Commonwealth v. Rainey ( 2023 )

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SJC-13285
COMMONWEALTH vs. CHAREE RAINEY.
Suffolk. December 5, 2022. – April 6, 2023.
Present: Gaziano, Lowy, Cypher, Kafker, Wendlandt, &
Georges, JJ.
Practice, Criminal, Probation, Revocation of probation, Hearsay.
Evidence, Wiretap, Hearsay. Due Process of Law, Probation
revocation. Global Positioning System Device. Statute,
Construction.
Indictments found and returned in the Superior Court
Department on September 5, 2012.
A proceeding for revocation of probation was heard by
Michael D. Ricciuti, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Gail M. McKenna for the defendant.
Brooke Hartley, Assistant District Attorney, for the
Commonwealth.
Christopher P. Conniff & Michelle Mlacker, of New York,
Kacie Brinkman, of Illinois, Claudia Leis Bolgen, & Thanithia
Billings, for Massachusetts Association of Criminal Defense
Lawyers, amicus curiae, submitted a brief.
Nina L. Pomponio, Special Assistant Attorney General, &
Arthur J. Czugh for Massachusetts Probation Service, amicus
curiae, submitted a brief.
2
WENDLANDT, J. While on probation for assault and battery,
G. L. c. 265, § 13A, and for violating an abuse prevention
order, G. L. c. 209A, § 7, the defendant, Charee Rainey,
forcibly entered his then girlfriend's home over her objection
and proceeded to assault her. Responding to the subsequent
domestic disturbance call, Boston police officers arrived at the
victim's residence; one officer activated his body-worn camera
before entering the premises. The still-distraught victim
reported the assault to the officers. One officer recorded the
victim's statement in writing; and the officer who was equipped
with the body-worn camera was able to capture on the audio-
visual video footage the victim's reporting of the events that
had transpired, the state of her home within his plain view, and
his own interview of the victim's two daughters. The defendant,
who had fled the apartment immediately following the assault,
was not recorded.
On appeal, the defendant contends that the wiretap statute,
G. L. c. 272, § 99, precluded the use of the body-worn camera
footage at his probation violation proceeding, and that the
recording violated his rights under the Fourth Amendment to the
United States Constitution and art. 14 of the Massachusetts
Declaration of Rights. We disagree. Further concluding that
the Superior Court judge did not abuse his discretion in
3
concluding that the victim's statements were substantially
reliable, and seeing no reason to doubt the judge's statement
that his findings regarding the defendant's global positioning
system (GPS) violations did not drive the decision to revoke
probation, we affirm.1
1. Background. We recite the facts found by the judge,
supplemented by our independent review of the video footage from
the body-worn camera. See Commonwealth v. Yusuf, 488 Mass. 379,
381 (2021), quoting Commonwealth v. Clarke, 461 Mass. 336, 341
(2012) ("we are in the same position as the . . . judge in
viewing the videotape").
a. Facts. Relevant to the present appeal, in 2013, the
defendant was convicted and sentenced to three years of
probation for assault and battery, G. L. c. 265, § 13A, to run
concurrently with three years of probation for violation of an
abuse prevention order, G. L. c. 209A, § 7.2 The conditions of
1 We acknowledge the amicus briefs submitted by the
Massachusetts Association of Criminal Defense Lawyers and the
Massachusetts Probation Service.
2 The defendant also was convicted and ultimately sentenced
to five years and one day in State prison for assault and
battery by means of a deadly weapon resulting in serious bodily
injury, G. L. c. 265, § 15A (c), to run concurrently with five
years of probation for another violation of an abuse prevention
order, G. L. c. 209A, § 7. Relevant to the appeal, the
defendant's term of incarceration was to be followed by the
aforementioned three years of probation. The defendant was also
found guilty of malicious destruction of property, G. L. c. 266,
4
probation included that he obey all laws, have no contact with
the 2013 victim,3 and wear a GPS device to ensure he stayed away
from the 2013 victim.4
In December 2019, while the defendant was serving probation
for these crimes, Boston police Officers Richard Santiago and
Sparks Flantey responded to a call of an "intimate partner in
domestic violence" at the home of the defendant's then
girlfriend (victim). Before entering the victim's apartment,
Santiago activated his body-worn camera.5
The victim allowed the officers to enter her apartment.
Her voice was shaky, and she was sniffling and distraught. The
victim's two young daughters were home.
§ 127, but no sentence for this crime is noted in the docket; on
appeal, the defendant raises no issue relating thereto.
3 The 2013 victim is not the same victim as in the present
case.
4 A GPS device "is an electronic monitor designed to report
continuously the probationer's current location." Commonwealth
v. Thissell, 457 Mass. 191, 191 n.1 (2010), quoting Commonwealth
v. Raposo, 453 Mass. 739, 740 (2009).
