-: SJC 12835 Commonwealth versus Jerome Morris.
-: Okay, Attorney Neves, looks like you're in position.
-: I am. Thank you.
Good morning.
May it please the court,
Catherine Neves on behalf of the defendant,
appellant Jerome Morris.
I'd like to start with a quote from this court's case
in Commonwealth versus Tavares
about the scope of the wiretap statute.
Quote, the wiretap statute is framed largely
in negative terms.
Surreptitious interception of any oral communication
by any person, private citizen, or public official
is proscribed except as specifically provided
in a few narrow exceptions.
The motion judge, in this case,
resolved in Mr. Morris's favor,
conflicting evidence that the motion to suppress
about whether Mr. Morris was told or whether he knew
he was being recorded.
And he found that Mr. Morris was not advised
that the interview was recorded.
I also do not find that he was on constructive notice
that the interview was recorded.
Under the Massachusetts wiretap statute,
that's a secret recording, that's an interception.
-: And you say that despite the holdings in DG (indistinct)
and our other cases that say,
come on, start recording these interviews now.
-: Of course all you have to do is tell them
that you're recording them.
And this court was very careful in DG on Batista.
This court wanted interviews to be recorded
because they felt that, you felt that
it would be the best way to preserve statements
and that it would be best for all parties involved.
And the court, in carefully coming up with the remedy
that if there isn't a recording,
there's a cautionary instruction given,
the court rejected a rule of exclusion,
considered it and rejected it,
saying we can't do that because sometimes a suspect
will not wanna be recorded,
or a suspect will want to turn off the recording
halfway through.
But at no point in DG on Batista did this court advocate
that the police should violate the wiretap statute
by secretly recording interrogations.
And I think what you have in this case-
-: Gordon, there wasn't,
they didn't tell them they were recording
the police station booking, did they?
-: That's correct, Your Honor.
And I think that that's largely distinguishable,
and I think this court did distinguish it,
and it's the same here in Commonwealth v Hyde.
In that case,
it was a motorist who secretly record police officers
who stopped him in a traffic stop.
And he was prosecuted for violating the wiretap statute
because he was secretly recording the encounter.
And he made the argument that this is just like Gordon.
These officers are doing their public duties,
and there's no reason why I shouldn't be able to record it.
And what this court said is
there is no reasonable expectation of privacy requirement
under the statute.
So it's not a question of whether the police officer
had a reasonable expectation that he wouldn't be recorded.
The question is whether he knew.
And this court said all you had to do
was tell the officer you were recording.
-: But I still don't understand how Gordon is,
again, Gordon wasn't told.
Attorney Neves: Well, I think yeah, Your Honor.
-: Gordon and Hyde are inconsistent with each other?
Is that what you said? Attorney Neves: No,
they're not.
-: How do you reconcile them?
-: Yeah, the court, this court, said it's not like Gordon.
Because what we said in Gordon was videotaping
of the booking procedure did not seek to capture
the defendant's speech or thoughts on a subject.
It was used to gauge their manner, to gauge their sobriety.
And so this court carefully distinguished Hyde saying,
no, no, no.
You motorist were deliberately, secretly recording
the officer because you were gonna bring a complaint
about the behavior.
Male Justice: There has to be some secrecy, right?
-: Exactly.
So I think secret means you don't know.
That's secret.
And I think that.
-: And you think Ashley is just wrongly decided?
-: I'm afraid it cannot be squared either
with the wiretap statute itself or this court's precedent
in both Hyde and Commonwealth v I believe Jackson,
where the court first said we would be eviscerating,
I'm paraphrasing,
the carefully chosen words that the legislature used,
if we imposed onto the statute a reasonable expectation,
requiring a reasonable expectation of privacy
for the speaker.
And I would ask the court to look at the difference
in the definitions between the Massachusetts wiretap statute
and the federal statute.
The federal statute does have a requirement
that the speaker have a reasonable expectation of privacy.
And it defines an oral communication as, quote,
any oral communication uttered by a person exhibiting
an expectation that such communication is not subject
to interception under circumstances
justifying such expectation.
Our wiretap statute defines an oral communication as speech.
Justice Kafker: So how is this gonna work
in the real world?
-: It works in the-
-: So the cops are responding to an emergency.
Attorney Neves: No.
Oh, in this case?
-: No, but we want the police to turn those video cams on,
don't we?
