|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Eason, 427
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Robert J. Bender, Assistant District Attorney (David
Dunbar Livingston, Assistant District Attorney, with him), for the
Commonwealth.
Paul J. Molloy, Somerville, for defendant.
Susanne G. Levsen,
Assistant Attorney General, for the Attorney General, amicus curiae, submitted
a brief.
Before WILKINS, C.J., and LYNCH, GREANEY, FRIED and
MARSHALL, JJ.
WILKINS, Chief Justice.
We have
before us, on further appellate review (Commonwealth
v. Eason, 43 Mass.App.Ct. 114, 681 N.E.2d 863
[1997] ), the defendant's appeal from his convictions of various crimes that [427
On
The
The
Appeals Court had no difficulty in concluding that the troopers did not violate
the Massachusetts wiretap law (G.L. c. 272, § 99)
when they listened to the telephone conversations. Id. at 119‑120, 681
N.E.2d 863. The Appeals Court divided,
however, on the question whether the troopers had violated the defendant's
rights under art. 14 of the Massachusetts Declaration of Rights by listening in
on the telephone conversations without first obtaining[427 Mass. 597] a warrant. Id. at 125, 681 N.E.2d 863. Id.
at 129, 681 N.E.2d 863 (Jacobs, J., dissenting); Id. at 131, 681 N.E.2d 863
(Armstrong, J., dissenting). A majority
of that court concluded that they had, that their testimony concerning the
telephone conversations should not have been admitted in evidence, and that the
error required reversal of the convictions and a new trial. Id. at 125‑126, 681
N.E.2d 863. We granted the
Commonwealth's application for further appellate review.
We shall
discuss the constitutional question that divided the Appeals Court because it
will arise at the retrial we conclude is required. We shall, however, first consider another of
the defendant's challenges to the admission of evidence, one that is not
constitutionally based but is well founded.
[1] 1. The
defendant contends that, over his objection, prejudicial hearsay evidence was
admitted against him. On direct
examination, Trooper Quinn testified that, in the days before they overheard
the telephone conversations between Disorbo and the
defendant, Trooper Coffey and he had been investigating the suspected illegal
drug activity of Lee Zahler. On cross‑examination, Quinn testified
that he and Coffey had spoken with Disorbo because of
information that Zahler had provided to him. Quinn then testified, without objection, that
Zahler told him that Paul Chambers had said that Disorbo had information on the home invasion and that Quinn
and Coffey should interview her.
On
redirect examination, the prosecutor asked Quinn, "What was Lee Zahler's information that led you to Disorbo's
address." The defendant objected,
and the judge held an extensive sidebar conference during which he considered
more than just the objection. The judge
ruled, over objection on hearsay and other grounds, that Quinn could testify to
the information that he had received from Zahler,
including Zahler's statement that he was not
involved, directly or indirectly, in the home invasion.
Quinn then
testified, as he had before, that Zahler had said
that, if the police wanted to know who had committed the crimes, they should
talk to Disorbo because she knew. In response to another question, Quinn added,
consistent with what the judge had authorized at the sidebar conference over
objection,[427 Mass. 598]
that Zahler said that he was not involved in
the crimes, himself or through anyone else. (FN1)
It was the
defendant's theory that Zahler's confederates had
invaded Allison's apartment in retaliation for some perceived wrong. Because the case against the defendant
depended on the credibility of the prosecution's witnesses (there was no inculpatory physical evidence), admission, over objection,
of evidence of Zahler's denial to Quinn of his
participation in the crimes weakened the defendant's case and, if improper, was
reversible error.
The
Commonwealth rightly makes no attempt to defend under a hearsay exception the
admission of Quinn's testimony of what Chambers told Zahler. Rather, it argues that the defendant opened
the door to this subject, thereby justifying admission of the entire
conversation. The Commonwealth asserts
that the doctrine of verbal completeness justifies admission of all that Zahler said during the same conversation on the same
subject. See Commonwealth v. Watson, 377 Mass. 814, 825‑831, 388 N.E.2d
680 (1979). (FN2)
[2] [3]
What Chambers told Zahler is a matter quite apart
from the later self‑serving statements made to Quinn denying any
involvement in the home invasion. That Zahler made the two statements in the course of the same
conversation does not make the second admissible. Verbal completeness at best allows full
disclosure of an entire conversation on the same subject. Zahler's
protestation of innocence was not part of Chambers's
conversation with Zahler, nor did it concern a
subject on which Quinn had been cross‑examined. See id.
at 828, 388 N.E.2d 680; Commonwealth v. Henry, 37 Mass.App.Ct. 429, 432, 640 N.E.2d 503 (1994) (statement of
innocence not admissible although part of defendant's admissible
statement). The hearsay statement
concerning Zahler's assertion of innocence should not
have been admitted, and its admission was reversible error.
