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SJC-13285

COMMONWEALTH vs. CHAREE RAINEY.

Suffolk. December 5, 2022. – April 6, 2023.

Present: Gaziano, Lowy, Cypher, Kafker, Wendlandt, & 

Georges, JJ.

Practice, Criminal, Probation, Revocation of probation, Hearsay.

Evidence, Wiretap, Hearsay. Due Process of Law, Probation 

revocation. Global Positioning System Device. Statute, 

Construction.

Indictments found and returned in the Superior Court 

Department on September 5, 2012.

A proceeding for revocation of probation was heard by 

Michael D. Ricciuti, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Gail M. McKenna for the defendant.

Brooke Hartley, Assistant District Attorney, for the 

Commonwealth.

Christopher P. Conniff & Michelle Mlacker, of New York, 

Kacie Brinkman, of Illinois, Claudia Leis Bolgen, & Thanithia 

Billings, for Massachusetts Association of Criminal Defense 

Lawyers, amicus curiae, submitted a brief.

Nina L. Pomponio, Special Assistant Attorney General, & 

Arthur J. Czugh for Massachusetts Probation Service, amicus 

curiae, submitted a brief.
2

WENDLANDT, J. While on probation for assault and battery, 

G. L. c. 265, § 13A, and for violating an abuse prevention 

order, G. L. c. 209A, § 7, the defendant, Charee Rainey, 

forcibly entered his then girlfriend's home over her objection 

and proceeded to assault her. Responding to the subsequent

domestic disturbance call, Boston police officers arrived at the 

victim's residence; one officer activated his body-worn camera 

before entering the premises. The still-distraught victim 

reported the assault to the officers. One officer recorded the 

victim's statement in writing; and the officer who was equipped 

with the body-worn camera was able to capture on the audiovisual video footage the victim's reporting of the events that

had transpired, the state of her home within his plain view, and 

his own interview of the victim's two daughters. The defendant, 

who had fled the apartment immediately following the assault, 

was not recorded.

On appeal, the defendant contends that the wiretap statute, 

G. L. c. 272, § 99, precluded the use of the body-worn camera 

footage at his probation violation proceeding, and that the 

recording violated his rights under the Fourth Amendment to the 

United States Constitution and art. 14 of the Massachusetts 

Declaration of Rights. We disagree. Further concluding that 

the Superior Court judge did not abuse his discretion in 
3

concluding that the victim's statements were substantially 

reliable, and seeing no reason to doubt the judge's statement 

that his findings regarding the defendant's global positioning

system (GPS) violations did not drive the decision to revoke 

probation, we affirm.1

1. Background. We recite the facts found by the judge, 

supplemented by our independent review of the video footage from 

the body-worn camera. See Commonwealth v. Yusuf, 488 Mass. 379, 

381 (2021), quoting Commonwealth v. Clarke, 461 Mass. 336, 341 

(2012) ("we are in the same position as the . . . judge in 

viewing the videotape").

a. Facts. Relevant to the present appeal, in 2013, the 

defendant was convicted and sentenced to three years of 

probation for assault and battery, G. L. c. 265, § 13A, to run

concurrently with three years of probation for violation of an 

abuse prevention order, G. L. c. 209A, § 7.2 The conditions of 

1 We acknowledge the amicus briefs submitted by the 

Massachusetts Association of Criminal Defense Lawyers and the

Massachusetts Probation Service.

2 The defendant also was convicted and ultimately sentenced 

to five years and one day in State prison for assault and 

battery by means of a deadly weapon resulting in serious bodily 

injury, G. L. c. 265, § 15A (c), to run concurrently with five 

years of probation for another violation of an abuse prevention 

order, G. L. c. 209A, § 7. Relevant to the appeal, the 

defendant's term of incarceration was to be followed by the 

aforementioned three years of probation. The defendant was also 

found guilty of malicious destruction of property, G. L. c. 266, 
4

probation included that he obey all laws, have no contact with 

the 2013 victim,3 and wear a GPS device to ensure he stayed away 

from the 2013 victim.4

In December 2019, while the defendant was serving probation 

for these crimes, Boston police Officers Richard Santiago and 

Sparks Flantey responded to a call of an "intimate partner in 

domestic violence" at the home of the defendant's then

girlfriend (victim). Before entering the victim's apartment, 

Santiago activated his body-worn camera.5

The victim allowed the officers to enter her apartment. 

Her voice was shaky, and she was sniffling and distraught. The 

victim's two young daughters were home.

§ 127, but no sentence for this crime is noted in the docket; on 

appeal, the defendant raises no issue relating thereto.

3 The 2013 victim is not the same victim as in the present 

case.