5 "As the name suggests, a body-worn camera is a small
camera that is clipped to a police officer's uniform, on his
chest or possibly to head-gear, such as glasses or a head-
mount." Blitz, American Constitution Society for Law and
Policy, Police Body-Worn Cameras: Evidentiary Benefits and
Privacy Threats, at 3 (May 2015). "It can then record video of
the area in front of it and audio of the surrounding
environment. The camera is either activated by the officer
wearing it or automatically triggered by a sound, movement, or
other stimulus." Id. See St. 2020, c. 253, § 104 (a) (defining
"Body-worn camera").
5
The victim proceeded to report the events that had
transpired that evening. She explained that, approximately two
hours earlier, while she was asleep, the defendant had taken her
apartment keys, the keys to her then-inoperable truck, and the
keys to her rental car. After she awakened, she ordered a pizza
for pickup and called the defendant to inquire as to the
location of the rental car so that she could retrieve the pizza
order. They argued, and she told him not to return to the
apartment. She placed a sofa couch in front of the door to
block his entrance.
In contravention of her request, the defendant returned to
the apartment and attempted to open the door; the victim asked
him not to enter and warned that she would call the police.
Nevertheless, the defendant forced the door open, moving the
couch forward and injuring the victim's toe.
In the ensuing struggle, he pushed the victim's neck and
chest, scratching her chest. The victim yelled for her older
daughter to call the police and to go to the upstairs neighbor;
in response, the defendant covered the victim's mouth and then
slapped the telephone from the daughter's hand.
The defendant pushed the victim to the ground and used his
legs to push her away. He then took some personal belongings
and fled the apartment in the rental vehicle, also taking with
him the apartment keys.
6
The victim repeated parts of this account of the assault
several times in response to officers' questions, consistently
explaining the timeline of events and the cause of her injuries.6
As she spoke, Flantey took written notes of her report, and she
spelled the names of those involved. Santiago told her that
detectives would come to photograph her injuries, and that he
would preserve the information she had reported in his police
report.
Santiago testified that he saw the victim's chest injuries.
He also spoke with the older daughter, who confirmed that the
defendant had covered the victim's mouth and slapped the
telephone from the daughter's hand.7
Emergency medical technicians (EMTs) and detectives arrived
at the scene; the EMTs attended to the victim's injuries.
The officers asked the victim to contact the car rental
company to obtain information to assist in finding the defendant
and the rental vehicle. While the victim was on the telephone
with the car rental company, Santiago announced that he was
6 Shortly after the police officers arrived, the victim
stepped outside to retrieve the pizza she had ordered, now for
delivery, for her children.
7 The victim's younger daughter explained that she had
covered her face during the altercation and did not see
anything.
7
recording and asked whether that was acceptable. No verbal
response is recorded on the video footage.8
Thereafter, the victim and the older daughter went with the
EMTs to the hospital.9 Officers stayed in the apartment until
the lock on the apartment door was changed to impede the
defendant's reentry.
b. Procedural history. Based in large part on the report
of the domestic disturbance, the probation department issued a
notice of surrender, alleging new criminal conduct and failure
to pay fines.10 The probation department subsequently amended
the notice to add allegations of failures to comply with GPS
requirements in May, June, and July of 2020.
At the final surrender hearing, Santiago testified and the
body-worn camera footage was admitted over the defendant's
8 Throughout the recording, a periodic beeping can be heard,
but it is not clear from the video footage whether the noise was
audible to others.
9 The victim's younger daughter was left in the care of her
neighbor.
10The alleged crimes for the probation violations were
assault and battery on a household or family member, G. L.
c. 265, § 13M (a); threat to commit a crime, G. L. c. 275, § 2;
assault and battery, G. L. c. 265, § 13A (a); malicious
destruction of property worth under $1,200, G. L. c. 266, § 127;
and breaking and entering at nighttime to commit a felony, G. L.
c. 266, § 16.
The defendant also was charged in a parallel criminal case
stemming from this incident; each count was ultimately disposed
of in a nolle prosequi.
8
objection that the statements in the video footage were hearsay.
The probation department also submitted an e-mail message
detailing the defendant's alleged GPS violations; there was no
objection to the admission of these GPS documents.
Determining that the statements captured on the video
footage were substantially reliable by applying the factors set
forth in Commonwealth v. Hartfield, 474 Mass. 474 (2016),
discussed infra, the judge found all but one of the new charges,
destruction of property, proved by a preponderance of the
evidence. He did not consider, as a basis for his decision,
whether the defendant failed to pay fines; and, while the judge
found that the probation department had proved the GPS
violations, he explained, "candidly, that [did not] drive the
result here."
The judge revoked the defendant's probation and sentenced
him to two years in a house of correction on the assault and
battery conviction, followed by one year of probation for the
violation of the abuse protection order.11 Explaining his
rationale for revoking probation, the judge stated that
"[d]omestic abuse is serious" and the video footage was
11The transcript and the written findings indicate that the
one year of probation was for both violations of the abuse
protection order; however, the defendant should have already
served his sentence on one violation concurrently with his
incarcerated sentence. See note 2, supra.