Attorney Neves: Oh, sure. -: And they're not gonna
always be able to say,
hi bank robber, I'm turning on my recording now.
Are they?
-: I...
-: You really want us to create that rule?
-: I'm afraid the legislature wants you to have,
I mean, the legislator has spoken.
-: You think they want us to
basically, every time the police turn on that video cam,
and they don't say, I'm turning on the video cam,
is that a criminal act by them?
I can't remember.
-: Of course technically it is.
I don't know who would prosecute the officers.
But I think the more important issue is that
if a police officer unlawfully records in violation
of the wiretap statute, there's a suppression remedy.
And as to whether you need to-
-: We don't get to limit it that way.
If there's a criminal penalty associated with it, I don't,
aren't you- -: No, I, yes.
I...
that's true.
But that's what the statute provides.
And this court has said on several occasions
that the statute is clear and unambiguous,
and
this court's review of the motion judge
who said this did not need to be suppressed
because Mr. Morris did not intend to keep
his conversation private.
-: But there's a difference.
Isn't there a difference between what Justice Kafker
just described, where you have a police officer
with a body cam that is likely obvious to whoever
the police officers encountering?
-: Right. Yes, there could be.
Yes. Thank you, Your Honor.
There absolutely could be the determination
that you are on constructive notice
and certainly Mr. Morris, in this case.
And I think that,
when this interrogation happened was 2014,
10 years after DG on Batista had been decided.
And I think that the normal practice
in a lot of police stations is just,
if you've got a sign on the table, you're being recorded.
This court has a sign when you come in, I notice,
telling whoever walks in that you are on camera.
You are being recorded.
So in this case, there was no sign.
And the camera, there are pictures in the record,
it is picture A, is about the size of a fist,
and it looks like a motion sensor.
And the motion judge here said no, in this case,
I think in many cases, and which is why Ashley,
even though the reasoning was wrong, the outcome was right.
In that case, there was a visible camera in the room.
There was a sign on the table that said
you're being recorded.
In this case, there were neither of those things.
Mr. Morris testified,
I didn't know there was a camera in the room.
Nobody told me there was a camera.
I didn't see a microphone or a camera.
There was no sign.
The motion judge credited Mr. Morris' testimony.
So yes, absolutely.
You've gotta record,
you know, he presses the button,
it's there.
And I suppose there's also the aspect of,
are you trying to capture speech,
or are you trying to capture action?
And I think that can be a distinguishing factor
to lean the court, in that hypothetical, toward Gordon.
You're not trying to capture somebody's words or thoughts
on a particular subject.
So I think-
-: And if this,
there would be no problem though
with the officers testifying as to what the defendant said
during the interview, right?
-: I think this court in (indistinct) said that
if the officer,
and that's cited in my brief,
that if the officer's testimony
or the person, not necessarily an officer,
the person who was the other party to the secret recording
has an independent recollection without looking
at the unlawful recording,
they may testify to their recollection.
But if they can't,
if they have to look at the tape to recall
what the conversation was,
then it is evidence derived from the unlawful recording,
and they cannot.
-: Is there a difference between refreshing
one's recollection and remembering based
on what they've seen?
-: I think you have, and I think in (indistinct),
there was a discussion about that.
And I think there was an appeals court case, Downey,
where this was an issue as well.
And there has to be a very careful assessment
in the trial court about what's an independent recollection
and whether the officer or the individual has looked
at the recording to refresh the recollection.
If they have, it's not usable
because suppression means you suppress all evidence,
all idea that the tape ever existed.
So are the officers going to have
an independent recollection?
I don't know.
But that's why you don't secretly record.
You put a sign on the table.
You make sure the camera is visible.
You say,
and I know that this was not at the suppression motion,
Trooper Short, one of the two troopers who conducted
the interrogation here at trial,
and this is at volume 10 pages 25 to 27,
he admitted there's nothing,
that he wasn't notified.
And asked, and that probably violates
your normal practice, doesn't it?
Yes.
In almost every case you interview these people,
you say on the tape.
So it's memorialized, sir,
our policy is to tape these.
You're being taped.
You're being videotaped as well, right?
Yes.
We agree that good police practice is to do that, right?
Yes.
With another witness in this case, they did it.
That's on the transcript as well.
With Mr. Morris, you didn't, correct?
