute state, or even
imply, that memorializing speech through a nonintercepting
method, such as pen and paper, creates latitude to contravene
the statute's prohibition on memorializing speech through the
use of an intercepting device without notice.
The statute broadly defines "intercept" as to "secretly
hear" or "secretly record." G. L. c. 272, § 99 B 4. There is
no doubt that the defendant was aware that he was being heard by
the officers who were present and that his words were being
memorialized through pen and paper. However, it also is
uncontested that the defendant neither was informed nor
otherwise made aware that he was being recorded. To determine
that there is no "interception" where the "hearing" is not
secret, but the recording is, ignores the phrase "to record"
included in the definition of "interception." See Commonwealth
v. Daley, 463 Mass. 620, 623 (2012) ("In statutory
interpretation, '[n]one of the words of a statute is to be
regarded as superfluous'" [citation omitted]). Thus, the
8
statute apparently contemplates circumstances in which one
openly hears a conversation and secretly records it through the
use of an intercepting device. Such conduct is a violation of
the statute based on its plain language.
Although strict, the Legislature passed one of the most
stringent wiretap statutes in the nation by design. See Hyde,
434 Mass. at 599 n.5 (discussing other States' wiretap laws);
Jackson, 370 Mass. at 506 & n.6. The preamble evinces this
strictness by highlighting two concerns of the Legislature's
that it attempted to balance in enacting the wiretap statute:
(1) law enforcement's ability to use "modern methods of
electronic surveillance, under strict judicial supervision," to
investigate organized crime and (2) protecting "the privacy of
all citizens of the commonwealth." G. L. c. 272, § 99 A;
Commonwealth v. Ennis, 439 Mass. 64, 68 (2003).
To effectuate this balance, the statute details the very
limited circumstances in which law enforcement may record a
member of the public without his or her knowledge or consent.
See Hyde, 434 Mass. at 599 ("The commission clearly designed the
1968 amendments to create a more restrictive electronic
surveillance statute than comparable statutes in other States").
Again, neither the Commonwealth nor the court contend that any
of these circumstances are present in this case. Bearing in
mind the broad coverage of § 99 and the narrowness of its
9
exceptions for law enforcement activities, we should not infer
that the Legislature intended to exempt police officers from
informing a member of the public that they are being recorded so
long as the officers adhere to other, unrelated legal
directives.
In accordance with our prior precedent, in determining
whether the recording of the defendant's interrogation in this
case was made "secretly" in violation of § 99, we should focus
on whether the defendant knew that his interrogation was being
recorded. The motion judge's findings that the defendant was
not advised and did not have constructive notice of the
recording have not been challenged. Thus, absent evidence of
clear error, these findings conclusively should establish that
the recording was made in violation of the statute.
3. Remedy. Although I conclude the interview was
intercepted, as the term is defined in § 99, the statute "does
not . . . require the suppression of all communications
intercepted in violation of its provisions." Commonwealth v.
Santoro, 406 Mass. 421, 423 (1990). As "[t]he Legislature has
left it to the courts to decide whether unlawfully intercepted
communications must be suppressed," id., I would affirm the
motion judge's decision to deny the defendant's motion to
suppress, as the court does today.
10
Exclusionary rules "are intended to deter future police
conduct in violation of constitutional or statutory rights."
Id. As such, this court has had occasion to affirm the denial
of a motion to suppress recordings made in violation of the act
where no deterrent purpose would be served by requiring
suppression. See id. As one of the officers testified at
trial, it was standard practice to inform those being
interviewed that they were being recorded, and he had done so
with another witness whom he had interviewed in the case.
Moreover, as the court notes, the motion judge found that
the officers promptly had reviewed the defendant's Miranda and
arraignment rights with him at the outset of the interview.
Additionally, it is undisputed that, after being given his
Miranda warnings, the defendant openly admitted to firing two
shots into the car window where the victim was sitting, and the
defendant does not contend on appeal that his confession was
coerced. No deterrent purpose would be served by granting
suppression in these circumstances.4
4While § 99 defines "interception" as secretly hearing or
recording the contents of any wire or oral communication through
the use of any intercepting device, the act only penalizes
individuals who commit willful interceptions. See G. L. c. 272,
§ 99 B 4, C 1. As there is nothing to suggest that the officers
in this case willfully recorded the defendant without his
knowledge, they would not be subject to § 99'ssignificant
penalties, which further supports the contention that no absurd
result would come from adhering to the statute's plain text in
this case. See Commonwealth v. Brennan, 481 Mass. 146, 154
(2018) ("Wilful conduct is that which is 'intentional rather
than accidental . . .'" [citation omitted]).