Commonwealth v. Morris

• Court: Massachusetts Supreme Judicial Court
• Decided: July 25, 2023
• Docket: SJC 12835
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-12835

COMMONWEALTH vs. JEROME MORRIS.

Plymouth. November 7, 2022. - July 25, 2023.

Present: Budd, C.J., Gaziano, Cypher, Kafker, Wendlandt, & Georges, JJ.

Homicide. Firearms. Electronic Surveillance. Telephone. Constitutional Law, Admissions and confessions, Waiver of constitutional rights. Evidence, Admissions and confessions, Tape recording, Redirect examination. Practice, Criminal, Capital case, Motion to suppress, Admissions and confessions, Argument by prosecutor.

Indictments found and returned in the Superior Court Department on January 2, 2015.

A pretrial motion to suppress evidence was heard by Cornelius J. Moriarty, II, J., and the cases were tried before Gregg J. Pasquale, J.

Cathryn A. Neaves for the defendant. Mary Nguyen, Assistant District Attorney, for the Commonwealth.

WENDLANDT, J. The defendant, Jerome Morris, was convicted

of murder in the first degree on the theory of deliberate

premeditation in connection with the August 2014 shooting of the 2

victim, Quentin Phillip.1 Following a verbal altercation with

the victim outside a bar in Brockton, the defendant walked away,

retrieved a firearm from a friend, and converged on a vehicle in

which the victim and his three friends were sitting. The victim

was seated in the rear passenger's seat; the defendant took aim

at the rear passenger's seat window and fired at least two shots

at the window. One hit the victim in the chest, killing him.

The defendant, who was caught on a video surveillance camera

arguing with the victim and then retrieving a firearm just prior

to the killing, admitted to discharging the firearm at the

vehicle's window during a police station interrogation following

his arrest and waiver of his Miranda rights; the surveillance

camera footage and a recording of the interrogation were

introduced at trial. The defendant argued at trial that the

killing occurred in self-defense, contending that he believed

the victim was armed.

On his direct appeal, the defendant contends that his

statement at the police station should have been suppressed

because police officers impermissibly recorded it without his

express consent, in violation of G. L. c. 272, § 99 (wiretap

statute). In addition, he maintains that the statement should

1 The defendant also was convicted of unlawful possession of a firearm and unlawful discharge of a firearm within 500 feet of a building. 3

have been suppressed because he was not informed promptly of his

right to make a telephone call and only was permitted a call

after his interrogation, in violation of G. L. c. 276, § 33A.

He further asserts that the prosecutor improperly referred to

omissions in his statement to police officers. The defendant

also asks the court to exercise its authority under G. L.

c. 278, § 33E, to reduce the degree of guilt or order a new

trial. Finally, the defendant requests that we vacate his

conviction of unlawful possession of a firearm in light of our

recent opinion in Commonwealth v. Guardado, 491 Mass. 666

(2023). We affirm the convictions other than the unlawful

possession conviction and discern no reason to grant relief

under G. L. c. 278, § 33E.

1. Background. a. Facts. The following facts are

supported by the evidence admitted at trial. Certain details

are reserved for discussion of specific issues.

i. Surveillance footage and witness testimony. Shortly

after 2:10 A.M. on August 9, 2014, the victim was fatally shot

in the chest while seated in the rear passenger's seat of a

vehicle that was exiting the parking lot of a Brockton bar.

Approximately twenty minutes prior to the killing, the

victim and the defendant verbally argued outside the bar.

During the confrontation, which lasted several minutes, the

victim looked angry, but the defendant appeared calm. The 4

victim called the defendant a "bitch" in an aggravated tone.

Surveillance footage of the argument captured the victim waving

his arms and appearing to push the defendant.

The defendant and the victim separated; the victim went to

a vehicle with his friends. The victim initially stood outside

the vehicle, seemingly frustrated and angry. The victim then

sat in the rear passenger's seat, talking to his friends, and

making plans for where next to go. The vehicle doors were

closed, and the windows, which were "very" tinted, were shut.

The victim asked one friend to "pass [him] that"; the friend

responded by telling the victim, "Chill." The victim said, "I

don't trust these n*ggas," a phrase he repeated multiple times.

Meanwhile, the defendant retrieved an item, later

determined to be a firearm, from one of his friends in the

parking lot. With the firearm in hand, the defendant walked

toward the vehicle in which the victim's group were sitting.

The victim's group, which had been waiting in the vehicle

for another friend, soon learned that the friend would not join

them; the defendant silently approached the rear passenger's

window next to where the victim was sitting. The victim either

was using his cell phone or was talking to the other passengers

about their plans. The victim had his hand in his pocket. He 5

was not facing the window.2 Upon noticing the defendant

approaching, the victim said, "What's wrong with these dudes?"

and one of the victim's friends either warned, "[Y]our people's

coming to the door," or asked, "What does he want?" As the

vehicle was slowly driven out of the parking lot, the defendant

fired multiple gunshots into the rear passenger's side window;

one bullet struck the victim in the chest.

The defendant fled. Surveillance footage shows the

defendant handing the firearm to someone and continuing to run

away.

Minutes later, the victim arrived at a hospital, where he

was pronounced dead. The cause of death was a gunshot wound to

the chest.

The victim was not seen with a firearm that night, no

firearm was seen or found in the vehicle, and no gunshot residue

was found on the victim's hands.

ii. Defendant's statement. The defendant was identified

from the surveillance footage by the mother of one of his

children. He was arrested, and after being given the Miranda

warnings and waiving his rights, the defendant was interviewed

at a police station. The interrogation was audio and video

2 A medical examiner later testified that the victim was shot from the front, but at an angle, with the bullet entering the top of his right chest and exiting the bottom of his left chest. 6

recorded; a redacted copy of the recording was played for the

jury. In the interrogation, the defendant admitted that he

fired two shots at the vehicle window, behind which sat the

victim.

The defendant explained that, prior to the shooting, he

"went outside to talk with" the victim after the victim "called

[him] outside." The victim asked the defendant if the two of

them "had a problem"; the defendant responded that if they did,

he "would've [already] did [sic] something to [the victim]."

