Com. v. Vieux

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before WARNER; WARNER
• Citation: Com. v. Vieux, 671 N.E.2d 989, 41 Mass.App.Ct. 526 (Mass. App. 1996)
• Decision Date: 31 December 1996
• Docket Number: No. 95-P-1569,95-P-1569
• Parties: COMMONWEALTH v. Charles VIEUX.

Page 989

671 N.E.2d 989

41 Mass.App.Ct. 526

COMMONWEALTH v. Charles VIEUX.

No. 95-P-1569.

Appeals Court of Massachusetts Essex.

Argued Sept. 13, 1996.

Decided Oct. 30, 1996.

Further Appellate Review Denied Dec. 31, 1996.

Peter M. Onek, Boston, for defendant.

Nicole M. Procida, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and ARMSTRONG and PERRETTA, JJ.

WARNER, Chief Justice.

The defendant was convicted by a Superior Court jury of rape, G.L. c. 265, § 22. On appeal he alleges that: (1) his trial counsel was ineffective in failing to move to suppress the testimony of one of the Commonwealth's witnesses; and (2) the trial judge's failure to provide an instruction on fresh complaint in his final charge created a substantial risk of a miscarriage of justice. We affirm.

1. Ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel a defendant must establish: (1) that his representative's performance reflected "serious incompetency, inefficiency, or inattention ... falling measurably below that which might be expected from an ordinary, fallible lawyer," Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974); and (2) that these shortcomings deprived him of "an otherwise available, substantial ground of defence" or in some other way materially affected the outcome of his trial. Ibid. See also Commonwealth v. Fanelli, 412 Mass. 497, 503, 590 N.E.2d 186 (1992). Consonant with these principles, failing to pursue a futile tactic does not amount to constitutional ineffectiveness. Here, a motion to suppress likely would have done little to advance the defendant's cause.

At trial, the victim's sister, Marquise, was permitted to testify concerning comments made by the defendant during a telephone call. The remarks ¹ were overheard by Marquise as she surreptitiously listened in on a conversation between her mother and the defendant on an extension phone in her home. The defendant claims that by secretly listening in on his conversation with the victim's mother, Marquise violated the Federal wiretap statute, 18 U.S.C. §§ 2510-2520 (1994), as well as the cognate Massachusetts statute, G.L. c. 272, § 99. The defendant further avers that notwithstanding the fact that Marquise was not a public official (or acting at the direction of a public official), both statutes bar admission of the fruits of Marquise's allegedly illegal actions at the defendant's criminal trial.

Although there is some uncertainty about the scope of the statutes' application, it appears that, in some situations at least, wiretap evidence unlawfully obtained by private persons may be subject to exclusion. See Heggy v. Heggy, 944 F.2d 1537, 1540 (10th Cir.1991), cert. denied, 503 U.S. 951 (1992) (reference to "any person" in portion of 18 U.S.C. §§ 2510-2520 relating to statute's scope of application construed to include private citizens); Commonwealth v. Santoro, 406 Mass. 421, 423, 548 N.E.2d 862 (1990) (G.L. c. 272, § 99 "forbids the interception of certain oral communications by private individuals"). Whether this principle applies here, however, need not be decided. In the circumstances of this case, we conclude that Marquise's actions did not amount to an illegal wiretap, either for the purposes of 18 U.S.C. §§ 2510-2520, or G.L. c. 272, § 99. The remedial provisions of those laws, therefore, need not be considered.

While under both the State and Federal statutes, ² a telephone extension may constitute an "intercepting wire device," both laws have created an exception for standard telephone instruments furnished to a subscriber by a communications common carrier and used by the subscriber in his or her "ordinary course of business." See 18 U.S.C. § 2510(5)(a)(i); G.L. c. 272, § 99(B)(3). This "ordinary course of business" provision, while construed somewhat narrowly in the workplace context, see United States v. Murdock, 63 F.3d 1391, 1396 (6th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1672, 134 L.Ed.2d 776 (1996), has been interpreted expansively in the context of a subscriber's residence. We turn first to the Federal statute.