9
"telling" -- "this defendant was given a chance to avoid a harsh
sentence, and he had lots of opportunities to avoid it, and went
right back to the activity that got him in trouble in the first
place."12 The defendant appealed, and we ordered the case
transferred to this court sua sponte.
2. Discussion. a. Wiretap statute. On appeal, the
defendant first maintains that the wiretap statute, G. L.
c. 272, § 99, precluded use of the body-worn camera footage in
connection with the probation violation proceeding. Subsection
99 C of the statute makes it a crime to "willfully commit[] an
interception . . . of any . . . oral communication," punishable
by, inter alia, a fine of up to $10,000, imprisonment for five
years in State prison, or both. G. L. c. 272, § 99 C 1. The
term "interception" is defined as "to secretly hear[ or]
secretly record . . . the contents of any . . . oral
communication through the use of any intercepting device by any
person other than a person given prior authority by all parties
to such communication." G. L. c. 272, § 99 B 4. An
"intercepting device" includes "any device or apparatus which is
12In his written findings, the judge set forth further
reasons for the disposition, including the circumstances of the
crime for which probation was ordered and the crime's impact on
any person or the community, the nature of the probation
violation, the defendant's record of prior probation violations,
the opportunity for rehabilitation under community supervision,
and the recommendation of the probation officer.
10
capable of transmitting, receiving, amplifying, or recording a
wire or oral communication other than a hearing aid." G. L.
c. 272, § 99 B 3. A body-worn camera is an intercepting device.
i. Exclusionary rule. The defendant's contention that the
body-worn camera footage was improperly admitted and used at his
probation violation proceeding faces several procedural hurdles.
To begin, the exclusionary rule does not generally apply to
probation violation proceedings. See Commonwealth v. Olsen, 405
Mass. 491, 494 (1989); Commonwealth v. Vincente, 405 Mass. 278,
280 (1989). This is because "[t]he purpose of probation rather
than immediate execution of a term of imprisonment 'in large
part is to enable the [convicted] person to get on his feet, to
become law abiding and to lead a useful and upright life under
the fostering influence of the probation officer.'"
Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006), quoting Mariano
v. Judge of Dist. Court of Cent. Berkshire, 243 Mass. 90, 93
(1922). See Morrissey v. Brewer, 408 U.S. 471, 477 (1972) ("Its
purpose is to help individuals reintegrate into society as
constructive individuals as soon as they are able, without being
confined for the full term of the sentence imposed"). "Evidence
that a probationer is not complying with the conditions of
probation may indicate that he or she has not been rehabilitated
11
and continues to pose a threat to the public."13 Vincente,
supra. For this reason, "it is extremely important that all
reliable evidence shedding light on the probationer's conduct be
available during probation [violation] proceedings" (citation
omitted). Id.
Indeed, the ability to review all reliable evidence is a
common interest shared by both the State and the probationer.
See Commonwealth v. Kelsey, 464 Mass. 315, 321 (2013) ("the
interest in an accurate evaluation [of all the reliable
evidence] -- the only interest shared by both parties -- is of
central concern in determining the scope of a probationer's due
process rights"). See also Gagnon v. Scarpelli, 411 U.S. 778,
785 (1973) ("Both the probationer . . . and the State have
interests in the accurate finding of fact and the informed use
of discretion -- the probationer . . . to insure that his
liberty is not unjustifiably taken away and the State to make
certain that it is neither unnecessarily interrupting a
successful effort at rehabilitation nor imprudently prejudicing
the safety of the community").
13A probationer has already been convicted of a crime
beyond a reasonable doubt and enjoys "only . . . conditional
liberty . . . dependent on observance of special [probation]
restrictions." Olsen, 405 Mass. at 493, quoting Morrissey, 408
U.S. at 480.
12
By contrast, "the risk that illegally obtained evidence
might be excluded from [probation violation] proceedings is
likely to have only a marginal additional deterrent effect on
illegal police misconduct." Vincente, 405 Mass. at 280.
Accordingly, we have determined that the exclusionary rule
should not apply to such proceedings. Id.14
Thus, if the remedy the defendant seeks is available, its
basis must be found in the wiretap statute itself.15 Tellingly,
the defendant cites no such remedial provision.
While the wiretap statute provides remedies for violations
of the statute, none of those remedies applies to individuals in
the defendant's position. For example, the statute allows "a
defendant in a criminal trial" to move to suppress the contents
14The defendant does not suggest that there was "egregious
police conduct" or "conduct that 'shock[s] the conscience'" in
this case (citation omitted). Olsen, 405 Mass at 496.
15The defendant mentions in passing that Santiago may have
violated the Boston police department's policy regarding the use
of body-worn cameras. Neither the defendant nor the
Commonwealth addresses whether any such violation would preclude
the use of the video footage in connection with a probation
violation proceeding; accordingly, we do not address the issue.
