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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
                                                                  2


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


     1
       In relation to the same recorded conversation, the
defendant also challenges the constitutional validity of the
search warrant obtained by police officers pursuant to G. L.
c. 276, § 1, and Commonwealth v. Blood, 400 Mass. 61, 77 (1987),
based on his claim that the warrant was not supported by
probable cause. In the circumstances of this case, the police
were not required to seek and obtain a search warrant pursuant
to Blood, because the conversation sought to be recorded was
always intended to, and did, take place in a jail cell -- a
space that we decline to treat as the equivalent of a private
home. The issue here, rather, is solely whether the
conversation was recorded in violation of the wiretap statute,
G. L. c. 272, § 99. Accordingly, we do not reach the
defendant's constitutional argument.
                                                                     3


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 following information about police officers' prior

dealings with Almeida in a homicide investigation involving

William Payne.    Payne was shot and killed on February 3, 2008,

in New Bedford.   During the investigation of the Payne homicide,

in October of 2008, State police Trooper Paul Dockrey had

interviewed Almeida, who at the time was being held in custody

at the Bristol County house of correction.   Dockrey learned from

Almeida that the latter had information about Payne's murder

from two "gang business meetings" where he and his friends

discussed how to handle their friend Payne's homicide.    In

particular, Almeida learned specific details about "how the

Payne homicide went down."    Based on these facts, Dockrey sought

     2
       There appears to be no dispute that the Commonwealth
sought the warrant under the general search warrant statute,
G. L. c. 276, §§ 1 et seq., and Blood, 400 Mass. at 77, and not
under the section of the wiretap statute authorizing search
warrants to conduct an "interception," G. L. c. 272, § 99 F. A
so-called Blood warrant was not necessary in this case. See
note 1, supra.
                                                                   4


and obtained a search warrant that authorized Almeida to record

telephone conversations electronically with the suspects in the

Payne murder, and Almeida was released on bail from custody in

order to do so.   Once he was released, however, Almeida failed

to secure the recordings.

    Spencer's affidavit then turns to the homicide

investigation relating to Dana Haywood, the victim in this case.

It states that in a letter dated February 14, 2009, and sent to

an assistant district attorney, Almeida provided information

about the July 4, 2005, homicide, and indicated he was willing

to assist law enforcement in the investigation and to "wear a

'wire' for this purpose."   Spencer's affidavit then states as

follows:

         "I spoke with Det. Lt. Scott Sylvia, New Bedford
    Police Major Crimes Division, and he informed me that John
    Burgos is a member of the United Front gang. He has been
    associated with the gang for approximately 12 years.
    According to Det. Lt. Sylvia the United Front gang is a
    group of individuals that operate in and around the United
    Front Homes located adjacent to Chancery and Kempton
    Streets. The members are known to be heavily involved in
    the distribution of illegal narcotics. The members are
    also known to commit violent crimes including possession of
    firearms and multiple shootings. Mr. Burgos himself was
    also a target of a shooting on May 21, 2006 along with
    Justin Barry who was murdered in the shooting. This
    shooting was perpetrated by rival Monte Park members
    including David DePina. Mr. DePina is presently awaiting
    trial in the fatal shooting of Barry and the shooting of
    Mr. Burgos.

         "Tpr. Ann Marie Robertson, Cold Case Unit Mass. State
    Police, advises me that Dana Haywood was a known member of
    the Monte Park Gang at the time of his death. Monte[] Park
                                                                  5


    Gang is a group of individuals that are known to distribute
    illegal narcotics by Monte[] Park on Acushnet Avenue in the
    city of New Bedford. The gang members are also known to
    commit violent crimes including illegal possession of
    firearms and multiple shootings. Tpr. Robertson informs me
    that investigators believe that Dana Haywood's murder is
    suspected to be in retaliation for the fatal shooting of
    Cecil Lopes which occurred on October 31, 2004. The Cecil
    Lopes murder took place at the United Front Homes on
    Chancery Street in the city of New Bedford. The Cecil
    Lopes murder involved a shooting directly outside a
    residence in the United Front Housing complex. Tpr.
    Robertson informs me that Mr. Haywood was shot one block
    from the Monte Park Housing complex on Russell Street in
    the city of New Bedford. Tpr. Robertson further advises me
    that eyewitnesses to Mr. Haywood's shooting saw 3 young
    black males, at least 2 of who [sic] were shooting. The 3
    males fled from Mr. Haywood's body to an awaiting vehicle."

