Com. v. Eason

• Decision Date: 05 June 1998
• Citation: 694 N.E.2d 1264,427 Mass. 595
• Parties: COMMONWEALTH v. John EASON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1264

694 N.E.2d 1264

427 Mass. 595

COMMONWEALTH v. John EASON.

Supreme Judicial Court of Massachusetts Essex.

Argued Feb. 6, 1998.

Decided June 5, 1998.

Robert J. Bender, Assistant District Attorney (David Dunbar Livingston, Assistant District Attorney, with him), for the Commonwealth.

Paul J. Molloy, Somerville, for defendant.

Susanne G. Levsen, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Before WILKINS, C.J., and LYNCH, GREANEY, FRIED and MARSHALL, JJ.

WILKINS, Chief Justice.

We have before us, on further appellate review (Commonwealth v. Eason, 43 Mass.App.Ct. 114, 681 N.E.2d 863 [1997] ), the defendant's appeal from his convictions of various crimes that he allegedly committed on January 1, 1993, during an invasion of the apartment of George Allison in Haverhill. At that time Massachusetts, New Hampshire, and Federal law enforcement authorities were investigating illegal narcotics activities in New Hampshire and the Haverhill area. Law enforcement officers believed that the home invasion may have been related to their narcotics investigation.

On April 13, 1993, Massachusetts State Trooper Thomas Coffey and New Hampshire State Trooper Robert Quinn visited a woman named Rita Disorbo in response to information that Quinn had received from a cooperating prisoner named Lee Zahler. Zahler had told Quinn that Disorbo knew who had committed the Allison home invasion. The troopers persuaded Disorbo to make two calls to the defendant at his home. Without the defendant's knowledge, but with Disorbo's consent, the troopers listened to these calls on an extension telephone. They testified at trial to admissions that they heard the defendant make during those telephone conversations.

The Appeals Court summarized the evidence at trial. "[T]he only witnesses were Allison, who described the incident but was unable to identify the participants, Rita Disorbo, her husband Paul Chambers, whom she had married subsequent to the April eavesdropping, and the two troopers. Chambers, Disorbo's then boyfriend, had been incarcerated from September 1992 until March 15, 1993. While Chambers was in jail, Disorbo had a relationship with the defendant. It ended after Chambers was released, at which time the defendant moved out of Disorbo's apartment. Both Disorbo and Chambers testified that the defendant had admitted to them that he had participated in the invasion.... Disorbo and Chambers also stated that the defendant had offered them money not to testify against him. The two troopers related the conversations they had overheard in Disorbo's apartment, in much greater detail than Disorbo's account" of the telephone conversations. Commonwealth v. Eason, supra at 117, 681 N.E.2d 863.

The Appeals Court had no difficulty in concluding that the troopers did not violate the Massachusetts wiretap law (G.L. c. 272, § 99) when they listened to the telephone conversations. Id. at 119-120, 681 N.E.2d 863. The Appeals Court divided, however, on the question whether the troopers had violated the defendant's rights under art. 14 of the Massachusetts Declaration of Rights by listening in on the telephone conversations without first obtaining a warrant. Id. at 125, 681 N.E.2d 863. Id. at 129, 681 N.E.2d 863 (Jacobs, J., dissenting); Id. at 131, 681 N.E.2d 863 (Armstrong, J., dissenting). A majority of that court concluded that they had, that their testimony concerning the telephone conversations should not have been admitted in evidence, and that the error required reversal of the convictions and a new trial. Id. at 125-126, 681 N.E.2d 863. We granted the Commonwealth's application for further appellate review.

We shall discuss the constitutional question that divided the Appeals Court because it will arise at the retrial we conclude is required. We shall, however, first consider another of the defendant's challenges to the admission of evidence, one that is not constitutionally based but is well founded.

1. The defendant contends that, over his objection, prejudicial hearsay evidence was admitted against him. On direct examination, Trooper Quinn testified that, in the days before they overheard the telephone conversations between Disorbo and the defendant, Trooper Coffey and he had been investigating the suspected illegal drug activity of Lee Zahler. On cross-examination, Quinn testified that he and Coffey had spoken with Disorbo because of information that Zahler had provided to him. Quinn then testified, without objection, that Zahler told him that Paul Chambers had said that Disorbo had information on the home invasion and that Quinn and Coffey should interview her.

