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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Fini, 403
Supreme Judicial Court of Massachusetts,
Hampden.
Argued
Decided
Joel N. Rosenthal,
Charles E. Dolan, Asst. Dist. Atty., for Com.
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and
O'CONNOR, JJ.
O'CONNOR, Justice.
The
defendant is charged with several drug offenses, including trafficking in
cocaine, unlawful distribution of cocaine, and unlawful distribution of
marihuana. Before trial, the
Commonwealth moved in limine for a determination that
certain tape recordings of conversations between the defendant and an informant
would be admissible to impeach the defendant's testimony. The Commonwealth conceded, and now concedes,
that the transmissions and recordings violated [403
The judge
found that the conversations took place "in or around the home of the
defendant." On the occasion of
each conversation, unbeknownst to the defendant, the informant had been
equipped with an electronic transmitting device, and the transmitted
conversation was recorded by police officers. The tapes include conversations during which
the defendant sold cocaine to the informant, as well as statements by the
defendant concerning collateral matters, that is, matters other than those for
which the defendant is under indictment but which nevertheless might impeach
his testimony.
The judge
ruled that the tapes would be admissible for impeachment purposes. However, pursuant to Mass.R.Crim.P.
34, 378 Mass. 905 (1979), he reported the case to the Appeals Court to present
the following questions: "(1) Did
the Court rule correctly in allowing the Commonwealth to use the recorded
conversations with the defendant involving collateral matters for impeachment
purposes, after an appropriate voir dire? (2) Did the Court rule correctly in allowing
the Commonwealth to use the recorded conversations with the defendant which
dealt directly with the crime charged, for impeachment purposes, after an
appropriate voir dire?" We transferred the case to this court on our
own initiative. We answer the reported
questions, "No; the Commonwealth
may not use the recorded conversations for impeachment purposes irrespective of
whether the conversations dealt with collateral matters or directly with the
crimes charged."
[1][2][3] Warrantless electronic surveillance of conversations with
the consent of just one of the parties does not violate the Constitution of the
United States. United States v. White, 401 U.S. 745,
751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971). However, such surveillance, at least of
conversations occurring in private homes, in the absence of evidence that the
participants intended the contents to be broadcast, does violate art. 14 of the
Massachusetts Declaration of Rights.
(FN1) [403 Mass. 569] Commonwealth v. Blood,
400 Mass. 61, 68‑71, 507 N.E.2d 1029 (1987). Furthermore, because such surveillance
violates art. 14, the tapes and any testimony derived from them or from the
transmissions is inadmissible in the Commonwealth's case‑in‑chief. Id.
at 77, 507 N.E.2d 1029. (FN2)
[4][5] The
sole issue in this case is whether, if the defendant should testify, the
Commonwealth may introduce relevant portions of the tapes to impeach his
testimony. The Supreme Court held in Harris v. New York, 401 U.S. 222, 224‑226,
91 S.Ct. 643, 645‑646, 28 L.Ed.2d 1 (1971),
that a defendant's statements made to the police without coercion, but elicited
in violation of the safeguards of Fifth Amendment rights mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), may nevertheless be
admitted to impeach the defendant's testimony. Harris holds that it is
immaterial whether the impeachment relates to collateral matters or to matters
bearing more directly on the crimes charged. Id. 401 U.S. at 225, 91 S.Ct. at 645. The
court reasoned that "sufficient deterrence flows when the evidence in
question is made unavailable to the prosecution in its case in chief," id. at 225, 91 S.Ct.
at 645, and that "[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way
of a defense, free from the risk of confrontation with prior inconsistent
utterances." Id. at 226, 91 S.Ct.
at 646.
In Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975), after a police officer
had given the defendant the Miranda
warnings, the defendant admitted to the officer that he had stolen two
bicycles. The defendant and the officer
then departed in a cruiser for the place where the defendant had left one of
the bicycles. En route, the defendant
stated that he would like to telephone his attorney. The officer replied that he could do so after
their return to the station. Thereafter,
the defendant pointed out a place where the bicycle was found. At trial, the defendant's statements after
his request for counsel were admitted for impeachment purposes. The Oregon Court of Appeals reversed the defendant's
conviction and the Supreme Court of Oregon affirmed the Court of Appeals. Relying on
Harris v. New York, supra, the United States Supreme Court reversed the [403 Mass. 570] Supreme Court of Oregon. Harris had involved defective Miranda warnings, a violation of a
prophylactic rule. Hass involved a failure to afford a
defendant his full constitutional right to counsel. The Court in Hass saw "no valid distinction" between the two
situations, id. at 722, 95 S.Ct. at 1221, and declared that "the balance [between
the value of deterrence and the value of impeachment] was struck in Harris, and [the Court was] not
disposed to change it." Id. at 723, 95 S.Ct.
at 1221. The Court further
observed: "If, in a given case, the
officer's conduct amounts to abuse, that case, like those involving coercion or
duress, may be taken care of when it arises measured by the traditional
standards for evaluating voluntariness and
trustworthiness." Id.
