5th Amendment, Criminal Procedure, Editor Blog, Mass. Crim. Dig., Sixth Amendment

Mass. Crim. Dig.: Commonwealth v. Burgos

Commonwealth v. Burgos, 19 N.E.3d 843 (2014)

I. Facts

On July 4, 2005, Dana Haywood was shot and killed in the Monte Park neighborhood of New Bedford. Three years later, Rico Almeida contacted the District Attorney’s office about Haywood’s murder. At the time, Almeida was sharing a cell with the defendant, John Burgos, when he found out that the defendant murdered Haywood. Almeida offered to help police by wearing a concealed recording device to get the defendant’s confession on tape. In order to secure a search warrant, police submitted an affidavit, which contained information about police officers’ prior dealings with Almeida. The affidavit also detailed the background of gang involvement between the defendant’s gang, United Front, and Haywood’s gang, Monte Park. Additionally, the affidavit stated that police suspected Haywood’s death was in retaliation for a United Front member’s murder.

A Superior Court judge issued the search warrant, which allowed police officers to provide Almeida a recording device to record a conversation with the defendant. The defendant admitted on tape to being one of the shooters that killed Haywood.

II. Procedural History

Once indicted for murder and unlawful possession of a firearm, the defendant filed a motion to suppress the recorded statements. The defendant argued the Commonwealth violated the wiretap statute because “the Commonwealth had not made the requisite showing that the recording would lead to evidence about a ‘designated offense’ committed ‘in connection with organized crime.’” A Superior Court judge denied the motion, stating that the affidavit contained sufficient facts to show that “the victim’s murder was committed in connection with organized crime because the facts showed the murder was ‘gang related.’”

After being tried and convicted of first degree murder, the defendant filed a timely notice of appeal and moved for a new trial due to ineffective assistance of trial counsel. The motion was remanded to Superior Court, where it was denied. The defendant subsequently filed another timely appeal.

III. Question Presented

The Massachusetts Supreme Judicial Court (“SJC”) considered three issues: (1) whether the recorded statements were a violation of the wiretap statute; (2) whether the defendant should be granted a new trial because he was deprived of effective assistance of counsel; and (3) whether the defendant’s motion to suppress evidence of his recorded call with his brother while he was a pretrial detainee was improperly denied.

IV. Reasoning and Analysis

The SJC first reviewed whether the secretly recorded statements should have been suppressed. The SJC looked to the wiretap statute and one of its exceptions: the one-party consent recording. This is “where the person who is conducting the surreptitious recording is an investigative or law enforcement officer investigating a ‘designated offense,’ and that officer is either (1) a party to the communication, or (2) has advance authorization from a party to the communication to intercept the conversation” (internal quotations omitted). The Commonwealth used the wiretap exception to support its argument that “the recording was carried out by law enforcement officers investigating the victim’s murder.” The defendant argued that it must be connected with organized crime. The defendant asserted that for this exception to apply, the Commonwealth must “show that the decision to intercept was made on the basis of a reasonable suspicion that interception would disclose or lead to evidence of a designated offense in connection with organized crime.” The SJC stated that the Commonwealth must show not only a nexus to organized crime but: 1) “a high degree of discipline and organization among the suspected members of the criminal enterprise” and 2) “that the designated offense was committed to promote the supply of illegal goods and services or the furtherance of an ongoing criminal business operation” (internal quotations omitted).

The SJC looked at other wiretap statute cases. In Commonwealth v. Tavares, 945 N.E.2d 329 (Mass. 2011), there was no connection to organized crime because there was no information in the police officer’s affidavit or other evidence that the crime was committed in connection with organized crime. In Commonwealth v. Hearns, 10 N.E.3d 108 (Mass. 2014), the Court found a link in connection to organized crime because the affidavit contained detailed information regarding the police officer’s direct knowledge that the alleged individuals distributed narcotics and possessed firearms. The SJC opined that Burgos’s situation is more similar to Tavares than to Hearns due to the police officer’s vague and conclusory affidavit in this case. The SJC concluded that there was nothing in the affidavit that showed these two gangs were at war with each other and that would connect the murder or the defendant to the gang’s drug dealing operations. The Court found that “a retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime.” Therefore, the SJC held that the denial of the defendant’s motion to suppress was error and that a new trial should be granted.

Next, the SJC looked at whether the defendant was deprived of effective assistance of counsel because the defendant’s trial attorney decided to move for suppression of evidence from his conversation with Almeida. The defendant argued that the conversation between himself and Almeida was while he was in “custodial interrogation.” Therefore, the evidence was inadmissible because the defendant was not given his Miranda warnings before the conversation occurred. The defendant argued that his “trial attorney’s action fell measurably below that which might be expected from an ordinary fallible lawyer” (internal quotations ommited). However, the SJC found that the defendant was not in custody for Miranda purposes because he was voluntarily telling information to Almeida, whom he considered to be a friend. Therefore, the defendant’s trial attorney was not ineffective in raising the claim for suppression.

The final issue the SJC considered was whether the defendant’s motion to suppress evidence of his recorded call with his brother while he was a pretrial detainee was improperly denied. The SJC concluded that there was no error because there must be prejudice shown in order to suppress the evidence and there was none shown.

V. Conclusion

The SJC reversed Burgos’ conviction, and the case was remanded for a new trial.

Contributing Editor: Sameera Navidi

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s