We note that the policy permits officers to use a body-worn
camera without notice when "an immediate threat to the officer's
life or safety or the life or safety of any other person makes
[body-worn camera] notification dangerous." See Boston Police
Department Rule 405, Body Worn Camera Policy § 2.5 (June 3,
2019). Here, at least when Santiago initially activated the
body-worn camera, he did not know whether the defendant was
present or posed an ongoing threat; moreover, Santiago stayed in
the victim's apartment until the lock was changed to prevent the
defendant's reentry.
13
of intercepted wires or communications. G. L. c. 272, § 99 P.
Because a probation violation proceeding is not a criminal
trial, see Commonwealth v. Costa, 490 Mass. 118, 123 (2022),
quoting Commonwealth v. Durling, 407 Mass. 108, 112 (1990)
("Revocation hearings are not part of a criminal prosecution"),
this remedy is not available.
The statute also allows an "aggrieved person" a private
right of action against any person who intercepts, discloses, or
uses an unauthorized interception. G. L. c. 272, § 99 Q. An
aggrieved person is defined as "any individual who was a party
to an intercepted wire or oral communication or who was named in
a warrant authorizing the interception, or who would otherwise
have standing to complain that his personal or property interest
or privacy was invaded in the course of an interception." G. L.
c. 272, § 99 B 6. The defendant rightly does not claim to be an
aggrieved person; while the victim reported the assault by the
defendant, he himself was not a party featured in the body-worn
camera footage.16 Compare Curtatone v. Barstool Sports, Inc.,
487 Mass. 655, 658-659 (2021) (action brought by aggrieved
person, alleging he was secretly recorded).
16The defendant also was not named in a warrant authorizing
the body-worn camera recording; there was none. Nor does the
defendant contend that his personal or property interest or
privacy was invaded such that these interests would preclude the
recording. Additionally, a probation violation proceeding is
not a civil action for damages. G. L. c. 272, § 99 Q.
14
These provisions, which carve out specific remedies for
certain individuals, belie the defendant's assertion that the
statute entitles him to the remedy he seeks. See Fascione v.
CAN Ins. Cos., 435 Mass. 88, 94 (2001), quoting 3 N.J. Singer,
Sutherland Statutory Construction § 57.18, at 46 (5th ed. 1992)
("[W]here a statute creates a new right and prescribes the
remedy for its enforcement, the remedy prescribed is
exclusive"). See also Skawski v. Greenfield Investors Prop.
Dev. LLC, 473 Mass. 580, 588 (2016), quoting Bank of Am., N.A.
v. Rosa, 466 Mass. 613, 619 (2013) (applying "the statutory
maxim, 'expressio unius est exclusio alterius,' meaning 'the
expression of one thing in a statute is an implied exclusion of
other things not included in the statute'").
Indeed, given the rights available under the statute, the
defendant's reliance on the statute in connection with the
probation violation proceeding is at best questionable.
Notably, each of the cases the defendant cites involves
individuals who were themselves recorded.17 See, e.g.,
17Nor is this the type of case that might trigger the
doctrine of third-party standing, which may be available to a
defendant in a criminal trial and further requires a showing of
egregious misconduct. See Commonwealth v. Santiago, 470 Mass.
574, 578 (2015), quoting Commonwealth v. Scardamaglia, 410 Mass.
375, 380 (1991) ("in a case where the police engage in
'distinctly egregious' conduct that constitutes a significant
violation of a third party's art. 14 rights in an effort to
obtain evidence against a defendant, it may be appropriate to
15
Commonwealth v. Mitchell, 468 Mass. 417, 421, 428 (2014)
(concerning suppression of recording of defendant's voice in
telephone call); Commonwealth v. Tavares, 459 Mass. 289, 302-303
(2011) (suppression of defendant's statements, secretly recorded
by informant); Commonwealth v. Gordon, 422 Mass. 816, 833 (1996)
(declining to suppress videotape of defendant during booking
procedure); Commonwealth v. Jackson, 370 Mass. 502, 503 (1976)
(refusing to suppress taped conversations in which defendant was
participant); Commonwealth v. Ashley, 82 Mass. App. Ct. 748,
749, 762 (2012), cert. denied, 571 U.S. 838 (2013) (affirming
denial of motion to suppress defendant's recorded statements
during police station interrogation).
ii. Use of body-worn camera to record victim's report.
Passing over these substantial hurdles, the defendant asserts
that the plain language of the wiretap statute shows that the
Legislature intended to preclude the use of the body-worn camera
footage in a probation violation proceeding because the statute
criminalizes, inter alia, the secret recording of oral
communications. G. L. c. 272, § 99 C 1. In the defendant's
permit the defendant to rely on the standing of the third party
to challenge the police conduct"). See also Commonwealth v.
McCarthy, 484 Mass. 493, 511 (2020), quoting Santiago, supra("We also repeatedly have declined to adopt target standing
under art. 14, but have left open the possibility of applying
the doctrine in cases of 'distinctly egregious police
conduct'").
