Commonwealth v. Burgos (Lawyers Weekly No. 10-187-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11005 COMMONWEALTH vs. JOHN BURGOS. Bristol. September 5, 2014. – November 21, 2014. Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ. Electronic Surveillance. Evidence, Wiretap, Corroborative evidence, Telephone conversation. Homicide. Constitutional Law, Assistance of counsel. Due Process of Law, Assistance of counsel. Telephone. Practice, Criminal, Capital case, Motion to suppress, New trial, Assistance of counsel. 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. BOTSFORD, J. The defendant appeals from his conviction of murder in the first degree. His 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.[1] We agree and reverse the defendant’s conviction. Background. 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.[2] In an affidavit dated March 2, 2009, Spencer begins by reciting the […]