The victim called the defendant "soft" and a "bitch," and he

stated that the defendant would not have done anything. At that

moment, the defendant offered to fight the victim; but the

victim refused, asserting that he did not want to ruin his

night. The victim also said, "I'm a see you when I see you,"

"You already know what time it is with me," and "When I see you,

it's on." The victim told the defendant that he "stays with

it," which the defendant understood to mean that the victim had

a firearm that night.

The defendant claimed that he was worried that something

would happen to him -- that he would be "caught in the

crossfire" -- and that he "just honestly thought about [his]

kids." The defendant explained that the victim was "a shooter,"

unlikely to engage in hand-to-hand fighting; the defendant did 7

not want someone like that "on [his] back . . . [t]rying to

shoot at [him] while [he's] with [his] family."

The defendant continued, asserting that he saw the victim

behind a vehicle looking at him, "acting mad shifty," and

"making motions . . . like he was about to do something" or

"take cover." The defendant thought the victim was "acting

kinda funny like he got somethin' or somethin'," as if "he had a

weapon." The defendant claimed that he was going to leave,

because he did not have a weapon and he thought that the victim

did, but he was worried that the victim was waiting for him.

The defendant said that he had told his friends what had

transpired with the victim; they asked him if he was going to

"let that shit ride." Responding, he said he was not going to

"try to run up on somebody [he felt] as though had a weapon on

him." One of the defendant's friends offered the defendant a

firearm, which he took, saying, "Let me see it. I'm gonna go

see what's up." The defendant walked to the passenger's side of

a vehicle and shot twice at the rear window, behind which sat

the victim. The defendant then handed the firearm to someone

and fled.

b. Procedural history. The defendant was indicted on one

count of murder, in violation of G. L. c. 265, § 1; one count of

unlawful possession of a firearm, in violation of G. L. c. 269,

§ 10 (a); and one count of unlawful discharge of a firearm 8

within 500 feet of a building, in violation of G. L. c. 269,

§ 12E. The defendant filed a motion to suppress his postarrest

statement to investigators, which was denied after an

evidentiary hearing.

At trial, the Commonwealth introduced a redacted recording

of the defendant's interrogation. The jury found the defendant

guilty of murder in the first degree on the theory of deliberate

premeditation; the defendant was sentenced to life without

parole.3 The defendant timely appealed, and subsequently filed

in this court a motion for a new trial, submitting arguments

pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209

(1981).4

2. Discussion. On appeal, the defendant raises several

issues, as set forth supra. We address each in turn.

a. Motion to suppress statements made to investigators.

The defendant argues that the motion judge erred in denying his

3 The defendant also was found guilty of unlawful possession of a firearm and unlawful discharge of a firearm within 500 feet of a building. The defendant was sentenced to a term of from two and one-half years to two and one-half years and a day in State prison, concurrent with his life sentence, as to the former, and to a term of three months in the house of correction as to the latter, deemed served at the time of sentencing.

4 See Moffett, 383 Mass. at 208 ("If appointed counsel, on grounds of professional ethics deems it absolutely necessary to dissociate himself or herself from purportedly frivolous points, counsel may so state in a preface to the brief," but still should "present the [points] succinctly in the brief"). 9

motion to suppress his postarrest statements to investigators on

two grounds, discussed infra. "In reviewing a decision on a

motion to suppress, we accept the judge's subsidiary findings

absent clear error but conduct an independent review of [the]

ultimate findings and conclusions of law" (citation and

quotations omitted). Commonwealth v. Jones-Pannell, 472 Mass.

429, 431 (2015).5 We review video footage independently. See

Commonwealth v. Yusuf, 488 Mass. 379, 380-381 (2021). And "[w]e

review questions of statutory interpretation de novo."

Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 331

(2021).

i. Recording under wiretap statute. The defendant argues

that the recording of his police station statement, after police

officers read to him, and he waived, his Miranda rights, was a

"secret recording" prohibited by the wiretap statute.

5 We supplement the motion judge's subsidiary findings with "evidence from the record that 'is uncontroverted and undisputed and where the judge explicitly or implicitly credited the witness's testimony.'" Jones-Pannell, 472 Mass. at 431, quoting Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). We do so "only so long as the supplemented facts 'do not detract from the judge's ultimate findings.'" Jones-Pannell, supra, quoting Commonwealth v. Jessup, 471 Mass. 121, 127-128 (2015). 10

Accordingly, he maintains that his motion to suppress the

recording should have been allowed.6

A. Wiretap statute. The wiretap statute makes it a crime

to "willfully commit[] an interception . . . of any . . . oral

communication." G. L. c. 272, § 99 C 1. The term

"interception" is defined as "to . . . secretly record . . . the

contents of any . . . oral communication through the use of any

intercepting device by any person other than a person given

prior authority by all parties to such communication." G. L.

c. 272, § 99 B 4. A defendant whose oral communications have

been intercepted in violation of the statute may bring a motion

to suppress the contents of unlawfully intercepted

communications and evidence derived therefrom. G. L. c. 272,

§ 99 P.

B. Motion judge's findings and video footage. The motion

judge made the following findings of fact. The defendant was

arrested at approximately 12:30 P.M. and taken to the Brockton

police station and into an interview room, where an

interrogation began at 1:11 P.M. The defendant was advised of

6 The defendant also argues cursorily that the investigators failed to inform the defendant of the camera in order to "lull[ the defendant] into a false sense of security that they were having a 'cozy chat.'" The defendant cites nothing in the record to buttress this allegation, and the tenor of the interrogation, as reflected in the recording, does not support the defendant's claim of an illicit scheme. 11

his Miranda rights and his right to a prompt arraignment; he

indicated that he understood his rights and signed written

waivers of these rights. The interrogation, which was recorded

by an audio-visual electronic recording device in the

interrogation room, lasted a little longer than one hour.