4 A GPS device "is an electronic monitor designed to report 

continuously the probationer's current location." Commonwealth

v. Thissell, 457 Mass. 191, 191 n.1 (2010), quoting Commonwealth

v. Raposo, 453 Mass. 739, 740 (2009).

5 "As the name suggests, a body-worn camera is a small 

camera that is clipped to a police officer's uniform, on his 

chest or possibly to head-gear, such as glasses or a headmount." Blitz, American Constitution Society for Law and 

Policy, Police Body-Worn Cameras: Evidentiary Benefits and 

Privacy Threats, at 3 (May 2015). "It can then record video of 

the area in front of it and audio of the surrounding 

environment. The camera is either activated by the officer 

wearing it or automatically triggered by a sound, movement, or 

other stimulus." Id. See St. 2020, c. 253, § 104 (a) (defining 

"Body-worn camera").
5

The victim proceeded to report the events that had 

transpired that evening. She explained that, approximately two 

hours earlier, while she was asleep, the defendant had taken her 

apartment keys, the keys to her then-inoperable truck, and the 

keys to her rental car. After she awakened, she ordered a pizza 

for pickup and called the defendant to inquire as to the 

location of the rental car so that she could retrieve the pizza

order. They argued, and she told him not to return to the 

apartment. She placed a sofa couch in front of the door to 

block his entrance.

In contravention of her request, the defendant returned to 

the apartment and attempted to open the door; the victim asked

him not to enter and warned that she would call the police. 

Nevertheless, the defendant forced the door open, moving the 

couch forward and injuring the victim's toe.

In the ensuing struggle, he pushed the victim's neck and 

chest, scratching her chest. The victim yelled for her older 

daughter to call the police and to go to the upstairs neighbor; 

in response, the defendant covered the victim's mouth and then 

slapped the telephone from the daughter's hand.

The defendant pushed the victim to the ground and used his 

legs to push her away. He then took some personal belongings 

and fled the apartment in the rental vehicle, also taking with 

him the apartment keys.
6

The victim repeated parts of this account of the assault 

several times in response to officers' questions, consistently 

explaining the timeline of events and the cause of her injuries.6 

As she spoke, Flantey took written notes of her report, and she 

spelled the names of those involved. Santiago told her that 

detectives would come to photograph her injuries, and that he 

would preserve the information she had reported in his police 

report.

Santiago testified that he saw the victim's chest injuries. 

He also spoke with the older daughter, who confirmed that the 

defendant had covered the victim's mouth and slapped the 

telephone from the daughter's hand.7

Emergency medical technicians (EMTs) and detectives arrived 

at the scene; the EMTs attended to the victim's injuries.

The officers asked the victim to contact the car rental 

company to obtain information to assist in finding the defendant 

and the rental vehicle. While the victim was on the telephone 

with the car rental company, Santiago announced that he was 

6 Shortly after the police officers arrived, the victim 

stepped outside to retrieve the pizza she had ordered, now for 

delivery, for her children.

7 The victim's younger daughter explained that she had 

covered her face during the altercation and did not see 

anything.
7

recording and asked whether that was acceptable. No verbal

response is recorded on the video footage.8

Thereafter, the victim and the older daughter went with the 

EMTs to the hospital.9 Officers stayed in the apartment until 

the lock on the apartment door was changed to impede the 

defendant's reentry.

b. Procedural history. Based in large part on the report 

of the domestic disturbance, the probation department issued a 

notice of surrender, alleging new criminal conduct and failure 

to pay fines.10 The probation department subsequently amended 

the notice to add allegations of failures to comply with GPS 

requirements in May, June, and July of 2020.

At the final surrender hearing, Santiago testified and the 

body-worn camera footage was admitted over the defendant's 

8 Throughout the recording, a periodic beeping can be heard,

but it is not clear from the video footage whether the noise was 

audible to others.

9 The victim's younger daughter was left in the care of her 

neighbor.

10 The alleged crimes for the probation violations were 

assault and battery on a household or family member, G. L. 

c. 265, § 13M (a); threat to commit a crime, G. L. c. 275, § 2;

assault and battery, G. L. c. 265, § 13A (a); malicious 

destruction of property worth under $1,200, G. L. c. 266, § 127;

and breaking and entering at nighttime to commit a felony, G. L. 

c. 266, § 16.

The defendant also was charged in a parallel criminal case

stemming from this incident; each count was ultimately disposed 

of in a nolle prosequi.
8

objection that the statements in the video footage were hearsay. 

The probation department also submitted an e-mail message 

detailing the defendant's alleged GPS violations; there was no 

objection to the admission of these GPS documents.

