Com. v. Long, SJC-10237.
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Spina |
| Citation | 911 N.E.2d 174,454 Mass. 542 |
| Parties | COMMONWEALTH v. Deryck LONG & another.<SMALL><SUP>1</SUP></SMALL> |
| Decision Date | 17 August 2009 |
| Docket Number | SJC-10237. |
v.
Deryck LONG & another.1
[911 N.E.2d 176]
Varsha Kukafka, Assistant District Attorney, for the Commonwealth.
Bernard Grossberg, Boston, for Deryck Long.
Kevin M. Mitchell, Salem, for Paul Brown.
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.
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
any 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, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
The defendant Paul Brown, who later was indicted as the second shooter, also filed a motion to suppress and a supplemental
motion 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, 424 N.E.2d 250 (1981), cert. denied, 454 U.S. 1147, 102 S.Ct. 1011, 71 L.Ed.2d 300 (1982). A single justice of this court allowed the Commonwealth's application for leave to file an interlocutory appeal, see Mass. R.Crim. P. 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 corners of Trooper Moran's affidavit; and (3) Trooper Moran's affidavit established a nexus to "organized crime," as
defined by G.L. c. 272, § 99 A. We disagree with the Commonwealth as to the latter two contentions, and 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, 798 N.E.2d 275 (2003). As discussed infra, we find no error in the motion judge's consideration of Long's recorded telephone conversations in their entirety, and 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 witness,
assault and battery, and distribution of a class D substance. Long was arrested on those outstanding warrants that afternoon.
On January 11, 2006, Long was arraigned in the Quincy Division of the District Court Department on a charge of murder. By this time it also had been determined that the palm print recovered from the murder scene did not match Long's palm print.
During another interview on January 11, Ojo told Trooper Moran that Long's nephew, Richard Long (Richard), and another individual known as "Casino," were the only friends of Long's whom she knew. Subsequent interviews of James-Pagan's neighbors revealed that Casino had telephoned two women who lived in the same building as James-Pagan late and unexpectedly on the evening of the murder. One of the women gave Casino's Nextel "direct connect" cellular number to the State troopers who interviewed her.6 Nextel Communications identified Courtney Forde as the subscriber for the direct connect number provided to the State troopers. The records for Forde's direct connect number indicated that a cellular telephone tower in South Quincy, where the apartment was located, was used for a direct connect transmission at 9:44 P.M. on January 9, 2006, which was around the time that Long and Vaughn fought, and that at 11:58 P.M., about the time of Vaughn's murder, a cellular telephone tower located approximately one-half mile from the murder scene was utilized for a direct connect transmission.
On January 12, a State trooper with the ballistics section informed Trooper Moran that the bullets retrieved from Vaughn's body came from two different firearms. A surveillance recording from a store located directly behind James-Pagan's building, acquired on the same day, had captured the shooting and showed two distinct muzzle flashes coming from separate locations within the same general area.
The following day, Trooper Moran went to the jail and spoke with Reilly. Reilly played recordings of Long's outgoing telephone conversations with his girl friend, Newsome, for Trooper Moran. In one conversation, Long told Newsome that regarding "the visitor thing ... I would love to see you as soon as possible
... I...
To continue reading
Request your trial
-
Commonwealth v. Estabrook, SJC–11833.
...warrant affidavit contained information supplying probable cause obtained from independent, untainted source). Cf. Commonwealth v. Long, 454 Mass. 542, 552–553, 911 N.E.2d 174 (2009) (under 38 N.E.3d 244 Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where defendant......
-
Commonwealth v. Lavin, s. 18-P-1652 & 18-P-1653.
...‘substantial preliminary showing[s].’ " Commonwealth v. Andre, 484 Mass. 403, 407, 142 N.E.3d 60 (2020), quoting Commonwealth v. Long, 454 Mass. 542, 552, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017). First, the defendant must show misrepresentations or omissions "made i......
-
Commonwealth v. Dawson, SJC-13213
...jury heard sufficient evidence to establish probable cause to indict is a question of law that we review de novo. Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017). Involuntary manslaughter is "an unlawful homicide, unintentionally ca......
-
Commonwealth v. Lowery, SJC-13050
...1332 (1986). As with any question of law, "we review the motion judge's probable cause determination de novo." Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017), citing United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir. 2007), cer......
-
Commonwealth v. Estabrook, SJC–11833.
...warrant affidavit contained information supplying probable cause obtained from independent, untainted source). Cf. Commonwealth v. Long, 454 Mass. 542, 552–553, 911 N.E.2d 174 (2009) (under 38 N.E.3d 244 Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), where defendant......
-
Commonwealth v. Lavin, s. 18-P-1652 & 18-P-1653.
...‘substantial preliminary showing[s].’ " Commonwealth v. Andre, 484 Mass. 403, 407, 142 N.E.3d 60 (2020), quoting Commonwealth v. Long, 454 Mass. 542, 552, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017). First, the defendant must show misrepresentations or omissions "made i......
-
Commonwealth v. Dawson, SJC-13213
...jury heard sufficient evidence to establish probable cause to indict is a question of law that we review de novo. Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017). Involuntary manslaughter is "an unlawful homicide, unintentionally ca......
-
Commonwealth v. Lowery, SJC-13050
...1332 (1986). As with any question of law, "we review the motion judge's probable cause determination de novo." Commonwealth v. Long, 454 Mass. 542, 555, 911 N.E.2d 174 (2009), S.C., 476 Mass. 526, 69 N.E.3d 981 (2017), citing United States v. Kelley, 482 F.3d 1047, 1051 (9th Cir. 2007), cer......