Com. v. Rivera

• Decision Date: 07 September 2005
• Parties: COMMONWEALTH v. Vincent RIVERA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1113

833 N.E.2d 1113

445 Mass. 119

COMMONWEALTH v. Vincent RIVERA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 6, 2005.

Decided September 7, 2005.

COPYRIGHT MATERIAL OMITTED

Ruth Greenberg, Swampscott, for the defendant.

Loretta M. Lillios, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

MARSHALL, C.J.

A Superior Court jury convicted the defendant of murder in the first degree on a theory of felony-murder. The predicate felony was the defendant's attempted commission of armed robbery while masked. See G.L. c. 265, § 17. He also was convicted of armed assault with intent to rob and unlawful possession of a firearm. The defendant appeals from these convictions and from the denial of his motion for a new trial.

The murder took place during an attempted armed robbery of a convenience store clerk¹ and was recorded, with both audio and video components, by three surveillance cameras. The victim, shot in the head, was the nineteen year old brother of the store's owner. He had arrived only recently in the United States. The police used the audio surveillance recording in their investigation to help them identify the defendant. The recordings (video and audio) were introduced in evidence and played at the trial.

In his motion for a new trial and now on this consolidated appeal, the defendant claims that the store's owner violated the Massachusetts wiretap statute, G.L. c. 272, § 99, and its Federal counterpart, 18 U.S.C. §§ 2510 et seq. (2000), by making a "secret" interception of an "oral communication," G.L. c. 272, § 99 B 2 and C 1, that the police violated those same statutes by using the audio recording in the course of their investigation and to obtain an admission from the defendant, and that the recordings and all evidence obtained as a result of their use should have been suppressed. In addition, he asserts that trial counsel's arguments as to the suppression issue were ineffective. Finally, the defendant requests that we exercise our power under G.L. c. 278, § 33E, to reduce the murder verdict. We affirm the defendant's convictions of murder and unlawful possession of a firearm. We vacate his conviction of armed assault with intent to rob. We decline to exercise our power to reduce the murder verdict pursuant to G.L. c. 278, § 33E.

1. Background. The jury could have found the following. In the early morning hours of Sunday, October 22, 2000 (between 3 and 4 A.M.), two individuals wearing gloves and full face masks modeled on those depicted in the movie "Scream" entered a convenience store in Lowell. In street slang, they shouted at the victim, who was working alone, to open the cash register. One of the men, who wore dark-colored shoes and a distinctive jacket, brandished a gun, pointing it repeatedly, and at close range, at the victim's head and body, while continuously shouting at him. The victim did not open the register and, despite several attempts, the robbers were unable to do so themselves. As the robbers left the store, the victim pursued them. The robber in the dark shoes and jacket then shot the victim in the head with a .22 caliber revolver. The robbers fled in a getaway car driven by a third person. The entire encounter in the store lasted just over one minute.

The store's owner provided the police with the surveillance tapes of the murder. In the course of their investigation, the police played the audio portions of the tapes to a witness, who, based on the sound of the voice as well as the atypical version of street slang used, identified the voice as the defendant's. The police interviewed the defendant, who initially denied being in Lowell the weekend of the murder. The police then played the audio portion of the surveillance tape for him. At first the defendant became upset and wept, but he denied that the recorded voice was his, and denied that he had any role in the matter. Later, when a detective said that the recorded voice sounded like the defendant's, he admitted involvement in the robbery. The defendant also admitted that he was then wearing the same dark colored shoes he had worn during the crime. The defendant attempted to minimize his culpability by identifying another man, whom he called "Spooky," as the shooter, and claiming that he had lent "Spooky" his jacket.²

The police executed a warrant to search the defendant's house and found a green jacket that closely resembled the one worn by the shooter. Witnesses testified that the defendant was wearing the same green jacket shortly before and just after the murder. The police also found two spent .22 caliber bullet cartridges in the defendant's backpack.