Determining that the statements captured on the video

footage were substantially reliable by applying the factors set 

forth in Commonwealth v. Hartfield, 474 Mass. 474 (2016), 

discussed infra, the judge found all but one of the new charges, 

destruction of property, proved by a preponderance of the 

evidence. He did not consider, as a basis for his decision,

whether the defendant failed to pay fines; and, while the judge 

found that the probation department had proved the GPS 

violations, he explained, "candidly, that [did not] drive the 

result here."

The judge revoked the defendant's probation and sentenced 

him to two years in a house of correction on the assault and 

battery conviction, followed by one year of probation for the 

violation of the abuse protection order.11 Explaining his 

rationale for revoking probation, the judge stated that 

"[d]omestic abuse is serious" and the video footage was 

11 The transcript and the written findings indicate that the 

one year of probation was for both violations of the abuse 

protection order; however, the defendant should have already 

served his sentence on one violation concurrently with his 

incarcerated sentence. See note 2, supra.
9

"telling" -- "this defendant was given a chance to avoid a harsh 

sentence, and he had lots of opportunities to avoid it, and went 

right back to the activity that got him in trouble in the first 

place."12 The defendant appealed, and we ordered the case 

transferred to this court sua sponte.

2. Discussion. a. Wiretap statute. On appeal, the 

defendant first maintains that the wiretap statute, G. L. 

c. 272, § 99, precluded use of the body-worn camera footage in 

connection with the probation violation proceeding. Subsection 

99 C of the statute makes it a crime to "willfully commit[] an 

interception . . . of any . . . oral communication," punishable 

by, inter alia, a fine of up to $10,000, imprisonment for five 

years in State prison, or both. G. L. c. 272, § 99 C 1. The 

term "interception" is defined as "to secretly hear[ or] 

secretly record . . . the contents of any . . . 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." G. L. c. 272, § 99 B 4. An 

"intercepting device" includes "any device or apparatus which is 

12 In his written findings, the judge set forth further 

reasons for the disposition, including the circumstances of the 

crime for which probation was ordered and the crime's impact on 

any person or the community, the nature of the probation 

violation, the defendant's record of prior probation violations, 

the opportunity for rehabilitation under community supervision, 

and the recommendation of the probation officer.
10

capable of transmitting, receiving, amplifying, or recording a 

wire or oral communication other than a hearing aid." G. L. 

c. 272, § 99 B 3. A body-worn camera is an intercepting device.

i. Exclusionary rule. The defendant's contention that the 

body-worn camera footage was improperly admitted and used at his 

probation violation proceeding faces several procedural hurdles. 

To begin, the exclusionary rule does not generally apply to 

probation violation proceedings. See Commonwealth v. Olsen, 405 

Mass. 491, 494 (1989); Commonwealth v. Vincente, 405 Mass. 278, 

280 (1989). This is because "[t]he purpose of probation rather 

than immediate execution of a term of imprisonment 'in large 

part is to enable the [convicted] person to get on his feet, to 

become law abiding and to lead a useful and upright life under 

the fostering influence of the probation officer.'" 

Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006), quoting Mariano

v. Judge of Dist. Court of Cent. Berkshire, 243 Mass. 90, 93 

(1922). See Morrissey v. Brewer, 408 U.S. 471, 477 (1972) ("Its 

purpose is to help individuals reintegrate into society as 

constructive individuals as soon as they are able, without being 

confined for the full term of the sentence imposed"). "Evidence 

that a probationer is not complying with the conditions of 

probation may indicate that he or she has not been rehabilitated 
11

and continues to pose a threat to the public."13 Vincente, 

supra. For this reason, "it is extremely important that all 

reliable evidence shedding light on the probationer's conduct be 

available during probation [violation] proceedings" (citation 

omitted). Id.

Indeed, the ability to review all reliable evidence is a 

common interest shared by both the State and the probationer. 

See Commonwealth v. Kelsey, 464 Mass. 315, 321 (2013) ("the 

interest in an accurate evaluation [of all the reliable 

evidence] -- the only interest shared by both parties -- is of 

central concern in determining the scope of a probationer's due 

process rights"). See also Gagnon v. Scarpelli, 411 U.S. 778, 

785 (1973) ("Both the probationer . . . and the State have 

interests in the accurate finding of fact and the informed use 

of discretion -- the probationer . . . to insure that his 

liberty is not unjustifiably taken away and the State to make 

certain that it is neither unnecessarily interrupting a 

successful effort at rehabilitation nor imprudently prejudicing 

the safety of the community").