Following these two paragraphs, the affidavit describes the

contents of Almeida's February 14, 2009, letter to the assistant

district attorney:

    "Almeida stated in his letter that his cell mate, John
    Burgos [the defendant] was one of the shooters who killed
    Dana Haywood [the victim] on July 4, 2005. Almeida also
    states John Burgos told him why, where and when they did
    it. Almeida believes he can get Burgos to make those
    statements again. Almeida requests that this investigation
    be expedited due to the fact that Burgos will be released
    soon."

The affidavit then describes the manner in which the electronic

recording by Almeida would be set up.

    Based on Spencer's affidavit, the Superior Court judge

issued the requested search warrant.    Police officers then

provided Almeida with an electronic recording device that

Almeida hid on his person and used to secretly record a

conversation with the defendant in their jail cell on March 3,
                                                                        6


2009.   During the conversation, which lasted over sixty minutes,

the defendant admitted to being one of the shooters involved in

killing the victim on July 4, 2005, and described the actual

shooting incident in some detail, as well as his attitude toward

it.

      Following the defendant's indictment on charges of murder

and unlawful possession of a firearm, he filed a motion to

suppress the electronically recorded statements.       He argued that

the recording was obtained in violation of the wiretap statute,

G. L. c. 272, § 99, because the Commonwealth had not made the

requisite showing that the recording would lead to evidence

about a "designated offense" committed "in connection with

organized crime."     See G. L. c. 272, § 99 B 4, 7.    The defendant

also argued that the search warrant had been issued without

probable cause.     In opposition to the motion, the Commonwealth

did not offer any evidence other than Trooper Spencer's

affidavit that had previously been submitted in support of the

Commonwealth's search warrant application.

      A second Superior Court judge held a nonevidentiary hearing

on the defendant's suppression motion, and thereafter denied it.

The judge concluded in substance that Spencer's affidavit

articulated sufficient facts to indicate that the victim's
                                                                     7


murder was committed in connection with organized crime because

the facts showed the murder was "gang related."3

     The defendant was tried and convicted of murder in the

first degree in November, 2010.4   He filed a timely notice of

appeal and thereafter filed a motion for new trial that raised a

claim of ineffective assistance of trial counsel.    The motion

was remanded to the Superior Court.    After receiving memoranda

from the parties, the trial judge denied the motion in an

explanatory order.   The defendant filed a timely appeal from the

denial.   We have consolidated for review the defendant's appeal

from his conviction and from the denial of his motion for a new

trial.

     2.   Evidence at trial.   We summarize briefly what the jury

could have found based on the trial evidence.    On October 31,

2004, some nine months before the victim was killed on July 4,

2005, Cecil Lopes, a resident of the United Front housing

development in New Bedford, had been killed.    In November, 2004,

the defendant, who also lived in the United Front development,



     3
       The judge also concluded that the search warrant was
supported by probable cause because the Commonwealth had
established the informant Almeida's basis of knowledge and
veracity. There is no need for us to address the probable cause
issue. See note 1, supra.
     4
       The judge allowed the defendant's motion for a required
finding of not guilty on the firearm charge before the case went
to the jury.
                                                                   8


had made a telephone call to his brother.5   In this conversation,

he and his brother had talked about how Lopes's photograph was

in the newspaper and the defendant had stated that he had put

the image from the newspaper on his wall.    They also had

discussed that someone named "Aceon" was responsible for the

killing.   Aceon was known to be associated with the Monte Park

area of New Bedford.   The Commonwealth's theory at trial was

that the defendant and his friend William Payne killed the

victim in retaliation for Lopes's murder.

     At the scene of the shooting resulting in the victim's

death, police recovered a blue baseball cap and some bullet

shell casings.   A bystander had seen three individuals at the

scene, all of whom were wearing white T-shirts.    Later that

night, the defendant and Payne were at the home of Payne's

grandfather who observed the defendant to be laughing and

behaving differently than he usually did.

     Almeida, who had entered into a cooperation agreement with

the Commonwealth, was a witness at trial.    He testified about,

among other subjects, his March, 2009, electronically recorded




     5
       This call was made while the defendant was being held in
custody at a Bristol County correctional facility. On appeal,
he challenges the admissibility of statements from this call,
which we discuss infra.
                                                                   9


conversation with the defendant.6   A recording of the recorded

conversation was then played for the jury and entered into

evidence as an exhibit.   In that conversation, the defendant

agreed with Almeida's assertion that he and Payne shot the

victim, described the shooting as "executionist style," and made

statements suggesting a lack of any feelings of guilt or

remorse.   He also indicated that he had been wearing a white T-

shirt at the time of the shooting, and that the victim had been

killed in retaliation for the death of Cecil Lopes.