Correct. -: So with that in mind,
and thinking about what the judge said,
it did not seem to be an intentional failure to notify him,
correct?
He did not find this was secretive on purpose.
-: I think secret just focuses not on the intent
of the recorder, other than the recorder has
to intend to record.
-: So you're not alleging that there's an intention
on the behalf of the trooper, are you?
Or are you? -: I think you can draw-
-: But are you though?
I mean, you can. Are you?
-: Well, I guess my point is, what's important,
and I will, I'm happy to answer that,
but I think what's important is that what matters
is what the speaker knows.
If the speaker doesn't know, then it's secret.
I think, in this case,
even if they forgot.
So Trooper Coppenrath testified, I absolutely did it.
I did it when we were out in the hall.
I definitely did it.
And the trooper who brought him up
probably would've overheard it.
Was it recorded? I don't know.
Unfortunately, I think the reason
that the motion judge perhaps didn't credit that,
is that Trooper Short, who brought Mr. Morris up,
said that he didn't recall telling Mr. Morris,
and he didn't hear anybody else do it either.
So even if it's something that, you normally do it.
You almost always do it.
You forgot to do it.
The problem is, it's still secret under the wiretap statute.
It's a secret.
It's a secret recording.
So the motion judge here rested his,
he found as a fact, essentially that it was an interception.
But he found that it wasn't suppressible,
it wasn't a problem because Mr. Morris didn't intend
to keep his conversation private.
Which of course this court has,
I said already in Hyde and Jackson,
there is no requirement that the speaker
have a reasonable expectation of privacy.
The harm is the secret.
I think the simple answer is
that's why you just put something in place
so you never have to...
I mean, I think in this case, you could certainly
draw an inference that perhaps it might have been nicer
for Mr. Morris not to have a looming camera on him.
The evidence in this case against him
is largely his statement in which he confesses
to shooting the victim in this case.
So I think the concern that was raised in amicus briefs
in the DG on Batista case by police officers,
that the concern is that if you tape record people,
they won't talk.
Especially in a case where your evidence is not so strong.
Maybe...
-: Well, he said he was gonna talk.
There was no Miranda violation.
They said, clearly, here's your time to tell your story,
and he told a story.
Attorney Neves: True.
-: That's incredibly speculative, just to say,
well, if there was a camera.
I get your literal interpretation of the wiretap statute.
It's well taken.
But I think we're get into
a little bit of speculation. -: There's
an argument to be made.
But yes.
-: (mumbling) interpretations your best argument.
-: I don't know. I don't know.
I mean, I know that I don't always think
that I'm being recorded if I see a camera in the room,
but I think it would affect how I say things,
what I say, I don't know.
But in any event.
-: Is there a difference between surreptitious
and not getting your consent?
I mean,
it seems to be... -: well, surreptitious,
yeah, isn't in the statute that's been sort of used
in the case law.
-: But it's in Hyde to, everything
(speaking over each other)
Male Justice: It's our interpretation of...
-: What secret means. Attorney Neves: Yes.
Male Justice: Of secret, right?
Attorney Neves: Yes. Surreptitious-
-: Isn't that the key is that we have to figure out
what's secret.
Like when you come in here and you know
that you're gonna be on,
even without that sign out there,
are we secretly recording you?
'Cause you know the social law.
You're a lawyer.
You can watch yourself on social law after this.
Are we secretly recording you
without that little thing there?
-: No, because I'm on constructive notice,
and you could prove that.
That I've argued here before.
That I've watched arguments here.
You can prove that I've got constructive notice.
-: And someone who's in a police station
after he's been given Miranda warnings,
he's not, he doesn't realize that they're,
this isn't surreptitiously record?
I mean, he's being-
-: I don't think I wanna live in a country
where I'm being secretly recorded
by the police. -: Well, you're not
well, but you're-
(speaking over each other)
But when you're talking to the police
in a police station,
after you've been given Miranda warnings,
you really think
that this is surreptitiously recording him?
If you don't say you're being recorded.
-: I think you know your words are gonna be used against you.
You've got the Miranda warnings.
-: But don't you want your words accurately reflected?
-: I don't know.
The wiretap statute. -: I would.
You wouldn't? -: Well, sure,
but the wiretap statute says, unless you know, it's secret.
-: It doesn't immunize the,
and Gordon doesn't immunize the entire police station.
