Commonwealth v. Long , 476 Mass. 526 ( 2017 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11253
COMMONWEALTH vs. DERYCK LONG.
Norfolk. October 11, 2016. - February 24, 2017.
Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ.
Homicide. Constitutional Law, Assistance of counsel. Evidence,
Exculpatory, Wiretap, Result of illegal search. Cellular
Telephone. Electronic Surveillance. Practice, Criminal,
Capital case, Assistance of counsel.
Indictments found and returned in the Superior Court
Department on March 9, 2006.
Pretrial motions to suppress evidence were heard by Janet
L. Sanders, J.; the cases were tried before Kenneth J. Fishman,
J., and a motion for a new trial, filed on August 4, 2014, was
heard by him.
Robert F. Shaw, Jr., for the defendant.
Pamela Alford, Assistant District Attorney (Craig F.
Kowalski, Assistant District Attorney, also present) for the
Commonwealth.
GAZIANO, J. A Superior Court jury found the defendant
guilty of murder in the first degree, on a theory of deliberate
premeditation, in the shooting death of Jamal Vaughn (victim) on
2
January 9, 2016, in Quincy. Before us is the defendant's appeal
from his convictions and from the denial of his motion for a new
trial. He claims that his trial counsel's uninformed decision
not to introduce cell site location information (CSLI) to
contradict the testimony of a key prosecution witness
constituted ineffective assistance of counsel, and that it was
error for a motion judge to deny his pretrial motion to suppress
the testimony of the same witness because the Commonwealth had
obtained his testimony as a result of an illegal wiretap that
this court previously had ordered suppressed. See Commonwealth
v. Long, 454 Mass. 542 (2009).
We conclude that the defendant was not deprived of the
effective assistance of trial counsel, and that there was no
error in the motion judge's determination that the witness's
testimony was sufficiently attenuated from the suppressed
wiretap evidence to dissipate the taint of illegality.
Accordingly, we affirm the conviction and the denial of the
motion for a new trial, and decline to exercise our authority
under G. L. c. 278, § 33E, to disturb the verdict.
1. Facts. We recite the facts that the jury could have
found, reserving certain facts for our analysis of the
particular issues.
From late 2005 to early 2006, the defendant would
frequently stay with his girl friend, Janet Ojo, at her house on
3
Franklin Street in Quincy. About two weeks before the shooting,
the defendant and Ojo got into a dispute over money and she
ended the relationship.
On the evening of January 9, 2006, the defendant asked
Courtney Forde to drive him to Ojo's house to pick up some
belongings that he had left behind. Forde picked the defendant
up in his minivan. He also brought along his friend and drug
dealing associate, Paul Brown, and a woman whom Forde had
recently met.
When they arrived at Ojo's house, the defendant got out of
the vehicle and went inside. Ojo was not home, but the
defendant encountered a few of her friends, including the
victim. The defendant and the victim got into a fistfight about
some money that Ojo maintained the defendant had stolen from
her. The fight spilled outside to the front yard. Brown got
out of the minivan and attempted to tear off a door from a
vehicle parked in the driveway. Now outnumbered, the victim ran
inside the house. The defendant tried to re-enter the house and
tossed a brick through one of the windows.
The defendant and Brown got back into the minivan and Forde
drove a short distance down the street, then stopped the vehicle
because the defendant had remembered that he had left some "IDs"
behind in a shoebox. Forde, the defendant, and Brown walked
4
back to the house. The victim was outside and ran back into the
house when he saw the three approaching.
Forde drove back to Boston. Along the way, he dropped off
the unnamed woman in Milton. Forde stopped at the house in the
Mattapan section of Boston where the defendant was staying at
that time, and the defendant was able to find his keys to Ojo's
house. Forde, the defendant, and Brown returned there. This
time, nobody was home. The three entered using the defendant's
keys and took numerous items, some belonging to the defendant
and some belonging to Ojo, including women's clothes, food, and
electronics. They also took two handguns stored in a shoebox, a
revolver and a "rusty" Tec-9 semiautomatic pistol. The
defendant put the revolver "on his waist."