     Deoxyribonucleic acid (DNA) testing was performed on the

baseball cap found at the scene of the shooting.   It revealed

that the defendant was the source of the major profile taken

from the swabbings and scrapings of the baseball cap, and that

the victim was excluded from that profile.   The shell casings

found at the scene were compared to a shell casing found three

months later in a car driven by Payne.   The State trooper who

did the comparison opined that the casings were fired from the

same unknown weapon.

     Discussion.   1.   Motion to suppress recorded statement.

The defendant contends that the secret recording of his

     6
       Rico Almeida was vigorously cross-examined by the
defendant's counsel. Almeida admitted, among other things, that
he had misrepresented some of the facts in his February 14,
2009, letter to the assistant district attorney, particularly
the fact that the defendant had told him details about the
victim's murder prior to the jail cell recording. He also
admitted to lying to a grand jury in a prior case.
                                                                  10


conversation with Almeida should have been suppressed because

the Commonwealth obtained this evidence in violation of the

wiretap statute, G. L. c. 272, § 99.   He argues principally that

the Commonwealth failed to show that the recording was made

during an investigation of a designated offense committed "in

connection with organized crime," as that statute requires.     See

G. L. c. 272, § 99 B 4, 7.

     The Commonwealth's wiretap statute generally prohibits the

secret recording of oral communications, see G. L. c. 272, § 99

C 1, but also contains some narrow exceptions to this

prohibition.   One of those exceptions, described in § 99 B 4, is

for a one-party consent recording, where the person who is

conducting the surreptitious recording "is an investigative or

law enforcement officer investigating a 'designated offense,'

and that officer is either (1) a party to the communication, or

(2) has advance authorization from a party to the communication

to intercept the conversation."   Commonwealth v. Hearns, 467

Mass. 707, 714 (2014), quoting Commonwealth v. Tavares, 459

Mass. 289, 297 (2011).7   See Commonwealth v. Thorpe, 384 Mass.

271, 275–276 (1981), cert. denied, 454 U.S. 1147 (1982).


     7
       A surreptitious or secret recording of the contents of
wire or oral communications is referred to in the wiretap
statute as an "interception," and the exception for a one-party
consent secret recording is included within the statutory
definition of "interception." In particular, G. L. c. 272, § 99
B 4, provides:
                                                                  11


    The Commonwealth from the outset of this case has

characterized the recording at issue here as fitting within the

one-party consent exception set out in G. L. c. 272, § 99 B 4.

There is no dispute that most of the requirements of that

exception are met here:   the recording was carried out by law

enforcement officers investigating the victim's murder; murder

is one of the crimes listed in the definition of "designated

offense" in § 99 B 7; and Almeida, one of the parties to the

recorded conversation, had authorized (in fact, requested) the

officers in advance to conduct the recording.   But, as the

defendant contends, for the victim's murder actually to qualify

as a "designated offense" within the meaning of § 99 B 7, it

must have been a murder committed "in connection with organized

crime" -- that is, it was necessary for the Commonwealth "to

show that the decision to intercept was made on the basis of a

reasonable suspicion that interception would disclose or lead to



    "The term 'interception' means to secretly hear, secretly
    record, or aid another to secretly hear or secretly record
    the contents of any wire or oral communication through the
    use of any intercepting device by any person other than a
    person given prior authority by all parties to such
    communication; provided that it shall not constitute an
    interception for an investigative or law enforcement
    officer . . . to record or transmit a wire or oral
    communication if the officer is a party to such
    communication or has been given prior authorization to
    record or transmit the communication by such a party and if
    recorded or transmitted in the course of an investigation
    of a designated offense as defined herein" (emphasis
    added).
                                                                     12


evidence of a designated offense in connection with organized

crime."    Thorpe, 384 Mass. at 281.    In this context, the term

"organized crime" means "a continuing conspiracy among highly

organized and disciplined groups to engage in supplying illegal

goods and services."    G. L. c. 272, §99 A.     See Thorpe, supra at

277.

       To show a nexus to organized crime, there must be "some

evidence of an ongoing illegal business operation."       Tavares,

459 Mass. at 300, quoting Commonwealth v. Long, 454 Mass. 542,

556 (2009).    The Commonwealth also must demonstrate a "high

degree of discipline and organization" among the suspected

members of the criminal enterprise.       Tavares, supra at 300,

quoting Commonwealth v. D'Amour, 428 Mass. 725, 737 (1999).

