If a defendant’s probation has been revoked, that decision should be upheld despite the defendant’s contention that the Wiretapping Act, GLc 272, §99, barred the use of body-worn camera footage of a police officer in his probation violation trial.
“While on probation for assault and assault, GLc 265, §13A, and for violating an order to prevent abuse, GLc 209A, §7, defendant Charee Rainey forcibly entered his then-girlfriend’s home over her appeal and proceeded to assault her at. In response to the subsequent domestic disturbance call, Boston police officers arrived at the victim’s home; An officer activated his body-worn camera before entering the premises. The victim, still desperate, reported the attack to officials. An officer took down the victim’s statement in writing; and the officer, equipped with the body-worn camera, was able to view, on the audiovisual video footage, the victim’s account of the events that had transpired, the state of their home as seen directly from him, and his own interview with the victim’s two daughters hold onto . The accused, who fled the apartment immediately after the attack, was not caught.
“On appeal, the defendant contends that the wiretapping statute, GLc 272, §99, barred the use of the bodyworn camera footage in his trial for violating probation and that the recording violated his rights under the Fourth Amendment of the United States Constitution have and art. 14 of the Massachusetts Declaration of Rights. We do not agree. Further concluding that the Superior Court judge did not abuse his discretion in concluding that the victim’s testimony was essentially reliable and saw no reason to doubt the judge’s testimony that his Findings regarding the defendant’s Global Positioning System (GPS) violations did not drive the decision to revoke parole, we affirm. …
“The defendant’s allegation that the body-worn camera footage was unlawfully authorized and used in his probation violation trial faces several procedural hurdles. First, the exclusion rule generally does not apply to probation violation proceedings. …
“While the Wiretapping Act provides remedies for violations of the law, none of those remedies apply to persons in the position of defendant. …
In fact, given the rights available under the law, the defendant’s reliance on the law in connection with the probation violation trial is questionable at best. …
“Overcoming these significant hurdles, the defendant claims that the plain text of the wiretapping law shows that the legislator wanted to exclude the use of body-worn camera material in a probation process because the law criminalizes, among other things, the secret recording of oral communications. …
“Admittedly, Section 99C of the Wiretapping Act could be interpreted literally, as the defendant suggests, and subject police officers, probation officers, prosecutors and the judge to severe penalties. … However, “in the absence of more specific legislative language … we are unwilling to attribute that intent to the legislature.” …
“…The body-worn camera was not used as an investigative tool to eavesdrop on an otherwise private conversation; it recorded the victim’s voluntary testimony to police officers, which she knew was recorded by them in writing. The resulting video footage was not a clandestine recording barred by wiretapping law; rather, it merely preserved the statement (albeit via an alternative, electronic medium) that the victim had voluntarily made to law enforcement officials and which she knew was recorded by them with pen and paper. …
“Even the legislative history does not support the defendant’s construction. …
“…The focus of lawmakers has been on the use of devices such as bugs for covert or clandestine wiretapping; legislators did not appear to have contemplated the use of devices by law enforcement officials to record a crime victim’s voluntary reporting of a crime in circumstances where, as here, the victim knew their testimony was being retained by them. In summary, there is nothing in the legislative history (like the legal framework, including the preamble) to support the construction proposed by the defendant and accordingly we oppose it. …
“The decision to revoke the probation and impose the sentence is upheld.”
Commonwealth v. Rainey (Lawyers Weekly No. 10-037-23) (30 pp) (Wendlandt, J.) A case for the suspension of parole was heard by Michael D. Ricciuti, J., in the Superior Court. Gail M. McKenna for the defendant; Brooke Hartley for the Commonwealth; Christopher P. Conniff and Michelle Mlacker of New York, Kacie Brinkman of Illinois, Claudia Leis Bolgen and Thanithia Billings submitted a brief for the Massachusetts Association of Criminal Defense Lawyers, amicus curiae; Nina L. Pomponio and Arthur J. Czugh submitted a brief for the Massachusetts Probation Service, amicus curiae (Ref. SJC-13285) (April 6, 2023).
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