13 A probationer has already been convicted of a crime 

beyond a reasonable doubt and enjoys "only . . . conditional 

liberty . . . dependent on observance of special [probation] 

restrictions." Olsen, 405 Mass. at 493, quoting Morrissey, 408 

U.S. at 480.
12

By contrast, "the risk that illegally obtained evidence 

might be excluded from [probation violation] proceedings is 

likely to have only a marginal additional deterrent effect on 

illegal police misconduct." Vincente, 405 Mass. at 280. 

Accordingly, we have determined that the exclusionary rule 

should not apply to such proceedings. Id.14

Thus, if the remedy the defendant seeks is available, its 

basis must be found in the wiretap statute itself.15 Tellingly, 

the defendant cites no such remedial provision.

While the wiretap statute provides remedies for violations 

of the statute, none of those remedies applies to individuals in 

the defendant's position. For example, the statute allows "a 

defendant in a criminal trial" to move to suppress the contents 

14 The defendant does not suggest that there was "egregious 

police conduct" or "conduct that 'shock[s] the conscience'" in 

this case (citation omitted). Olsen, 405 Mass at 496.

15 The defendant mentions in passing that Santiago may have 

violated the Boston police department's policy regarding the use 

of body-worn cameras. Neither the defendant nor the 

Commonwealth addresses whether any such violation would preclude 

the use of the video footage in connection with a probation 

violation proceeding; accordingly, we do not address the issue. 

We note that the policy permits officers to use a body-worn 

camera without notice when "an immediate threat to the officer's 

life or safety or the life or safety of any other person makes 

[body-worn camera] notification dangerous." See Boston Police 

Department Rule 405, Body Worn Camera Policy § 2.5 (June 3, 

2019). Here, at least when Santiago initially activated the 

body-worn camera, he did not know whether the defendant was 

present or posed an ongoing threat; moreover, Santiago stayed in 

the victim's apartment until the lock was changed to prevent the 

defendant's reentry.
13

of intercepted wires or communications. G. L. c. 272, § 99 P.

Because a probation violation proceeding is not a criminal 

trial, see Commonwealth v. Costa, 490 Mass. 118, 123 (2022), 

quoting Commonwealth v. Durling, 407 Mass. 108, 112 (1990) 

("Revocation hearings are not part of a criminal prosecution"), 

this remedy is not available.

The statute also allows an "aggrieved person" a private 

right of action against any person who intercepts, discloses, or 

uses an unauthorized interception. G. L. c. 272, § 99 Q. An 

aggrieved person is defined as "any individual who was a party 

to an intercepted wire or oral communication or who was named in 

a warrant authorizing the interception, or who would otherwise 

have standing to complain that his personal or property interest 

or privacy was invaded in the course of an interception." G. L. 

c. 272, § 99 B 6. The defendant rightly does not claim to be an 

aggrieved person; while the victim reported the assault by the 

defendant, he himself was not a party featured in the body-worn 

camera footage.16 Compare Curtatone v. Barstool Sports, Inc., 

487 Mass. 655, 658-659 (2021) (action brought by aggrieved 

person, alleging he was secretly recorded).

16 The defendant also was not named in a warrant authorizing 

the body-worn camera recording; there was none. Nor does the 

defendant contend that his personal or property interest or 

privacy was invaded such that these interests would preclude the 

recording. Additionally, a probation violation proceeding is 

not a civil action for damages. G. L. c. 272, § 99 Q.
14

These provisions, which carve out specific remedies for 

certain individuals, belie the defendant's assertion that the 

statute entitles him to the remedy he seeks. See Fascione v. 

CAN Ins. Cos., 435 Mass. 88, 94 (2001), quoting 3 N.J. Singer, 

Sutherland Statutory Construction § 57.18, at 46 (5th ed. 1992) 

("[W]here a statute creates a new right and prescribes the 

remedy for its enforcement, the remedy prescribed is 

exclusive"). See also Skawski v. Greenfield Investors Prop.

Dev. LLC, 473 Mass. 580, 588 (2016), quoting Bank of Am., N.A.

v. Rosa, 466 Mass. 613, 619 (2013) (applying "the statutory 

maxim, 'expressio unius est exclusio alterius,' meaning 'the 

expression of one thing in a statute is an implied exclusion of 

other things not included in the statute'").

Indeed, given the rights available under the statute, the 

defendant's reliance on the statute in connection with the 

probation violation proceeding is at best questionable. 

Notably, each of the cases the defendant cites involves

individuals who were themselves recorded.17 See, e.g.,

17 Nor is this the type of case that might trigger the

doctrine of third-party standing, which may be available to a 

defendant in a criminal trial and further requires a showing of 

egregious misconduct. See Commonwealth v. Santiago, 470 Mass. 

