Commonwealth v. F.W.

• Decision Date: 24 April 2013
• Docket Number: SJC–11152.
• Citation: 986 N.E.2d 868,465 Mass. 1
• Parties: COMMONWEALTH v. F.W.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 1

986 N.E.2d 868

COMMONWEALTH

v.F.W.

SJC–11152.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Jan. 7, 2013.

Decided April 24, 2013.

Charles A. Bookman, Melrose, for the defendant.

Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

This case concerns whether the adult half-sister, Carrie,¹ of a mute and autistic ² minor child (victim) could vicariously consent under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(2)(d) (2006) (Federal wiretap statute), to the victim's oral communications being intercepted by means of an audiovisual recording ³ intended to gather evidence that the victim's grandfather, the defendant, was sexually abusing her.⁴ After being indicted on charges of enticement of a child under the age of sixteen, G.L. c. 265, § 26C; indecent assault and battery on a child under the age of fourteen, G.L. c. 265, § 13B; assault on a child under the age of sixteen with intent to rape, G.L. c. 265, § 24B; and aggravated rape of a child under the age of sixteen, G.L. c. 265, § 23A ( b ),⁵ the defendant moved to suppress the oral communications of the audiovisual recording and subsequent statements he made to police. A Superior Court judge denied the motion after an evidentiary hearing. A single justice of this court allowed the defendant's application for leave to prosecute an interlocutory appeal pursuant to Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and ordered the appeal to proceed in this court.⁶ Because we conclude that, on the particular facts of this case, Carrie could vicariously consent to the recording of the victim's oral communications, we affirm the denial of the defendant's motion to suppress.

1. Facts. We summarize the judge's findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing.⁷ See Commonwealth v. Isaiah, 448 Mass. 334, 337, 861 N.E.2d 404 (2007), and cases cited. The defendant's son has two daughters by different mothers: the victim, who is autistic and mute,⁸ and Carrie, the victim's older half-sister. The defendant's son lived in a room at the defendant's home in Melrose. When the victim was with her father,⁹ she would spend most of her time in his bedroom watching television and movies.

Carrie claimed that, while visiting her father at the defendant's home when she was between three and fourteen years of age, the defendant repeatedly inappropriately touched her. When she was thirteen or fourteen years of age, Carrie informed her grandmother, the defendant's wife who lived with him, about the defendant's actions. Carrie testified that the touching “would stop for about three days, and then continued on.” Eventually Carrie decided to “stay away” from her father's family. When she was nineteen years of age, however, Carrie decided to see her father's family again.

In February, 2010, near the victim's twelfth birthday, Carrie, then twenty-seven years of age, noticed changes in the victim's temperament and behavior. The victim, who ordinarily was happy, which was exhibited by her smiles and laughter, suddenly was crying a lot and was tensing her body. Carrie suspected that the changes in the victim's behavior were due to the defendant sexually abusing her.

On March 21, 2010, Carrie set up a hidden video camera in the bedroom used by her father in the defendant's home, aiming the camera at the bed. ¹⁰ Carrie left the video camera recording for approximately six hours, during which time the victim was periodically alone with the defendant and her grandmother.¹¹ That evening, after retrieving the video camera and watching the video recording,¹² Carrie went to the Melrose police departmentto report her belief that the defendant had sexually abused the victim. Carrie spoke with Detective Lieutenant Paul Norton. She informed him of what her grandfather allegedly had done to her in the past and that she had set up the video camera because she suspected that he might be sexually assaulting the victim. When they finished meeting, Carrie went home and transferred the video recording onto six digital video discs (DVDs), which she delivered to the police station the next day.

On March 23, after viewing the DVDs, Detective Lieutenant Norton called the defendant and asked him to come to the police station. The defendant promptly complied and on his arrival was escorted into an interview room where Norton, in the presence of another detective, read him the Miranda warnings from a form. The defendant signed the form, indicating that he understood his rights.

Norton asked the defendant about his relationship with Carrie and whether he had ever sexually abused her. The defendant responded that he used to “play rough” with Carrie and may have “patted her on the ass before,” but that he never touched her inappropriately. Turning to the defendant's relationship with the victim, Norton asked the defendant what he would say if, hypothetically, Norton had an audio and video recording of the defendant in the room with the victim. Norton proceeded to inform the defendant that this “video” hypothetically showed the defendant walking up, undoing his zipper, and taking his right hand and putting it around the back of the victim's head saying, “Put it in your mouth.” The defendant said, “I did wrong,” and that he “had just wanted to see what she would do and got carried away.” The defendant added that he usually kisses the victim and again, that he “got carried away.” He also admitted that “it” had happened before, namely, during the week of the victim's birthday. Norton ended the interview and placed the defendant under arrest.

2. Discussion. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [her] ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). The defendant argues that the judge should have suppressed the audio portion of the recording under the Federal wiretap statute. A brief overview of the statute is in order.

The Federal wiretap statute, as relevant here, “makes it a crime, except in limited circumstances, to intentionally intercept [an oral communication] or to intentionally disclose the contents of such a communication.” Commonwealth v. Damiano, 444 Mass. 444, 447, 828 N.E.2d 510 (2005), quoting 18 U.S.C. § 2511. In addition to providing criminal penalties for violations of the statute, see 18 U.S.C. § 2511(4)(a) (2006) (violators “shall be fined ... or imprisoned not more than five years, or both”), the statute also provides civil remedies for any person whose oral communication was intercepted, see id. at § 2520(a) & (b) (2006). Further, the statute contains an exclusionary rule provision, “prohibit[ing] the admission in evidence of unlawfully intercepted ‘wire’ or ‘oral’ (but not ‘electronic’) communications, and evidence derived therefrom.” Commonwealth v. Damiano, supra at 447–448, 828 N.E.2d 510. See 18 U.S.C. § 2515 (2006).

An “oral communication” under the Federal wiretap statute is defined as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation....” See 18 U.S.C. § 2510(2) (2006). Thus, a defendant “seeking to suppress a recording [must show that he] had a legitimate expectation of privacy when he made the recorded statements.” Commonwealth v. Rivera, 445 Mass. 119, 128, 833 N.E.2d 1113 (2005), citing 18 U.S.C. § 2510(2). “In determining whether a defendant has made the requisite showing, courts apply the familiar standards of the Fourth Amendment to the United States Constitution.” Id.

“Conversations intercepted with the consent of either of the parties are explicitly exempted from Title III liability.” Pollock v. Pollock, 154 F.3d 601, 606 (6th Cir.1998). Under the so-called “consent exception”:

“It shall not be unlawful ... for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.”

18 U.S.C. § 2511(2)(d) (2006) (consent exception).

a. Legitimate expectation of privacy. The Commonwealth argues that no unlawful interception occurred under the Federal wiretap statute because the defendant had no legitimate expectation of privacy either in the location the recording occurred or in the content of his statements that were recorded. See Commonwealth v. Rivera, supra. We disagree.

The Commonwealth first asserts that the defendant did not have a reasonable expectation of privacy in his son's bedroom, adding that the defendant did not even lock the bedroom door at the time of the recording. This fact, however, does not mandate a conclusion that the defendant lacked a legitimate expectation of privacy in the room. Contrary to the Commonwealth's suggestion, the record does not establish that the defendant's son “had exclusive access and control” over his bedroom. The Commonwealth ignores the fact that the defendant's son had left the house with Carrie without limiting his father's access to his room. Significantly, the record contains no information concerning the son's arrangement with his parents to use a room in their home, whether he paid rent to do so, or even if there was a means to lock it. In these circumstances, there is no reason to depart from the express mandate set forth in our Federal and State Constitutions that “every person has...