So for instance, you couldn't bug the attorney room.
Attorney Neves: Right.
-: Right? So that would be a surreptitious,
if we say Ms. Neves, you can talk to your client now
in this conference room, and there's a bug
under the table. Attorney Neves: So like
a wire. Right, I get that.
-: We don't draw lines around the entire police station,
of course.
But the distinction I think Justice Kafker,
the difference between that and not informing someone
of their Mirandized statement is vast, correct?
-: I'm sorry, I didn't follow.
-: There's a big discrepancy between bug
in the attorney room.
Attorney Neves: Sure.
-: And-
-: But it's the same thing.
It's an interception.
It is.
You need to know.
Under the wiretap statute, you need to, if it's secret.
-: What about any of the signs,
the sign on the garage door and the fact that the defendant
had been in this booking station before
and knew he was recorded when he was being booked
and had some experience.
I don't know if he'd had been interviewed before.
-: That's the point.
There's nothing in the record to indicate
that he'd ever been interviewed before.
-: And Judge Moriarty discounted this garage.
-: Discounted the garage.
He said that's not enough.
And yeah, there's plenty of evidence-
-: But we'd have to have final clearly erroneous
if we disagreed with him.
-: Exactly. I think, yeah.
And I think that he saw all of...
He watched the videotape.
There's some argument that at one point Coppenrath points
and says, the people are gonna hear you.
The judge saw that and obviously did not find that
persuasive as well.
-: Oh, so the Commonwealth argued when Coppenrath pointed,
he was pointed to the camera?
-: Right. But not at the motion to suppress.
On appeal here, it's argued.
But obviously the motion judge did not find that persuasive.
He watched the tape.
He credited Mr. Morris's statement that I did not know.
I didn't know.
And the issue of consent.
I just wanna get back to what you about that.
-: I'm getting confused now about,
in Hyde, they secretly recorded, right?
They weren't out there with their like,
so I just wanna make sure that when the cell phones, now,
when you're...
everyone out there shooting everything, are they?
Are they violating that too?
-: No. If you, people know.
I mean, if you see someone and it's obviously recording,
you know.
You're on actual, you know.
-: They haven't told me.
I don't know.
Attorney Neves: But that's the difference.
-: But if we meet on the street, and I have my iPhone
in my pocket, and I turn it on, I'm secretly recording you.
-: Yes. Because you don't know.
It's either somebody tells you
because they're in charge here, and the camera looks
like a motion sensor, and there's no sign.
So they just need to tell you this is recording you,
or there's a sign.
And that gives you the constructive notice,
or they're holding up the phone.
They're recording you.
You know.
You absolutely know.
And as to the issue of consent, I just wanna make sure-
-: And do you need to know the...
So a police officer's arresting someone in public,
and there are 40 people nowadays taking their cameras out
and monitoring that.
Does the police officer need to know that just collectively,
or are all those 39 people that he,
he sees a couple of them, but he doesn't see the other 20.
Are they also about to do time?
Attorney Neves: (laughing) You know, I think that-
-: You know where we're going.
-: Well, I think the wiretap statute tells you exactly
where we are and where we've been since 1968
when they changed it.
And that if someone doesn't tell you or if they hide it
or if it's obvious.
That's the difference.
-: What do we glean from the preamble to the wiretap statute
about the purpose of it, and how we interpret it?
-: Yeah, we are very concerned back in 1968
about electronic surveillance and that these devices
are getting better and better.
And we're concerned about secret recording of people.
But at the same time, we don't wanna impede police officers
when they're investigating designated offenses
and connection with organized crime.
And organized crime is very specially defined
as conspiracies, groups of people who are engaged
in trafficking illegal drugs or services,
illegal substances or whatever.
They're engaging in illegal business.
So we are putting out this statute, we don't want it.
We don't want any secret recording.
You can use these devices, but no secret recording.
And the police, you too.
If you're gonna do this, you have to do it in very,
very carefully circumscribed circumstances.
I guess I'll rest on my brief on the other two issues
that I raised.
Thank you very much.
-: Thank you.
Okay, Attorney Nguyen.
-: May it please the court, Mary Nguyen on behalf
of the Commonwealth.
There is a presumption that a defendant is aware
that a police interview is preserved.
That's in footnote nine in the Hyde case, where it says,
quote, we presume that when police interrogations
are electronically recorded, the suspect is aware
that the interrogation is being preserved.