574, 578 (2015), quoting Commonwealth v. Scardamaglia, 410 Mass. 

375, 380 (1991) ("in a case where the police engage in 

'distinctly egregious' conduct that constitutes a significant 

violation of a third party's art. 14 rights in an effort to 

obtain evidence against a defendant, it may be appropriate to 
15

Commonwealth v. Mitchell, 468 Mass. 417, 421, 428 (2014) 

(concerning suppression of recording of defendant's voice in 

telephone call); Commonwealth v. Tavares, 459 Mass. 289, 302-303

(2011) (suppression of defendant's statements, secretly recorded 

by informant); Commonwealth v. Gordon, 422 Mass. 816, 833 (1996) 

(declining to suppress videotape of defendant during booking 

procedure); Commonwealth v. Jackson, 370 Mass. 502, 503 (1976) 

(refusing to suppress taped conversations in which defendant was 

participant); Commonwealth v. Ashley, 82 Mass. App. Ct. 748, 

749, 762 (2012), cert. denied, 571 U.S. 838 (2013) (affirming 

denial of motion to suppress defendant's recorded statements 

during police station interrogation).

ii. Use of body-worn camera to record victim's report. 

Passing over these substantial hurdles, the defendant asserts 

that the plain language of the wiretap statute shows that the 

Legislature intended to preclude the use of the body-worn camera 

footage in a probation violation proceeding because the statute 

criminalizes, inter alia, the secret recording of oral 

communications. G. L. c. 272, § 99 C 1. In the defendant's 

permit the defendant to rely on the standing of the third party 

to challenge the police conduct"). See also Commonwealth v. 

McCarthy, 484 Mass. 493, 511 (2020), quoting Santiago, supra

("We also repeatedly have declined to adopt target standing 

under art. 14, but have left open the possibility of applying 

the doctrine in cases of 'distinctly egregious police 

conduct'").
16

view, Santiago committed a crime under the wiretap statute, 

potentially subjecting Santiago to incarceration in State 

prison, even though he was responding to the call that a crime 

had transpired, the victim consented to his entry into her home, 

and she knew that, at the least,18 officers were creating a 

written record of her report of the details of the domestic 

violence committed by the defendant that evening; indeed, she 

helped the responding officers correctly spell the names of her 

daughters for the written record. Moreover, because the wiretap 

statute also makes it a crime to willfully disclose or use a 

prohibited interception, G. L. c. 272, § 99 C 3, the defendant

contends that the prosecutor, the probation officer, and the 

Superior Court judge also are subject to criminal penalties.19

18 The record is devoid of information sufficient to 

determine whether the victim heard Santiago announce that he was 

recording or whether the body-worn camera operated in a manner

that would have notified the victim that she was being recorded. 

Accord Commonwealth v. Morganti, 455 Mass. 388, 395, 400-401

(2009) (recording of defendant's telephone call in police 

interview room not illegal interception under wiretap statute 

because he was told police officers intended to videotape 

interview, and thus "the defendant knew that his words in the 

interview room were subject to being recorded"); Commonwealth v. 

Rivera, 445 Mass. 119, 134 (2005) (Cowin, J., concurring) (no 

interception where video cameras were in plain view and 

"defendant can be presumed to have had actual awareness of the 

existence of the devices and that he was under surveillance").

19 He also contends that his counsel's failure to object to 

the use or disclosure of the video footage was ineffective 

assistance of counsel.
17

A. Standard of review. "We review questions of statutory 

interpretation de novo." Conservation Comm'n of Norton v. Pesa,

488 Mass. 325, 331 (2021). "Our primary goal in interpreting a 

statute is to effectuate the intent of the Legislature." Id., 

quoting Casseus v. Eastern Bus Co., 478 Mass. 786, 795 (2018). 

"[O]ur analysis begins with 'the "principal source of insight 

into legislative intent"' -- the plain language of the statute." 

Patel v. 7-Eleven, Inc., 489 Mass. 356, 362 (2022), quoting TzeKit Mui v Massachusetts Port Auth., 478 Mass. 710, 712 (2018). 

We have explained:

"The general and familiar rule is that a statute must be 

interpreted according to the intent of the Legislature 

ascertained from all its words construed by the ordinary 

and approved usage of the language, considered in 

connection with the cause of its enactment, the mischief or 

imperfection to be remedied and the main object to be 

accomplished, to the end that the purpose of its framers 

may be effectuated" (emphasis added).

Pesa, supra, quoting Commissioner of Revenue v. Dupee, 423 Mass. 

