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Commonwealth v. Vieux, 41 Mass.App.Ct. 526 (1996)
No. 95-P-1569.
Appeals Court of Massachusetts, Essex.
Argued
Decided
Further
Appellate Review Denied
Peter M. Onek,
Nicole M. Procida, Assistant
District Attorney, for the Commonwealth.
Before WARNER, C.J., and
ARMSTRONG and PERRETTA, JJ.
WARNER, Chief Justice.
The defendant was convicted by a Superior Court jury of
rape, G.L. c. 265, § 22. On appeal he alleges that: (1) his trial counsel was ineffective in
failing to move to suppress the testimony of one of the Commonwealth's
witnesses; and
(2) the trial judge's failure to provide an instruction on fresh complaint in
his final charge created a substantial risk of a miscarriage of justice. We affirm.
[1][2] [41 Mass.App.Ct.
527] 1. Ineffective assistance of counsel. To prevail on a claim of ineffective
assistance of counsel a defendant must establish: (1) that his representative's performance
reflected "serious incompetency, inefficiency,
or inattention ... falling measurably below that which might be expected from
an ordinary, fallible lawyer," Commonwealth v. Saferian,
366 Mass. 89, 96, 315 N.E.2d 878 (1974);
and (2) that these shortcomings deprived him of "an otherwise available,
substantial ground of defence" or in some other
way materially affected the outcome of his trial. Ibid. See also Commonwealth v. Fanelli, 412
[3][4] At trial, the victim's sister, Marquise, was
permitted to testify concerning comments made by the defendant during a
telephone call. The remarks (FN1) were
overheard by Marquise as she surreptitiously listened in on a conversation
between her mother and the defendant on an extension phone in her home. The defendant claims that by secretly
listening in on his conversation with the victim's mother, Marquise violated
the Federal wiretap statute, 18 U.S.C. §§ 2510-2520
(1994), as well as the cognate
Although there is some uncertainty about the scope of the
statutes' application, it appears that, in some situations at least, wiretap
evidence unlawfully obtained by private persons may be subject to
exclusion. See Heggy
v. Heggy, 944 F.2d 1537, 1540 (10th Cir.1991),
cert. denied, 503 U.S. 951 (1992) (reference to "any person" in
portion of 18 U.S.C.§§
2510-2520 relating to statute's scope of application construed to include
private citizens); Commonwealth v.
Santoro, 406 Mass. 421, 423, 548 N.E.2d 862 (1990) (G.L.
c. 272, § 99 "forbids the interception of certain oral communications by
private [41 Mass.App.Ct. 528]
individuals"). Whether this principle applies here, however, need not be decided. In the circumstances of this case, we
conclude that Marquise's actions did not amount to an illegal wiretap, either
for the purposes of 18 U.S.C. §§ 2510-2520, or G.L. c. 272, § 99.
The remedial provisions of those laws, therefore, need not be
considered.
While under both the State and Federal statutes, (FN2) a
telephone extension may constitute an "intercepting wire device,"
both laws have created an exception for standard telephone instruments
furnished to a subscriber by a communications common carrier and used by the
subscriber in his or her "ordinary course of business." See 18 U.S.C. §
2510(5)(a)(i); G.L. c. 272, §
99(B)(3). This "ordinary course of
business" provision, while construed somewhat narrowly in the workplace
context, see United States v. Murdock, 63 F.3d 1391, 1396 (6th
Cir.1995), cert. denied, 517 U.S. 1187, 116 S.Ct.
1672, 134 L.Ed.2d 776 (1996), has been interpreted expansively in the context
of a subscriber's residence. We turn
first to the Federal statute.
Although the issue has not been squarely addressed by
either the Supreme Court or the First Circuit, the defendant has not brought to
our attention, nor have we found, a single instance in which any Federal court
has ever held that 18 U.S.C. §§ 2510-2520 is violated
where a family member merely listens in on (but does not record) the telephone
conversation of another family member through the use of a standard residential
extension phone. For example, in
Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977), the court observed
that: "Appellee's
activity would clearly not be prohibited if it consisted merely of listening
into his wife's and daughter's telephone conversations from an extension phone
in his apartment. Congress explicitly
exempted such activity from coverage by the Act. See 18 U.S.C. §
2510(5)(a)(i). Such a use of an extension phone in appellee's own home would certainly be in the 'ordinary
course of [the user's] business' " (footnote
omitted).