But more than that presumption, what we have in this case
are the words and conduct of the defendant,
which Jackson talks about how you can infer one's knowledge.
-: How do we deal with the fact that the judge
makes a contrary finding a fact on that?
He says there's no constructive knowledge here, right?
-: So...
-: Am I misremembering or...
-: I'm gonna just, if I may, refer to the judge's
findings in that regard.
So he does state,
I do not find that he was on constructive notice
that the interview was being recorded.
But also in the second to last sentence,
he uses some language from Ashley and talks about how
it's obvious from the circumstances in this case.
And I would suggest looking at the defendant's conduct
and his words in this interview, that he was aware.
-: Okay, you're gonna give us his conduct and his words
that give us that inference?
-: I think so.
And I think Jackson talks about how
that's a sensible approach, looking at a defendant's
words and conduct.
And I do indicate in my brief, the fact that he is asking
for a reduction in the charge about the person listening.
The police are very clear that they're-
-: What did you say there?
He asked for reduction in the card?
-: So the defendant inquires if the quote, person
could quote, drop the charge to something less.
-: Person. And you're saying that refers to him
referring to who's watching.
-: Correct. So that's shortly after the lieutenant indicates
that there are going to be the people,
that the people would be listening to what
the defendant had to say.
That's when there was the pointing.
But I think more importantly is the fact that the lieutenant
is making it clear to the defendant that there is,
that the people are gonna be listening to your story.
And then the defendant's response, his words are,
will that person drop the charge to something less?
And then there's also the defendant's reluctance
to name certain people during the interview.
-: So are we gonna find that the judge is finding
there's no constructive knowledge as a clear error?
Is that what you're asking us to do?
Or, I'm confused.
-: I'm not.
-: We'd have to find that he was under constructive notice
and that Moriarty was wrong.
Attorney Nguyen: I'm sorry.
-: We would have to find a clear error.
If we draw this inference from the are people listening,
we would have to say he was under constructive knowledge,
and the judge made an error, correct?
There's no other way.
-: Yes.
-: To come to that conclusion unless we draw that inference
or make that finding.
-: Yes. And so I think to support that finding also
is the defendant's experience
with the criminal justice system and in particular
the Brockton Police Department having...
-: But how does that help you unless there's evidence
that in his prior instances he was recorded?
Attorney Nguyen: I'm sorry, Judge?
-: If it's just that he was arrested by the BPD
a bunch of times, what's that do?
You would have to have evidence that he was taken
to that room and recorded in the past.
Attorney Nguyen: Sure.
Justice Gaziano: And you don't have that, right?
-: So I think where I was going in my brief
was that, for example, the sign on the garage door.
I understand what the judge's ruling was,
but the point that I was trying to make is that
it's demonstrating that there was nothing deliberately
surreptitious.
So as Your Honor had indicated,
it's about whether it was a secret here.
And I think the evidence is clear that there was no secret
that this interview was being preserved for court.
I do go at length about just the Miranda waiver itself.
-: So you don't buy the defense counsel's argument
that if something's secret, that means that the person
who is speaking doesn't know.
That's not your definition of secret.
Because the argument on the other side is
surreptitious is different from secret.
So you may be recording me.
If I don't know it, then it's a secret from me.
Even if you're not trying to keep it away from, you know,
keep it from me.
-: So I was sort of confused by that argument,
sort of the distinction between surreptitious and secret,
because the way that I read that is it's the same.
-: Well, it's not if the defendant doesn't know
for whatever reason versus if the defendant doesn't know
because you're hiding it.
-: Well that's kind of why I suggested,
although I understand the judge's ruling about the notice
on the garage door, that's where I say it demonstrates
that it's not deliberate here.
There's nothing deliberately surreptitious.
There's no secret here.
The police are saying the people are listening
and then to show the defendant's awareness,
he's asking for that reduction in the charge.
He's reluctant to name certain people.
So I do think that the Miranda waiver is also indicative
of the fact that there was no secret that the interview
was being preserved for subsequent use in court.
-: Counsel, you continue to use the word preserved,
which I find to be really cagey.
Because preserved could also mean that you know
that they're writing down your statement or contemporaneous
notes of what you're saying.
So that could preserve that for trial.
But the issue is the way it's being preserved.