617, 620 (1996). See HSBC Bank USA, N.A. v. Morris, 490 Mass. 

322, 332 (2022), quoting Harvard Crimson, Inc. v. President & 

Fellows of Harvard College, 445 Mass. 745, 749 (2006) (same).

"When the meaning of a statute is brought into question, a 

court properly should read other sections and should construe 

them together." City Elec. Supply Co. v. Arch Ins. Co., 481 

Mass. 784, 790 (2019), quoting LeClair v. Norwell, 430 Mass. 

328, 333 (1999). See Plymouth Retirement Bd. v. Contributory 
18

Retirement Appeals Bd., 483 Mass. 600, 605 (2019) ("Beyond plain 

language, [c]ourts must look to the statutory scheme as a whole 

. . . so as to produce an internal consistency within the 

statute . . . . Even clear statutory language is not read in 

isolation" [quotations omitted]); Commonwealth v. Morgan, 476 

Mass. 768, 777 (2017) ("The plain language of the statute, read 

as a whole, provides the primary insight into that intent. . . . 

We do not confine our interpretation to the words of a single 

section").

Where the Legislature has set forth its intent in the form 

of a codified preamble, we consider the preamble as part of the 

whole statute, to the extent that it does not conflict with the 

more specific statutory provisions. See Brookline v. 

Commissioner of the Dep't of Envtl. Quality Eng'g, 398 Mass. 

404, 412 (1986) ("general preambles . . . do not take precedence 

over specific provisions"). In construing the wiretap statute, 

in particular, we have turned repeatedly to the statute's 

preamble to inform our analysis. See, e.g., Curtatone, 487 

Mass. at 659-660; Tavares, 459 Mass. at 295 & n.5; Commonwealth

v. Ennis, 439 Mass. 64, 68 (2003); Gordon, 422 Mass. at 833;

Commonwealth v. Thorpe, 384 Mass. 271, 279 (1981), cert. denied, 

454 U.S. 1147 (1982).

B. Statutory framework. Admittedly, subsection 99 C of 

the wiretap statute could be construed literally as the 
19

defendant suggests, subjecting police officers, probation 

officers, prosecutors, and the judge to severe penalties. See 

G. L. c. 272, § 99 C 1 (crime to "willfully commit[] an 

interception . . . of any . . . oral communication"); G. L. 

c. 272, § 99 C 3 (criminalizing willful disclosure or use of 

interception). However, "in the absence of more specific 

statutory language to that effect . . . , we are unwilling to 

attribute that intention to the Legislature." Gordon, 422 Mass. 

at 832-833.

"[O]ur respect for the Legislature's considered judgment 

dictates that we interpret the statute to be sensible, rejecting 

unreasonable interpretations unless the clear meaning of the 

language requires such an interpretation." Osborne-Trussell v. 

Children's Hosp. Corp., 488 Mass. 248, 254 (2021), quoting 

Depianti v. Jan-Pro Franchising Int'l, Inc., 465 Mass. 607, 620 

(2013). See Patel, 489 Mass. at 364, quoting Whitman v. 

American Trucking Ass'ns, 531 U.S. 457, 468 (2001) ("the 

Legislature 'does not, one might say, hide elephants in 

mouseholes'"); Commonwealth v. Diggs, 475 Mass. 79, 82 (2016), 

quoting Champigny v. Commonwealth, 422 Mass. 249, 251 (1996) 

("Because we assume generally that the Legislature intends to 

act reasonably, '[w]e will not adopt a literal construction of a 

statute if the consequences of such a construction are absurd or 

unreasonable'").
20

Our decision in Gordon is instructive. There, the 

defendant contended that the wiretap statute precluded law 

enforcement officials from making an audio-visual recording of 

the defendant's booking procedure at the police station. 

Gordon, 422 Mass. at 832. While we acknowledged that subsection 

99 C of the statute could "be read literally as making unlawful 

the audiotaping of booking procedures without the knowledge of 

the persons being booked," we were unwilling to attribute such 

an intent to the Legislature in the absence of more specific 

language. Id. at 832-833. Instead, we read subsection 99 C in 

the context of the statute as a whole, including its codified

preamble. See id. at 833. See also Plymouth Retirement Bd., 

483 Mass. at 605.

We concluded that the "legislative focus [of the wiretap 

statute, as set forth in the statute's preamble,20] was on the 

protection of privacy rights and the deterrence of interference 

20 In pertinent part, the preamble codified the 

Legislature's finding that "organized crime" existed in the 

Commonwealth and was "a grave danger to the public welfare and 

safety." G. L. c. 272, § 99 A. The Legislature concluded that 

"[n]ormal investigative procedures" were "not effective in the 

investigation of illegal acts committed by organized crime" and 

that "law enforcement officials must be permitted to use modern 

methods of electronic surveillance, under strict judicial 

supervision, when investigating these organized criminal 

activities." Id. The preamble also codified the Legislature's 

recognition that "the uncontrolled development and unrestricted 

use of modern electronic surveillance devices pose grave dangers 

to the privacy of all citizens of the commonwealth." Id.
21

therewith by law enforcement officers' surreptitious 

eavesdropping as an investigative tool." Gordon, supra at 833. 