However, facts suggesting "coordination of efforts among cohorts

standing alone is insufficient. . . .       'For a conspiracy to

commit an offense enumerated in G. L. c. 272, § 99 B 7, to rise

to the level of organized crime, there must, at the very least,

be an organized plan from which one reasonably may infer the

existence of an ongoing criminal operation.'"       Tavares, supra at

301, quoting Long, supra at 557.       Finally, the Commonwealth must

show that the designated offense was committed to promote "the

supply of 'illegal goods and services' or the furtherance of an

'ongoing criminal business operation.'"       Tavares, supra at 301,

quoting G. L. c. 272, § 99A.
                                                                     13


    In recent years, this court has decided a number of cases

involving the one-party consent exception under our wiretap

statute, and the facts of those cases offer useful comparisons

here.   In Tavares, the Commonwealth failed to show a nexus to

organized crime when requesting a wiretap in an investigation of

a murder resulting from a drive-by shooting.     The facts

contained in a State trooper's supporting affidavit revealed

that the defendant and the other men suspected of participating

in the crime were known to carry guns and commit violent crimes,

and that the defendant had purchased a gun from a fellow group

member.   Tavares, 459 Mass. at 299.    The facts also indicated

that the defendant and the other men borrowed a car in advance,

met at a central location before the shooting, and returned to

hide the guns at the same site afterwards, suggesting some

coordination and that there was some degree of a hierarchy

within the group.    Id. at 291, 299.   However, we concluded that

taken together, the facts in Tavares did not support a

connection to organized crime because there was no information

beyond the speculative that the defendant or any other member of

his group "was involved in a pecuniary enterprise, such as drug,

gun, or contraband trafficking, or promoted some other unifying

criminal purpose."   Id. at 301.   In addition, the evidence

failed to show "other hallmarks of organized crime --

discipline, organization, and a continuing nature."     Id. at 302,
                                                                     14


quoting Long, 454 Mass. at 558.     Finally, we observed that there

was not a "scintilla of evidence in the [State trooper's]

affidavit that the designated offense [the drive-by murder of

the victim] was committed 'in connection' with [an] organized

criminal trade."    Tavares, 459 Mass. at 302.

    In contrast, in Hearns, 467 Mass. at 710-711, we found a

nexus to organized crime based on a detailed affidavit from a

police officer outlining his direct knowledge that specific

persons in the alleged criminal organization distributed

narcotics and possessed firearms.     The affidavit also contained

information about the use of "mission" assignments "guided and

observed by senior members in the organization" as "part of an

ongoing 'feud' (or war) between turf conscious criminal

organizations involved."    Id. at 716.    We concluded that "it is

reasonable to infer from the information available to the police

at the time that the shooting at issue was intended as an act of

intimidation directed at [a rival gang] and related to its

competing illegal enterprises."     Id.   Similarly, in Commonwealth

v. Mitchell, 468 Mass. 417, 426 (2014), there was clear evidence

that the defendant and his associates were involved in "a drug

distribution enterprise."    The defendant himself previously had

been arrested in connection with this drug enterprise, along

with a fellow associate who a witness confirmed was a known drug

dealer.   Id.   Their enterprise was also highly coordinated, with
                                                                     15


multiple members taking part in the shooting and several others

assisting in hiding the gun and "conspiring to kill a potential

witness."   Id. at 427.    Facts suggested that the murder was part

of a "bitter and violent feud" between two rival organizations.

Id.   We stated that "[e]ven if the feud were purely personal, an

illegal drug distribution business may see the perception of

weakness as potentially fatal to an enterprise that wishes to

protect its turf against competitors."     Id.   This conclusion,

however, relied on clear evidence showing that the group was, in

fact, operating an organized drug business.

      On its facts, this case is much closer to Tavares than to

Hearns and Mitchell.      In contrast to the latter two cases, the

only two relevant paragraphs of Trooper Spencer's affidavit in

this case, quoted supra, set out relatively vague and conclusory

"facts" about the existence of two rival gangs operating in

different neighborhoods of New Bedford, both of which were

involved in selling narcotics.     These paragraphs, however, do

not describe or even suggest a nexus between the victim's murder

-- i.e., the offense being investigated -- and the narcotics or

any other ongoing business enterprise of either gang.      Spencer

states in the affidavit that he has learned from other officers

that the defendant was a longtime member of the United Front

gang, that the gang is involved "in the distribution of illegal

narcotics" inferably near the United Front Homes where the gang
                                                                   16