Subsequently,
in United States v. Havens, 446 U.S.
620, 626‑627, 100 S.Ct. 1912, 1916, 64 L.Ed.2d
559 (1980), the Supreme Court followed its reasoning in Harris and Hass, and
concluded that evidence inadmissible in the government's case‑in‑chief
because obtained as a result of a search and seizure in violation of the Fourth
Amendment is nevertheless admissible to impeach the defendant's testimony. The Court reaffirmed its position that the
"incremental furthering" of the objectives of the exclusionary rules
by forbidding impeachment by means of evidence unlawfully obtained was
insufficient to "permit or require that false testimony go
unchallenged." Id. at 627, 100 S.Ct.
at 1917.
Of course,
this court is free to hold that art. 14 of the Massachusetts Declaration of
Rights provides greater protection to defendants than is provided by the United
States Constitution as interpreted by the Supreme Court. Commonwealth v. Harris, 364
Mass. 236, 238, 303 N.E.2d 115 (1973).
Until now, however, we have not held that evidence unlawfully obtained
is unavailable to the Commonwealth to impeach a defendant's testimony, although
we have not foreclosed that possibility in an appropriate case, and we have not
been required to consider the question in the context of a case involving, as
this one does, an unreasonable search and seizure in violation of art. 14.
Commonwealth v. Harris, supra, like Harris v. New York, supra, involved the
question of admissibility for impeachment purposes of a defendant's uncoerced statement made to the police without compliance
with the safeguards required by [403
Mass. 571] Miranda v. Arizona, supra.
We followed Harris v. New York,
and held the evidence admissible as to the defendant's credibility. Id.
364 Mass. at 239‑240, 303 N.E.2d 115.
We noted that "[t]he impeaching evidence in [that] case [did] not
tend to prove any element of the crime charged," that is, it was only
collateral, that "there was no real danger that the statements in issue
would be used to prove the truth of the matter stated by the defendant,"
and that that "case would be a peculiarly unattractive vehicle for a
ruling contrary to Harris v. New York." Id.
at 240, 303 N.E.2d 115.
In Commonwealth v. Mahnke,
368 Mass. 662, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976), the police obtained an
incriminating statement from the defendant.
Before obtaining the statement, the police knew, but did not inform the
defendant, that his lawyer had been trying to speak to a police officer who had
been significantly involved in the investigation of the crime with which the
defendant was charged. Also, the police
did not inform the lawyer that a custodial interrogation of his client was in
progress. We held that the trial judge
had properly ruled that the statement would be admissible to impeach the
defendant if he were to testify. We were
"not persuaded that factual distinctions between [that] case and Harris and Hass [were] sufficient to shift the balance struck in the two
Supreme Court cases between impeachment of perjurious
testimony and deterrence of improper police conduct." Id. at 696, 335 N.E.2d
660. We observed that the police had
given the defendant the Miranda warnings, that the defendant was aware that his
parents had engaged an attorney to represent him, and that the defendant
could have halted the inquiry at any time and requested his attorney. Id.
at 697, 335 N.E.2d 660. Thus, in Mahnke, as
well as in Commonwealth v. Harris, supra,
in arriving at a proper balance between the State's interest in impeachment and
its interest in deterrence of police misconduct, we focused on the kind of
unconstitutional intrusion that had occurred as well as on the likely impact on
the defendant of the evidence obtained thereby.
In neither case did we announce that evidence obtained as a result of
constitutional violation is always admissible to impeach the defendant's
testimony, nor did we announce an intention to limit art. 14's protection to
that provided by the United States Constitution as interpreted by the United
States Supreme Court.
[403 Mass. 572] One other case decided by this court requires at least brief
discussion. Commonwealth v. Domaingue,
397 Mass. 693, 493 N.E.2d 841 (1986), involved indictments for incest, forcible
rape, and statutory rape. The trial
judge ruled that a warrantless electronic recording
of a conversation at a restaurant between the defendant and the complainant, of
which the defendant was unaware, was inadmissible in the Commonwealth's case in
chief because it violated G.L. c. 272, § 99 (1986
ed.), but was admissible to impeach the defendant if he took the stand. The defendant testified, and on cross‑examination
the prosecutor asked him whether he had discussed with the complainant the
possibility that she had become pregnant by him. The defendant answered,
"[N]o." The prosecutor then
showed him a transcript of the taped conversation, and asked him if that
refreshed his recollection. The
defendant said, "[N]o." The
transcript was not introduced in evidence or shown to the jury. Id.
at 702, 493 N.E.2d 841.