The recording device did not look like a traditional

camera; instead, its physical structure resembled a thermostat

or motion sensor. The defendant was not notified that his

statement was being recorded by electronic means. There was no

sign indicating that there was a recording device in the

interrogation room. The motion judge rejected the

Commonwealth's suggestion that a small sign on the door between

the garage and adjacent police station, which stated "Audio

Monitoring on These Premises," was sufficient to notify the

defendant that his interrogation was being recorded by

electronic means.7

Although finding that the defendant did not receive actual

or constructive notice of the electronic recording, the motion

7 In discussing the defendant's Miranda waiver, the motion judge noted that the defendant "has extensive experience with the criminal justice system," having signed Miranda waivers on six prior occasions. Each of these occasions occurred after the court's decision in Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004) (expressing "preference that [custodial interrogations] be recorded whenever practicable"). The officers knew of at least some of the defendant's prior criminal justice system history. 12

judge concluded that, because the defendant was advised that

anything he said could and would be used against him in court,

the recording was not surreptitious eavesdropping in violation

of the wiretap statute.

In addition, the interrogation footage captured each

officer taking written notes during portions of the

interrogation. Before the defendant's admission that he twice

shot at the victim, the defendant was prompted by one police

officer: "This is where the people that listen to your story

later on determine whether you really care about someone other

than yourself, and you want to tell the truth and . . . be

remorseful . . . and explain what you did and why you did it.

That's where your role comes in now." A short while later, the

officer added, "[I]f you're not gonna tell the truth, it's not

gonna look good for you."

C. Recording of interrogation. The defendant's argument

requires us to construe the wiretap statute and determine

whether the statute criminalizes the electronic recording of a

defendant's voluntary statement to police officers under

circumstances where the defendant understands that the statement

can and will be used against him and nonetheless decides to

proceed with the interrogation, the defendant is informed that

the interrogation presents an opportunity to relay his narrative

for future listening, and the defendant understands that 13

officers are recording the statement (or parts thereof) in

writing. This requires a legal determination, which we consider

de novo, Pesa, 488 Mass. at 330-331; Jones-Pannell, 472 Mass. at

431, based on the factual findings by the motion judge.

Our opinion in Commonwealth v. Rainey, 491 Mass. 632

(2023), is instructive. There, unbeknownst to the person giving

a statement to police officers (a victim of domestic violence),

her voluntary statement was recorded by an electronic recording

device -- a body-worn camera. Id. at 634. Nonetheless, the

victim, like the defendant in this case, understood that her

statement was being preserved; indeed, the victim, like the

defendant here, spoke to the police officers for the purposes of

memorializing her statement, and the video footage shows police

officers taking written notes during portions of her statement.

Id. at 635, 643-644. The defendant in Rainey, like the

defendant here, nonetheless maintained that the recording was a

"secret recording" in violation of the wiretap statute because

the victim was unaware of the police officer's electronic

recording device. Id. at 640.

We acknowledged in Rainey that "subsection 99 C of the

wiretap statute could be construed literally as the defendant

suggests" to criminalize the recording of the victim's voluntary

statement. Id. at 642. However, given the absurdity of such a

result, we declined to adopt such a construction because "in the 14

absence of more specific statutory language to that effect

. . . , we [were] unwilling to attribute that intention to the

Legislature." Id., quoting Commonwealth v. Gordon, 422 Mass.

816, 832-833 (1996). Rather, we concluded that the statute did

not prohibit the admission of the recording in question because

"nothing in the wiretap statute as a whole, including its

codified preamble, evince[d] an intent to prohibit recording a

victim's volunteered report of a crime where . . . the victim

was aware that officers already were memorializing her report in

writing." Rainey, supra at 643. Indeed, as we explained, the

"legislative focus [of the wiretap statute, as set forth in the

statute's preamble,] was on the protection of privacy rights and

the deterrence of interference therewith by law enforcement

officers' surreptitious eavesdropping as an investigative tool."8

Id., quoting Gordon, supra at 833. See Gordon, supra

8 "In pertinent part, the preamble of the wiretap statute codified the Legislature's finding that 'organized crime' existed in the Commonwealth and was 'a grave danger to the public welfare and safety.' G. L. c. 272, § 99 A. The Legislature concluded that '[n]ormal investigative procedures' were 'not effective in the investigation of illegal acts committed by organized crime' and that 'law enforcement officials must be permitted to use modern methods of electronic surveillance, under strict judicial supervision, when investigating these organized criminal activities.' Id. The preamble also codified the Legislature's recognition that 'the uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the [C]ommonwealth.' Id." Rainey, 491 Mass. at 643 n.20. 15

(concluding, in view of legislative purpose of wiretap statute,

that it does not prohibit recording of booking procedures in

police station).9 See also Rainey, supra at 642 (collecting

cases turning to preamble to inform analysis of wiretap

statute). The Legislature, we concluded, did not have in mind

the type of voluntary statement given by the victim, much less

to sanction criminally the conduct of police officers who

preserved the victim's voluntary statement to them. Rainey,

supra at 643-644.

Similarly, here nothing in the statute as a whole,

including its codified preamble, supports the conclusion that

the Legislature intended to criminalize the police officers'

recording of the defendant's voluntary statement, which the

9 Our decision in Gordon did not rest, as the defendant suggests, on the ground that the electronic recording in that case "did not capture or reveal the defendants' thoughts or knowledge about some fact or subject." Gordon, 422 Mass. at 833. Indeed, it is pellucid that the wiretap statute does not use the content of the recording as a trigger for a violation. See G. L. c. 272, § 99 C 1 ("Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception . . . shall be prima facie evidence of a violation . . ." [emphasis added]). Our reasoning in Gordon, as we explained in Rainey, centered on the Legislature's intent, as evinced in the wiretap statute's preamble, see note 8, supra, to prohibit surreptitious eavesdropping, see Rainey, 491 Mass. at 643, citing Gordon, supra at 832-833; because the Legislature did not appear to have in mind the recording of a booking procedure at the police station, we did not adopt the literal construction urged by the defendant, Gordon, supra at 832-833. 16