And so if the way it's being preserved is by recordation,
and the wiretap statute says that the person has to know.
Again, going back to the standard of review,
how do we conclude that Judge Moriarty clearly made
an error here?
-: So I will say, I think that the Jackson Court talks
about how they are saying it's unnecessary
for any further requirement, that the person recording
the conversation confirm the caller's apparent awareness
by acknowledging the fact of the intercepting device.
And that's where they talk about the sensible approach
by looking at the caller's words and conduct.
But I use preserve because that's the word that was used
in Hyde in that footnote that I referenced,
which is we presume that when police interrogations
are electronically recorded, the suspect is aware
that the interrogation is being preserved.
Ashley also talks about-
-: Right, but that footnote presumes that they know
it's being electronically recorded.
You're giving us a circular argument right now
because you still have to go back and say,
you know it's being recorded because we told you
it's being recorded so you know it's being recorded.
So we still have to begin with the fundamental first
premise, first domino.
So what's the first domino here?
-: Well, so I think if I recall correctly,
the Ashley Court sort of talks about this distinction,
or a difference without a distinction
if I'm saying it correctly.
'Cause it's not about the recording, right?
It's about the interrogation itself.
I can find that section and hopefully
that will answer the question.
So the quote is
the recording is not for the investigative purposes.
So while the interrogation is for investigative purposes,
the recording of it is not.
That is, it is the interrogation and not the recording
that is investigative.
The purpose of recording the interrogation
is not to gather evidence, but to record
the evidence gathered by means of the interrogation.
And then they, you know, I talk about it as well,
but the Ashley Court talks about the policy.
-: Are you reading from Jackson there?
I couldn't tell what you-
-: Oh, sorry. That was from the Ashley Case.
That's footnote 15 on page 762.
But so the Ashley Court talks about how it was obvious
during the interrogation from the defendant's conduct,
right, and his words, that he didn't intend
to keep the statements private.
And that's where I talk about how he knew
that it was being preserved for court.
And I see how you're...
I don't think it's a circular argument because I think that,
and I use the word preservation and memorializing,
Ashley Court uses memorializing the interview.
-: That's a pretty fine distinction between the recording
and the interrogation.
Aren't they one in the same?
I don't see how you sever them in that way.
I mean, you're recording it as part of the interrogation,
aren't you?
We're slicing the bologna pretty thin there.
-: So the Ashley Court tries to discuss this,
if you will, this distinction.
And the policy behind DG on Batista
is that we want these police interviews recorded.
-: I guess if you make this argument,
I guess it goes back to Attorney Neves,
that would seemingly read into the statute,
the reasonable expectation of privacy, wouldn't it?
Because if you're saying it's a distinction
without a difference because you're saying whatever it is
you're saying, whether it's being recorded or not,
and you know that whatever it is that you're saying
could later be used and repeated in court.
So therefore it doesn't matter whether or not
that you knew it was recorded or not.
Doesn't that infuse into the statute
of reasonable expectation of privacy?
-: I don't think that's what the Ashley court
or the motion judge in this case was saying.
And I do comment on that in my brief.
I think that they were taking the circumstances
in their case.
I don't think there were making a blanket, you know,
there needs to be a reasonable expectation of privacy.
All conversations in the interrogation room
at a police department,
you need to have this reasonable expectation of privacy.
I don't think that that was being said by Ashley.
Justice Gaziano: It's an interpretation
of the word secret, correct?
Or surreptitious.
Attorney Nguyen: I'm sorry, Judge?
-: It's an interpretation of the word secret
or surreptitious.
So if the defendant is given a statement to the police,
he's not keeping his words secret.
Attorney Nguyen: He's not.
-: Keeping his words secret, correct?
-: Correct. He's not keeping his words.
It's not a secret.
A police interrogation is not a secret.
Going back to Hyde, that footnote.
There's that presumption.
But here in this case, even beyond this presumption,
there's the evidence from his words and his conduct together
with waiving his Miranda rights, which is not in dispute.
-: May I take you in a bit of a different direction
and just assume, I'm not saying this is what will happen,
but just assume that we conclude there is a violation
of the wiretap or that there's a reason
this confession should be
or the interrogation should be suppressed.
What evidence do you have remaining if that happened?
Attorney Nguyen: In this case?
Justice Cypher: This one.
-: It was a major piece of the evidence,
the confession certainly.
