Opinion
16-P-773
03-29-2017
COMMONWEALTH v. Edgar SOARS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of three counts of rape of a child under the age of sixteen, one count of indecent assault and battery on a child under the age of fourteen, and two counts of disseminating material harmful to minors. The victim was his former girl friend's daughter. On appeal, he challenges the denial of his motion to suppress a recording of a conversation he had with the victim's mother, during which he made incriminating statements. Without his permission or knowledge, the victim's mother recorded that conversation on her cellular telephone (cell phone). We affirm the judgments.
For purposes of this appeal, we will assume, as the motion judge did, that the victim's mother surreptitiously recording her conversation with the defendant violated G. L. c. 272, § 99 C. However, it was uncontested that the victim's mother approached the police with the recording only after it was made, and there is no hint in the record that the police had any involvement in the recording being made. Absent State action, suppression of the recording was not warranted. See, e.g., Commonwealth v. Rivera , 445 Mass. 119, 126 (2005), and cases cited. "While the law bars all clandestine audio recording by private individuals, it was not intended to penalize the State when individuals with evidence ... voluntarily disclose what they know to law enforcement authorities." Ibid .
The defendant suggests that the holding of such cases is undermined by the Supreme Judicial Court's reasoning in Commonwealth v. Damiano , 444 Mass. 444, 450-452 (2005). Putting aside that Damiano precedes Rivera , we discern no merit in this argument. Damiano , supra , examines whether suppression of a particular recording was required by a Federal wiretap statute, see 18 U.S.C. §§ 2510 et seq. That statute is not implicated here, because the mother's actions were legal under it. See 18 U.S.C. § 2511(2)(d) (2012) (allowing electronic recording of conversations where only one party to conversation consents).
There is no merit to the defendant's argument that he should have prevailed on the motion to suppress because the Commonwealth failed to provide affirmative proof that the police had no involvement in the making of the recording. Although the defendant claims that the terms of the wiretap statute (specifically, G. L. c. 272, § 99 P,) place an affirmative burden on the Commonwealth to come forward with such proof whenever the illegality of a private wiretap has been demonstrated, nothing in the statutory language on which the defendant relies speaks to this issue. Furthermore, the defendant's affidavit filed in support of his motion to suppress never alleged any police involvement, and it therefore never placed that topic at issue. See Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004) (requiring that pretrial motions state grounds on which they rely). In fact, the defendant's motion affirmatively conceded that the recording was not the work of a "Government ac[t]or," and the judge unsurprisingly found that "[t]he defendant does not dispute the fact that the police did not know anything about the victim's allegations or the recorded conversation until April 2, 2011, when the victim and her mother went to a Boston Police station and first reported the abuse and the recording to the police." Thus the motion judge properly denied the motion to suppress.
Judgments affirmed †.