Commonwealth v. Barboza

• Decision Date: 01 March 2002
• Docket Number: No. 00-P-727.,00-P-727.
• Citation: 763 NE 2d 547,54 Mass. App. Ct. 99
• Parties: COMMONWEALTH v. GEORGE BARBOZA.
• Court: Appeals Court of Massachusetts

54 Mass. App. Ct. 99

763 NE 2d 547

COMMONWEALTH v. GEORGE BARBOZA.

No. 00-P-727.

Court of Appeals of Massachusetts, Middlesex.

November 7, 2001.

March 1, 2002.

Present: LAURENCE, SMITH, & KAFKER, JJ.

Robert L. Sheketoff for the defendant.

Peter A. D'Angelo, Assistant District Attorney, for the Commonwealth.

KAFKER, J.

A father, fearing that his fifteen year old son, Tom,¹ was having a sexual relationship with the fifty-seven year old defendant, George Barboza, placed a tape recording device on the family telephone. He thereby intercepted and recorded four telephone conversations between the defendant and Tom without their knowledge. Two of the conversations were recorded before the father informed the police that he was recording the conversations, and two recordings were made after he had informed the police of his activities. The recorded telephone conversations confirmed the existence of an ongoing sexual relationship between the defendant and Tom. In his ruling on the defendant's motion to suppress the tapes of the four telephone conversations, the motion judge allowed the use of the two earlier calls in evidence and suppressed those recordings made after the police were informed of the secret taping. At trial, in addition to the tape recordings of the two earlier calls, the evidence included Tom's descriptions of numerous acts of indecent touching and oral and anal sex committed by the defendant. The jury convicted the defendant on all four counts of rape of a child under sixteen, and two counts of indecent assault and battery on a child under fourteen.²

The defendant raises the following issues on appeal: (1) the recordings of the two earlier calls should have been suppressed; (2) other evidence that he claims was obtained as a result of the recordings should have been suppressed as "fruit of the poisonous tree"; (3) his attorney's cross-examination of witnesses for bias was improperly limited; and (4) ineffective assistance of counsel. For the reasons discussed below, we affirm.

I. Evidence at the hearing on the suppression motion. Although the motion judge did not make explicit factual findings, the only evidence at the hearing on the suppression motion was the uncontroverted testimony of the parents of the victim. The judge's statement at the end of the hearing, and his subsequent denial of the suppression motion, clearly indicated that he credited the parents' testimony. See Commonwealth v. Dayes, 49 Mass. App. Ct. 419, 420 (2000). See also Commonwealth v. Grandison, 433 Mass. 135, 137 (2001). The testimony was as follows: Tom was born on May 7, 1981. His father worked for the defendant in the early 1970's, but the defendant and Tom's family had only occasional contact until approximately 1993, when the family moved to the same town where the defendant lived. They began meeting frequently, and on some weekends, Tom would stay overnight with the defendant at his home. The family also spent Christmas with the defendant at his second home in Florida in 1994 and 1996, and in 1995, Tom alone visited the defendant in Florida over February vacation.

Tom's parents began to feel uneasy about their son's close relationship with the defendant after the family's 1996 visit to Florida. During that visit, Tom stayed in one hotel room with the defendant, while his parents and their other son stayed in a second room. Tom also had little interaction with his parents on the vacation. They were further disconcerted when Tom announced that it was his intention after he graduated from high school to live with the defendant in Florida. After the family returned from Florida in December, 1996, the defendant called Tom on a regular basis. The parents noticed that when Tom spoke with the defendant on the telephone, he would be unusually quiet, and sometimes even denied afterwards that he had spoken to the defendant.

After discussing his concerns with his wife, Tom's father ordered a tape recorder that he had seen advertised in a magazine in order to record secretly telephone conversations at his house. Tom's father attached the machine to the telephone line in his bedroom, and hid it under the bed. Neither Tom nor his brother knew the tape recorder had been installed. Four telephone calls between Tom and the defendant were recorded, two occurring on January 30, 1997, one on February 2, 1997, and one on February 5, 1997. The defendant was calling from his home in Florida. In all of the conversations, the defendant declared that he loved Tom, and in at least the last three conversations, there are references to masturbation. Further, in the second call on January 30, the defendant mentions "making love."