Similarly, in Newcomb v. Ingle, 944 F.2d 1534
(10th Cir.1991), cert. denied, 502
"[T]he
interception at issue here is not reached by [18 U.S.C.
§§ 2510-2520]. The interception of a
family member's telephone conversations by use of an extension phone in the
family home is arguably permitted by a broad reading of the exemption contained
in 18 U.S.C. § 2510(5)(a)(i).... '[W]e think the (5)(a)(i) exemption is indicative of Congress's intention to
abjure from deciding a very intimate question of familial relations, that of
the extent of privacy family members may expect within the home.' "
The Seventh Circuit, in Scheib
v. Grant, 22 F.3d 149, 153-154 (1993), cert. denied, 513 U.S. 929, 115 S.Ct. 320, 130 L.Ed.2d 280 (1994), expressly relied upon
this portion of Newcomb, in concluding that a father had
not violated 18 U.S.C. §§ 2510-2520 by eavesdropping
on conversations between his son (who lived with his father) and the child's
mother (from whom the father was divorced) using an extension phone. "We cannot attribute to Congress the intent
to subject parents to criminal and civil penalties for [listening in on] their
minor child's phone conversations out of concern for the child's
well-being."
Similar results have been reached in a large number of
other Federal decisions. See Lizza v. Lizza, 631 F.Supp. 529, 532 n. 5
(E.D.N.Y.1986) ( "[18 U.S.C.
§§ 2510-2520] exempts [41 Mass.App.Ct. 530] from coverage under the Act the ordinary use of an
extension phone to listen in on a conversation"). See also Simpson v. Simpson, 490 F.2d
at 805 (refusing to apply 18 U.S.C. §§ 2510-2520 to a
broad range of types of intra-family eavesdropping); Perfit
v. Perfit, 693 F.Supp. 851, 855-856 (C.D.Cal.1988) (applying extension phone exception for
merely listening).
Likewise, State courts that have considered the question
have reached similar results. In
State v. Telles, 139 N.H.
344, 347-348, 653 A.2d 554 (1995), for example, the Supreme Court of New
Hampshire (in a factual context very similar to the present case) concluded
that a witness's use of an extension phone to eavesdrop on her houseguest's
telephone conversations with the defendant fell within the exception defined by
§ 2510(5)(a)(i), and so the witness's testimony
concerning the contents of those calls was admissible at the defendant's
criminal trial. In reaching its
decision, the court placed special emphasis on the fact that the witness
"did not record the conversations."
While, as noted, the First Circuit has not addressed the
question of eavesdropping between family members on a residential extension
phone, its decisions construing other provisions of 18 U.S.C.
§§ 2510-2520 suggest that it would reach the same result as these cited
decisions. For example, in United
States v. Miller, 720 F.2d 227 (1st Cir.1983), cert. denied, 464
It is true, as the defendant points out, that some courts
have been reticent to exempt all forms of eavesdropping by [41 Mass.App.Ct. 531] means of residential extension
phones from the purview of 18 U.S.C. §§
2510-2520. Specifically, in the context
of divorce litigation, 18 U.S.C. §§ 2510-2520 has been
applied to forbid the use of a residential phone by one spouse to make
recordings of the other spouse's private conversations. However, as noted above, we have found no
reported Federal decision in which there was deemed to be a violation of 18 U.S.C. §§ 2510-2520 in the residential extension phone
context where no recording was made. See
United States v. Murdock, 63 F.3d at 1395 n. 7; United States v. Jones, 542 F.2d 661, 673
n. 24 (6th Cir.1976) (on "vast difference between overhearing someone on
an extension and installing an electronic listening device to monitor all
incoming and outgoing calls").
Moreover, apart from instances of interspousal
spying, we have found no case in which the use of an extension phone to listen
in on the calls of another member of the household has been deemed to violate
18 U.S.C. §§ 2510-2520--whether or not a recording
was made. See Scheib
v. Grant, 22 F.3d at 154.