defendant understood was being preserved for future use in

connection with the investigation of the crime about which the

defendant was speaking voluntarily. The recording "was not used

as an investigative tool to secretly eavesdrop on an otherwise

private conversation";10 rather, it captured the defendant's

"voluntary statement to police officers, which [the defendant]

knew was being memorialized by them in writing." Rainey, 491

Mass. at 643-644. Indeed, the officers explained to the

defendant that the interrogation provided him an opportunity to

tell his own story, and the defendant proceeded to do so knowing

10We agree with the defendant that the relevant question for purposes of the wiretap statute is not whether the defendant had a reasonable expectation of privacy. See Rainey, 491 Mass. at 644 n.21; Commonwealth v. Jackson, 370 Mass. 502, 506 (1976) ("we would render meaningless the Legislature's careful choice of words if we were to interpret 'secretly' as encompassing only those situations where an individual has a reasonable expectation of privacy"). Thus, our conclusion does not rest on a determination whether the defendant's rights under the Fourth Amendment to the United States Constitution or art. 14 of the Massachusetts Declaration of Rights were violated. See, e.g., Commonwealth v. DeJesus, 489 Mass. 292, 295 (2022) (defendant may challenge search or seizure under Fourth Amendment or art. 14 only if defendant has reasonable expectation of privacy). The wiretap statute evinces the Legislature's intent to provide broader protections than those provided by the State and Federal Constitutions. Accordingly, our analysis is guided by the Legislature's intent as set forth in the words of the statute, in the context of the statute as a whole. See Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006) ("Courts must ascertain the intent of a statute from all its parts and from the subject matter to which it relates, and must interpret the statute so as to render the legislation effective, consonant with sound reason and common sense"). 17

that the statement would be preserved for later review. In

particular, the defendant was warned that his statements could

and would be used against him in a court of law and was reminded

that individuals would "listen" to his statement. Presumably,

he also saw the police officers, who were seated next to him,

taking notes during his statement.11 Regardless of whether the

defendant recognized the electronic recording device as a

thermostat, motion sensor, or camera, it strains credulity to

conclude that the defendant did not understand that his

statement was being memorialized. "The resulting video footage

was not a clandestine recording precluded by the wiretap

11We do not, as the concurring justice suggests, ignore that the wiretap statute prohibits both secretly hearing and secretly recording. See G. L. c. 272, § 99 B 4 (defining "interception" as to "secretly hear" or "secretly record"). Our decision does not rest on the fact that the officers heard the defendant's statement. As in Rainey, we simply decline to attribute to the Legislature an intent to prohibit electronically recording a defendant's voluntary statement in circumstances where the defendant knows that his statement is being recorded by other means -- here, by use of a writing implement and paper. See Rainey, 491 Mass. at 644 n.22, quoting Commonwealth v. Moody, 466 Mass. 196, 209 (2013) ("'record' as used in the wiretap statute should be given its plain and ordinary meaning to 'mean, "to set down in writing" or "to cause [sound, visual images] to be transferred to and registered on something by electronic means in such a way that the thing so transferred and registered can . . . be subsequently reproduced"'"). See Moody, supra ("secretly record" as used in wiretap statute "includes the interception of text messages by viewing and transcribing them for use at a later date" [emphasis added]). A reading requiring suppression under the circumstances is without any foundation in the Legislature's intent, as expressed in the codified preamble. 18

statute; rather, it merely preserved the statement (albeit

through an alternative, electronic medium) that the [defendant]

voluntarily gave to law enforcement officers and which []he

understood was being recorded by them by means of paper and

pen." Id. at 644. See Commonwealth v. Ashley, 82 Mass. App.

Ct. 748, 762 (2012), cert. denied, 571 U.S. 838 (2013) (wiretap

statute did not criminalize use of camera in police station

interrogation room to record defendant's volunteered statement

to officers when officers "repeatedly expressed their intention

to get it 'down on paper' and memorialize the interview").

Accord Commonwealth v. Hyde, 434 Mass. 594, 602 & n.9 (2001)

(contrasting "clandestine recording" prohibited by wiretap

statute with "good practice" of electronic recording of police

interrogations based on presumption "that, when police

interrogations are electronically recorded, the suspect is aware

that the interrogation is being preserved").

ii. Denial of right to telephone call. The defendant next

maintains that his statement should have been suppressed because

he was denied his right to make a telephone call in violation of

G. L. c. 276, § 33A. Section 33A provides:

"The police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone, at the expense of the arrested person, for the purpose of allowing the arrested person to communicate with his family or friends, or to arrange for release on bail, or to engage the services of an attorney. Any such person shall be 19

informed forthwith upon his arrival at such station or place of detention, of his right to so use the telephone, and such use shall be permitted within one hour thereafter (emphasis added)."

Although the statute does not set forth a statutory remedy for a

violation of the defendant's right, we have applied the

exclusionary rule to evidence gathered as a result of a

violation of the statute where the defendant can show that the

violation was intentional. See Commonwealth v. Walker, 466

Mass. 268, 278 (2013); Commonwealth v. Alicea, 428 Mass. 711,

716 (1999); Commonwealth v. Jones, 362 Mass. 497, 502 (1972).

A. Motion judge's findings. The motion judge made the

following findings of fact. After the defendant, at the

Brockton police station, waived his Miranda and prompt

arraignment rights, at 1:13 P.M., the defendant was advised that

he would be afforded a telephone call when he was taken to

booking; but the defendant was not told when he would be taken

to booking. More than one hour later, toward the end of the

interrogation, an officer asked the defendant if he wanted to

call his parents; the defendant responded that he would like to

call his children and the mothers of his children, but "not

right [then]." The defendant soon thereafter was taken to

booking and advised of his right to make a telephone call.

The defendant had prior experience with the criminal

justice system. In particular, on ten prior occasions, after 20

being arrested and booked at the Brockton police station, the

defendant had been informed of, and utilized, his right to make

a telephone call.