On the evening of January 30, after listening to the tape of the two calls that came that day from the defendant, Tom's father met with members of the Wilmington police department, and played portions of the second taped conversation for them. On February 5, Tom's father and mother confronted Tom, informing him they knew there "was some kind of sexual thing going on" between him and the defendant. On February 7, Tom and his father went to the district attorney's office. During that interview, the father was asked by the district attorney's office not to tape record any additional telephone conversations. A Wilmington police detective, Patrick King, listened to two additional telephone conversations between Tom and the defendant, with Tom's knowledge, before the defendant was arrested upon his return from Florida on February 14. These conversations were not recorded, and were not the subject of the defendant's motion to suppress. On appeal, the defendant argues that testimony concerning the content of these telephone calls should have been suppressed as having been derived from the suppressed recordings. See infra at 108-109.

At the close of the hearing, the motion judge stated that "there's no question in the Court's mind at all that the parents' primary concern was their son and that everything they did was not to assist law enforcement in their minds but to try to figure out what was going on and what's right for their son and for their family." The judge denied the motion to suppress with respect to the two conversations taped on January 30, "before contacting police." He allowed the defendant's motion to suppress the two recordings of conversations made after Tom's father notified the police that he was recording phone calls, finding that although the parents were not told to continue taping by the police, "under the circumstances, silence by the police made the parents unwitting agents of the police for the purposes of continuing to record telephone calls from the defendant."

II. Analysis of the suppression issues. A. Massachusetts wiretap statute. We begin our analysis by interpreting the Massachusetts wiretap statute. Unlike many of its counterparts in other States, or the Federal wiretap statute, the Massachusetts wiretap statute, G. L. c. 272, § 99, requires both parties to consent to the recording of telephone calls for the recording to be legal. Commonwealth v. Hyde, 434 Mass. 594, 599 (2001). With exceptions not applicable here,³ the Massachusetts wiretap statute, therefore, "strictly prohibits the secret electronic recording by a private individual of any oral communication...." Id. at 595. Nevertheless, the statute does not "mandate that all unlawfully intercepted communications should be suppressed." Commonwealth v. Crowley, 43 Mass. App. Ct. 919, 919 (1997). See Commonwealth v. Hyde, 434 Mass. at 601 (drawing distinction between "the admissibility of a secret recording as evidence" and "whether a violation of the statute had occurred"). Rather, it has been held that although "any person who is a defendant in a criminal trial ... may move to suppress the contents of any intercepted wire or oral communication or evidence derived therefrom ... if that ... communication was unlawfully intercepted," G. L. c. 272, § 99 P, the "Legislature has left it to the courts to decide whether unlawfully intercepted communications must be suppressed." Commonwealth v. Santoro, 406 Mass. 421, 423 (1990).

In Santoro, the defendant was convicted of being present where betting apparatus was found. He appealed the denial of his motion to suppress recordings of telephone conversations between him and his associate in crime, which were made by his associate without the defendant's knowledge, in violation of G. L. c. 272, § 99. The court affirmed the denial of the suppression motion. The key paragraph in the court's discussion, which merits full quotation, is as follows:

"Exclusionary rules generally are intended to deter future police conduct in violation of constitutional or statutory rights. However, no police or governmental conduct was involved in the recording of these telephone conversations. A private individual, apparently engaged in unlawful activity himself, recorded the defendant's conversations in violation of § 99. No deterrent purpose would be served by suppressing the intercepted conversations. The exclusionary rule was not designed to protect persons from the consequences of the unlawful seizure of evidence by their associates in crime. See § 99 A (preamble). Indeed, a contrary result would aid criminals by assuring that, in many instances, telephone calls they might unlawfully record could not be used as incriminating evidence."

Id. at 423-424.

The defendant here argues that the holding in Santoro is limited to the factual situation in which one criminal associate has recorded the other. He further argues that the recordings made by Tom's father should have been suppressed to promote the general purpose of the wiretap statute.

We are not persuaded that Santoro is limited to cases involving a criminal defendant recording his associate. In determining whether suppression was required, the court based its decision on the exclusionary rule's purpose of deterring future police misconduct. Ibid. See ...