2. Because
there must be a retrial, we state our views on the admissibility of the
troopers' recitation of the conversations [427 Mass. 599] they overhead on Disorbo's extension
telephone. The Appeals Court was divided
on the question whether the defendant's rights under art. 14 of the
Massachusetts Declaration of Rights were violated by the officers' actions.
(FN3)
[4] [5]
Constitutional provisions against unreasonable searches and seizures were adopted
in large measure as a protection against warrantless
intrusions into homes. See Commonwealth v. Panetti,
406 Mass. 230, 234, 547 N.E.2d 46 (1989); Commonwealth v. Blood, 400 Mass. 61, 71,
507 N.E.2d 1029 (1987); Commonwealth v. Forde,
367 Mass. 798, 804‑805, 329 N.E.2d 717 (1975). The question before us concerning the
propriety of the warrantless seizure of evidence is
the same under the Fourth Amendment to the United States Constitution as it is
under art. 14: whether the defendant had
a subjective expectation of privacy in the object of the challenged search that
society is willing to recognize as reasonable.
See California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct.
1809, 1811‑1812, 90 L.Ed.2d 210 (1986); Commonwealth v. Montanez,
410 Mass. 290, 301, 571 N.E.2d 1372 (1991); Commonwealth v. Panetti,
supra at 231‑232, 547 N.E.2d 46.
[6] The
answer, however, may not be the same under the two Constitutions. In
Commonwealth v. Panetti, supra, we held that,
without regard to the Fourth Amendment's requirements, art. 14 protected the
defendant's reasonable expectation that there would be no warrantless
eavesdropping on his conversations from a crawl space under his first‑floor
apartment. Id. at 234‑235, 547 N.E.2d 46. In
Commonwealth v. Blood, supra at 61, 507 N.E.2d 1029, we dealt with an art.
14 challenge to the admissibility of statements obtained by means of a
concealed transmitter worn by a cooperating confederate of the defendant during
meetings in private homes. This kind of warrantless electronic surveillance of conversations with
the consent of just one of the parties does not violate the Constitution of the
United States. See United States v. Caceres, 440 U.S. 741,
750‑751, 99 S.Ct. 1465, 1470‑1471, 59
L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745,
751, 91 S.Ct. 1122, 1125‑1126, 28 L.Ed.2d 453
(1971);
Commonwealth v. Thorpe, 384 Mass. 271, 282, 424 N.E.2d 250 (1981),
cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71
L.Ed.2d 300 (1982); Commonwealth v. Douglas, 354 Mass. 212, 221‑222,
236 N.E.2d 865 (1968), cert. denied, 394 U.S. 960, 89 S.Ct.
1301, 22 L.Ed.2d 562 (1969). In the Blood case, however, we stated that it
was "objectively reasonable to expect that conversational interchange in a
private home will not be invaded surreptitiously by warrantless
electronic transmission or recording" and that [427 Mass. 600] consent
to the transmission or recording by one party to such a conversation did not
obviate the need for a warrant. Commonwealth v. Blood, supra at 70, 507
N.E.2d 1029. Thus, we held that
undisclosed electronic surveillance of a conversation in a private home with
the aid of an informant violated art. 14 and any tapes or testimony derived
from that surveillance or from any transmission were inadmissible. Id.
at 74, 507 N.E.2d 1029. Commonwealth v. Fini,
403 Mass. 567, 568, 531 N.E.2d 570 (1988).
The case before us does not involve the undisclosed use of electronic
equipment to transmit a conversation occurring entirely in a private home.
The
Appeals Court concluded that our opinions strongly suggest that "the warrantless police initiation and monitoring ... of the two
telephone calls in this case, unbeknownst to the defendant, was not permissible
under art. 14." Commonwealth v. Eason, supra at 121, 681
N.E.2d 863. The court viewed the police
actions in listening to the conversations on an extension telephone as serious
governmental intrusions "contrary to the expectation of privacy which
Massachusetts is prepared to recognize." Id. at 124, 681 N.E.2d
863. The dissent relied on what it saw
as a meaningful difference between the surreptitious transmission of a
conversation in a private home and eavesdropping on an extension telephone. Id.
at 126, 127, 681 N.E.2d 863 (Jacobs, J., dissenting).
[7] [8]
The defendant knew, when speaking on the telephone, that his words were being
transmitted electronically beyond his home.
Unlike the defendant in the Blood
case, he had no reason to assume that the conversation would not be heard by a
third party. A person cannot control the
conditions at the other end of a telephone conversation. Extension telephones are very common. Cordless and cellular phones are making the
confidentiality of telephone conversations increasingly uncertain. Any expectation of privacy in a telephone
conversation is not objectively reasonable, because a person is not reasonably
entitled to assume that no one is listening in on an extension telephone. "A defendant who speaks incriminating
words over the telephone runs the risk ... that the conversation ... may be
overheard on an extension telephone." Commonwealth v. Douglas, supra at 221,
236 N.E.2d 865. See Rathbun v. United States, 355 U.S. 107,
111, 78 S.Ct. 161, 163‑164, 2 L.Ed.2d 134
(1957). (FN4)
The
testimony of the troopers concerning the overheard [427 Mass. 601]
telephone conversations will be admissible at retrial. What we have said does not apply to
recordings that the officers made of those conversations. If it should develop that a trooper relied on
a recording in presenting his testimony, a separate issue would arise on which
we intimate no view.