The defendant then directed Forde to drive to an apartment
building on Willard Street in Quincy, where, Forde knew, the
defendant had stayed with Ojo in the past. As they approached
the building, Forde called two of his drug customers, who lived
there. He intended to ask one of them to open the back door so
that the defendant could enter the building. Neither answered.
Forde backed the minivan into a dimly-lit spot near some
trees, far from the entrance to the building. At the same time,
the victim left the building to retrieve a package of cigarettes
from his vehicle. The defendant and Brown got out of Forde's
5
vehicle, walked quickly over to the victim, and shot him several
times.1
At around midnight, a neighbor at the Willard Street
building telephoned 911 to report hearing gunshots. Police and
emergency services responded to the scene, where they discovered
the victim with three gunshot wounds. He was transported to a
hospital where he was pronounced dead.
Police recovered two spent projectiles, fired from two
different weapons, from the victim's body, and seven shell
casings, all of which came from the same nine millimeter pistol.
They also found on the ground near the victim's jacket a spent
projectile that was "mostly" consistent with having been shot
from a revolver.
After the shooting, Forde drove to back to his house in
Boston from Quincy. Forde then went to the house of one of his
friends, where the three men unloaded all of the items taken
from Ojo's house, including a shoebox containing a rusty firearm
and its magazine.
2. Discussion. a. Ineffective assistance of counsel.
The defendant argues, as he did in his motion for a new trial,
that his trial counsel was constitutionally ineffective. He
contends that counsel should have introduced CSLI evidence to
1
The Commonwealth charged Brown with the victim's murder,
and he was acquitted in a separate trial.
6
challenge the testimony of Forde, who testified pursuant to a
plea agreement, concerning his whereabouts during a specific
period of time near the time of the shooting. The defendant
also maintains that counsel failed to investigate, and did not
understand, the significance of the CSLI evidence.2
In reviewing a claim of ineffective assistance in a case of
murder in the first degree, we apply the more favorable standard
of review of a substantial likelihood of a miscarriage justice,
pursuant to G. L. c. 233, § 33E. See Commonwealth v. Vargas,
475 Mass. 338, 358 (2016). Under this standard, "[w]e consider
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." Id., quoting Commonwealth v. Lessieur, 472 Mass.
317, 327, cert. denied, 136 S. Ct. 418 (2015). Where the
defendant's ineffective assistance claim is based on a tactical
or strategic decision, we apply the more rigorous standard that,
to be ineffective, the attorney's decision must have been
"manifestly unreasonable." Commonwealth v. Lang, 473 Mass. 1,
14 (2015).
i. Failure to introduce exculpatory CSLI evidence. The
defendant argues that portions of the CSLI evidence that was not
2
The CSLI evidence was based on records from Forde's
cellular telephone and the cellular telephone carried by Forde's
girl friend.
7
introduced at trial would have served to challenge, and
discredit, a portion of Forde's testimony about his actions
following the confrontation with the victim at the Franklin
Street residence, and before the return there later that
evening. He contests the accuracy of Forde's testimony that he
and the defendant left Franklin Street, traveled to Mattapan for
a brief period of time, and then returned to Franklin Street,
without mentioning any stops along the way, particularly other
stops in Mattapan and the Dorchester section of Boston. The
defendant points to CSLI evidence showing that Forde's telephone
was absent from Quincy for more than one hour, and traveled to
several locations in Mattapan and Dorchester during that time
frame.3 He argues that trial counsel was ineffective because he
3
Cell site location information (CSLI) is "a cellular
telephone service record or records that contain information
identifying the base station towers and sectors that receive
transmissions from a [cellular] telephone" (quotations and
citation omitted). Commonwealth v. Augustine, 467 Mass. 230,
231 n.1 (2014), S.C., 470 Mass. 837 and 472 Mass. 448 (2015).
