463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases
463 Mass. 353 - Appellee Commonwealth Brief - Mass Cases 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 46
phones were used as instrumentalities to facilitate the defendants' sale of cocaine and marijuana. (See Tr. 1: 18, 27-29; Tr. 3: 33-34.) The fact that the defendants possessed implements of the drug trade was relevant to both corroborate each defendant's individual ownership of the seized drugs, Commonwealth v. Johnson, 42 Mass. App. Ct. 948, 950 (1997), and to show intent to distribute. Commonwealth v. Pena, 40 Mass. App. Ct. 905, 906 (1996); Washington, 39 Mass. App. Ct at 195. The prosecutor only used this evidence for a non- hearsay, purpose: to show that the cellular phones were being used facilitate the defendants' sale of cocaine and marijuana. (See Tr. 3: 33-34.) This testimony thus did not implicate confrontation protections. Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004); Commonwealth v. Brum, 438 Mass. 103, 116 (2002). B. There Was No Violation Of The Wiretap Statute. G. L. c. 272, § 99 makes illegal the "willful[] interception ... of any wire or oral communication." G. L. c. 272, § 99(C) (1). An "interception" means to: . secretly hear, secretly record, or aid another to secretly hear or record the contents of any wire or 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 . 47
- Page 3 and 4: B. Applying the Degraca/Mahdi Facto
- Page 5 and 6: Cases Commonwealth v. Degraca, 447
- Page 7 and 8: Cases Commonwealth v. Todisco, 363
- Page 9 and 10: COMMONWEALTH OF MASSACHUSETTS SUPRE
- Page 11 and 12: The defendants moved to suppress ev
- Page 13: in a primarily residential neighbor
- Page 17: informants are used in drug investi
- Page 20 and 21: (an eighth of an·ounce of cocaine)
- Page 23: etween the defendants' drug dealing
- Page 26 and 27: 431 (1992), or the informant has pr
- Page 28 and 29: Blake, 413 Mass. 823, 828 (1992). N
- Page 31 and 32: Fifth Amendment violation can be ha
- Page 34 and 35: This test has been applied repeated
- Page 36 and 37: factors call for the reviewing Cour
- Page 38 and 39: at 554, If the overall strength of
- Page 40: counsel for Ronald Mendes actually
- Page 43 and 44: This circumstance fits comfortably
- Page 45 and 46: seized. But the testimony of the de
- Page 48: client is going to concede that he
- Page 51 and 52: Westbrooks, 79 Mass. App. Ct. 417,
- Page 53: of the statements made by the calle
- Page 57 and 58: In factually analogous cases, the A
phones were used as instrumentalities to facilitate the<br />
defendants' sale of cocaine and marijuana. (See Tr. 1:<br />
18, 27-29; Tr. 3: 33-34.) The fact that the defendants<br />
possessed implements of the drug trade was relevant to<br />
both corroborate each defendant's individual ownership<br />
of the seized drugs, <strong>Commonwealth</strong> v. Johnson, 42 <strong>Mass</strong>.<br />
App. Ct. 948, 950 (1997), and to show intent to<br />
distribute. <strong>Commonwealth</strong> v. Pena, 40 <strong>Mass</strong>. App. Ct.<br />
905, 906 (1996); Washington, 39 <strong>Mass</strong>. App. Ct at 195.<br />
The prosecutor only used this evidence for a non-<br />
hearsay, purpose: to show that the cellular phones were<br />
being used facilitate the defendants' sale of cocaine<br />
and marijuana. (See Tr. 3: 33-34.) This testimony<br />
thus did not implicate confrontation protections.<br />
Crawford v. Washington, 541 U.S. 36, 59, n.9 (2004);<br />
<strong>Commonwealth</strong> v. Brum, 438 <strong>Mass</strong>. 103, 116 (2002).<br />
B. There Was No Violation Of The Wiretap<br />
Statute.<br />
G. L. c. 272, § 99 makes illegal the "willful[]<br />
interception ... of any wire or oral communication."<br />
G. L. c. 272, § 99(C) (1). An "interception" means to:<br />
. secretly hear, secretly record, or aid<br />
another to secretly hear or record the contents of<br />
any wire or oral communication through the use of<br />
any intercepting device by any person other than a<br />
person given prior authority by all parties to<br />
such communication .<br />
47
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