16
view, Santiago committed a crime under the wiretap statute,
potentially subjecting Santiago to incarceration in State
prison, even though he was responding to the call that a crime
had transpired, the victim consented to his entry into her home,
and she knew that, at the least,18 officers were creating a
written record of her report of the details of the domestic
violence committed by the defendant that evening; indeed, she
helped the responding officers correctly spell the names of her
daughters for the written record. Moreover, because the wiretap
statute also makes it a crime to willfully disclose or use a
prohibited interception, G. L. c. 272, § 99 C 3, the defendant
contends that the prosecutor, the probation officer, and the
Superior Court judge also are subject to criminal penalties.19
18The record is devoid of information sufficient to
determine whether the victim heard Santiago announce that he was
recording or whether the body-worn camera operated in a manner
that would have notified the victim that she was being recorded.
Accord Commonwealth v. Morganti, 455 Mass. 388, 395, 400-401
(2009) (recording of defendant's telephone call in police
interview room not illegal interception under wiretap statute
because he was told police officers intended to videotape
interview, and thus "the defendant knew that his words in the
interview room were subject to being recorded"); Commonwealth v.
Rivera, 445 Mass. 119, 134 (2005) (Cowin, J., concurring) (no
interception where video cameras were in plain view and
"defendant can be presumed to have had actual awareness of the
existence of the devices and that he was under surveillance").
19He also contends that his counsel's failure to object to
the use or disclosure of the video footage was ineffective
assistance of counsel.
17
A. Standard of review. "We review questions of statutory
interpretation de novo." Conservation Comm'n of Norton v. Pesa,
488 Mass. 325, 331 (2021). "Our primary goal in interpreting a
statute is to effectuate the intent of the Legislature." Id.,quoting Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2018).
"[O]ur analysis begins with 'the "principal source of insight
into legislative intent"' -- the plain language of the statute."
Patel v. 7-Eleven, Inc., 489 Mass. 356, 362 (2022), quoting Tze-
Kit Mui v Massachusetts Port Auth., 478 Mass. 710, 712 (2018).
We have explained:
"The general and familiar rule is that a statute must be
interpreted according to the intent of the Legislature
ascertained from all its words construed by the ordinary
and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished, to the end that the purpose of its framers
may be effectuated" (emphasis added).
Pesa, supra, quoting Commissioner of Revenue v. Dupee, 423 Mass.
617, 620 (1996). See HSBC Bank USA, N.A. v. Morris, 490 Mass.
322, 332 (2022), quoting Harvard Crimson, Inc. v. President &
Fellows of Harvard College, 445 Mass. 745, 749 (2006) (same).
"When the meaning of a statute is brought into question, a
court properly should read other sections and should construe
them together." City Elec. Supply Co. v. Arch Ins. Co., 481
Mass. 784, 790 (2019), quoting LeClair v. Norwell, 430 Mass.
328, 333 (1999). See Plymouth Retirement Bd. v. Contributory
18
Retirement Appeals Bd., 483 Mass. 600, 605 (2019) ("Beyond plain
language, [c]ourts must look to the statutory scheme as a whole
. . . so as to produce an internal consistency within the
statute . . . . Even clear statutory language is not read in
isolation" [quotations omitted]); Commonwealth v. Morgan, 476
Mass. 768, 777 (2017) ("The plain language of the statute, read
as a whole, provides the primary insight into that intent. . . .
We do not confine our interpretation to the words of a single
section").
Where the Legislature has set forth its intent in the form
of a codified preamble, we consider the preamble as part of the
whole statute, to the extent that it does not conflict with the
more specific statutory provisions. See Brookline v.
Commissioner of the Dep't of Envtl. Quality Eng'g, 398 Mass.
404, 412 (1986) ("general preambles . . . do not take precedence
over specific provisions"). In construing the wiretap statute,
in particular, we have turned repeatedly to the statute's
preamble to inform our analysis. See, e.g., Curtatone, 487
Mass. at 659-660; Tavares, 459 Mass. at 295 & n.5; Commonwealth
v. Ennis, 439 Mass. 64, 68 (2003); Gordon, 422 Mass. at 833;
Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied,
454 U.S. 1147 (1982).
B. Statutory framework. Admittedly, subsection 99 C of
the wiretap statute could be construed literally as the
19
defendant suggests, subjecting police officers, probation
officers, prosecutors, and the judge to severe penalties. See
G. L. c. 272, § 99 C 1 (crime to "willfully commit[] an
interception . . . of any . . . oral communication"); G. L.
c. 272, § 99 C 3 (criminalizing willful disclosure or use of
interception). However, "in the absence of more specific
statutory language to that effect . . . , we are unwilling to
attribute that intention to the Legislature." Gordon, 422 Mass.
at 832-833.
"[O]ur respect for the Legislature's considered judgment
dictates that we interpret the statute to be sensible, rejecting
unreasonable interpretations unless the clear meaning of the
language requires such an interpretation." Osborne-Trussell v.
Children's Hosp. Corp., 488 Mass. 248, 254 (2021), quoting
Depianti v. Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 620
(2013). See Patel, 489 Mass. at 364, quoting Whitman v.