"'Historical' CSLI refers to CSLI relating to and generated by
cellular telephone use that has 'already occurred at the time of
the order authorizing the disclosure of such data'" (citation
omitted). Id. These records are not usable for real-time
tracking. In general, records of the specific tower which
received a cellular telephone transmission at a given time can
be used to provide a rough geographic location of that telephone
at that time, within the transmission range of that tower. Id.
at 233. See Commonwealth v. Gonzalez, 475 Mass. 396, 412 & n.37
(2016)("data from a single cell phone tower" is not adequate to
place caller within specific range of distance from that tower;
in some circumstances, transmissions are not from tower that is
geographically closest to location of given cellular telephone).
8
failed to introduce this independent evidence to discredit
Forde's testimony.
The judge determined that, while Forde's credibility "was
an essential issue for the jury" because of his "indisputably
critical" role in the Commonwealth's case, the defendant failed
to establish that the decision not to use the CSLI was
manifestly unreasonable. The judge noted that the CSLI was a
double-edged sword that both called into question Forde's
earlier timeline and placed the defendant at the scene of the
shooting. In addition, the judge concluded that trial counsel
effectively challenged Forde's credibility through rigorous
cross-examination.
We afford particular deference to a decision on a motion
for a new trial where the motion judge was also the trial judge,
see Commonwealth v. Forte, 469 Mass. 469, 488 (2014), and
discern no abuse of discretion in this case. The CSLI evidence
did not materially impeach Forde's trial testimony. Forde did
not specify how long he, the defendant, and Brown were in Boston
between the two trips to Quincy. He testified, without
providing any time frame, that they left Franklin Street, went
to Milton to drop off the woman who had been with them, went to
the house where the defendant was staying in Mattapan where the
defendant went inside for five minutes to get his keys, from
there went to a liquor store, and then drove back to Quincy.
9
Forde's cellular telephone, according to the CSLI evidence,
was in Quincy at 9:48 P.M.; Mattapan and Dorchester from 10:17
through 10:45 P.M.; and again in Quincy or Braintree from
11:19 P.M. until at least 11:52 P.M.. Police received the 911
call concerning shots fired in Quincy at 11:55 P.M. The CSLI
evidence thus contains a period of approximately twenty to
twenty-five minutes that Forde did not describe during his trial
testimony.4
The CSLI evidence may have cast some doubt on Forde’s
testimony concerning his whereabouts in Boston during that
discrete time period. The problem with the evidence, however,
is that it corroborated Forde's testimony that he drove the
defendant from Boston to Quincy at the time of the shooting.
Thus, it was not manifestly unreasonable for trial counsel to
decline to introduce evidence placing his client at the scene of
the crime.
Trial counsel was able to challenge Forde's testimony in a
number of other ways, none of which carried the risk of
4
The defendant also argues that the CSLI evidence
demonstrates that Forde was in contact with his girl friend,
during this critical time frame and that his girl friend, who
traveled from Boston to Quincy, coordinated her activities with
Forde. The CSLI evidence did not directly contradict Forde.
Forde did not offer any testimony on the subject of telephoning
his girl friend during his trips back and forth to Quincy.
Moreover, the CSLI evidence did not contradict Forde's testimony
that he met up with his girl friend sometime later in the
evening.
10
corroborating Forde's testimony that he and the defendant had
been in Quincy at the time of the shooting. See generally
Commonwealth v. Grenier, 415 Mass. 680, 685-687 (1993). Trial
counsel cross-examined Forde about his plea agreement, his
occupation as a drug dealer, a prior incident in which he had
shot at someone, his infidelity to his then girl friend, the
care he took when loading his gun to make sure that his
fingerprints were not on the bullets so that they could not be
traced, and his extensive criminal record.
Trial counsel also rigorously cross-examined Forde on
inconsistencies between the version of events that he initially
told police and his testimony at trial.5 See Commonwealth v.
Valentin, 470 Mass. 186, 191 (2014) (counsel not ineffective in
failing to cross-examine witness concerning particular statement
5
Initially, Forde did not tell police that he had smoked
marijuana on the night of the shooting, but admitted on cross-
examination that he had smoked marijuana and consumed alcohol
that night.
Forde also testified that the guns that they took from
Ojo's house were a Tec-9 pistol and a .38 revolver. On cross-
examination, Forde admitted that he initially told police that
the two guns the men found at Ojo's house were a Tec-9 pistol
and a ".357." In his closing, counsel argued that Forde had
changed his story to fit the ballistics report, a further
indication that he was lying.
