Commonwealth v. Vasquez, No. WO CR. 2004-1774 (MA 12/27/2005)
| Decision Date | 27 December 2005 |
| Docket Number | No. WO CR. 2004-1774,WO CR. 2004-1774 |
| Parties | COMMONWEALTH OF MASSACHUSETTS v. MELVIN VASQUEZ |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
This is a criminal action in which the Commonwealth has filed a motion in limine whereby it seeks a ruling in advance of trial that certain extrajudicial statements made by unknown declarants are admissible in evidence. For purposes of the Commonwealth's motion, the essential facts are not in dispute
The defendant was arrested on January 16, 2004 with another individual, Mr. Johnson, while the two were inside the defendant's Honda automobile. The police had the defendant's vehicle under surveillance. The police observed it travel from 29 West Street in Worcester to a parking lot on Route 20 where it pulled in next to a blue pick-up truck driven by Mr. Johnson. Both vehicles left together with the Johnson vehicle following the Honda driven by the defendant. The police observed the two vehicles pull into the driveway of a trailer park on Route 20. Mr. Johnson exited his truck and entered the Honda vehicle. The Honda drove off and was stopped by the police while traveling on Route 20.
According to the police, the defendant was moving side to side in the front seat as the Honda slowed down. Shortly thereafter, as the Honda came to a stop, Mr. Johnson was observed to throw several plastic bags through the passenger side window and to the ground. A search of those bags revealed the presence of 135 individual packets of a substance that proved to be heroin, a Class A controlled substance and nine other baggies containing approximately 54 grams of a white powder that proved to be cocaine. The police formed the opinion, which was reasonable under the facts assumed to exist for purposes of this motion, that they had observed a drug transaction in which the defendant was attempting to sell heroin and cocaine to Mr. Johnson.
Following his arrest, the police seized $715. and two cell phones from defendant Vasquez, a T-Mobile phone and a Sony phone, and brought both phones back to the vice squad office. Officer James O'Rourke answered the Sony phone at approximately 11:20 am and the following conversation took place:
An unknown male voice: "Dave, this is Adam, where are you man?"
O'Rourke: "I got busy, I'm about half an hour behind."
Adam: "Okay, I'll be looking out the window for you."
O'Rourke: "Okay, what was it that you needed again?"
Adam: "One Bundle."
At approximately 11:45 am, O'Rourke answered the T-Mobile phone and the following conversation took place:
An unknown male voice: "Dave, it's me Tom, can I meet you?"
O'Rourke: "Okay, where do you want to meet me?"
Tom: "I'll see you at the same spot."
O'Rourke: "All right, what do you want?"
Tom: "Is this you Dave?"
O'Rourke: "Yup."
Tom: "Okay, I'm not sure how much I want, I will tell you when I meet you."
The T-Mobile phone rang several more times and the callers asked for Dave, but then stated that the officer answering the phone was not Dave and hung up. The phones were then shut off. In the opinion of the police officers, based on their training and experience in the investigation of street sales of narcotics, these conversations related to the sale of narcotic drugs.
The Commonwealth argues that Officer O'Rourke should be allowed to testify to the contents of the phone calls he had with unknown callers while answering the defendant's cell phones because the statements would not be offered to prove the truth of the matters contained in them (that the unknown callers were actually placing orders for drugs), and thus are not excluded by the rule against hearsay. See Commonwealth v. DelValle, 351 Mass. 489, 491(1966)("The broad rule on hearsay evidence interdicts the admission of a statement made out of court which is offered to prove the truth of what it asserted."). See also Proposed Mass. R. Evid. 801 (c)("`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."); Proposed Mass. R. Evid. 801(a)("A `statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion."). However, the Commonwealth concedes that in order for the evidence to have probative value, it must be believed, i.e., the jury would have to believe that the calls were from customers trying to arrange the purchase of drugs in order to infer that the phone called was being used to facilitate drug sales. Commonwealth's Memorandum of Law at 3-4. One of the leading Massachusetts Treatises on the subject acknowledges this characteristic of the evidence as well. See M. Avery, M. Brodin and P.J. Liacos, Massachusetts Evidence § 8.2.3 at 472 (7th ed. 1999)(hereafter, "Massachusetts Evidence"). Moreover, the Commonwealth further concedes that the evidence would be offered to prove circumstantially that the defendant is a drug dealer.