American Trucking Ass'ns, 531 U.S. 457, 468 (2001) ("the
Legislature 'does not, one might say, hide elephants in
mouseholes'"); Commonwealth v. Diggs, 475 Mass. 79, 82 (2016),
quoting Champigny v. Commonwealth, 422 Mass. 249, 251 (1996)
("Because we assume generally that the Legislature intends to
act reasonably, '[w]e will not adopt a literal construction of a
statute if the consequences of such a construction are absurd or
unreasonable'").
20
Our decision in Gordon is instructive. There, the
defendant contended that the wiretap statute precluded law
enforcement officials from making an audio-visual recording of
the defendant's booking procedure at the police station.
Gordon, 422 Mass. at 832. While we acknowledged that subsection
99 C of the statute could "be read literally as making unlawful
the audiotaping of booking procedures without the knowledge of
the persons being booked," we were unwilling to attribute such
an intent to the Legislature in the absence of more specific
language. Id. at 832-833. Instead, we read subsection 99 C in
the context of the statute as a whole, including its codified
preamble. See id. at 833. See also Plymouth Retirement Bd.,
483 Mass. at 605.
We concluded that the "legislative focus [of the wiretap
statute, as set forth in the statute's preamble,20] was on the
protection of privacy rights and the deterrence of interference
20In pertinent part, the preamble codified the
Legislature's finding that "organized crime" existed in the
Commonwealth and was "a grave danger to the public welfare and
safety." G. L. c. 272, § 99 A. The Legislature concluded that
"[n]ormal investigative procedures" were "not effective in the
investigation of illegal acts committed by organized crime" and
that "law enforcement officials must be permitted to use modern
methods of electronic surveillance, under strict judicial
supervision, when investigating these organized criminal
activities." Id. The preamble also codified the Legislature's
recognition that "the uncontrolled development and unrestricted
use of modern electronic surveillance devices pose grave dangers
to the privacy of all citizens of the commonwealth." Id.
21
therewith by law enforcement officers' surreptitious
eavesdropping as an investigative tool." Gordon, supra at 833.
The Legislature, we observed, "[did] not appear to have in mind
the recording of purely administrative bookings steps following
an individual's arrest." Id. Accordingly, we declined to read
the statute as barring the admission of the recording of the
booking procedure in the defendant's criminal trial. Id.Similarly, nothing in the wiretap statute as a whole,
including its codified preamble, evinces an intent to prohibit
recording a victim's volunteered report of a crime where, as
here, the victim was aware that officers already were
memorializing her report in writing, much less an intent to
criminalize the use of such a recording at a probation violation
proceeding. The body-worn camera was not used as an
investigative tool to secretly eavesdrop on an otherwise private
conversation;21 it captured the victim's voluntary statement to
police officers, which she knew was being memorialized by them
21The Commonwealth incorrectly suggests that the wiretap
statute protects only communications as to which the speaker
maintains a reasonable expectation of privacy, and thus that its
protections are coextensive with the Fourth Amendment and art.
14. Compare Jackson, 370 Mass. at 506 ("we would render
meaningless the Legislature's careful choice of words if we were
to interpret 'secretly' as encompassing only those situations
where an individual has a reasonable expectation of privacy"),
with Commonwealth v. DeJesus, 489 Mass. 292, 295 (2022)
(defendant may challenge search or seizure under art. 14 and
Fourth Amendment only if defendant has reasonable expectation of
privacy).
22
in writing. The resulting video footage was not a clandestine
recording precluded by the wiretap statute; rather, it merely
preserved the statement (albeit through an alternative,
electronic medium) that the victim voluntarily gave to law
enforcement officers and which she understood was being recorded
by them by means of paper and pen.22 See Ashley, 82 Mass. App.
Ct. at 762 (declining to construe wiretap statute to criminalize
use of camera in police station interrogation room to record
defendant's volunteered statement to officers when officers
"repeatedly expressed their intention to get it 'down on paper'
and memorialize the interview"). Accord Commonwealth v. Hyde,
434 Mass. 594, 602 & n.9 (2001) (contrasting "clandestine
recording" prohibited by wiretap statute with "good practice" of
electronic recording of police interrogations based on
presumption "that, when police interrogations are electronically
22The wiretap statute does not define the term "record."
Accordingly, we concluded that "record" as used in the wiretap
statute should be given its plain and ordinary meaning to "mean,
'to set down in writing' or 'to cause (sound, visual images) to
be transferred to and registered on something by electronic
means in such a way that the thing so transferred and registered
can . . . be subsequently reproduced'" (emphasis added).
Commonwealth v. Moody, 466 Mass. 196, 209 (2013), quoting
Webster's Third New International Dictionary 1898 (1971). See
Moody, supra ("secretly record" as used in wiretap statute
"includes the interception of text messages by viewing and
transcribing them for use at a later date" [emphasis added]).