In his brief, the defendant attacks the notion that there
is any meaningful distinction between using an extension phone merely to listen
in on a call and situations in which a recording device is employed. We disagree. Without doubt, both potentially involve
invasions of privacy. However, as
suggested in Miller, 720 F.2d at 228-229, 18 U.S.C. §§ 2510-2520 is aimed at deterring a particular
evil: the use of increasingly
sophisticated electronic surveillance equipment for the purpose of
eavesdropping on telephone conversations.
A person who listens in on a residential extension phone simply does not
pose the same threat to telecommunications security as a high-tech
snooper. See
Absent a recording device, an eavesdropper on a
residential line must be physically present in the home at the time of a
particular call to intercept the conversation.
See People v. Otto, 2 Cal.4th 1088, 1106-1107, 9 Cal.Rptr.2d 596,
831 P.2d 1178, cert. denied, 506 U.S. 956, 113 S.Ct.
414, 121 L.Ed.2d 338 (1992). As a
result, his opportunities are sharply diminished, and his chance of being
detected is high. (FN4) Further, such situations are likely to
involve only regular members of the [41 Mass.App.Ct.
532] household, as between whom there is often a diminished opportunity
for maintaining the privacy of conversations in the first place. Such considerations appear to be the basis
for Congress's limitation of the "ordinary course of business"
exception of 18 U.S.C. § 2510(5)(a)(i) to situations involving only basic telephone equipment
and not appurtenant devices (e.g., tape recorders). (FN5)
See
In view of the Federal case law, we conclude that
Marquise's use of an extension phone in her home to eavesdrop on the call
between her mother and the defendant--an act motivated by understandable
concern for her sister--did not violate 18 U.S.C. §§
2510-2520. Further, to the extent that
the provisions of G.L. c. 272, § 99, relating to the
use of extension phones were modeled on the Federal law, see Campiti v. Walonis, 611 F.2d
387, 395-396 (1st Cir.1979), we likewise hold that Marquise's actions did not
violate § 99. As the court observed in
Commonwealth v. Vitello, 367
"[G.L. c. 272, § 99] in major portion matches section for
section the provisions of [18 U.S.C. §§
2510-2520]. Admittedly, the phraseology
of [the
Bolstering our conclusion in this regard is the near
exact coincidence of the language in 18 U.S.C. §
2510(5)(a)(i), and G.L. c. 272, § 99(B)(3), relating to the applicability of
the [41 Mass.App.Ct. 533] law to
extension phones. (FN6) Moreover, the Supreme Judicial Court gave a
fairly strong indication of its approach to eavesdropping in the home in
Commonwealth v. Todisco, 363 Mass. 445, 452, 294
N.E.2d 860 (1973), in which the court observed that "[t]he clear and
obvious legislative intent [of G.L. c. 272, § 99] was
to prevent the illegal use of devices external and extraneous to the regular
telephone equipment." A
residential extension phone like the one used here by Marquise does
not fall into this category.
Since there were no statutory violations, it is
impossible to conclude that defense counsel's failure to press a motion to
suppress Marquise's testimony "deprived the defendant of an otherwise
available, substantial ground of defence," a
necessary predicate for relief where ineffective assistance of counsel is
alleged.
[5] 2. Fresh Complaint. When fresh complaint testimony is admitted,
a defendant is entitled to have the jury informed that such evidence may be
used for corroborative purposes only.
Commonwealth v. Bailey, 370
[6][7] Rather, the defendant here assigns error to the
lack of any final instruction on the use of fresh complaint evidence. However, while providing such an instruction
is the preferred course, it is not absolutely essential. As the court previously has concluded, where,
as here, the judge fully instructs the jury about fresh complaint principles
during trial, the fresh complaint evidence does not constitute the major part
of the Commonwealth's case, the evidence is not used to fill gaps in the
prosecution's case, and--perhaps most important--no final instruction is
requested by the defense, the failure to provide a final charge sua sponte does not constitute
reversible error. Commonwealth v.
Lanning, 32 Mass.App.Ct.
279, 287-288, 589 N.E.2d 318 (1992). See also Commonwealth v. Clark, 20 Mass.App.Ct. 392, 394-395, 480 N.E.2d
1034 (1985).
