463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases

A. Detective Hyde's Testimony Concerning
The Calls Placed To The Cellular Phones
Was Not Hearsay And Did Not Implicate
Confrontation Clause Protections.
Even if an objection had been lodged, it would
have been overruled, because the evidence was not
hearsay. Commonwealth v. Washington, 39 Mass. App. Ct.
195, 199-200 (1995) (in a prosecution for trafficking,
police officer's testimony as to conversations with
callers seeking to buy drugs was admissible
"nonhearsay" because such conversations bear an
"indicia of reliability, and show the 'actual use [of
the beeper] for drug transactions"), internal citation
omitted. These types of conversations are "admitted in
evidence to prove the nature of a place or thing
associated with the conversation." Washington, 39
Mass. App. Ct. at 200, citing Liacos et al.,
Massachusetts Evidence, § 8.2.3 (6th ed. 1994). Cf.
Commonwealth v. Mullane, 445 Mass. 702, 711 (2006)
(conversations between undercover agent and masseuse
regarding "extras" not hearsay when used to prove the
establishment was one of ill fame) .
The testimony about the two calls is markedly
similar to the calls received in Washington, 39 Mass.
App. Ct. at 199-200, and it was both offered and used
for the sole purpose of showing that the two cellular
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