Although the issue has not been squarely addressed by either the Supreme Court or the First Circuit, the defendant has not brought to our attention, nor have we found, a single instance in which any Federal court has ever held that 18 U.S.C. §§ 2510-2520 is violated where a family member merely listens in on (but does not record) the telephone conversation of another family member through the use of a standard residential extension phone. For example, in Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977), the court observed that: "Appellee's activity would clearly not be prohibited if it consisted merely of listening into his wife's and daughter's telephone conversations from an extension phone in his apartment. Congress explicitly exempted such activity from coverage by the Act. See 18 U.S.C. § 2510(5)(a)(i). Such a use of an extension phone in appellee's own home would certainly be in the 'ordinary course of [the user's] business' " (footnote omitted). Id. at 678-679. The decision in Anonymous was based, in part, on a review of the legislative history of 18 U.S.C. §§ 2510-2520, which evinces a clear attempt to exempt benign and unsophisticated forms of intra-familial eavesdropping in the home. ³ Id. at 679.

Similarly, in Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991), cert. denied, 502 U.S. 1044 (1992), the court concluded that a mother did not violate 18 U.S.C. §§ 2510-2520 by listening in on the conversations of her son using an extension phone in her home. In reaching its decision, the court reasoned:

"[T]he interception at issue here is not reached by [18 U.S.C. §§ 2510-2520]. The interception of a family member's telephone conversations by use of an extension phone in the family home is arguably permitted by a broad reading of the exemption contained in 18 U.S.C. § 2510(5)(a)(i).... '[W]e think the (5)(a)(i) exemption is indicative of Congress's intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home.' "

Id. at 1536, quoting from Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974).

The Seventh Circuit, in Scheib v. Grant, 22 F.3d 149, 153-154 (1993), cert. denied, 513 U.S. 929, 115 S.Ct. 320, 130 L.Ed.2d 280 (1994), expressly relied upon this portion of Newcomb, in concluding that a father had not violated 18 U.S.C. §§ 2510-2520 by eavesdropping on conversations between his son (who lived with his father) and the child's mother (from whom the father was divorced) using an extension phone. "We cannot attribute to Congress the intent to subject parents to criminal and civil penalties for [listening in on] their minor child's phone conversations out of concern for the child's well-being." Id. at 154.

Similar results have been reached in a large number of other Federal decisions. See Lizza v. Lizza, 631 F.Supp. 529, 532 n. 5 (E.D.N.Y.1986) ("[18 U.S.C. §§ 2510-2520] exempts from coverage under the Act the ordinary use of an extension phone to listen in on a conversation"). See also Simpson v. Simpson, 490 F.2d at 805 (refusing to apply 18 U.S.C. §§ 2510-2520 to a broad range of types of intra-family eavesdropping); Perfit v. Perfit, 693 F.Supp. 851, 855-856 (C.D.Cal.1988) (applying extension phone exception for merely listening).

Likewise, State courts that have considered the question have reached similar results. In State v. Telles, 139 N.H. 344, 347-348, 653 A.2d 554 (1995), for example, the Supreme Court of New Hampshire (in a factual context very similar to the present case) concluded that a witness's use of an extension phone to eavesdrop on her houseguest's telephone conversations with the defendant fell within the exception defined by § 2510(5)(a)(i), and so the witness's testimony concerning the contents of those calls was admissible at the defendant's criminal trial. In reaching its decision, the court placed special emphasis on the fact that the witness "did not record the conversations." Id. at 348, 653 A.2d 554 (Johnson, J., concurring).

While, as noted, the First Circuit has not addressed the question of eavesdropping between family members on a residential extension phone, its decisions construing other provisions of 18 U.S.C. §§ 2510-2520 suggest that it would reach the same result as these cited decisions. For example, in United States v. Miller, 720 F.2d 227 (1st Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984), the court stated that 18 U.S.C. §§ 2510-2520 "was directed against the use of sophisticated electronic equipment, and not against ... rudimentary material. Under the statutory definitions, [a co-conspirator's] use of the phone receiver to overhear the conversation did not constitute a proscribed 'interception' " (citation omitted) (footnote omitted). Id. at 228-229. Along the same lines, in Williams v. Poulos, 11 F.3d 271, 280 (1st Cir.1993), the First Circuit stressed the difference between using sophisticated wiretap equipment and a standard-issue telephone for the purposes of determining whether a particular case of eavesdropping constituted a violation of 18 U.S.C. §§ 2510-2520. See also Griggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir.1990) (emphasizing that not every overheard telephone conversation constitutes a violation of the Federal law).

It is true, as the defendant points out, that some courts have been reticent to exempt all forms of eavesdropping by means of residential extension phones from the purview of 18 U.S.C. §§ 2510-2520. Specifically, in the context of divorce litigation, 18 U.S.C. §§ 2510-2520 has been applied to forbid the use of a residential phone by one spouse to make recordings of the other spouse's private conversations. However, as noted above, we have found no reported Federal...