54 Mass. App. Ct. 99 | Mass. App. Ct. | 2002
A father, fearing that his fifteen year old son, Tom,
The defendant raises the following issues on appeal: (1) the recordings of the two earlier calls should have been suppressed; (2) other evidence that he claims was obtained as a result of the recordings should have been suppressed as “fruit of the poisonous tree”; (3) his attorney’s cross-examination of witnesses for bias was improperly limited; and (4) ineffective assistance of counsel. For the reasons discussed below, we affirm.
Tom’s parents began to feel uneasy about their son’s close relationship with the defendant after the family’s 1996 visit to Florida. During that visit, Tom stayed in one hotel room with the defendant, while his parents and their other son stayed in a second room. Tom also had little interaction with his parents on the vacation. They were further disconcerted when Tom an-’ nounced that it was his intention after he graduated from high school to live with the defendant in Florida. After the family returned from Florida in December, 1996, the defendant called Tom on a regular basis. The parents noticed that when Tom spoke with the defendant on the telephone, he would be unusually quiet, and sometimes even denied afterwards that he had spoken to the defendant.
After discussing his concerns with his wife, Tom’s father ordered a tape recorder that he had seen advertised in a magazine in order to record secretly telephone conversations at his house. Tom’s father attached the machine to the telephone line in his bedroom, and hid it under the bed. Neither Tom nor his brother knew the tape recorder had been installed. Four telephone calls between Tom and the defendant were recorded,
On the evening of January 30, after listening to the tape of the two calls that came that day from the defendant, Tom’s father met with members of the Wilmington police department, and played portions of the second taped conversation for them. On February 5, Tom’s father and mother confronted Tom, informing him they knew there “was some kind of sexual thing going on” between him and the defendant. On February 7, Tom and his father went to the district attorney’s office. During that interview, the father was asked by the district attorney’s office not to tape record any additional telephone conversations. A Wilmington police detective, Patrick King, listened to two additional telephone conversations between Tom and the defendant, with Tom’s knowledge, before the defendant was arrested upon his return from Florida on February 14. These conversations were not recorded, and were not the subject of the defendant’s motion to suppress. On appeal, the defendant argues that testimony concerning the content of these telephone calls should have been suppressed as having been derived from the suppressed recordings. See infra at 108-109.
At the close of the hearing, the motion judge stated that “[tjhere’s no question in the Court’s mind at all that the [parents’] primary concern was their son and that everything they did was not to assist law enforcement in their minds but to try to figure out what was going on and what’s right for their son and for their family.” The judge denied the motion to suppress with respect to the two conversations taped on January 30, “before contacting police.” He allowed the defendant’s motion to suppress the two recordings of conversations made after Tom’s father notified the police that he was recording phone calls, finding that although the parents were not told to continue taping by the police, “under the circumstances, silence by the police made the parents unwitting agents of the police for the
II. Analysis of the suppression issues. A. Massachusetts wiretap statute. We begin our analysis by interpreting the Massachusetts wiretap statute. Unlike many of its counterparts in other States, or the Federal wiretap statute, the Massachusetts wiretap statute, G. L. c. 272, § 99, requires both parties to consent to the recording of telephone calls for the recording to be legal. Commonwealth v. Hyde, 434 Mass. 594, 599 (2001). With exceptions not applicable here,
In Santoro, the defendant was convicted of being present where betting apparatus was found. He appealed the denial of his motion to suppress recordings of telephone conversations between him and his associate in crime, which were made by his associate without the defendant’s knowledge, in violation of G. L. c. 272, § 99. The court affirmed the denial of the suppression motion. The key paragraph in the court’s discussion, which merits full quotation, is as follows:
“Exclusionary rules generally are intended to deter future police conduct in violation of constitutional or statutory*104 rights. However, no police or governmental conduct was involved in the recording of these telephone conversations. A private individual, apparently engaged in unlawful activity himself, recorded the defendant’s conversations in violation of § 99. No deterrent purpose would be served by suppressing the intercepted conversations. The exclusionary rule was not designed to protect persons from the consequences of the unlawful seizure of evidence by their associates in crime. See § 99 A (preamble). Indeed, a contrary result would aid criminals by assuring that, in many instances, telephone calls they might unlawfully record could not be used as incriminating evidence.”