Prior to trial, the defendant moved to suppress his statements during the police interview. The judge denied the motion, finding that the defendant's Miranda waiver and statements were made knowingly, voluntarily, intelligently, and without coercion, a finding that the defendant does not contest on appeal. The judge also ruled that playing the audiotape of the robbery and murder for the defendant "was not illegal or coercive." The defendant then filed a motion in limine to prevent the admission of the audiotaped statements at trial, claiming that it was made in violation of the Massachusetts wiretap statute. G.L. c. 272, § 99. He made no Federal claim. The judge denied the motion. Relying on Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862 (1990), he concluded that suppression was not warranted because the store's surveillance audiotaping had been conducted by the store owner without any involvement by law enforcement officials.

Following his conviction, the defendant moved for a new trial. He claimed that his statements to the police should have been suppressed because they were obtained in violation of the Massachusetts wiretap statute and its Federal counterpart, 18 U.S.C. § 2510(2). He also argued that trial counsel's failure to pursue the issue or to object to the admission in evidence of the audio recording constituted ineffective assistance of counsel. The motion judge, who had presided at the trial, denied the motion.

2. The Massachusetts wiretap statute. We turn first to the defendant's claims under the Massachusetts wiretap statute, G.L. c. 272, § 99. The defendant asserts that suppression of the audio portion of the videotape recording of the killing is mandated under the statute, first, because the recording was a secret interception of an oral communication in violation of G.L. c. 272, § 99 C 1,³ and second, because its use by the police to identify the defendant and then to elicit a confession from him violated G.L. c. 272, § 99 C 3.⁴ In this case we need not determine the predicate issue, whether the audiotape was made in violation of the wiretap statute, because under the principles of stare decisis, Commonwealth v. Santoro, 406 Mass. 421, 548 N.E.2d 862 (1990) (Santoro), governs the second issue and, as the judge recognized, compels the conclusion that the police officers' actions were not unlawful.⁵

In Santoro, this court confronted the question whether recordings of incriminating telephone conversations of a defendant made by a third party without the defendant's knowledge or consent, and thereafter obtained by the police, should have been suppressed. This court concluded that where the police had no part in recording the telephone conversations, suppression was not required because it would serve no deterrent purpose. Id. at 423. Santoro recognizes that the Massachusetts wiretap statute is carefully nuanced and strikes a balance between the legitimate privacy interests of individuals in speech they wish to keep private and the need to equip law enforcement officials with the means to combat increasingly sophisticated organized criminal activities. Id. at 423-424, 548 N.E.2d 862. See Commonwealth v. Gordon, 422 Mass. 816, 833, 666 N.E.2d 122 (1996) ("It is apparent from the preamble [to the statute] that the legislative focus was on the protection of privacy rights and the deterrence of interference therewith by law enforcement officers' surreptitious eavesdropping as an investigative tool").⁶ The statute delegates to the courts the task of striking the proper balance in each individual case. Santoro, supra at 423, 548 N.E.2d 862. See G.L. c. 272, § 99 P (suppression of evidence).

Here, following Santoro, two factors compel denial of the motion to suppress. First, the police had no part in making, inducing, soliciting, or otherwise encouraging or abetting the making of the surveillance tape. The tape, evidence of a grave crime, fell into their hands. See Santoro, supra at 423, 548 N.E.2d 862. See also Commonwealth v. Brandwein, 435 Mass. 623, 630-632, 760 N.E.2d 724 (2002), and cases cited ("Nothing in our law" prevents police from acting on confidential information disclosed to them); Commonwealth v. Leone, 386 Mass. 329, 333, 435 N.E.2d 1036 (1982), and cases cited ("Evidence discovered and seized by private parties is admissible without regard to the methods used, unless State officials have instigated or participated in the search"). Police and prosecutors generally may use information derived from communications that are unlawfully obtained and disclosed by private individuals, such as stolen letters, conversations overheard in private places, and breaches of confidential communications. "That a private party may have breached some obligation . . . in volunteering information to the police does not require the police to ignore that information." Commonwealth v. Brandwein, supra at 631, 760 N.E.2d 724. Absent an explicit statement from the Legislature to the contrary, we will not read the "use" provisions of the wiretap statute as forcing police and prosecutors to avert their eyes from information procured by private individuals, without any encouragement from the State.⁷ Id. at 632-633, 760 N.E.2d 724, quoting Coolidge v. New...