Despite the defendant's contentions to the contrary, the
present situation differs substantially from the facts of Commonwealth v. Almon, 30 Mass.App.Ct. at 724-726, 573 N.E.2d 529, upon which the defendant heavily
relies. There, the decision to reverse
the defendant's conviction on the basis of the judge's omission of a final
fresh complaint instruction expressly was predicated upon the fact that (1)
there were an unusually large number of corroborating witnesses, each of whom
provided detailed testimony, see Commonwealth v. Licata, 412 Mass. at
659-660, 591 N.E.2d 672 (relating to dangers of "piling on" fresh
complaint testimony);
and (2) the Commonwealth's case was very weak. These same circumstances, however, were not
present here. As noted, only two
witnesses presented any detailed fresh complaint evidence at trial. Moreover, unlike the defendant in Almon, here the defendant's own admissions left little
doubt that intercourse had occurred.
Likewise, Commonwealth v. Trowbridge, 419
[8] As noted, defense counsel failed to object to the
trial judge's omission. "It is a
fundamental rule of practice that where a party alleges error in a charge he
must bring the alleged error to the attention of the judge in specific terms in
order to give the judge an opportunity to rectify the error, if any." Commonwealth v. McDuffee, 379
[9] Finally, the defendant has reasserted his argument
relating to the use of fresh complaint evidence at his trial under the rubric
of ineffective assistance of counsel, i.e., that his trial advocate fell below
the performance standards delineated in Commonwealth v. Saferian,
366 Mass. at 96, 315 N.E.2d 878, by failing to object to the lack of a fresh
complaint instruction in the judge's final charge. However, in Commonwealth v. Curtis,
417 Mass. 619, 632 N.E.2d 821 (1994), the court concluded that the substantial
risk analysis embodied in Freeman is functionally equivalent to the test
contained in Saferian for determining whether
putative attorney error requires a new trial.
Where a defendant is not entitled to relief under one standard, he is
likewise entitled to no remedy under the other. Commonwealth v. Curtis, 417
Judgment affirmed.
(FN1.) Marquise testified that
after her mother had hung up (and so, presumably, the defendant thought no one
was on the line), the defendant laughingly stated: "Why shouldn't she let me marry her? Why shouldn't she do it the Haitian
way? I got a little pussy so...."
(FN2.) General Laws c. 272, § 99, is not
preempted by 18 U.S.C.§§
2510-2520 pursuant to 18 U.S.C. § 2516(2). For a full discussion of the preemption issue
see Commonwealth v. Vitello, 367 Mass. 224,
249-251, 327 N.E.2d 819 (1975).
(FN3.) During hearings on 18 U.S.C. §§ 2510-2520, Professor Herman Schwartz stated: "I take it nobody wants to make it a
crime for a father to listen in on his teenage daughter or some such related
problem." Anonymous, 558
F.2d at 679, quoting from Hearings on the Anti-Crime Program Before
Subcomm. No. 5 of the House Judiciary Comm. 90th Cong., 1st Sess. 901 (1967).
(FN4.) These conclusions are echoed in
People v. Otto, 2 Cal.4th at 1106, 9 Cal.Rptr.2d 596, 831 P.2d 1178, the
principal case relied upon by the defendant.
There, in considering whether 18 U.S.C. §§
2510-2520 barred the use of a husband's tape recordings of his wife's
conversations in the wife's trial for the husband's murder, the Supreme Court
of California concluded that "[t]he differences between casually overhearing
part of a conversation on an extension phone and intentionally wiretapping all
incoming and outgoing calls [with a tape recorder] are substantial...."
(FN5.) The "ordinary course of
business" exception of 18 U.S.C. §§ 2510(5)(a)(i) extends only to "any
telephone or telegraph instrument ... furnished to the subscriber or user by a
provider of wire or electronic communication service...."
(FN6.) The Federal statute exempts telephone
equipment "furnished to the subscriber or user by a provider of wire or
electronic communication service in the ordinary course of its business and
used by the subscriber or user in the ordinary course of its business ..."
while the State exemption applies to equipment "furnished to a subscriber
or user by a communications common carrier in the ordinary course of its
business under its tariff and being used by the subscriber or user in the
ordinary course of its business...."
(FN7.) We note in passing that
even had we concluded that Marquise's testimony was improperly admitted, we
likely would have deemed the error harmless.