The defendant also used that statement
to support his defense.
The defendant didn't take the stand as is his right,
and certainly he was relying on statements made,
his version of events.
-: Was that also used in cross examination, the statements?
Did the defense attorney use the statements
from interrogation and cross examination
of any of the witnesses?
-: Did he use?
-: The statements made by the defendant in any
or during the interrogation?
Did the defense attorney use those statements
in cross examination of any of the other witnesses?
-: That I can't say for sure as I stand here.
But I do know in his opening he pointed right
to the statements and said,
you know, the defendant's state of mind is gonna be crucial
in this case.
Listen to his words.
It is not the words of a murderer.
-: The statement played such a role in the trial
that a new trial would have to be ordered
if it was suppressed, correct?
You can say yes.
(laughing)
Female Justice: 'Cause there's nothing left, really.
-: There will not be much left.
-: Right, it was used by both sides.
It was pivotal to the-
-: For both sides.
They both really utilized the statement,
obviously for self-defense.
The defendant was relying on that for self-defense.
And then obviously the Commonwealth had a different spin
on that.
But essentially, it is the Commonwealth's contention
that the recording was not made secretly.
It wasn't an illegal wiretap.
It was not an interception within the meaning
of the wiretap statute.
And I know that we've discussed sort of the difference
between secret and surreptitious,
and I don't know if there's a difference
between secret and surreptitious.
Justice Cypher: But why isn't it an interception?
-: So an interception is a secret recording.
Interception under the statute means to secretly hear
or secretly record.
And in this case I'm suggesting it wasn't secretly recorded.
As I indicated before, the Lieutenant was saying
the people are listening.
The defendant was aware. -: Right, but doesn't that
bring us back to Justice Gaziano's question
about Judge Moriarty's finding?
We'd have to conclude that was a clearly erroneous finding
about the secret.
Nyguen: The constructive notice?
-: Yeah, constructive notice and the, yeah.
-: I'm having a hard time with that one
because although I acknowledge he says constructive notice,
in that last paragraph he also talks about how it
was obvious during the interrogation that he knew that
what he was saying could be and would be used
against him in court.
So I'm having a hard time with that because-
-: But that's a legal conclusion though
'cause he's drawing his legal conclusion
based upon Gordon and Ashley.
Correct?
-: Correct.
Were there any other questions on the wiretap issue?
Okay, so regarding the second issue
with the statutory right to a telephone.
-: Eric Moriarty made the finding you wanted.
He found it wasn't intentional.
Attorney Nguyen: Correct. -: So you think
he was right in that one.
-: Yes.
So with respect to the second issue here,
the Commonwealth's contention is that the defendant
has failed to show that that finding was plainly wrong.
And then so the information given to the defendant
by the detectives here regarding his other rights,
together with his prior experience
with the criminal justice system
certainly points to...
to support of the judge's conclusion
that there was no evidence of an intentional denial
of the defendant's right to use the telephone in this case.
And then the judge relies on Rodriguez,
I think that is a good case as well as Walker
to suggest that it's not misplaced to consider
the defendant being informed of these other rights
along with his prior experience
in the criminal justice system.
And then here I do note that he has exercised
his statutory rights to use the telephone at this very same
police station in Brockton 10 times before.
So the Commonwealth's contention is that the defendant here
has not met the burden to establish an intentional violation
of that statutory right to use the telephone call.
Now regarding the third issue,
these are post Miranda statements.
So the prosecutor commented on a very significant omission,
I would suggest, regarding the defendant not telling
the police he saw the gun in the car.
I do cite too, quite a few cases including Donovan,
that stand for the proposition that by talking
to the officers on his own volition,
the defendant waived his Miranda rights.
That he doesn't argue to the contrary.
So what the defendant thereafter chooses to say or not say
to each officer on the subject could properly be commented
on by the prosecutor to expose inconsistencies.
And that's precisely what the prosecutor did here.
The defendant here did not remain silent,
and it was certainly not off limits for the prosecutor
to be able to comment on that very significant omission.
And I do note that on August 31st there was a motion
for a new trial filed in this case pursuant to Moffitt,
where he advances three claims of ineffective assistance
of counsel.
Do any of Your Honors have any questions
on that Moffitt claim?
Female Justice: Don't think so.
-: I would rest on my brief,
and I'd ask that you affirm the convictions.
Thank you.