The motion judge concluded that G. L. c. 276, § 33A, was

violated because the defendant neither was advised of his right

to make a telephone call upon his arrival at the police station

nor afforded the right to use a telephone within one hour of his

arrival. The motion judge found that the violation, however,

was unintentional, relying on the testimony of the police

officers, corroborated by the video footage, that they promptly

informed the defendant of his Miranda and arraignment rights.

The motion judge also relied on the defendant's "prior

experience with the criminal justice system," specifically his

prior bookings.12 Accordingly, the motion judge denied the

defendant's motion to suppress.

B. Unintentional violation of telephone call right. The

defendant contends that the motion judge's finding that the

violation of G. L. c. 276, § 33A, was unintentional was

erroneous. We review the finding of the motion judge, who

directly heard the testimony of the arresting officers, for

clear error. Jones-Pannell, 472 Mass. at 431. See Ashley, 82

12The motion judge made no finding as to whether the officers knew of this criminal history, outside of the defendant's outstanding probation arrest warrant. 21

Mass. App. Ct. at 759 (reviewing judge's rejection of

intentional motive for clear error). In support of this

argument, the defendant points to the evidence that one of the

police officers told the defendant that he would have the

"opportunity" to make a telephone call later but did not, at

that time, inform him of his "right" to make a telephone call.

He maintains that the statutory violation, in conjunction with

the electronic recording of his statement, constituted an

intentional plan to extract a confession. The defendant also

contends that the motion judge erred in relying on his prior

arrest history, including his prior exercise of his statutory

right to make a telephone call; this history, the defendant

asserts, has no bearing on the question whether the officers

intentionally violated the statute.

We have concluded previously that a finding that a

violation of § 33A was unintentional may be supported by

evidence that officers informed a defendant of other rights.

See, e.g., Walker, 466 Mass. at 278-279 ("The judge's reliance

on the fact that the [officers] informed the defendant of . . .

other rights is not misplaced, nor was the judge's consideration

of the defendant's prior experience in the criminal justice

system"). We also have concluded that, where the defendant

previously has been informed of his right to a telephone call

because, inter alia, the defendant has "prior experience in the 22

criminal justice system," the motion judge's consideration of

the prior experience in determining whether to impose the

exclusionary remedy is apt. See id. See also Commonwealth v.

Leahy, 445 Mass. 481, 490 (2005) (where defendant "told the

investigating officer that he knew his rights and had been

arrested before" and defendant previously was seated across from

large poster explaining telephone rights, "it was reasonable for

the officer to assume that [the defendant] was well aware of his

right to make a telephone call").

The defendant points to nothing in the record to support

his contention that the violation was intentional, let alone

that it was part of an illicit scheme.13 Contrast Jones, 362

Mass. at 500 (applying exclusionary rule to preclude admission

of defendant's statement where defendant was not allowed to make

telephone call despite repeatedly asking for opportunity). A

detainee's rights under § 33A are important. See, e.g.,

Commonwealth v. Bradshaw, 385 Mass. 244, 266 (1982), and cases

cited. However, without more than the fact of the violation

itself, the defendant has not carried his burden to show that

13The defendant's additional reliance on the electronic recording of his statement is misplaced. As discussed supra, the record shows the defendant was given Miranda warnings, waived them, and understood that his voluntary statement was being preserved. 23

the motion judge clearly erred in finding that the officers'

conduct was not intentional.

b. Prosecutor's comments on defendant's omissions. During

the redirect examination of one of the police officers who had

conducted the defendant's interrogation, the prosecutor asked,

"During [the defendant's] lengthy interview with you, did the

defendant ever say he saw a gun in the car that night?" The

investigator answered that he had not. Then, during her closing

statement, the prosecutor referenced this testimony, stating:

"At that point in time [the victim] doesn't point a gun at him, doesn't shoot at him, doesn't threaten him, nothing; and you know that because the defendant says none of that in his statement. He has the opportunity there in the statement to tell everything."

"The police practically beg him, tell us everything you can to help you. Tell us every detail. They even at the end say, you know, we're going to go do booking but if you think of anything, we can come back. Tell us everything. He never says that [the victim] pointed a gun at him or threatened him or that he saw a gun." (Emphases added.)14

14 During the interrogation, the defendant did not say that he saw the victim with a gun, but he did say that the victim "was a shooter," was "making motions," and was "acting kinda funny like he got somethin' or somethin' . . . actin' like he had a weapon." Toward the end of the interrogation, one of the investigators stated, "Tell me what we don't know. Tell me what we didn't ask you that we should've asked you." The investigator asked multiple times whether there was anything the defendant wanted to "add or subtract" to his story or otherwise change, then or after booking. It is a reasonable inference that, if the defendant had seen the victim with a firearm, he would have said so, rather than limiting his account to these statements. See Commonwealth v. Doughty, 491 Mass. 788, 799 (2023), quoting Commonwealth v. Joyner, 467 Mass. 176, 189 24

The defendant contends that these statements violated his

privilege against self-incrimination, protected by the Fifth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights. The Commonwealth maintains

that, because the defendant waived his Miranda rights and

decided to proceed with the interrogation, it was not improper

for the prosecutor to identify inconsistencies between omissions

during the post-Miranda interview and the trial defense.15 The

defendant did not object to either the direct examination

testimony of the officer or the closing statement; accordingly,

we review to determine whether either was improper and, if so,

whether it created a substantial likelihood of a miscarriage of

justice. See Commonwealth v. Alemany, 488 Mass. 499, 511

"'A defendant's silence after the police have given the

warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-479

(1966), may not be used against the defendant' to impeach an

(2014) ("a prosecutor may argue reasonable inferences from the evidence").

15In opening, the defense counsel contended that, based on certain facts to be introduced in evidence, such as the victim asking a friend to hand him something, the jury should ask, "Was there a gun in the car?" And in closing, the defense counsel argued that the police investigation was "a very shoddy way to look for evidence of a gun in that car," and again focused on the victim asking his friend to pass him something and putting his hand in his pocket, inferring that the victim had a gun. 25

exculpatory explanation subsequently offered at trial."