Id. at 423-424.
The defendant here argues that the holding in Santoro is limited to the factual situation in which one criminal associate has recorded the other. He further argues that the recordings made by Tom’s father should have been suppressed to promote the general purpose of the wiretap statute.
We are not persuaded that Santoro is limited to cases involving a criminal defendant recording his associate. In determining whether suppression was required, the court based its decision on the exclusionary rule’s purpose of deterring future police misconduct. Ibid. See Commonwealth v. Leone, 386 Mass. 329, 333 (1982) (“Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State officials have instigated or participated in the search”); Commonwealth v. Brandwein, 435 Mass. 623, 632 (2002) (“exclusionary rule does not exclude evidence obtained by way of purely private conduct or misconduct”). By suppressing the two recordings made after the police were alerted, the motion judge here furthered that objective. As for the first two recordings, “a private individual,” without police knowledge, recorded the telephone calls. Moreover, as the motion judge stated, “[tjhere’s no question in the Court’s mind at all that the [parents’] primary concern was their son and that everything they did was not to assist law enforcement in their minds but to try and figure out what was going on and what’s right for their son and for their family.” See Commonwealth v. Richmond, 379 Mass. 557, 561 (1980) (no suppression even if opening by mother of defendant’s
B. Claims based on Federal wiretap statute. The defendant argues for the first time on appeal that the interceptions would have violated, and been suppressed under, the Federal wiretap statute, 18 U.S.C. §§ 2510 etseq. (Title HI), and that because the State wiretap law must be at least as strict as the Federal law, the interceptions must be suppressed under State law as well. He relies on the failure to argue Federal law as the basis of a claim of ineffective assistance of counsel.
“[Although a State [wiretap] statute may adopt standards more stringent than the requirements of Federal law, thus excluding from State courts evidence that would be admissible in Federal courts, a State may not adopt standards that are less restrictive” and would thereby allow evidence in State court that would be inadmissible in Federal court. Commonwealth v. Vitello, 367 Mass. 224, 247 (1975). We conclude, however, that Federal law does not change the analysis in the instant case, nor does it create a basis for an ineffective assistance of counsel claim, because, as concluded by all the Federal appellate courts that have considered the proper application of Title III in cases in which custodial parents eavesdrop on or secretly record conversations of their minor children in their own home, no violation of Title m has occurred.
Some Federal courts have found that the Federal statute’s one-party consent requirement, 18 U.S.C. § 2511(2)(d), is satis
Other courts, focusing on their sense 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 vis-a-vis each other,” Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991), cert. denied, 502 U.S. 1044 (1992), have relied on the extension telephone exception, 18 U.S.C. § 2510(5)(a)(i), to uphold the introduction of evidence obtained through taping or eavesdropping within the family home. The extension telephone exception exempts from the statute equipment, e.g., a second residential telephone, used by a telephone service subscriber in the ordinary course of business. This exception has been read to permit family members within their own homes to eavesdrop on, and even record, each other. See, e.g., Janecka v. Franklin, 843 F.2d 110, 111 (2d Cir. 1988) (intercepts by recording device attached to
Although the facts of these cases involve one family member intercepting the telephone calls of another to protect a child, we do not read the Federal cases as limiting the parents’ rights to intercept calls to those from family members. In fact, in Vieux v. Pepe, 184 F.3d 59, 67 n.5 (1st Cir. 1999), cert. denied, 528 U.S. 1163 (2000), in which a younger sister eavesdropped on her mother’s conversation with the defendant who was feared to have raped her older sister, the court noted that intercepted statements regarding “an alleged crime against another family member, wouldn’t be so close a question as one that fell within the scope of Congress’s concern about evidence from wiretaps being used in marital disputes.”
We conclude that a recording by parents of their own minor son talking on the telephone in their own home, motivated by concerns that he was being sexually exploited by an adult, does not violate Title HI.
