Commonwealth v. Long

911 N.E.2d 174, 454 Mass. 542, 2009 Mass. LEXIS 505
CourtMassachusetts Supreme Judicial Court
DecidedAugust 17, 2009
StatusPublished
Cited by38 cases

This text of 911 N.E.2d 174 (Commonwealth v. Long) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Long, 911 N.E.2d 174, 454 Mass. 542, 2009 Mass. LEXIS 505 (Mass. 2009).

Opinion

Spina, J.

This appeal concerns a wiretap on a telephone in a visitation booth at the Norfolk County house of correction (jail) pursuant to a warrant issued under G. L. c. 272, § 99 E and I. Late in the evening on January 9, 2006, two perpetrators shot Jamal Vaughn to death and absconded. The police investigation immediately focused on the defendant, Deryck Long. On January 10, 2006, Long was arrested in connection with several outstanding warrants and arraigned for Vaughn’s murder the following day. On January 12, 2006, investigators determined that more than one shooter had shot Vaughn.

While incarcerated, Long placed several outgoing telephone calls, all of which were recorded pursuant to jail policy,2 including several to his girl friend, Tayna Newsome. On one occasion, Newsome orchestrated a three-way call among Long, herself, and Courtney Forde, Long’s friend. Steven Reilly, the assistant deputy superintendent of investigations at the jail, provided State Trooper John Moran with recordings of Long’s outgoing telephone calls. Based on those telephone calls, described in greater detail infra, Trooper Moran inferred that Long intended to use the telephones in the visitation booths at the jail to urge his visitors to conceal evidence relating to Vaughn’s murder and prevent his indictment by intimidating and possibly murdering an eyewitness to the murder. He also inferred that Long would disclose or discuss the identity of the second shooter. The visitation booth telephones were not recorded by the jail, nor does there appear to have been [544]*544any warning to prisoners and visitors that conversations over those telephones would be recorded.

Trooper Moran sought, and a Superior Court judge authorized, a wiretap for the telephone in a specific visitation booth in the maximum security area of the jail. Neither the warrant application nor Trooper Moran’s affidavit in support thereof contained copies of any of the outgoing telephone conversations referred to in Trooper Moran’s affidavit. See G. L. c. 272, § 99 F 3. Long subsequently made incriminating statements using the visitation booth telephone subject to the wiretap.

After being indicted for Vaughn’s murder, Long moved to suppress the wiretap evidence and the fruits thereof, arguing, among other things, that the facts alleged in Trooper Moran’s affidavit did not establish that wiretapping the visitation booth telephone would lead to evidence of a designated offense in connection with organized crime, see G. L. c. 272, § 99 B 7, 99 E 23; and that the affidavit did not show that normal investigative procedures had been tried and failed or reasonably appeared to be unlikely to succeed if tried, see G. L. c. 272, § 99 E 3. After reviewing the recorded, outgoing telephone conversations, Long filed a supplemental motion to suppress, contending that Trooper Moran made false, material omissions deliberately or with reckless disregard for the truth, and requested a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).

The defendant Paul Brown, who later was indicted as the second shooter, also filed a motion to suppress and a supplemental [545]*545motion to suppress the wiretap evidence, asserting the same arguments raised by Long’s motions. He also requested a Franks hearing.

A Superior Court judge allowed the defendants’ motions for a Franks hearing. After a hearing at which Long’s outgoing telephone conversations — relied on by Trooper Moran in his affidavit — were admitted in evidence, the judge allowed the defendants’ motions to suppress.4 She found that Trooper Moran intentionally or with reckless disregard for the truth omitted important contextual details in his affidavit when he described Long’s outgoing telephone conversations, from which he inferred Long was engaged in a nefarious, organized plot to intimidate or murder an eyewitness to Vaughn’s murder. Taking the omitted facts into account, she ruled, inter alia, that the police failed to exhaust normal investigative procedures and, in any event, that there was not probable cause to believe that a “designated offense,” see note 3, supra, had been, was being, or would be committed as the crimes and conspiracy alleged by Trooper Moran lacked a nexus to “organized crime.” See G. L. c. 272, § 99 A; Commonwealth v. Thorpe, 384 Mass. 271, 277 (1981), cert, denied, 454 U.S. 1147 (1982). A single justice of this court allowed the Commonwealth’s application for leave to file an interlocutory appeal, see Mass. R. Crim. R 15 (a) (1), as appearing in 422 Mass. 1501 (1996), and transmitted the case to the full court.

The Commonwealth contends that the defendants’ motions to suppress the wiretap evidence should not have been allowed because (1) the police had pursued normal investigative procedures to no avail and other normal investigative procedures were unlikely to be successful; (2) the judge’s consideration of Long’s outgoing telephone conversations in their entirety exceeded the four comers of Trooper Moran’s affidavit; and (3) Trooper Moran’s affidavit established a nexus to “organized crime,” as [546]*546defined by G. L. c. 272, § 99 A. We disagree with the Commonwealth as to the latter two contentions, and we affirm.

1. Facts. We recite the facts contained in Trooper Moran’s affidavit, as well as any reasonable inferences therefrom. See Commonwealth v. O’Day, 440 Mass. 296, 297-298 (2003). As discussed infra, we find no error in the motion judge’s consideration of Long’s recorded telephone conversations in their entirety, and we therefore summarize her findings of fact not contained in Trooper Moran’s affidavit.

On January, 9, 2006, Vaughn was with Lyndia Lewis, Taneisha James-Pagan, and Cory Gibbons at James-Pagan’s apartment in Quincy. Shortly before midnight, Vaughn went to his motor vehicle to retrieve a pack of cigarettes and was shot multiple times. When Lewis heard gunfire, she rushed outside and saw Long, whom she knew through her roommate, Janet Ojo, running from where Vaughn had been shot. Vaughn was rushed to Quincy Medical Center, where he was pronounced dead. Crime scene investigators recovered several shell casings and a palm print on the hood of a car parked in the area where the shell casings were found. At this point, the police did not know that there was a second shooter.

The following day Trooper Moran interviewed Ojo. Ojo and Lewis resided in an apartment in the South Quincy area of Quincy (apartment). Ojo told Trooper Moran that she had received a telephone call from James-Pagan the night of the murder informing her that there had been an incident at the apartment that evening in which Vaughn and Long became engaged in a physical fight and that Vaughn had prevailed over Long. When Trooper Moran and another investigator discussed Ojo’s account with James-Pagan, James-Pagan confirmed that she had witnessed the altercation between Long and Vaughn at the apartment, and had heard Long yell to another individual, “C,” for help.5

On the same day, Trooper Moran learned through a criminal background check that Long had a lengthy criminal record that included outstanding arrest warrants for intimidation of a wit[547]*547ness, assault and battery, and distribution of a class D substance. Long was arrested on those outstanding warrants that afternoon.

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Cite This Page — Counsel Stack

Bluebook (online)
911 N.E.2d 174, 454 Mass. 542, 2009 Mass. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-long-mass-2009.