Com. v. Eason, 96-P-90

• Decision Date: 08 July 1997
• Docket Number: No. 96-P-90,96-P-90
• Citation: 43 Mass.App.Ct. 114,681 N.E.2d 863
• Parties: COMMONWEALTH v. John EASON.
• Court: Appeals Court of Massachusetts

Page 863

681 N.E.2d 863

43 Mass.App.Ct. 114

COMMONWEALTH v. John EASON.

No. 96-P-90.

Appeals Court of Massachusetts,

Essex.

Argued Sept. 19, 1996.

Decided July 8, 1997.

Paul J. Molloy, Somerville, for defendant.

Susanne G. Levsen, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and ARMSTRONG, BROWN, DREBEN, JACOBS, PORADA and IRELAND, JJ. ¹

DREBEN, Justice.

On January 1, 1993, two masked persons dressed in black with silver faces broke into George Allison's apartment in Haverhill, assaulted him with mace, and shot his two dogs. At the time, law enforcement officers from Massachusetts and New Hampshire were actively involved in a narcotics investigation in cooperation with the Federal Drug Administration. The investigation targeted marihuana dealers in New Hampshire and in the Haverhill area, as well as suppliers in Arizona, California, Colorado, and Texas. The victim of the home invasion, George Allison, had cooperated with the officers, and they believed that the home invasion may have been related to their ongoing narcotics investigation.

On April 13, 1993, two State troopers, one from Massachusetts and one from New Hampshire, visited Rita Disorbo, who, they were told, had information about the January 1 incident. While at her apartment, they persuaded her to make two calls to the defendant at his home. When the defendant received the calls, he was unaware that police officers were in Disorbo's apartment, listening on an extension telephone and tape recording the conversation with her, albeit reluctant, consent.

Subsequently, the defendant was indicted and convicted of a series of crimes arising from the home invasion. ² The evidence at trial included the testimony of the two State troopers recounting admissions made by the defendant in his telephone conversations with Disorbo.

The defendant appeals from his convictions, relying in large part on his claim that the officers' eavesdropping, without a warrant, violated both the Massachusetts wiretap statute, G.L. c. 272, § 99, and his expectation of privacy under art. 14 of the Massachusetts Declaration of Rights. He also asserts prejudicial evidentiary error and conflict of interest and ineffectiveness on the part of his trial counsel. We reverse the convictions.

Prior to trial, the defendant filed two separate motions in limine "to exclude tape recorded conversation" and "to suppress the tape recording and the tape recorded conversation between the defendant and Rita [Disorbo]...." The first motion claimed that a purported authorization for the tape recording by a Federal Drug Enforcement agent was invalid and violated the defendant's Federal constitutional rights "as well as Article Fourteen of the Massachusetts [Declaration] of Rights" and the "surveillance statute of the Massachusetts General Laws." The stated grounds of the second motion were that the statements attributed to the defendant in the telephone calls were involuntary and the product of coercion. At a pretrial hearing on these motions, the Commonwealth informed the judge that it intended to offer only the testimony of Disorbo and the State troopers but not the tape recording. Thereupon the judge declared the motion to exclude the tape recorded conversation moot, and that he would endorse it with the notation "no action necessary." No objection was made to this disposition. The judge denied the motion to suppress after hearing evidence on the question of voluntariness. He issued written findings and rulings in which he found the telephone conversations to be voluntary.

Based on his determination that the only two witnesses testifying at the hearing on the motion to suppress, Rita Disorbo and Massachusetts State Trooper Thomas Coffey, were credible, the judge concluded as follows. The two troopers, acting on information they had received, visited Disorbo at her residence to ask her about the invasion. They informed her that if she would not cooperate, they would subpoena her to testify before the grand jury. Although she hesitated at first, she told them that the defendant had been living with her at the time of the incident and had told her that he and others had participated in it. At the troopers' request, Disorbo reluctantly agreed to place a telephone call to the defendant while they listened on an extension telephone in her apartment and also recorded the conversation. ³ One of the troopers dialed the defendant's number, and Disorbo, without disclosing that the troopers were present, told the defendant that the police had been asking about the home invasion. The defendant told her to say nothing, and after informing her that nobody knew about the incident, ended the phone call. Asked by the troopers to call the defendant a second time, Disorbo did so and told him that the police wanted to speak with her and that she was nervous. He told her not to worry, that Allison could not recognize him, and only the participants, his girlfriend, and Disorbo knew who had been involved in the incident.

On the day of trial, prior to jury selection, the judge expressed his understanding that the troopers heard the conversation because a suction device had been attached to the ear portion of the extension phone which had been connected to a tape recorder. He asked the defendant's counsel whether he was arguing that the device was "a violation of [G.L. c.] 272, § 99, the eavesdropping statute," to which defendant's counsel replied, "No, your Honor, not at this point."

At trial, the 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 basically repeating at trial the testimony she had given at the hearing on the motion to suppress. 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--refreshed perhaps by the tape recording.

The main focus of the defendant's appeal is that the testimony of the State troopers obtained by their warrantless eavesdropping should have been excluded, both on the basis of G.L. c. 272, § 99, the wiretap statute, and art. 14 of the Massachusetts Declaration of Rights. Counsel claims that there can be no doubt that the troopers' testimony immeasurably bolstered Disorbo's and Chambers's credibility.

Although trial counsel alluded to both the statute and art. 14 in his written motions, and although his primary focus at trial was to keep the defendant's statements away from the jury and to preclude the troopers from testifying as to what they had overheard, ⁴ appellate counsel recognizes that trial counsel may have insufficiently objected on the statutory and State constitutional grounds. Accordingly, he argues that the admission of the troopers' testimony created a substantial risk of a miscarriage of justice and that trial counsel was ineffective as his failure to pursue these grounds cannot be explained as a tactical decision.

We agree that the troopers' testimony corroborating the testimony of Chambers and Disorbo was immensely important to the prosecution. This is underscored by the prosecutor's closing in which he stated:

"Now, what about the identification evidence, because that is, of course, the key in this case. Now, I'd suggest to you the central fact is the telephone conversation. I want to focus on that because, you know, you can say all you want about Rita Chambers and Paul Chambers and cast some arrows at them with respect to their believability, their credibility, perhaps, but is there really any dispute with respect to the content of the telephone conversation, because that's when these people come together. And you have Trooper Tom Coffey and you have Trooper Robert Quinn who, in addition to Rita Chambers, told you what that telephone conversation was. And I suggest to you that in that telephone conversation the defendant made admissions indicating his direct involvement in this home invasion."

The prosecutor later reiterated:

"Now, if you had those two people standing alone, you might well want to question, you know, their background or whatever. But what I'm suggesting to you is put those two witnesses and their direct admissions, their direct observations, together with that telephone call conversation. And, if you put those three things together, the telephone conversation and the testimony of those two witnesses, doesn't it all go into one piece and tell you that, yes, those two witnesses are telling the truth, because it fits with that telephone call conversation wherein the defendant makes admissions to Trooper Coffey and Trooper Quinn? And, then, the credibility of these other two witnesses, I suggest to you, is less of an issue." ⁵

We examine whether there has been a statutory or art. 14 violation.

1. Interception under G.L. c. 272, § 99. "For purposes of the statute, interception is defined as the use of an intercepting device to secretly hear or record, or aid another to secretly hear or record, the contents of any wire or oral communication. G.L. c. 272, § 99 B 4." Commonwealth v. Thorpe, 384 Mass. 271, 275, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). A telephone conversation is within the statutory definition of § 99 B 1 and 2, and the use of Disorbo's extension (and recording equipment to enable both troopers to...