56 Mass. App. Ct. 78 | Mass. App. Ct. | 2002
The defendant appeals from convictions of conspiracy to commit mayhem and conspiracy to commit assault and battery by means of a dangerous weapon. The evidence
Hathaway was a police informer. On the day after the first meeting, he reported to the police what was afoot, and the police observed the second meeting, following the defendant’s car to Marblehead at a safe distance. By the time of the third meeting, the police had obtained a warrant for electronic surveillance
The defendant argues three issues on appeal.
1. Validity of the wiretap. The electronic surveillance in this case finds justification not by a warrant under the provisions of G. L. c. 272, § 99 F-M (the police applied under the provisions of G. L. c. 276), but rather under the one-party consent exception of G. L. c. 272, § 99 B 4. See Commonwealth v. Zuluaga, 43 Mass. App. Ct. 629, 633-634 (1997). Under that exception, a tap consented to by one party to a conversation (here, Hathaway) will be upheld if police are investigating a “designated offense” occurring in connection with “organized crime.” See Commonwealth v. Thorpe, 384 Mass. 271, 276 (1981), cert. denied, 454 U.S. 1147 (1982). “Designated offense[s]” are enumerated in G. L. c. 272, § 99 B 7; they include assault and
Because the transmission and recording of the third meeting between the defendant and Hathaway were in conformity with the one-party consent exception to the general ban on surreptitious recording, the tape of the conversation was properly received in evidence and played for the jury.
2. Motion for required findings. The trial judge, agreeing with the defendant’s position that a conspiracy was not shown if the only two participants in the plan were the defendant and Hathaway,
It is doubtful that the corroboration rule applies to statements made in active furtherance of a criminal plan, as contrasted with statements admitting or suggesting complicity in a completed crime. Even if applicable, the central purpose of the rule is met here. In addition to Hathaway’s testimony, abundantly corroborated by the tape recording,
The judgment on the charge of conspiracy to commit mayhem is affirmed. The judgment on the charge of conspiracy to commit assault and battery by means of a dangerous weapon, being duplicative of the mayhem conspiracy, is vacated,
So ordered.
As the interception did not take place in a private residence, it is doubtful that a warrant was required under Commonwealth v. Blood, 400 Mass. 61 (1987). See Commonwealth v. Remedor, 52 Mass. App. Ct. 694, 698 n.3 (2001), and cases cited.
It was not until the third and final meeting that the defendant told Hathaway that he was not to kill Kostos but only to shoot him in the knees.
On the “bilateral theory of conspiracy,” described in Commonwealth v. Themelis, 22 Mass. App. Ct. 754, 757-760 (1986), Hathaway could not be found to be a coconspirator because he did not intend to participate in the plan but rather to feign participation and expose it. In the Themelis appeal, we were not required to decide whether Massachusetts subscribes to the bilateral theory, and we are similarly not required to decide the question in this appeal.
The transcript of the tape recording that was prepared by the Commonwealth is not part of the record, but the tape itself was put in evidence as an exhibit. We have listened to the tape, and it bears out in pertinent respects the accuracy of the transcript prepared by the Commonwealth.
The Commonwealth has conceded that the battery conspiracy is duplicative of the mayhem conspiracy, which was charged under the second branch of the mayhem statute, G. L. c. 265, § 14. The reasons are explained in Commonwealth v. Martin, 425 Mass. 718, 721-722 (1997). See also Commonwealth v. Simpson, 428 Mass. 646, 655 (1999).