Commonwealth v. Guy, 441 Mass. 96, 103 (2004), quoting

Commonwealth v. Waite, 422 Mass. 792, 797 (1996). See Doyle v.

Ohio, 426 U.S. 610, 619 (1976) ("the use for impeachment

purposes of [defendant's] silence, at the time of arrest and

after receiving Miranda warnings, violated the Due Process

Clause"). However, where a defendant voluntarily chooses to

speak to police officers and waives his Miranda rights, "[w]hat

the defendant thereafter [chooses] to say or not say to each

officer on the subject [can] properly be commented on by the

prosecutor to expose inconsistencies." Guy, supra at 104. "A

defendant cannot have it both ways. If he talks, what he says

or omits is to be judged on its merits or demerits, and not on

some artificial standard that only the part that helps him can

be later referred to." Id. at 104-105, quoting United States v.

Goldman, 563 F.2d 501, 503 (1st Cir. 1977), cert. denied, 434

U.S. 1067 (1978). Cf. Commonwealth v. Belton, 352 Mass. 263,

270, cert. denied, 389 U.S. 872 (1967) ("The remark complained

of was not in effect directed at the defendant's silence while

under arrest but rather at an inconsistency in his alibi which

had been brought out during the trial"). 26

The defendant does not now dispute that he voluntarily

waived his Miranda rights.16 Accordingly, the prosecutor

permissibly commented on the inconsistency between the

defendant's position at trial that the victim had a firearm and

that the defendant acted in self-defense, on the one hand, and

his statement to the interrogating police officers that he

believed the victim was armed based only on his knowledge of the

victim and the victim's movements prior to the shooting, on the

other.

The defendant misapprehends our decision in Commonwealth v.

Haas, 373 Mass. 545, 559 (1977), S.C., 398 Mass. 806 (1986).

There, we held that the defendant's failure to volunteer that he

was innocent could not be used against him to imply tacit

admission of guilt. Id. at 559-560. We have distinguished

"asking the jury to infer guilt from the fact that a defendant

had not spontaneously volunteered his innocence during an

interrogation" from commenting on omissions in the defendant's

statement to officers. See, e.g., Commonwealth v. Thompson, 431

Mass. 108, 118, cert. denied, 531 U.S. 864 (2000), citing Haas,

16The defendant pressed this argument below, but has dropped it on appeal, and for good reason. His primary challenge to the validity of the Miranda waiver was that he was only advised that he was under arrest on his probation warrant, but the motion judge found that he was informed that he was under arrest for murder as well, and there is nothing in the record to suggest that the finding was clearly erroneous. 27

supra at 558-559 ("proper for the prosecutor to comment on the

fact that the defendant did not ask appropriate questions" about

what had happened to victim, his wife, during "far-ranging

statement"). A prosecutor may comment on "the fact that the

defendant did not inform the police at any time of certain

important details of [his story] which was presented at trial,"

where the defendant told some details to the police. Belton,

352 Mass. at 270.17 "The defendant had a constitutional right to

silence, not a right to tell a story and then avoid explaining

crucial omissions by stating they were an exercise of the right

17Nor are we persuaded that the reasoning of Commonwealth v. Rivera, 62 Mass. App. Ct. 859, 862 (2005), cited by the defendant, suggests a different holding. See id. ("The defendant certainly was under no burden spontaneously to volunteer potentially exculpatory information in his statement to police"). There, the prosecutor commented on the defendant's failure to mention during his interrogation that there were witnesses to the event; not mentioning witnesses during the interrogation was not inconsistent with presenting witnesses at trial. Id. By contrast, here, the defendant specifically told officers that he believed that the victim was armed based on the victim's prior statements and his movements in the car; he did not mention, as a basis for his belief that the victim was armed, that he actually saw that the victim carrying a firearm. At trial, the defendant's position was that one of the reasons he thought the victim was armed was that the victim actually had a firearm. The prosecutor's comment on the inconsistency was fair. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 419 (2016) ("Contrary to the defendant's claim, because the defendant waived his right to remain silent, and made a voluntary statement about the [issue], the concerns outlined in [Haas] do not apply here"). 28

to silence." Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113

(2011).

c. Review under G. L. c. 278, § 33E. After a review of

the entire record, we discern no error warranting relief under

G. L. c. 278, § 33E.18

3. Conclusion. We affirm the defendant's convictions of

murder in the first degree and unlawful discharge of a firearm

within 500 feet of a building. We vacate and set aside the

defendant's conviction of unlawful possession of a firearm.19

The defendant's motion for a new trial is denied.

So ordered.

18We have considered the additional arguments in the defendant's brief filed pursuant to Moffett, 382 Mass. at 207- 208, and we conclude that they do not warrant granting his motion for a new trial.

19"[T]he defendant's rights under the Second Amendment [to the United States Constitution] and his rights to due process were violated when he was convicted of unlawfully possessing [a firearm] although the jury were not instructed that licensure is an essential element of the crime." Guardado, 491 Mass. at 693. "[O]ur holding [in Guardado] applies prospectively and to those cases that were active or pending on direct review as of the date of the issuance of [New York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111 (2022)]." Guardado, supra at 694. As to whether retrial shall be permitted, that issue is currently pending before the court and is scheduled for oral argument in September 2023. See Commonwealth vs. Guardado, No. SJC-13315. The rescript in this opinion shall be stayed pending our decision in that case. BUDD, C.J. (concurring). I agree that the motion judge was

correct to deny the defendant's motion to suppress and that the

defendant's convictions should be affirmed. I write separately

because, in my view, the plain and unambiguous language of the

wiretap statute, G. L. c. 272, § 99 B 4 (§ 99), should apply

even where police officers adhere to other legal requirements,

such as providing a Miranda warning. Applying the plain

statutory language in this case, I conclude that the officers

violated § 99. Nevertheless, because the officers did not

deliberately record the defendant without his knowledge during

his confession, his statements need not be suppressed.