"Assuming,
but not deciding, that the judge was correct in his ruling that the taped
conversation must be excluded in the first instance," we said in Domaingue, at
702, 493 N.E.2d 841, "there was no error in allowing this line of
questioning.... A witness may be
impeached on cross‑examination by reference to prior inconsistent
statements which are not admissible substantively. See
Commonwealth v. Harris, 364 Mass. 236, 238‑240, 303 N.E.2d 115
(1973), citing Harris v. New York,
401 U.S. 222, 224, 91 S.Ct. 643, 645, 28 L.Ed.2d 1
(1971) (statements elicited in violation of
Miranda safeguards may be used for impeachment if voluntary and sufficiently
trustworthy)." We receive little
help in the present case from our decision in Domaingue because, in that case, the
tape was not admitted in evidence and therefore the discussion about it was
dictum, and also because the taped discussion did not take place at a private
home as it did here and in the later case of
Commonwealth v. Blood, 400 Mass. 61, 507 N.E.2d 1029 (1987). There was no suggestion in Domaingue
that the transmission and recording of the conversation without the defendant's
consent violated art. 14 or any other constitutional right.
In
arriving at our conclusion in
Commonwealth v. Blood, supra, that surreptitious warrantless
electronic transmission and recording of conversational interchange in a
private home [403 Mass. 573] violate art. 14, and that no evidence
derived therefrom may be admitted in the
Commonwealth's case‑in‑chief, we reasoned that "it is not just
the right to a silent, solitary autonomy [of the thoughts and emotions] which
is threatened by electronic surveillance:
It is the right to bring thoughts and emotions forth from the self in
company with others doing likewise, the right to be known to others and to know
them, and thus to be whole as a free member of a free society." Id.
at 69, 507 N.E.2d 1029. "The
instruments of electronic eavesdropping are peculiarly adapted to search our
thoughts and emotions. Thus, these
devices are peculiarly valuable to those charged with policing crimes.... But, because the peculiar virtues of these
techniques are ones which threaten the privacy of our most cherished
possessions, our thoughts and emotions, these techniques are peculiarly
intrusive upon that sense of personal security which art. 14 commands us to
protect." Id. at 70‑71, 507 N.E.2d 1029.
Given the
magnitude of the unconstitutional intrusion accomplished by electronic
eavesdropping in and about a private home, such as took place in this case, we
conclude that half measures of deterrence are not enough. Surely, if we accept the validity of the
premise that the exclusion from the government's case‑in‑chief of
evidence obtained by unconstitutional means tends to deter that misconduct, a
premise which this court has repeatedly accepted, see Commonwealth v. Bishop, 402 Mass. 449, 451, 523 N.E.2d 779 (1988);
Commonwealth v. Blood, supra 400 Mass. at 77, 507 N.E.2d 1029;
Commonwealth v. Ford, 394 Mass. 421, 426, 476 N.E.2d 560 (1985), it
is also reasonable to conclude that the exclusion of such evidence for all
purposes will act as a still further deterrent.
Such a rule would tend to discourage the gathering of such evidence
based on the hope that it will reach the jury in one way if not in
another. Therefore, we answer the
reported questions, "No; the
Commonwealth may not use the recorded conversations for impeachment purposes
irrespective of whether the conversations dealt with collateral matters or
directly with the crimes charged."
(FN3) Of course, as in Commonwealth v. [403 Mass. 574] Blood, supra, the informant himself may
testify to the conversations. See note
2, supra.
The case
is remanded to the Superior Court for further proceedings.
So ordered.
NOLAN,
Justice (dissenting, with whom LYNCH, Justice, joins).
What is so
unreasonable about permitting the Commonwealth to confront the witness with
prior contradictory statements to impeach credibility though such statements
may not be introduced by the Commonwealth in its case‑in‑chief? A witness should not be made comfortable by
the knowledge that he can say what he wants under oath regardless of its
falsity without running the risk of impeachment. This is a none too subtle encouragement of
perjury.
For this
reason and for reasons expressed in Commonwealth v. Blood, 400 Mass. 61, 78‑81,
507 N.E.2d 1029 (1987) (Nolan, J., dissenting), I dissent.
(FN1.) The Commonwealth makes no contention
that a distinction should be made between conversations that took place inside
the defendant's home and those that occurred on the defendant's premises but
outside the house.
(FN2.)
The informant himself may testify concerning the conversations in which he took
part because that testimony would not be the fruit of a constitutional
violation. Commonwealth v. Blood, supra 400 Mass. at
78, 507 N.E.2d 1029.
(FN3.)
The rule adopted today applies to the defendant in this case and to the
defendants in all cases now pending on direct appeal where the record is
adequate to raise the issue. Commonwealth v. Blood, supra 400 Mass. at
77 n. 18, 507 N.E.2d 1029, and cases cited.