operates, that the Monte Park gang of which the victim was a

member distributes drugs near Monte Park, and that the victim's

murder was believed to be in retaliation for the earlier murder

of Cecil Lopes near the United Front Homes.    Nothing in the

affidavit, however, indicates that the two gangs were engaged in

a turf war or other dispute over drug dealing or any other

"business" activities, and nothing connects the murder of the

victim or even the defendant to the gangs' drug dealing

operations or any other "business" activity.    Moreover, beyond

the fact that eyewitnesses saw three individuals at the scene of

the murder get into a waiting car, there is no evidence

indicating that the trio were members of the United Front gang,

much less evidence that the trio's actions that night were part

of an organized, disciplined plan characteristic of a business

enterprise.   Contrast Hearns, 467 Mass. at 715-716.   A

retaliatory killing alone, without a clear link to the goals of

a criminal enterprise, does not amount to a connection to

organized crime.   See Long, 454 Mass. at 557-558.

    Because Spencer's affidavit fails to show the requisite

connection between the murder being investigated and "organized

crime," the denial of the defendant's motion to suppress

constituted error, and the defendant's recorded conversation

with Almeida should not have been admitted in evidence at trial.

The remaining question is the effect of the error.     We assume
                                                                  17


for argument that the substantial likelihood of a miscarriage of

justice standard applies.8   Under that standard, "a new trial is

called for unless [the reviewing court is] substantially

confident that, if an error had not been made, the jury verdict

would have been the same."   Commonwealth v. Ruddock, 428 Mass.

288, 292 n.3 (1998).

     The recorded conversation between the defendant and

Almeida, in which the defendant admitted to having joined with

Payne in murdering the victim and described the murder in some

detail without indication of remorse or even regret,

unquestionably constituted the centerpiece of the Commonwealth's

case. There were no eyewitnesses who identified the defendant as

a shooter.   The closest evidence in this regard was that three

young men in white T-shirts were observed at the scene, and that

the defendant had on a white T-shirt that night.   The DNA

evidence from the blue baseball cap at best places the defendant


     8
       To consider the effect of the error, it is necessary first
to identify the appropriate standard of review -- prejudicial
error or substantial likelihood of a miscarriage of justice.
The defendant moved to suppress evidence of the electronically
recorded conversation before trial, but did not object to the
admission of this evidence at trial. Although the admission
violated only the defendant's statutory rights under the wiretap
statute, by raising his claim in his pretrial motion to
suppress, which was heard and denied, he likely preserved his
objection. Nevertheless, we do not need to decide the
preservation issue here because even if we assume that the
objection was not preserved and the less favorable substantial
likelihood of a miscarriage of justice standard applies, the
defendant prevails.
                                                                    18


at the scene of the shooting, but proves nothing more.    Although

the shell casings recovered by police at the scene of the crime

matched the shell casing found in Payne's car at a later point

in time, the actual murder weapon was never found.    Reviewing

this evidence, we cannot conclude with substantial confidence

that the jury would have reached the same verdict had the

recorded conversation between the defendant and Almeida been

excluded.9   See Ruddock, 428 Mass. at 292 n.3.   The defendant's

conviction must be reversed.

     2.   Motion for a new trial.   As he did in his motion for a

new trial, the defendant argues on appeal that he was deprived

of the effective assistance of counsel based on his trial

attorney's failure to move for suppression of all evidence of

his conversation with Almeida -- both the electronic recording

of it as well as testimony of Almeida relating to the contents

     9
       At oral argument before this court, the Commonwealth
contended for the first time that there was no substantial
likelihood of a miscarriage of justice resulting from the
admission in evidence of the defendant's recorded conversation
with Almeida because Almeida himself had described the contents
of that conversation in his testimony before the jury. The
point, presumably, was that evidence of the actual recording was
cumulative. But actually hearing the defendant make the
statements at issue is far more powerful than listening to
testimony about them by Almeida. Moreover, Almeida himself was
a witness testifying pursuant to a cooperation agreement with
the government; for this and other reasons, his credibility came
under substantial attack at trial. In the circumstances, the
significance of the actual recorded conversation between Almeida
and the defendant, which featured the defendant explaining his
role and actions in the commission of the murder, cannot be
overstated.
                                                                  19


of the conversation -- under the Fifth Amendment to the United

States Constitution and art. 12 of the Massachusetts Declaration

of Rights.   More particularly, the defendant contends that

because Almeida was an agent of the police at the time he

secretly recorded the conversation with the defendant, and

because the recorded conversation took place while the defendant

was in custody, the conversation qualified as a "custodial

interrogation."   Accordingly, evidence of the conversation was

inadmissible because the defendant was not given Miranda

warnings before the conversation took place and never waived his

right to remain silent.   See Miranda v. Arizona, 384 U.S. 436,

444 (1966) ("the prosecution may not use statements . . .

stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination").   By never

challenging this evidence on Fifth Amendment and art. 12

grounds, the defendant avers here, his trial attorney's actions

fell "measurably below that which might be expected from an

ordinary fallible lawyer," and deprived him of an "otherwise

available, substantial ground" of defense.   Commonwealth v.

Randolph, 438 Mass. 290, 295 n.9 (2002), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974).

    "It is not ineffective assistance of counsel when trial

counsel declines to file a motion with a minimal chance of
                                                                  20


success."    Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).

In Illinois v. Perkins, 496 U.S. 292, 297 (1990), the United

States Supreme Court, focusing on the Fifth Amendment, rejected

the argument the defendant makes here.    The Court emphasized

that Miranda sought to protect or preserve a suspect's ability

to exercise his right against self-incrimination in the

"inherently compelling" atmosphere of a police-dominated

official interrogation, and concluded that under the Fifth

Amendment, incriminating statements made during a voluntary

conversation between a suspect who was incarcerated on other

charges and his cellmate -- an undercover officer posing as an

inmate -– were not rendered inadmissible because of the absence

of Miranda warnings.10    Id. at 296, quoting Miranda, 384 U.S. at


     10
          The Supreme Court reasoned:

          "Conversations between suspects and undercover agents
     do not implicate the concerns underlying Miranda. The
     essential ingredients of a 'police-dominated atmosphere'
     and compulsion are not present when an incarcerated person
     speaks freely to someone whom be believes to be a fellow
     inmate. Coercion is determined from the perspective of the
     suspect. . . . When a suspect considers himself in the
     company of cellmates and not officers, the coercive
     atmosphere is lacking. . . .

          "It is the premise of Miranda that the danger of
     coercion results from the interaction of custody and
     official interrogation. We reject the argument that
     Miranda warnings are required whenever a suspect is in
     custody in a technical sense and converses with someone who
     happens to be a government agent. Questioning by captors,
     who appear to control the suspect's fate, may create
     mutually reinforcing pressures that the Court has assumed
                                                                   21


467.    The defendant in essence disagrees with the reasoning of

the Court's majority in Perkins, cites to the dissenting opinion

of Justice Marshall, and urges us to conclude that under art.

12, the administration of Miranda warnings was required before

Almeida, who was in substance a government agent, engaged the

defendant in conversation about the circumstances of the

victim's murder.    See Perkins, 496 U.S. at 303 (Marshall, J.,

dissenting).   In support of this position, the defendant points

out that in the context of Miranda, the court in certain cases

has construed art. 12 of the Declaration of Rights to afford

more protections to suspects of crimes.

       In Commonwealth v. Larkin, 429 Mass 426, 432 (1999),

quoting Perkins, 496 U.S. at 297, this court observed that

"Miranda warnings are only necessary where one is the subject of

'custody and official interrogation.'"11   We also stated that



       will weaken the suspect's will, but where a suspect does
       not know that he is conversing with a government agent,
       these pressures do not exist." (Citations omitted.)

Illinois v. Perkins, 496 U.S. 292, 296-297 (1990).
       11
       In Commonwealth v. Larkin, 429 Mass. 426, 427 (1999), the
defendant, who was being held in custody at a house of
correction in connection with an outstanding probation surrender
warrant, agreed to be questioned by police officers about an
unrelated homicide. The court concluded that although the
interrogating officers ultimately gave the defendant Miranda
warnings, the administration of warnings was not required
because "the circumstances of the interview were in the special
Miranda sense noncustodial." Id. at 435. The defendant was not
under the control of the officers investigating him, and
                                                                  22


"[w]hether a suspect was subject to custodial interrogation is a

question of Federal constitutional law."   Larkin, supra at 432.

