Argued September 5, 2014.
Indictment found and returned in the Superior Court Department on June 24, 2009.
A pretrial motion to suppress evidence was heard by Thomas F. McGuire, Jr., J.; the case was tried before Gary A. Nickerson, J., and a motion for a new trial, filed on March 1, 2013, was considered by him.
Janet Heatherwick Pumphrey for the defendant.
Tara L. Blackman, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Gants, C.J. (concurring, with whom Spina, J., joins).
[19 N.E.3d 844] Botsford, J.
The defendant appeals from his conviction of murder in the first degree. His [19 N.E.3d 845] primary argument on appeal is that his motion to suppress a secretly recorded conversation between him and an informant working with the police was erroneously denied, that evidence of the conversation should have been excluded at trial, and that his conviction must be reversed as a result. We agree and reverse the defendant's conviction.
1. Electronically recorded conversation.
Dana Haywood was shot and killed on July 4, 2005, in
the Monte Park neighborhood of New Bedford. Over three years later, in February
of 2009, an assistant district attorney in the Bristol district received a
letter from Rico Almeida, who was then sharing a cell with the defendant in the
Bristol County house of correction. Almeida wrote that the defendant had been
one of the participants in the shooting death of Haywood on July 4, 2005, that
the defendant had told Almeida " how they did it, where, and when," and that
Almeida would be able to arrange for the defendant to repeat this admission to
the shooting of the victim. Almeida offered to wear a concealed recording device
and record the proposed conversation. In response to the letter, the
Commonwealth submitted an affidavit of Trooper Anthony Spencer of the State
police to a judge in the Superior Court, and obtained a search warrant
authorizing the electronic recording of conversations
between the cooperating witness (i.e., Almeida) and the defendant.
In an affidavit dated March 2, 2009, Spencer begins by reciting the following information about police officers' prior dealings with Almeida in a homicide investigation involving William Payne. Payne was shot and killed on February 3, 2008, in New Bedford. During the investigation of the Payne homicide, in October of 2008, State police Trooper Paul Dockrey had interviewed Almeida, who at the time was being held in custody at the Bristol County house of correction. Dockrey learned from Almeida that the latter had information about Payne's murder from two " gang business meetings" where he and his friends discussed how to handle their friend Payne's homicide. In particular, Almeida learned specific details about " how the Payne homicide went down." Based on these facts, Dockrey sought and obtained a search warrant that authorized Almeida to record telephone conversations electronically with the suspects in the Payne murder, and Almeida was released on bail from custody in order to do so. Once he was released, however, Almeida failed to secure the recordings.
Spencer's affidavit then turns to the homicide investigation relating to Dana Haywood, the victim in this case. It states that in a letter dated February 14, 2009, [19 N.E.3d 846] and sent to an assistant district attorney, Almeida provided information about the July 4, 2005, homicide, and indicated he was willing to assist law enforcement in the investigation and to " wear a 'wire' for this purpose." Spencer's affidavit then states as follows:
" I spoke with Det. Lt. Scott Sylvia, New Bedford Police Major Crimes Division, and he informed me that John Burgos is a member of the United Front gang. He has been associated with the gang for approximately 12 years. According to Det. Lt. Sylvia the United Front gang is a group of individuals that operate in and around the United Front Homes located adjacent to Chancery and Kempton Streets. The members are known to be heavily involved in the distribution of illegal narcotics. The members are also known to commit violent crimes including possession of firearms
and multiple shootings. Mr. Burgos himself was also a target of a shooting on May 21, 2006 along with Justin Barry who was murdered in the shooting. This shooting was perpetrated by rival Monte Park members including David DePina. Mr. DePina is presently awaiting trial in the fatal shooting of Barry and the shooting of Mr. Burgos.
" Tpr. Ann Marie Robertson, Cold Case Unit Mass. State Police, advises me that Dana Haywood was a known member of the Monte Park Gang at the time of his death. Monte[ ] Park Gang is a group of individuals that are known to distribute illegal narcotics by Monte[ ] Park on Acushnet Avenue in the city of New Bedford. The gang members are also known to commit violent crimes including illegal possession of firearms and multiple shootings. Tpr. Robertson informs me that investigators believe that Dana Haywood's murder is suspected to be in retaliation for the fatal shooting of Cecil Lopes which occurred on October 31, 2004. The Cecil Lopes murder took place at the United Front Homes on Chancery Street in the city of New Bedford. The Cecil Lopes murder involved a shooting directly outside a residence in the United Front Housing complex. Tpr. Robertson informs me that Mr. Haywood was shot one block from the Monte Park Housing complex on Russell Street in the city of New Bedford. Tpr. Robertson further advises me that eyewitnesses to Mr. Haywood's shooting saw 3 young black males, at least 2 of who [ sic ] were shooting. The 3 males fled from Mr. Haywood's body to an awaiting vehicle."
Following these two paragraphs, the affidavit describes the contents of Almeida's February 14, 2009, letter to the assistant district attorney:
" Almeida stated in his letter that his cell mate, John Burgos [the defendant] was one of the shooters who killed Dana Haywood [the victim] on July 4, 2005. Almeida also states John Burgos told him why, where and when they did it. Almeida believes he can get Burgos to make those statements again. Almeida requests that this investigation be expedited due to the fact that Burgos will be released soon."
The affidavit then describes the manner in which the electronic recording by Almeida would be set up.
Based on Spencer's affidavit, the Superior Court judge issued the requested search warrant. Police officers then provided Almeida with an electronic recording device that Almeida hid on his person and used to secretly record a conversation with the defendant in their jail cell on March 3, 2009. During the conversation, which lasted over sixty minutes, the defendant admitted to being one of the shooters involved [19 N.E.3d 847] in killing the ...