Forde testified further that he had never been to the
Franklin Street house prior to the night of the shooting. On
cross-examination, however, Forde admitted that he had told
State police that he had been to the Franklin Street house on
prior occasions before the evening of the shooting.
11
where counsel otherwise "conducted a thorough impeachment" of
witness through cross-examination).
In his closing argument, trial counsel pointed to a number
of reasons why the jury should not believe Forde. He told the
jury, "You have to look at Courtney Forde's testimony in the
context of that deal . . . the deal of a lifetime . . .
[whereby] Mr. Forde goes from [a] potential sentence of life in
prison to walking away." He reminded the jury of Forde's
testimony that when the victim walked across the parking lot at
the Willard Street building, Forde did not recognize him. "Most
crucially, he told us, from that witness stand[,] under oath[,]
he did not recognize the man at Willard Street[.] [H]e didn't
recognize him as the man that had been fighting with [the
defendant]."
ii. Failure to investigate. The defendant argues that his
trial counsel did not investigate properly the use of CSLI
evidence, and did not understand its importance.
The duty to investigate is one of the foundations of the
effective assistance of counsel, because counsel's strategic
decisions can be adequate only if counsel is sufficiently
informed about the available options. See Strickland v.
Washington, 466 U.S. 668, 680 (1984) ("[T]he Sixth Amendment [to
the United States Constitution] imposes on counsel a duty to
investigate, because reasonably effective assistance must be
12
based on professional decisions and informed legal choices can
be made only after investigation of options"). Trial counsel
must conduct a reasonable investigation into possible defenses,
even if counsel ultimately does not pursue those defenses at
trial. See Commonwealth v. Alvarez, 433 Mass. 93, 102 (2000)
(trial counsel ineffective for failing to fully examine
defendant's mental health records, which corroborated
defendant's testimony about her own mental health history, and
therefore would have aided in establishing defense of lack of
criminal responsibility defense). Nonetheless, "[w]hile counsel
certainly has 'a duty to make reasonable investigations,'
counsel is also afforded the opportunity to 'make a reasonable
decision that makes particular investigations unnecessary.'"
Commonwealth v. Denis, 442 Mass. 617, 629 (2004), quoting
Strickland, 466 U.S. at 691. "[S]trategic choices made after
less than complete investigation are reasonable [only] to the
extent that reasonable professional judgments support the
limitation on investigation." Commonwealth v. Baker, 440 Mass.
519, 529 (2003), quoting Strickland, supra at 690-691.
Here, the motion judge concluded that defense counsel
conducted an adequate investigation of the CSLI evidence.
According to an affidavit that the judge credited, defense
counsel obtained the CSLI records and was aware that a
telecommunications expert had testified at Brown's trial.
13
Counsel had a general understanding of that testimony, but was
unaware of the specific details. He included the expert's name
on his list of possible witnesses, but believed that his
testimony would not be necessary to impeach Forde's credibility.
Counsel ultimately decided not to present the CSLI evidence
through the expert witness "because, at the time [he] sincerely
believed that [his] cross-examination of Courtney Forde had gone
well and that [Forde] would not and could not be believed by the
jury."
Given this, there was no abuse of discretion in the judge's
determination that defense counsel appreciated the value of the
CSLI evidence and, as the trial progressed, continued to gauge
the usefulness of this evidence. That the defense strategy did
not achieve an acquittal does not, in hindsight, thereby render
defense counsel's strategic decision ineffective assistance of
counsel. See Commonwealth v. Kolenovic, 471 Mass. 664, 674-675
(2015) (no ineffective assistance where defense counsel made
strategic decision to pursue specific trial strategy, unless
decision was manifestly unreasonable); Commonwealth v. Haley,
413 Mass. 770, 777-778 (1992).
b. Denial of motion to suppress. The defendant's second
claim of error is that the judge who ruled on his motion to
suppress erred in denying that motion and allowing the
14
introduction of Forde's testimony, because it was the product of
an illegal wiretap.
i. Background. On January 20, 2006, the Commonwealth
obtained a warrant authorizing the placement of a wiretap on a
booth in the visiting room at the Norfolk County house of
correction in order to monitor conversations between the
defendant and his visitors. As a result of the wiretap
recordings, police identified another witness, Gillian Gibbs,
and obtained more information on Forde's involvement in the
shooting.