23
recorded, the suspect is aware that the interrogation is being
preserved").23
C. Legislative history. The legislative history also does
not support the defendant's construction. See HSBC Bank USA,
N.A., 490 Mass. at 332-333, quoting Chandler v. County Comm'rs
of Nantucket County, 437 Mass. 430, 435 (2002) ("Where the
statutory language is not conclusive, we may 'turn to extrinsic
sources, including the legislative history . . . , for
assistance in our interpretation'"). Instead, the history
confirms our conclusion in Gordon, 422 Mass. at 833, that the
Legislature was concerned principally with the investigative use
of surveillance devices by law enforcement officials to
eavesdrop surreptitiously on conversations.
The relevant provisions of the statute trace their history
to 1964 when the Legislature established a special commission to
study "the laws relative to eavesdropping and the use of
23The defendant mistakenly relies on Hyde to support his
contention that the plain meaning of the wiretap statute
criminalizes the police officer's recording in this case. In
Hyde, 434 Mass. at 599-600, we construed the statute to prohibit
the secret recording of police officers performing their public
duties. As the dissent in Hyde noted, such a literal
construction was unnecessary, id. at 607 (Marshall, C.J.,
dissenting); and the literal construction led to an
unconstitutional result. See Project Veritas Action Fund v.
Rollins, 982 F.3d 813, 844 (1st Cir. 2020), cert. denied, 142 S.
Ct. 560 (2021) ("Section 99 violates the First Amendment in
criminalizing the secret, nonconsensual audio recording of
police officers discharging their official duties in public
spaces").
24
electronic recording devices . . . with a view to strengthening
the laws relative to eavesdropping and the use of wire tapping
recording devices" [emphasis added]. St. 1964, c. 82. See
Tavares, 459 Mass. at 294-295, quoting Commonwealth v. Vitello,
367 Mass. 224, 231 (1975) ("the Legislature appointed a special
commission in 1964 to investigate electronic eavesdropping and
'ensure that unjustified and overly broad intrusions on rights
of privacy are avoided'"). In April 1967, the commission issued
an interim report, which focused on various types of
"eavesdropping devices," namely "bug[s]." 1967 Senate Doc. No.
1198, at 3. These "subminiature transmitter[s]" could eavesdrop
on unknowing speakers and "transmit a very clear signal at least
[seven] blocks in downtown Boston and [could] pick up a whisper
at [twenty] feet." Id. See Hyde, 434 Mass. at 608 n.7
(Marshall, C.J., dissenting) (devices were not mere audiotape
recorders, but rather "sophisticated inventions of then-recent
origin that could be concealed in telephones or walls"). See
also Curtatone, 487 Mass. at 659, quoting Tavares, supra ("Here,
the legislative intent, apparent both in the legislative history
of the act and the act itself, concerns limiting 'electronic
eavesdropping' . . . . The act was adopted in 1968 in direct
response to 'the commercial availability of sophisticated
surveillance devices and the ease with which they facilitated
surreptitious recording of private citizens' by private
25
individuals and law enforcement alike"); Commonwealth v. Moody,
466 Mass. 196, 201 (2013), quoting Tavares, supra (same); Ennis,
439 Mass. at 68 & nn.9, 10, quoting 1968 Sen. Doc. No. 1132, at
6 ("the Legislature sought to prohibit all 'secret' electronic
eavesdropping by 'private individuals'" because "the commission
heard testimony that newly developed inventions, 'eavesdropping
devices' and 'bugs,' could be easily concealed and used to
monitor private conversations secretly and continuously. . . .
The commission feared that '[a] person with a minimal education
in electronics [could] easily install these commercially
available devices for purposes of illegally intercepting wire or
oral communications'"). The commission recommended enacting new
legislation to clarify the "eavesdropping" statute, G. L.
c. 272, § 99. 1967 Senate Doc. No. 1198, at 14-15.
The following year, the commission proposed a new version
of G. L. c. 272, § 99. See 1968 Senate Doc. No. 1132, at 14
(Appendix A). The commission recommended that the Commonwealth
"strictly forbid electronic eavesdropping or wiretapping by
members of the public," id. at 6, and permit "eavesdropping and
wiretapping by law enforcement officials . . . in order to
effectively combat the menace of organized crime but only if
such wiretapping and eavesdropping . . . be strictly supervised
by the judicial branch of the government," id. at 7-8. The
commission's proposed bill defined "interception" as secretly
26
hearing or recording a communication without the prior consent
of all parties -- a marked departure from the one-party consent
exception contained in the former statute, which had required
only the consent of either the sender or the receiver. Compare
1968 Senate Doc. No. 1132, at 14, with St. 1959, c. 449, § 1.
See Thorpe, 384 Mass. at 280 n.7 (as proposed, "[l]aw
enforcement officers were required, without exception, to obtain
warrants before conducting any surveillance" [emphasis added]).