C. Other suppression claims. The defendant argues that evidence obtained as a result of the interception of his conversations must also be suppressed under 18 U.S.C. § 2515. He claims for the first time on appeal that Tom’s testimony is a “fruit” of illegally taped calls. Even if we were to assume that Tom would not have been prepared to testify if he had not been confronted with any tape recordings revealing his relationship with the defendant, the first two recordings were properly admitted and formed a more than sufficient basis for his parents to confront him, which led to his coming forward and testifying. See Commonwealth v. Buchanan, 384 Mass. 103, 108 (1981) (“The doctrine of the fruit of the poisonous tree ... is not implicated if the tree is not poisonous”).
The defendant also objects for the first time on appeal to the introduction of a sentimental greeting card that he sent Tom with a preprinted message expressing “all the wonderful feelings I’ve known because of you,” and including the language “I love you more than ever . . . for all the reasons that made me fall in love with you in the first place and all the other lov
Regarding the testimony of Detective King, the defendant cannot establish that the later conversations which King listened to are “fruits” of a suppressed telephone call. Rather, the detective was informed of the follow-up telephone calls by monitoring Tom’s interview with the district attorney’s office.
M. Limitation on cross-examination at trial. During the cross-examination of Tom at trial, he was asked whether he met with a “private civil lawyer.” The prosecution’s objection to the questioning was sustained by the trial judge. On cross-examination of Tom’s mother, defense counsel was cut short once again by the judge after defense counsel asked Tom’s mother whether she “took [Tom] to see an attorney.” The defendant claims that the prosecutor played up his advantage in closing argument, when he emphasized the defendant’s motive to lie, while the defendant’s chance to question Tom and his family about their motives to fabricate had been foreclosed by the judge.
“If, on the facts, there is a possibility of bias, even a remote one, the judge has no discretion to bar all inquiry into the subject.” Commonwealth v. Tam Bui, 419 Mass. 392, 400, cert. denied, 516 U.S. 861 (1995). At trial, the judge sustained the prosecutor’s objections to questions regarding the goals of Tom’s family in contacting and meeting with a civil attorney. If the family hoped to sue the defendant in a civil suit and thereby win money damages, that fact was relevant to the jury’s determination of any bias on the family’s part that could shade
The evidence against the defendant was overwhelming. It included the tape recordings of conversations between Tom and the defendant; Tom’s detailed description of indecent touching and the oral and anal sex acts committed by the defendant; a sentimental greeting card the defendant sent to Tom; and the defendant’s own testimony, including his attempts (which the jury could well have found implausible) to explain parts of the recorded conversations in which he refers to “making love” and discusses masturbation. Given the strength of the Commonwealth’s case against the defendant, we conclude with assurance that the judge’s error did not substantially sway the outcome of the case. Commonwealth v. Alves, 50 Mass. App. Ct. 796, 806 (2001).
Judgments affirmed.
A pseudonym.
There was evidence at trial that the defendant’s conduct took place over several years.
See G. L. c. 272, § 99 D 1 a-f.
At the hearing on the motion to suppress, Tom’s mother testified that her concerns about Tom motivated Tom’s father and her to tape record Tom’s conversations with the defendant. She testified: “In my heart I felt that something was wrong, that he was being molested. ... He was just a boy, fifteen years old, and we couldn’t talk to him. He wouldn’t talk to us. He wouldn’t converse with us. He was doing poorly in school. We had had help ... we couldn’t get through to him in any form that we tried.”
We note that this court, in its decision in Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 531-533 (1996), cert. denied, 520 U.S. 1245 (1997), which was the subject of the petition for writ of habeas corpus in Vieux v. Pepe, supra, concluded that eavesdropping on a call between the defendant and the eavesdropper’s mother did not violate Title HI because of the telephone extension exception, but emphasized that recordings presented different, more difficult issues. The issue of vicarious consent was not raised in that case.
We further note that even if the recording were illegal under Federal law, there is a split among the Federal circuits on whether illegal recordings made by private parties must be suppressed when there has been no police involvement. The Federal suppression provision states: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in
We note that the defendant’s argument on Detective King’s testimony is limited to one sentence. The testimony was also not objected to at trial, and was not the subject of a motion to suppress. See Commonwealth v. Eason, 427 Mass. 595, 597-598 (1998).