The defendant filed a motion to suppress the intercepted
conversations, arguing that the wiretap was not authorized under
G. L. c. 272, § 99. A Superior Court judge, who was not the
trial judge, allowed the motion. She concluded that the wiretap
did not meet the requirements of G. L. c. 272, § 99, because the
Commonwealth failed to establish that the offense under
investigation was committed in connection with "organized
crime." A single justice of this court allowed the
Commonwealth's application to pursue an interlocutory appeal to
this court, and we affirmed the Superior Court judge's decision.
See Long, 454 Mass. at 550, 554-558.
After an evidentiary hearing to determine the scope of the
evidence to be suppressed, the motion judge excluded the
recording of the conversation between the defendant and Gibbs,
15
and any testimony by Gibbs. The judge found that Gibbs's
decision to speak with police was directly motivated by the fact
that they confronted her with the wiretap evidence. The judge
did not, however, order that any testimony by Forde be
suppressed. To the contrary, she concluded that Forde's
decision to testify was sufficiently attenuated from the
unlawful wiretap so as to dissipate the taint of illegality.
The motion judge found the following. See Commonwealth v.
Scott, 440 Mass. 642, 646 (2004). Police arrested the defendant
on January 10, 2006. The physical evidence, however, pointed to
two shooters: a surveillance video recording from a nearby
store showed two distinct muzzle flashes, and projectiles
recovered from the victim's body came from two different
weapons. One of the investigators listened to the defendant's
recorded telephone calls from the house of correction in an
effort to identify the second shooter. In one of these
conversations, the defendant spoke to "C," who said that he was
"laying low." The defendant told "C" to "fall back . . . way
back." Police developed information that "C," also known as
"Casino," had been with the defendant earlier in the evening on
January 9, 2006, and had made cellular telephone calls to
individuals at the Willard Street address immediately before the
shooting, but were unable to identify "C."
16
Police then obtained a warrant for a wiretap of one of the
internal telephones used to communicate between visitors and
inmates at the house of correction. This wiretap enabled police
to listen to a conversation between the defendant and Gibbs. In
that conversation, the defendant and Gibbs mentioned "C," in a
manner such that police believed "C" was Forde. Police met with
an assistant district attorney, who issued a summons for Gibbs
to appear before the grand jury. Police interviewed Gibbs
before she appeared and testified. She said that Forde had told
her that he had driven the defendant to the Willard Street
address on the evening of the shooting, where the defendant got
out and Forde "saw sparks." Gibbs later said that she would not
have told the police about Forde's statements if they had not
told her that they had listened to her jailhouse conversation
with the defendant. Right after Gibbs appeared before the grand
jury, police obtained a warrant to arrest Forde. The affidavit
in support of the application for the warrant is five pages
long, and contains no mention of the wiretap. The information
that Gibbs provided to the grand jury is mentioned in a single
paragraph.
In March, 2006, Forde was arrested on the warrant. He was
held without bail pending trial, and declined to speak with
police. In August, 2006, Forde changed his mind and decided to
speak with police. He told them about Brown's and the
17
defendant's involvement in the events of January 9 of that year.
Forde said that he had changed his mind about testifying against
the defendant and Brown because the defendant had sent him a
number of threatening letters and Brown had broken a previous
agreement in which he was to continue selling drugs and giving
some of the money to Forde.
In November, 2006, Forde testified before the grand jury
about the events on the evening of January 9, 2006. Following
this testimony, the district attorney offered him a plea
agreement under which Forde was to receive a sentence of eight
months of incarceration (the amount of time he already had
served), followed by a term of probation on the lesser included
charge of accessory after the fact, and the Commonwealth agreed
to enter a nolle prosequi on the murder charge after he
testified.