The statute, as amended, reflects most of the
recommendations of the commission, with the addition of a
preamble. See St. 1968, c. 738, § 1. The statute, however,
retained the one-party consent exception for law enforcement
officers, but only under narrow circumstances; specifically, it
authorized these officers "to conduct warrantless electronic
surveillance" in connection with "investigation" of organized
crime when they were a party to the communication or had been
given authority by a party (emphasis added). Thorpe, 384 Mass.
at 280 n.7, citing G. L. c. 272, § 99 B 4, 7. The Legislature's
focus was the use of devices, like bugs, for clandestine or
surreptitious eavesdropping; the Legislature did not appear to
have in mind law enforcement officers' use of devices to record
a crime victim's voluntary reporting of a crime under
circumstances where, as here, the victim understood her
statement was being preserved by them. In sum, the legislative
27
history (like the statutory framework, including the preamble)
is devoid of anything to support the defendant's proposed
construction, and accordingly, we reject it.
b. Constitutional analysis. The defendant's contention
that the recording violated the State and Federal Constitutions
requires little attention. Where, as here,
"the officer was lawfully present in the home and the body-
worn camera captured only the areas and items in the plain
view of the officer as he or she traversed the home, in a
manner consistent with the reasons for the officer's lawful
presence, the recording is not a search in the
constitutional sense and does not violate the Fourth
Amendment or art. 14."
Yusuf, 488 Mass. at 390.
c. Hearsay. The defendant next maintains that the judge
erred in relying on the video footage and the GPS evidence,
which he contends were not substantially reliable hearsay.
i. Standard of review. "[R]evocation proceedings must be
flexible in nature" and "all reliable evidence should be
considered." Durling, 407 Mass. at 114. "[W]hen hearsay is
offered as the only evidence of the alleged violation, the
indicia of reliability must be substantial . . . because the
probationer's interest in cross-examining the actual source (and
hence testing its reliability) is greater when the hearsay is
the only evidence offered." Id. at 118.
To determine whether hearsay has substantial indicia of
reliability, a judge may consider, inter alia,
28
"(1) whether the evidence is based on personal knowledge or
direct observation; (2) whether the evidence, if based on
direct observation, was recorded close in time to the
events in question; (3) the level of factual detail; (4)
whether the statements are internally consistent; (5)
whether the evidence is corroborated by information from
other sources; (6) whether the declarant was disinterested
when the statements were made; and (7) whether the
statements were made under circumstances that support their
veracity."
Hartfield, 474 Mass. at 484. "There is no requirement that
hearsay satisfy all the above criteria to be trustworthy and
reliable." Costa, 490 Mass. at 124, quoting Commonwealth v.
Patton, 458 Mass. 119, 133 (2010). "[W]here a judge relies on
hearsay evidence in finding a violation of probation, the judge
should set forth in writing or on the record why the judge found
the hearsay evidence to be [substantially] reliable."
Hartfield, supra at 485. See Matter of a Minor, 484 Mass. 295,
308 (2020) ("For probation [violation] hearings, in which
substantially reliable hearsay . . . is admissible, we have
required judges to state explicitly the reasons supporting the
reliability of any hearsay they rely upon"). We review a
judge's determination that hearsay is substantially reliable,
like other evidentiary decisions, under an abuse of discretion
standard. See, e.g., N.E. Physical Therapy Plus, Inc. v.
Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013) (trial judge's
ruling on applicability of exception to hearsay rule reviewed
for abuse of discretion).
29
ii. The recorded statements. The judge found the victim's
statements in the body-worn camera footage to be substantially
reliable, noting that the statements were made based on personal
knowledge,24 factually detailed, internally consistent, and
corroborated (e.g., the victim's injuries were visible on the
video footage and were observed by Santiago). The judge
determined that, while the victim was not disinterested, her
daughter may have been, and the daughter confirmed some of the
events. And he found that the circumstances of the statements,
particularly the emotional distress of the victim, lent them
credibility. Balancing the factors, the judge found that the
statements were substantially reliable; none of the defendant's
arguments to the contrary suggests that the judge abused his
discretion.
iii. The GPS evidence. Based on the GPS records, which
were introduced without objection, the judge also found that the
24Contrary to the defendant's argument that the statements
were made two hours after the events, it is clear from the video
footage that, while the defendant took the victim's keys two
hours prior to his assaulting the victim, he did not return to
the apartment at that time; instead, the altercation occurred
shortly before the statements were made. See Yusuf, 488 Mass.
at 380-381, citing Clarke, 461 Mass. at 341 (independent review
of video footage); Commonwealth v. Tremblay, 480 Mass. 645, 654-
655 (2018), quoting Commonwealth v. Jones-Pannell, 472 Mass.
429, 438 (2015) (reviewing court may supplement judge's
subsidiary findings with evidence from documentary evidence
unless that would cause it to "reach a conclusion of law that is
contrary to that of [the] . . . judge").
30
defendant violated the GPS conditions of his probation. On
appeal, the defendant argues that, because the GPS records were
unreliable, the judge's reliance on the records requires the
revocation to be vacated. Seeing no reason to doubt the judge's
statement that the GPS violations did not "drive the result," we
disagree.
3. Conclusion. The order revoking probation and imposing
sentence are affirmed.
So ordered.