On redirect examination, the prosecutor asked Quinn, "What was Lee Zahler's information that led you to Disorbo's address." The defendant objected, and the judge held an extensive sidebar conference during which he considered more than just the objection. The judge ruled, over objection on hearsay and other grounds, that Quinn could testify to the information that he had received from Zahler, including Zahler's statement that he was not involved, directly or indirectly, in the home invasion.

Quinn then testified, as he had before, that Zahler had said that, if the police wanted to know who had committed the crimes, they should talk to Disorbo because she knew. In response to another question, Quinn added, consistent with what the judge had authorized at the sidebar conference over objection, that Zahler said that he was not involved in the crimes, himself or through anyone else. ¹

It was the defendant's theory that Zahler's confederates had invaded Allison's apartment in retaliation for some perceived wrong. Because the case against the defendant depended on the credibility of the prosecution's witnesses (there was no inculpatory physical evidence), admission, over objection, of evidence of Zahler's denial to Quinn of his participation in the crimes weakened the defendant's case and, if improper, was reversible error.

The Commonwealth rightly makes no attempt to defend under a hearsay exception the admission of Quinn's testimony of what Chambers told Zahler. Rather, it argues that the defendant opened the door to this subject, thereby justifying admission of the entire conversation. The Commonwealth asserts that the doctrine of verbal completeness justifies admission of all that Zahler said during the same conversation on the same subject. See Commonwealth v. Watson, 377 Mass. 814, 825-831, 388 N.E.2d 680 (1979). ²

What Chambers told Zahler is a matter quite apart from the later self-serving statements made to Quinn denying any involvement in the home invasion. That Zahler made the two statements in the course of the same conversation does not make the second admissible. Verbal completeness at best allows full disclosure of an entire conversation on the same subject. Zahler's protestation of innocence was not part of Chambers's conversation with Zahler, nor did it concern a subject on which Quinn had been cross-examined. See id. at 828, 388 N.E.2d 680; Commonwealth v. Henry, 37 Mass.App.Ct. 429, 432, 640 N.E.2d 503 (1994) (statement of innocence not admissible although part of defendant's admissible statement). The hearsay statement concerning Zahler's assertion of innocence should not have been admitted, and its admission was reversible error.

2. Because there must be a retrial, we state our views on the admissibility of the troopers' recitation of the conversations they overhead on Disorbo's extension telephone. The Appeals Court was divided on the question whether the defendant's rights under art. 14 of the Massachusetts Declaration of Rights were violated by the officers' actions. ³

Constitutional provisions against unreasonable searches and seizures were adopted in large measure as a protection against warrantless intrusions into homes. See Commonwealth v. Panetti, 406 Mass. 230, 234, 547 N.E.2d 46 (1989); Commonwealth v. Blood, 400 Mass. 61, 71, 507 N.E.2d 1029 (1987); Commonwealth v. Forde, 367 Mass. 798, 804-805, 329 N.E.2d 717 (1975). The question before us concerning the propriety of the warrantless seizure of evidence is the same under the Fourth Amendment to the United States Constitution as it is under art. 14: whether the defendant had a subjective expectation of privacy in the object of the challenged search that society is willing to recognize as reasonable. See California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 1811-1812, 90 L.Ed.2d 210 (1986); Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991); Commonwealth v. Panetti, supra at 231-232, 547 N.E.2d 46.

The answer, however, may not be the same under the two Constitutions. In Commonwealth v. Panetti, supra, we held that, without regard to the Fourth Amendment's requirements, art. 14 protected the defendant's reasonable expectation that there would be no warrantless eavesdropping on his conversations from a crawl space under his first-floor apartment. Id. at 234-235, 547 N.E.2d 46. In Commonwealth v. Blood, supra at 61, 507 N.E.2d 1029, we dealt with an art. 14 challenge to the admissibility of statements obtained by means of a concealed transmitter worn by a cooperating confederate of the defendant during meetings in private homes. This kind of warrantless electronic surveillance of conversations with the consent of just one of the parties does not violate the Constitution of the United States. See United States v. Caceres, 440 U.S. 741, 750-751, 99 S.Ct. 1465, 1470-1471, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1125-1126, 28 L.Ed.2d 453 (1971); Commonwealth v. Thorpe, 384 Mass. 271, 282, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982); Commonwealth v. Douglas, 354 Mass. 212, 221-222, 236 N.E.2d 865 (1968), cert. denied, 394 U.S. 960, 89 S.Ct. 1301, 22 L.Ed.2d 562 (1969). In the Blood case, however, we stated that it was "objectively...