The Commonwealth relies principally on Commonwealth v. Washington, 39 Mass. App. Ct.195, 199 (1995), in which the Appeals Court held that in a prosecution of the defendant for drug offenses, the police could testify that following the arrest, a pager seized from the defendant at the time of his arrest "beeped" and when the telephone number appearing on the display was called back by the police unknown persons asked for "Gino" and ordered a quantity of drugs. In Washington, the court relied on a line of cases such as Commonwealth v. Massod, 350 Mass. 745 (1966)(Contents of telephone calls received by the police at a location where the defendant was arrested for gaming violations in which unknown persons placed bets were admissible to establish the nature of the location) and Commonwealth v. Kimball, 7 Gray 328 (1856)(Conversations among occupants of a house admissible to prove its character as a House of Ill Fame), and held that such evidence is not hearsay because it is admitted for a limited purpose, namely, to to prove the character or nature of a thing or object. Washington, supra, quoting Massachusetts Evidence, supra at 472 ().
While the decision by the Appeals Court in the Washington case represents the settled law of the Commonwealth, see, e.g., Hughes On Evidence § 456 (Boston Law Books 1961)(formerly vol. 19 of Mass Practice Series),1 questions remain about the doctrinal framework under which such evidence is excluded from the definition of hearsay in Massachusetts. This question goes to the heart of a lively and longstanding debate about the meaning of the rule against hearsay.
This case involves a facet of the classic hearsay puzzle presented by implied assertions. At one end of the spectrum, representing the broadest understanding of the doctrine that implied assertions are within the scope of the rule against hearsay, is the famous dictum issued by Baron Parke in Wright v. Tatham, 112 Eng. Rep. 488 (Exch. Ch. 1837), affirmed, 47 Rev. Rep. 136 (House of Lords 1838). The case was a contest between the decedent's steward and devisee, one Wright, and Admiral Tatham, the decedent's cousin and heir at law. The outcome turned on whether the decedent was competent to make a will in 1822 and a codicil in 1825. Admiral Tatham offered evidence that over the years others had treated and described the decedent as feeble minded. Wright, on the other hand, offered in evidence three letters to the decedent from three separate and deceased writers, written between 1784 and 1799, which described events in such a way that the writers must have believed he was competent in order to demonstrate that for that reason the finder of fact should infer that he was competent. See generally John M. Maguire, The Hearsay Thicket: Around and Through the Thicket, 14 Vanderbilt L. Rev. 741 (1961).
In Wright, Baron Parke ruled that the letters offered by Wright were "implied assertions" of the decedent's competency, and, therefore, inadmissible as hearsay. Baron Parke formulated his holding, however, in terms that were broader than necessary to decide the case. He declared that "proof of a particular fact, which is not of itself a matter in issue, but which is relevant only as implying a statement or opinion of a third person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself inadmissible. . . ."2 This definition would effectively exclude all out of court verbal statements like those involved in the present case. As the Court of Appeals of Maryland recently observed:
In its original Wright v. Tatham form, the doctrine did not inquire into the declarant's intent—beliefs communicated accidently by implication are as much "implied assertions" as beliefs expressed purposefully in an indirect manner. As evidenced by the "sea captain" hypothetical, the doctrine also did not distinguish between words and verbal conduct.
Stoddard v. Maryland, ___ Md. ___, ___ A.2d ___, 2005 WL 3309783 (2005), reversing 157 Md. App. 247, 850 A.2d 406 (2004).
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