Commonwealth v. Long (Lawyers Weekly No. 10-035-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11253 COMMONWEALTH vs. DERYCK LONG. Norfolk. October 11, 2016. – February 24, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Homicide. Constitutional Law, Assistance of counsel. Evidence, Exculpatory, Wiretap, Result of illegal search. Cellular Telephone. Electronic Surveillance. Practice, Criminal, Capital case, Assistance of counsel. Indictments found and returned in the Superior Court Department on March 9, 2006. Pretrial motions to suppress evidence were heard by Janet L. Sanders, J.; the cases were tried before Kenneth J. Fishman, J., and a motion for a new trial, filed on August 4, 2014, was heard by him. Robert F. Shaw, Jr., for the defendant. Pamela Alford, Assistant District Attorney (Craig F. Kowalski, Assistant District Attorney, also present) for the Commonwealth. GAZIANO, J. A Superior Court jury found the defendant guilty of murder in the first degree, on a theory of deliberate premeditation, in the shooting death of Jamal Vaughn (victim) on January 9, 2016, in Quincy. Before us is the defendant’s appeal from his convictions and from the denial of his motion for a new trial. He claims that his trial counsel’s uninformed decision not to introduce cell site location information (CSLI) to contradict the testimony of a key prosecution witness constituted ineffective assistance of counsel, and that it was error for a motion judge to deny his pretrial motion to suppress the testimony of the same witness because the Commonwealth had obtained his testimony as a result of an illegal wiretap that this court previously had ordered suppressed. See Commonwealth v. Long, 454 Mass. 542 (2009). We conclude that the defendant was not deprived of the effective assistance of trial counsel, and that there was no error in the motion judge’s determination that the witness’s testimony was sufficiently attenuated from the suppressed wiretap evidence to dissipate the taint of illegality. Accordingly, we affirm the conviction and the denial of the motion for a new trial, and decline to exercise our authority under G. L. c. 278, § 33E, to disturb the verdict. Facts. We recite the facts that the jury could have found, reserving certain facts for our analysis of the particular issues. From late 2005 to early 2006, the defendant would frequently stay with his girl friend, Janet Ojo, at her house on Franklin Street in Quincy. […]