1. Interpretation. Subject to limited, enumerated

exceptions,1 § 99 proscribes the secret recording of "the

contents of any wire or oral communication through the use of

any intercepting device by any person other than a person given

1 In summary, the act contains exceptions for (1) employees or agents of common carriers, (2) persons possessing or using an intercommunication system in the ordinary course of their business, (3) United States investigative and law enforcement officers acting pursuant to the laws of the United States and within the scope of their authority, (4) any person authorized by warrant to make interceptions, (5) investigative or law enforcement officers acting to ensure the safety of another officer or agent who is undercover or serving as a witness for the Commonwealth, (6) financial institutions communicating with their corporate or institutional trading partners in the ordinary course of business, and (7) law enforcement officers investigating certain offenses in connection with organized crime. See G. L. c. 272, § 99 B 4 & 7, D. Neither the Commonwealth nor the court asserts that any of the statute's exceptions apply in this case. 2

prior authority by all parties to such communication" (emphasis

added). G. L. c. 272, § 99 B 4. See Commonwealth v. Jackson,

370 Mass. 502, 503 n.1 (1976), S.C., 391 Mass. 749 (1984). If

none of the enumerated exceptions applies, "any person" includes

law enforcement. See Commonwealth v. Burgos, 470 Mass. 133, 140

(2014) (noting that law enforcement may record with only one-

party consent when investigating certain designated offenses in

connection with organized crime). "Intercepting device" is

defined as "any device or apparatus which is capable of

transmitting, receiving, amplifying, or recording a wire or oral

communication." G. L. c. 272, § 99 B 3. As we observed in

Curtatone v. Barstool Sports, Inc., 487 Mass. 655, 658 (2021),

the statute does not define "secretly." We therefore adopt its

plain language meaning, which includes "something kept hidden or

unexplained." Id., quoting Merriam-Webster's Collegiate

Dictionary 1122 (11th ed. 2020).

With the all-party consent provision and the act's

applicability to "any person," including law enforcement

officials unless authorized, the Legislature has placed tight

controls on secretly recording oral communications.

Accordingly, this court has both consistently underscored the

act's broad prohibition against secretly recording conversations

except as authorized by the statute and maintained that the

relevant inquiry under § 99 is whether individuals being 3

recorded "have actual [or constructive] knowledge of the

recording," which may be "proved where there are clear and

unequivocal objective manifestations of knowledge" in the

speakers' statements or conduct. Jackson, 370 Mass. at 507.

See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v.

Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of

"interception" under § 99); Commonwealth v. Tavares, 459 Mass.

289, 297 (2011) ("clear legislative intent" to limit

availability of wiretapping in criminal investigations); id.,

quoting Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert.

denied, 454 U.S. 1147 (1982) ("we have stated that the one-party

consent exception is 'a narrow exception to the broad statutory

prohibition against warrantless surveillance'"). See also

Tavares, supra, quoting Thorpe, supra ("Legislature proceeded on

the premise that electronic surveillance is anathema except

within certain narrowly prescribed boundaries"). It is

undisputed that the defendant did not have actual or

constructive knowledge that he was being recorded. Given the

language of the statute, and our prior precedent interpreting

it, this finding is sufficient to conclude that an interception

was made.

As a practical matter, a textual application of the statute

in this case simply would mean that an individual being

questioned by police must be given actual or constructive notice 4

that he or she is being audio recorded (even where the

individual is aware that officers are taking notes and officers

have provided a Miranda warning). See Commonwealth v. Hyde, 434

Mass. 594, 605 (2001) (no violation of § 99 occurs when

recording is done in plain view even if actual notice is not

given).2 As this result is not illogical, we need not attribute

intent to the Legislature where the statutory language speaks

for itself. See Worcester v. College Hill Props., LLC, 465

Mass. 134, 138 (2013) (where statutory language is clear and

unambiguous, it is conclusive as to legislative intent and

should be enforced unless application would lead to absurd

result); Commissioner of Correction v. Superior Court Dep't of

the Trial Court for the County of Worcester, 446 Mass. 123, 124

(2006) (where statutory language is clear and unambiguous, our

2 The United States Court of Appeals for the First Circuit has held that the application of the act to prohibit secret recording of police in carrying out their public duties violates the First Amendment to the United States Constitution. See Project Veritas Action Fund v. Rollins, 982 F.3d 813, 833-840 (1st Cir. 2020), cert. denied, 142 S. Ct. 560 (2021) (Project Veritas). However, this conclusion was specific to the context of civilians recording police officers in the performance of their public duties. See id. at 831, quoting Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011) (citation omitted) ("the [F]ederal constitutional guarantee of freedom of speech protects the right to record 'government officials, including law enforcement officers, in the discharge of their duties in a public space,' even when the recording, which there involved both audio and video, is undertaken without the consent of the person recorded"). See also Project Veritas, supra at 836-840. The analysis in Project Veritas does not apply here, where the subject of the secret recording is not a government official. 5

inquiry ends). In fact, advising suspects that their interview

is being recorded is standard practice. See Commonwealth v.

Alleyne, 474 Mass. 771, 785 (2016) (citing § 99 B 4, C 1, in

clarifying that "[p]ermission to record an interview is not

required so long as the interviewee has actual knowledge of the

recording"); Commonwealth v. DiGiambattista, 442 Mass. 423, 445

(2004) (citing § 99 in noting suspect may refuse to allow

recording).3

Nor does Commonwealth v. Gordon, 422 Mass. 816 (1996),

counsel us to go beyond the text in this case. In Gordon, we

held that the videotaping of the defendants' booking at a police

station did not violate § 99, even though the defendants had no

knowledge of the taping. Id. at 832. In reaching that

conclusion, we alluded to the act's "legislative focus . . . on

the protection of privacy rights and the deterrence of

interference therewith by law enforcement officers'

surreptitious eavesdropping as an investigative tool." Id. at

833. With that context in mind, we decided that the Legislature

did not intend the act to apply to the recording of an

administrative booking, where the "videotape did not capture or

reveal the defendants' thoughts or knowledge about some fact or

Indeed, an officer in this case testified that it is good 3

practice for the police to inform those being interviewed that they are being recorded. 6

subject, but at best served only to exhibit the defendants'

bearing and manner of speaking which were relevant on the

question of their intoxication or sobriety at the time of the

assaults" in question. Id. But Gordon readily is

distinguishable from the present case because, here, the

defendant's interrogation, not his booking, was recorded, and

the recording plainly did capture the defendant's thoughts or

knowledge about a fact or subject, namely, his actions, state of

mind, and other circumstances during the night of the murder.

