Commonwealth v. F.W. (Lawyers Weekly No. 10-069-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11152 COMMONWEALTH vs. F.W. Middlesex. January 7, 2013. ‑ April 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Motion to suppress. Evidence, Wiretap, Sound recording. Constitutional Law, Privacy. Search and Seizure, Expectation of privacy, Consent. Privacy. Consent. Child Abuse. Indictments found and returned in the Superior Court Department on May 13, 2010. A pretrial motion to suppress evidence was heard by Leila R. Kern, J. An application for leave to file an interlocutory appeal was allowed by Cordy, J. in the Supreme Judicial Court for the county of Suffolk. Charles A. Bookman for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. This case concerns whether the adult half-sister, Carrie,[1] of a mute and autistic[2] minor child (victim) could vicariously consent under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(2) (d) (2006) (Federal wiretap statute), to the victim’s oral communications being intercepted by means of an audiovisual recording[3] intended to gather evidence that the victim’s grandfather, the defendant, was sexually abusing her.[4] After being indicted on charges of enticement of a child under the age of sixteen, G. L. c. 265, § 26C; indecent assault and battery on a child under the age of fourteen, G. L. c. 265, § 13B; assault on a child under the age of sixteen with intent to rape, G. L. c. 265, § 24B; and aggravated rape of a child under the age of sixteen, G. L. c. 265, § 23A (b),[5] the defendant moved to suppress the oral communications of the audiovisual recording and subsequent statements he made to police. A Superior Court judge denied the motion after an evidentiary hearing. A single justice of this court allowed the defendant’s application for leave to file an interlocutory appeal pursuant to Mass. R. Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and ordered the appeal to proceed in this court.[6] Because we conclude that, on the particular facts of this case, Carrie could vicariously consent to the recording of the victim’s oral communications, we affirm the denial of the defendant’s motion to suppress. 1. Facts. We summarize the judge’s findings of fact, supplemented with uncontested testimony adduced at the evidentiary hearing.[7] See Commonwealth v. Isaiah, 448 Mass. 334, […]