Although on occasion, we have interpreted art. 12 to afford

greater protections to criminal suspects than the Fifth

Amendment, see, e.g., Commonwealth v. Mavredakis, 430 Mass. 848,

858 (2000), we are not persuaded that this case presents a

ground to do so.12   In other words, considering the purpose of

Miranda warnings, we find no good reason to conclude that where

an unindicted suspect held in custody on separate charges enters

voluntarily into a conversation with a cellmate, art. 12

requires that the suspect receive Miranda warnings before the


although he could not leave the house of correction, he was free
to end the interview at any time. Id. at 435-436. See Maryland
v. Shatzer, 559 U.S. 98, 112-113 (2010). Contrast Commonwealth
v. Mercado, 466 Mass. 141, 147-149 & n.9 (2013) (defendant, held
in custody in Puerto Rico on local charges and permitted
relatively free movement, was brought without notice to Federal
Bureau of Investigation office and questioned in handcuffs by
police officers about Massachusetts murder for two hours with no
Miranda warnings given; interview may have been custodial).

     Without question, the facts of Larkin are different from
the facts in this case, but the court's discussion of what a
"custodial interrogation" means for purposes of Miranda warnings
cites and is consistent with the Supreme Court's reasoning in
Perkins, 496 U.S. at 296-297.
     12
       We have broadened art. 12 protections where a defendant
made incriminating statements to an undercover informant in his
jail cell after his right to counsel under the Sixth Amendment
to the United States Constitution had attached. See
Commonwealth v. Murphy, 448 Mass. 452, 453 (2007). However, in
the present case, the defendant's Sixth Amendment right to
counsel had not been triggered because at the time of his
conversation with Almeida, he had not been indicted or charged
in connection with the victim's murder.
                                                                    23


conversation begins if it turns out that the cellmate was acting

as an agent of the police.13

     Here, the defendant was not in custody for Miranda purposes

during his jail cell conversation with Almeida.     Although

Almeida was deliberately eliciting information from him, the

defendant was not being coerced to answer in any way.     Rather,

he was having a conversation with someone he knew and appeared

to consider a friend, and there is nothing to indicate his

statements were anything but voluntary.    See Commonwealth v.

Tremblay, 460 Mass. 199, 207 (2011).    Because there was no basis

on which to argue that evidence of the conversation should have

been suppressed under the Fifth Amendment or art. 12, the

defendant's trial attorney was not ineffective in failing to

raise the claim.   The defendant's motion for a new trial was

properly denied.

     3.   Other issues.   Because there may be a new trial, we

briefly address the defendant's two other claims.

     First, the defendant asserts that in light of the

Commonwealth's failure to provide sufficient evidence to

corroborate his statements made during the electronically

recorded conversation with Almeida, his motion for a required

finding of not guilty should have been allowed.     This argument

     13
       If we were to accept the defendant's position, as a
practical matter it would eliminate any conversation with a
cooperating witness where a suspect is held in jail.
                                                                       24


relies on a misguided application of the corroboration rule,

which "requires only that there be some evidence, besides the

confession, that the criminal act was committed by someone, that

is, that the crime was real and not imaginary."       Commonwealth v.

Forde, 392 Mass. 453, 458 (1984).       It is not necessary that the

corroborating evidence "point to the accused's identity as the

doer of the crime."      Id.   In a murder case, the additional

evidence "need only tend to show that the alleged victim is

dead."     Id.   The victim in this case was clearly killed as a

result of multiple gunshot wounds.       There is therefore no issue

whether the crime of murder occurred.14      There was no error in

the denial of the defendant's required finding motion.

     The defendant also argues that his motion to suppress

evidence of his recorded telephone call with his brother,

recorded in 2004 while he was a pretrial detainee in a Bristol

County correctional facility, was improperly denied, and

evidence of that recorded call should not have been admitted at

trial.15    Specifically, he asserts that the subpoena was issued


     14
       Furthermore, even if evidence pointing to the accused's
identity were to be required under this rule, the Commonwealth
did provide some corroborating evidence potentially linking the
defendant with the crime, including the baseball cap found at
the crime scene that matched with the defendant's
deoxyribonucleic acid, and the shell casing from Payne's car
that matched the type of weapon used to shoot the victim.
     15
       The table of contents in the defendant's brief contains a
heading that contends that the recording violated the
                                                                   25


in violation of the procedural requirements of Commonwealth v.

Odgren, 455 Mass. 171 (2009).   See id. at 184-185 (Commonwealth

must obtain judicial approval under Mass. R. Crim. P. 17 [a]

[2], 378 Mass. 885 [1979], before issuing subpoena requiring

third party to produce telephone records in advance of trial).

    It is true that the procedural requirements spelled out in

Odgren were not followed here -- Odgren had not been decided

when the subpoena was served -- but as that case makes clear,

suppression of evidence of recorded telephone calls such as the

call at issue here is warranted only where the defendant can

show that the erroneously issued subpoena caused him prejudice.