Moreover, neither Gordon nor any of the cases decided since

suggests that we intended to overrule Jackson. Instead, our

decisions have continued to follow Jackson in focusing on

whether a speaker has knowledge of the recording as the standard

for determining whether a recording has been made "secretly" in

violation of the act. See, e.g., Curtatone, 487 Mass. at 659

(defendant did not secretly record telephone call in violation

of act, where plaintiff knew that he was being recorded);

Commonwealth v. Boyarsky, 452 Mass. 700, 705-706 (2008)

(recording that is made with actual knowledge of all parties is

not "an interception" under § 99); Hyde, 434 Mass. at 600-601

(where no exceptions apply, recording made without knowledge or

consent of all parties violates act even if no reasonable

expectation of privacy). 7

2. Contemporaneous note-taking. For its part, the

Commonwealth argues, and the court agrees, that because the

defendant was aware that the officers were taking notes on his

statement, and that his words could be used against him in

court, the recording of the defendant's interview does not

amount to the kind of "surreptitious eavesdropping" prohibited

by § 99. However, nowhere does the statute state, or even

imply, that memorializing speech through a nonintercepting

method, such as pen and paper, creates latitude to contravene

the statute's prohibition on memorializing speech through the

use of an intercepting device without notice.

The statute broadly defines "intercept" as to "secretly

hear" or "secretly record." G. L. c. 272, § 99 B 4. There is

no doubt that the defendant was aware that he was being heard by

the officers who were present and that his words were being

memorialized through pen and paper. However, it also is

uncontested that the defendant neither was informed nor

otherwise made aware that he was being recorded. To determine

that there is no "interception" where the "hearing" is not

secret, but the recording is, ignores the phrase "to record"

included in the definition of "interception." See Commonwealth

v. Daley, 463 Mass. 620, 623 (2012) ("In statutory

interpretation, '[n]one of the words of a statute is to be

regarded as superfluous'" [citation omitted]). Thus, the 8

statute apparently contemplates circumstances in which one

openly hears a conversation and secretly records it through the

use of an intercepting device. Such conduct is a violation of

the statute based on its plain language.

Although strict, the Legislature passed one of the most

stringent wiretap statutes in the nation by design. See Hyde,

434 Mass. at 599 n.5 (discussing other States' wiretap laws);

Jackson, 370 Mass. at 506 & n.6. The preamble evinces this

strictness by highlighting two concerns of the Legislature's

that it attempted to balance in enacting the wiretap statute:

(1) law enforcement's ability to use "modern methods of

electronic surveillance, under strict judicial supervision," to

investigate organized crime and (2) protecting "the privacy of

all citizens of the commonwealth." G. L. c. 272, § 99 A;

Commonwealth v. Ennis, 439 Mass. 64, 68 (2003).

To effectuate this balance, the statute details the very

limited circumstances in which law enforcement may record a

member of the public without his or her knowledge or consent.

See Hyde, 434 Mass. at 599 ("The commission clearly designed the

1968 amendments to create a more restrictive electronic

surveillance statute than comparable statutes in other States").

Again, neither the Commonwealth nor the court contend that any

of these circumstances are present in this case. Bearing in

mind the broad coverage of § 99 and the narrowness of its 9

exceptions for law enforcement activities, we should not infer

that the Legislature intended to exempt police officers from

informing a member of the public that they are being recorded so

long as the officers adhere to other, unrelated legal

directives.

In accordance with our prior precedent, in determining

whether the recording of the defendant's interrogation in this

case was made "secretly" in violation of § 99, we should focus

on whether the defendant knew that his interrogation was being

recorded. The motion judge's findings that the defendant was

not advised and did not have constructive notice of the

recording have not been challenged. Thus, absent evidence of

clear error, these findings conclusively should establish that

the recording was made in violation of the statute.

3. Remedy. Although I conclude the interview was

intercepted, as the term is defined in § 99, the statute "does

not . . . require the suppression of all communications

intercepted in violation of its provisions." Commonwealth v.

Santoro, 406 Mass. 421, 423 (1990). As "[t]he Legislature has

left it to the courts to decide whether unlawfully intercepted

communications must be suppressed," id., I would affirm the

motion judge's decision to deny the defendant's motion to

suppress, as the court does today. 10

Exclusionary rules "are intended to deter future police

conduct in violation of constitutional or statutory rights."

Id. As such, this court has had occasion to affirm the denial

of a motion to suppress recordings made in violation of the act

where no deterrent purpose would be served by requiring

suppression. See id. As one of the officers testified at

trial, it was standard practice to inform those being

interviewed that they were being recorded, and he had done so

with another witness whom he had interviewed in the case.

Moreover, as the court notes, the motion judge found that

the officers promptly had reviewed the defendant's Miranda and

arraignment rights with him at the outset of the interview.

Additionally, it is undisputed that, after being given his

Miranda warnings, the defendant openly admitted to firing two

shots into the car window where the victim was sitting, and the

defendant does not contend on appeal that his confession was

coerced. No deterrent purpose would be served by granting

suppression in these circumstances.4

4While § 99 defines "interception" as secretly hearing or recording the contents of any wire or oral communication through the use of any intercepting device, the act only penalizes individuals who commit willful interceptions. See G. L. c. 272, § 99 B 4, C 1. As there is nothing to suggest that the officers in this case willfully recorded the defendant without his knowledge, they would not be subject to § 99'ssignificant penalties, which further supports the contention that no absurd result would come from adhering to the statute's plain text in this case. See Commonwealth v. Brennan, 481 Mass. 146, 154 (2018) ("Wilful conduct is that which is 'intentional rather than accidental . . .'" [citation omitted]).