In an unpublished opinion the Appeals court ruled in COMMONWEALTH vs. JASMINE MONTGOMERY 08-P-1851 MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 that a cell phone message did not violate the state wiretap statute when it may or may not have recorded the officers words.
The court stated “After a jury trial, the defendant was found guilty of two counts of assault and battery. G. L. c. 265, § 13A(a). On appeal, the defendant contends that the trial judge erred: (1) in excluding a voice mail message which was recorded when the defendant used her cell phone during the encounter at issue to call her mother, the defendant’s claim being that the voice mail recording was material to her self-defense claim and also would have impeached a police officer who responded to the scene; and, (2) in denying the defendant’s motion to suppress without a hearing. In addition, the defendant contends that trial counsel was ineffective in not presenting certain evidence. We reverse because we determine it was error to exclude the voice mail recording.
1. The voice mail recording. At trial, defense counsel moved to introduce the voice mail recording to impeach Officer Porter’s testimony and to support the self-defense claim. However, during a sidebar conference, the trial judge summarily excluded the recording. Defense counsel sought to make an offer of proof concerning what was on the voice mail recording.
The Commonwealth argues that the voice mail recording was properly excluded because such a recording is an interception in violation of the Massachusetts wiretap statute. We disagree with this contention. There is not, in this record, evidence that the voice mail recording was a wilful attempt by the defendant to intercept the officers’ words. Under G. L. c. 272, § 99 C 1, there is a violation of the wiretap law, only if a person, ‘willfully commit[s] an interception.’ (emphasis added). See, e.g., Commonwealth v. Hyde, 434 Mass. 594, 597 (2001) (‘General Laws c. 272, § 99 C 1 . . . prohibits, unless otherwise specified in the statute, the intentional interception of any oral communication’); Commonwealth v. Ennis 439 Mass. 64, 67-70 (2003) (a person ‘intercepting’ an oral communication commits an ‘offense’ only when he or she acts ‘willfully’);Commonwealth v. Boyarsky, 452 Mass. 700, 707 (2008) (‘[b]ecause there was no wilful conduct by the [jail], there was no ‘unlawful’ or ‘illegal’ interception’).
From the evidence, rather than it appearing that the defendant made the voice mail recording wilfully, it appears more likely that the recording may have been inadvertent. The voice mail recording was made when the defendant, who was highly agitated, crying, and acting rather irrationally, was trying to reach her mother by cell phone. That the mother did not answer, and the attempted call by the distraught defendant/daughter defaulted to voice mail and was recorded does not reflect a wilful interception. Thus, we reject the Commonwealth’s contention that the voice mail was per se excludable as in violation of G. L. c. 272, § 99. See Commonwealth v. Ennis, supra; Commonwealth v. Boyarsky, supra.
Given that the voice mail was not rendered per se inadmissible as violative of § 99, we turn to whether the trial judge erred in excluding the voice mail. We conclude there was error. The voice mail was material to the defendant’s claim of self-defense, may have added to her credibility concerning what she said to the officers, and may have deducted from the officer’s credibility concerning what was said by the defendant close to the events at hand. Specifically, Officer Porter testified at trial that the defendant did not say that Terrizzi had assaulted her. This contradicted the defendant’s trial testimony and was adverse to the defendant’s self-defense claim. Thus, what the defendant said to the police officer, and what the police officer said she said, yielded a quintessential, ‘he said, she said,’ credibility problem with respect to self-defense. Such credibility questions are core jury issues. Accordingly, the judge’s summary ruling excluding the voice mail recording (see note 1, supra) was error.
2. The motion to suppress. The Commonwealth concedes that the trial court judge committed error in allowing testimony about a statement made by the defendant without first holding a hearing as to the statement’s admissibility. Because we reverse and remand on other grounds, we need not decide if the error was harmless. A hearing on the admissibility of the statement may be held in further proceedings.
Note: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel’s decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
Attorney Ronald A. Sellon