The Legislature, we observed, "[did] not appear to have in mind 

the recording of purely administrative bookings steps following 

an individual's arrest." Id. Accordingly, we declined to read 

the statute as barring the admission of the recording of the 

booking procedure in the defendant's criminal trial. Id.

Similarly, nothing in the wiretap statute as a whole, 

including its codified preamble, evinces an intent to prohibit 

recording a victim's volunteered report of a crime where, as 

here, the victim was aware that officers already were 

memorializing her report in writing, much less an intent to 

criminalize the use of such a recording at a probation violation 

proceeding. The body-worn camera was not used as an 

investigative tool to secretly eavesdrop on an otherwise private 

conversation;21 it captured the victim's voluntary statement to 

police officers, which she knew was being memorialized by them 

21 The Commonwealth incorrectly suggests that the wiretap 

statute protects only communications as to which the speaker 

maintains a reasonable expectation of privacy, and thus that its 

protections are coextensive with the Fourth Amendment and art. 

14. Compare Jackson, 370 Mass. at 506 ("we would render 

meaningless the Legislature's careful choice of words if we were 

to interpret 'secretly' as encompassing only those situations 

where an individual has a reasonable expectation of privacy"), 

with Commonwealth v. DeJesus, 489 Mass. 292, 295 (2022) 

(defendant may challenge search or seizure under art. 14 and 

Fourth Amendment only if defendant has reasonable expectation of 

privacy).
22

in writing. The resulting video footage was not a clandestine 

recording precluded by the wiretap statute; rather, it merely 

preserved the statement (albeit through an alternative, 

electronic medium) that the victim voluntarily gave to law 

enforcement officers and which she understood was being recorded 

by them by means of paper and pen.22 See Ashley, 82 Mass. App. 

Ct. at 762 (declining to construe wiretap statute to criminalize

use of camera in police station interrogation room to record 

defendant's volunteered statement to officers when officers 

"repeatedly expressed their intention to get it 'down on paper' 

and memorialize the interview"). Accord Commonwealth v. Hyde, 

434 Mass. 594, 602 & n.9 (2001) (contrasting "clandestine 

recording" prohibited by wiretap statute with "good practice" of 

electronic recording of police interrogations based on 

presumption "that, when police interrogations are electronically 

22 The wiretap statute does not define the term "record." 

Accordingly, we concluded that "record" as used in the wiretap 

statute should be given its plain and ordinary meaning to "mean, 

'to set down in writing' or 'to cause (sound, visual images) to 

be transferred to and registered on something by electronic 

means in such a way that the thing so transferred and registered 

can . . . be subsequently reproduced'" (emphasis added). 

Commonwealth v. Moody, 466 Mass. 196, 209 (2013), quoting 

Webster's Third New International Dictionary 1898 (1971). See 

Moody, supra ("secretly record" as used in wiretap statute 

"includes the interception of text messages by viewing and 

transcribing them for use at a later date" [emphasis added]).
23

recorded, the suspect is aware that the interrogation is being 

preserved").23

C. Legislative history. The legislative history also does 

not support the defendant's construction. See HSBC Bank USA, 

N.A., 490 Mass. at 332-333, quoting Chandler v. County Comm'rs 

of Nantucket County, 437 Mass. 430, 435 (2002) ("Where the 

statutory language is not conclusive, we may 'turn to extrinsic 

sources, including the legislative history . . . , for 

assistance in our interpretation'"). Instead, the history 

confirms our conclusion in Gordon, 422 Mass. at 833, that the 

Legislature was concerned principally with the investigative use 

of surveillance devices by law enforcement officials to 

eavesdrop surreptitiously on conversations.

The relevant provisions of the statute trace their history 

to 1964 when the Legislature established a special commission to 

study "the laws relative to eavesdropping and the use of 

23 The defendant mistakenly relies on Hyde to support his 

contention that the plain meaning of the wiretap statute 

criminalizes the police officer's recording in this case. In 

Hyde, 434 Mass. at 599-600, we construed the statute to prohibit 

the secret recording of police officers performing their public 

duties. As the dissent in Hyde noted, such a literal 

construction was unnecessary, id. at 607 (Marshall, C.J., 

dissenting); and the literal construction led to an 

unconstitutional result. See Project Veritas Action Fund v. 