In denying the defendant's motion to suppress Forde's
testimony, the motion judge determined that, although Forde
decided to testify after the unlawful wiretap, his decision was
sufficiently attenuated from the unlawful activity so as to
dissipate the taint of illegality. The judge credited the
testimony of a State trooper that Forde likely would have been
charged in conjunction with the shooting, regardless of the
wiretap, and therefore determined that "the evidence does not
support the conclusion that the decision to arrest Forde was
18
solely in order to gain his cooperation." She also credited
Forde's testimony that he chose to speak with the police, not
based on his knowledge of the wiretap, but as a result of his
belief that the defendant and Brown had "disrespected" him.
ii. Exclusionary rule and attenuation exception. Under
the doctrine of the "fruit of the poisonous tree," evidence
seized as a result of an illegal wiretap, even where the
defendant was not the direct target of the wiretap, generally
may not be admitted at trial. See Commonwealth v. Damiano, 444
Mass. 444, 453 (2005), citing Wong Sun v. United States, 371
U.S. 471, 487-488 (1963). The primary purpose for the
suppression of evidence under the exclusionary rule is to deter
unlawful searches and seizures. Commonwealth v. Lora, 451 Mass.
425, 438 (2008). "The rule is calculated to prevent, not to
repair. Its purpose is to deter -- to compel respect for the
constitutional guaranty in the only effectively available way --
by removing the incentive to disregard it." United States v.
Calandra, 414 U.S. 338, 347 (1974), quoting Elkins v. United
States, 364 U.S. 206, 217 (1960). The exclusionary rule also
functions to "preserve judicial integrity by disassociating the
courts from unlawful [police] conduct." Commonwealth v. Nelson,
460 Mass. 564, 570-571 (2011).
The attenuation doctrine provides an exception to the
exclusionary rule under which evidence obtained by police as a
19
result of an unlawful search need not be excluded if the
connection between the illegal search and the evidence is so
attenuated as to dissipate any taint of illegality.
Commonwealth v. Fredette, 396 Mass. 455, 458-463 (1985). The
theory of dissipation of the taint attempts to determine the
point of diminishing returns at which the detrimental
consequences of illegal police action become so attenuated that
the deterrent effect of the exclusionary rule no longer
justifies its costs. See United States v. Ceccolini, 435 U.S.
268, 275 (1978), and cases cited; Damiano, 444 Mass. at 453-454;
Commonwealth v. Sylvia, 380 Mass. 180, 183 (1980).
To determine whether evidence that is discovered after an
illegal search is sufficiently attenuated from that search so as
to dissipate the taint, the court considers the length of time
between the unlawful search and the discovery of the evidence
(temporal attenuation); whether any circumstances intervened
between the illegal act and the discovery of the evidence
(intervening circumstances); and how integral the unlawful
search was to the acquisition of the evidence (purpose and
flagrancy of the unlawful conduct). Fredette, 396 Mass. at 460.
The burden is on the Commonwealth to establish that the taint
has been sufficiently attenuated. Damiano, 444 Mass. at 454,
citing Fredette, supra at 459.
20
The defendant maintains that Forde's testimony should have
been suppressed because, but for the illegal wiretap, the
Commonwealth would not have had enough information to arrest
him, and therefore Forde would not have been compelled to tell
police what he knew in exchange for his release. We do not
apply a "but for" test in determining whether to suppress
testimony obtained after an unlawful search. Commonwealth v.
Caso, 377 Mass. 236, 240 (1979). Commonwealth v. Suters, 90
Mass. App. Ct. 449, 458 (2016). Instead, we consider the above-
noted three factors (temporal attenuation, intervening
circumstances, and the purpose and flagrancy of the unlawful
conduct) to determine "whether . . . the evidence . . . has been
come at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary taint"
(citation omitted). Wong Sun, 371 U.S. at 488. Damiano, 444
Mass. at 453. Here, the factors support a determination that
Forde's decision to testify was sufficiently attenuated from the
illegal wiretap to dissipate any taint from the illegality.