See id. at 188-189.   See also Commonwealth v. Cote, 407 Mass.

827, 833 (1990).

    There was no prejudice shown here.   The Bristol County

district attorney's office served a subpoena for the defendant's

recorded telephone calls on the Bristol County sheriff on

October 5, 2009, without seeking prior judicial approval.     On or

about October 13, 2009, and in accordance with its policy, the

sheriff's office delivered to the district attorney's office a

copy of the recording of the defendant's telephone calls made in



defendant's constitutional right to privacy, but the brief
itself contains no argument on this point. The defendant has
waived the point. See Mass. R. A. P. 16 (a) (4), as amended,
367 Mass. 921 (1975). In any event, there is no merit to his
claim. Matter of a Grand Jury Subpoena, 454 Mass. 685, 688-693
(2009).
                                                                     26


November, 2004.     The defendant received a copy on October 7,

2010.     The trial did not begin until a month later, a period of

time that allowed the defendant and his counsel to prepare.16,17

See Odgren, 455 Mass. at 188.

     3.     Conclusion.   The defendant's conviction is reversed,

the verdict is set aside, and the case is remanded to the

Superior Court for a new trial.

                                      So ordered.




     16
       At the hearing on the defendant's motion to suppress
evidence of the recorded telephone call, the judge offered a
continuance to the defendant in order to provide more time to
prepare, but the defendant did not accept the offer.
     17
       The defendant makes no claim of prejudice on a
substantive level -- e.g., a claim that if the Commonwealth had
filed a motion under Mass. R. Crim. P. 17 (a) (2) seeking
judicial approval to summons the recording of the telephone
call, a judge might well have denied the motion on the ground
that the materials sought were not "evidentiary and relevant."
See Commonwealth. v. Lampron, 441 Mass. 265, 269-270 (2004)
(citation omitted). We have considered the issue, however,
pursuant to G. L. c. 278, § 33E. The subpoena itself is not
included in the record before us, but it appears from other
record materials that the November, 2004, recordings were sought
because the Commonwealth had information that these recorded
conversations would include information relating to the 2004
Lopes murder and may pertain to the issue of motive in
connection with the victim's murder in 2005. In these
circumstances, the recordings would appear to be both
evidentiary and relevant, and a motion for approval of a summons
or subpoena for those records was highly likely to have been
allowed.
     GANTS, C.J. (concurring, with whom Spina, J., joins).        In

Commonwealth v. Tavares, 459 Mass. 289, 303 (2011) (Gants, J.,

concurring), I concurred with the court's conclusion "that the

information in the electronic surveillance affidavit, while it

provided probable cause to believe that the defendant had

committed a murder and that the requested oral interceptions

would provide evidence of the defendant's participation in the

murder, did not provide the required reasonable suspicion that

the murder was 'in connection with organized crime.'"         I wrote

separately in that case to highlight that the legislative

inclusion of five words in the statutory language in G. L.

c. 272, § 99, "in connection with organized crime," "means that

electronic surveillance is unavailable to investigate and

prosecute the hundreds of shootings and killings committed by

street gangs in Massachusetts, which are among the most

difficult crimes to solve and prosecute using more traditional

means of investigation."     Id. at 305.   I added, "If the

Legislature wishes to avoid this result, it should amend § 99 to

delete those words."   Id.   To date, no such amendment has been

enacted.

     The reversal of the convictions in this case is a

consequence of the inclusion of those five words.1     There is no


     1
       To be fair, even prompt legislative action to address this
issue after the issuance of the opinion and concurrence in
                                                                  2


reason to believe that the plague of retaliatory shootings by

teenagers and young men belonging to street gangs that are not

committed "in connection with organized crime" has materially

abated since the concurrence in Tavares was issued, or that

those shootings have become any easier to investigate or

prosecute.   Nor is there any reason to believe that the

consequence of those five words can be measured solely by the

number of murder convictions that are reversed.   No doubt, for

every conviction reversed on this ground, there are many more

cases that are never indicted or that fall short of conviction

because the evidence that may be obtained from oral

interceptions, including those intercepted with one-party

consent, cannot be obtained in compliance with § 99.

    I agree with the court's reasoning and its judgment, based

on the language of § 99.   I concur only to reiterate that only

the Legislature can change that language.




Commonwealth v. Tavares, 459 Mass. 289 (2011), would not have
prevented the reversal of the convictions in this case, because
the one-party consent recording took place in 2009.