4. The
judgments are reversed and the verdicts set aside.
So ordered.
FRIED,
Justice (concurring).
I agree
with the court's decision not to extend
Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987), to these
circumstances, because I consider Blood
to have been wrongly decided. But I will
not depart from Blood until convinced
that it has been unduly constraining in practice. It should take more than simple disagreement
to justify a new member of the court in departing from an established
precedent.
MARSHALL,
Justice (concurring in part, dissenting in part).
Until
today, this court steadfastly has resisted the proposition that loss of privacy
is inevitable in modern society and must be accepted. Commonwealth v. Blood, 400
Mass. 61, 507 N.E.2d 1029 (1987). Commonwealth v. Thorpe, 384 Mass. 271,
275, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). Now we are told that "any expectation of
privacy in a telephone conversation is not objectively reasonable because a
person is not reasonably entitled to assume that no one is listening in on an
extension telephone." Ante at 1268.
The
defendant in this case received at his home two telephone calls from a
friend. Part 2 of the court's opinion
concludes that it was unreasonable for the defendant "to assume that the
conversation would not be heard by a third party." He should have considered the possibility
that the friend made the calls at [427
Mass. 602] the urging of the police
and that police officers were secretly monitoring and recording the
conversations on an extension telephone.
In other words, the citizens of this Commonwealth are now on notice that
when a friend telephones, police officers may be listening‑‑and it
is unreasonable for them to assume otherwise.
Sophisticated electronic surveillance, intruding in all spheres
previously understood to be protected, is a reality of our society; it is not only telephone equipment, whether
grounded, cordless or cellular, that makes the confidentiality of our private
conversations increasingly uncertain. We
may no longer have any "objectively reasonable" expectation that a friend
or neighbor, or a passerby for that matter, may not be eavesdropping on our
most intimate conversations in our homes.
Must we also assume from this that police . officers may be
listening, perhaps with the connivance of a friend, and that anything we say
may be used by the State against us?
The
interest this court sought to protect in
Blood is "the expectation of the ordinary citizen, who has never
engaged in illegal conduct in his life, that he may carry on his private
discourse freely, openly, and spontaneously without measuring his every word
against the connotations it might carry when instantaneously heard by others
unknown to him and unfamiliar with his situation or analyzed in a cold, formal
record played days, months, or years after the conversation."
United States v. White, 401 U.S. 745, 790, 91 S.Ct.
1122, 1145, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting). The decision today undermines this
"sense of security" in dealing with one another, Thorpe, supra at 285, 424 N.E.2d 250, that citizens of this
Commonwealth may rightly expect. The
real issue here is whether police officers must obtain a search warrant before
engaging in this kind of surreptitious eavesdropping in private homes. It is not a great burden for them to do so,
and it makes a great difference in preserving the security of the private
conversations of all citizens. I would
require a search warrant before police officers may engage in this most
intrusive practice.
I
respectfully dissent from part 2 of the court's opinion.
FN1. This
latter testimony was given in response to a question that called for a yes or
no answer. The defendant's motion to
strike was denied.
FN2. Because of its view of the appellate
issues, the Appeals Court did not have to reach this question in order to
dispose of the appeal, but commented with respect to the retrial "that the
hearsay statements of a prisoner who was incarcerated with Paul Chambers
claiming that he was not involved in the home invasion should not be
admitted." Commonwealth v. Eason, 43 Mass.App.Ct. 114, 126 n. 14, 681 N.E.2d 863 (1997).
FN3. The Appeals Court correctly ruled that
the interception of the telephone conversations did not violate G.L. c. 272, § 99. Commonwealth v. Eason, supra at 119‑120,
681 N.E.2d 863.
FN4. We have taken a similar view concerning words
spoken in a private home but overheard in a place where the speaker reasonably
should have expected that someone might be.
Thus, when a police officer, standing in a hallway that the public could
freely enter, overheard statements made in an apartment off this hallway, he
did not violate the defendant's Fourth Amendment rights. Commonwealth v. Dinnall, 366 Mass. 165, 166‑168, 314 N.E.2d 903
(1974). Cf. Commonwealth v. Panetti, 406 Mass. 230,
233, 547 N.E.2d 46 (1989) ("a person would have no justified expectation
of privacy in conversations that can be heard by the unaided ear of an
eavesdropper lawfully in a contiguous apartment"). Where, however, a hallway was in the
exclusive control of the defendant, he had a justified expectation of privacy,
and, therefore, police in the hallway eavesdropping on a conversation in an
apartment violated the defendant's Fourth Amendment rights. Commonwealth v. Hall, 366
Mass. 790, 795, 323 N.E.2d 319 (1975).