As to attenuation of time, in some circumstances, a lapse
of time of as little as three hours from the illegal search to
the decision to speak with police may be enough to dissipate the
taint. See Commonwealth v. Fielding, 371 Mass. 97, 114 (1976).
See also Commonwealth v. Gallant, 381 Mass. 465, 466-467, 470
(1980) (lapse of mere minutes between defendant's unlawful
21
arrest and decision to make statement, when considered in
conjunction with other factors, was sufficient to dissipate
taint). In the circumstances here, however, the judge found
that Forde's decision to speak to police seven months after the
illegal wiretap, and five months after his arrest, weighed in
favor of attenuation. See Fielding, supra. The five-month
period between Forde's arrest and his decision to testify made
it more likely that his decision to testify was an independent,
free choice, and not a result of the unlawful wiretap or the
arrest that followed. Id.As to the existence of intervening circumstances, if a
witness's decision to testify involves an affirmative choice,
that choice may be an intervening circumstance sufficient to
dissipate the taint of illegality. Caso, 377 Mass. at 241 ("[A]
truly voluntary decision by a witness to testify should not be
overridden unless the extreme circumstances of a particular case
require the suppression of the testimony as a deterrent to . . .
the unlawful conduct which resulted in the discovery of the
witness"). See Commonwealth v. Lahti, 398 Mass. 829, 833-836
(1986), cert. denied, 481 U.S. 1017 (1987) (no attenuation where
judge found close connection between defendant's involuntary
statement and acquisition of witness testimony).
In this case, the motion judge found that Forde's decision
to testify, as Forde himself testified, was not based on
22
anything stemming from the illegal wiretap evidence. Rather,
his decision was based on the conduct of his accomplices. He
testified that he decided to speak with police because the
defendant and Brown had "disrespected" him. See Caso, 377
Mass. at 243 (examining whether witness's decision to testify
was act of free will).
As to the purpose and flagrancy of the illegal search, we
ask, first, whether the police performed the illegal act for the
purpose of obtaining the evidence that the defendant seeks to
suppress, and second, whether the police knew that their actions
were illegal but proceeded anyway (flagrancy). See Lahti, 398
Mass. at 833; Commonwealth v. Parham, 390 Mass. 833, 843 (1984).
Where police did not confront the witness with the
illegally obtained evidence in order to coerce that witness to
testify, this factor weighs in favor of allowing the testimony.
See, e.g., Commonwealth v. Estabrook, 472 Mass. 852, 860-865
(2015). This is so even where the witness knew of the illegally
obtained evidence. See Parham, 390 Mass. at 843-844(defendant's confession not suppressed notwithstanding his
knowledge of codefendant's illegally-obtained confession,
because police had not confronted him with that statement).
Similarly, we have declined to suppress a defendant's statement,
made after an illegal arrest, where the police did not make the
23
illegal arrest for the purpose of obtaining the statement. See
Fielding, 371 Mass. at 114.
Because the police did not conduct the illegal wiretap with
the purpose of obtaining Forde's testimony, and did not confront
Forde with the wiretapped conversations, the motion judge
properly determined that the purpose and flagrancy of the
illegal wiretap was sufficiently attenuated from Forde's
decision to testify as to dissipate the taint of illegality.
See Estabrook, 472 Mass. at 860-865; Caso, 377 Mass. at 241. In
this light, Forde's decision to testify stands in stark contrast
to Gibbs's decision to testify, which was made as a direct
result of being confronted with the illegal wiretap evidence.
Police did not confront Forde directly or indirectly with the
illegally wiretapped conversation in order to induce him to
testify. In short, police did not use information from the
illegal wiretap to arrest and hold Forde in the house of
correction in order to exert pressure on him to strike a deal.
We conclude, therefore, that there was no error in the
judge's determination that the taint of the illegal wiretap was
sufficiently attenuated as to allow Forde's testimony to be
introduced at trial.
c. Review pursuant to G. L. c. 278, § 33E. We have
reviewed the record pursuant to our obligation under G. L.
24
c. 278, § 33E, and discern no reason to reduce the verdict or
order a new trial.
Judgment affirmed.
Order denying defendant's
motion for a new trial
affirmed.