Rollins, 982 F.3d 813, 844 (1st Cir. 2020), cert. denied, 142 S. 

Ct. 560 (2021) ("Section 99 violates the First Amendment in 

criminalizing the secret, nonconsensual audio recording of 

police officers discharging their official duties in public 

spaces").
24

electronic recording devices . . . with a view to strengthening 

the laws relative to eavesdropping and the use of wire tapping 

recording devices" [emphasis added]. St. 1964, c. 82. See

Tavares, 459 Mass. at 294-295, quoting Commonwealth v. Vitello, 

367 Mass. 224, 231 (1975) ("the Legislature appointed a special 

commission in 1964 to investigate electronic eavesdropping and 

'ensure that unjustified and overly broad intrusions on rights 

of privacy are avoided'"). In April 1967, the commission issued

an interim report, which focused on various types of 

"eavesdropping devices," namely "bug[s]." 1967 Senate Doc. No. 

1198, at 3. These "subminiature transmitter[s]" could eavesdrop 

on unknowing speakers and "transmit a very clear signal at least 

[seven] blocks in downtown Boston and [could] pick up a whisper 

at [twenty] feet." Id. See Hyde, 434 Mass. at 608 n.7

(Marshall, C.J., dissenting) (devices were not mere audiotape 

recorders, but rather "sophisticated inventions of then-recent 

origin that could be concealed in telephones or walls"). See 

also Curtatone, 487 Mass. at 659, quoting Tavares, supra ("Here, 

the legislative intent, apparent both in the legislative history 

of the act and the act itself, concerns limiting 'electronic 

eavesdropping' . . . . The act was adopted in 1968 in direct 

response to 'the commercial availability of sophisticated 

surveillance devices and the ease with which they facilitated 

surreptitious recording of private citizens' by private 
25

individuals and law enforcement alike"); Commonwealth v. Moody, 

466 Mass. 196, 201 (2013), quoting Tavares, supra (same); Ennis, 

439 Mass. at 68 & nn.9, 10, quoting 1968 Sen. Doc. No. 1132, at 

6 ("the Legislature sought to prohibit all 'secret' electronic 

eavesdropping by 'private individuals'" because "the commission 

heard testimony that newly developed inventions, 'eavesdropping 

devices' and 'bugs,' could be easily concealed and used to 

monitor private conversations secretly and continuously. . . . 

The commission feared that '[a] person with a minimal education 

in electronics [could] easily install these commercially 

available devices for purposes of illegally intercepting wire or 

oral communications'"). The commission recommended enacting new 

legislation to clarify the "eavesdropping" statute, G. L. 

c. 272, § 99. 1967 Senate Doc. No. 1198, at 14-15.

The following year, the commission proposed a new version 

of G. L. c. 272, § 99. See 1968 Senate Doc. No. 1132, at 14 

(Appendix A). The commission recommended that the Commonwealth 

"strictly forbid electronic eavesdropping or wiretapping by 

members of the public," id. at 6, and permit "eavesdropping and 

wiretapping by law enforcement officials . . . in order to 

effectively combat the menace of organized crime but only if 

such wiretapping and eavesdropping . . . be strictly supervised 

by the judicial branch of the government," id. at 7-8. The 

commission's proposed bill defined "interception" as secretly 
26

hearing or recording a communication without the prior consent 

of all parties -- a marked departure from the one-party consent 

exception contained in the former statute, which had required 

only the consent of either the sender or the receiver. Compare 

1968 Senate Doc. No. 1132, at 14, with St. 1959, c. 449, § 1. 

See Thorpe, 384 Mass. at 280 n.7 (as proposed, "[l]aw 

enforcement officers were required, without exception, to obtain 

warrants before conducting any surveillance" [emphasis added]).

The statute, as amended, reflects most of the

recommendations of the commission, with the addition of a 

preamble. See St. 1968, c. 738, § 1. The statute, however, 

retained the one-party consent exception for law enforcement 

officers, but only under narrow circumstances; specifically, it 

authorized these officers "to conduct warrantless electronic 

surveillance" in connection with "investigation" of organized 

crime when they were a party to the communication or had been 

given authority by a party (emphasis added). Thorpe, 384 Mass. 

at 280 n.7, citing G. L. c. 272, § 99 B 4, 7. The Legislature's 

focus was the use of devices, like bugs, for clandestine or 

surreptitious eavesdropping; the Legislature did not appear to 

have in mind law enforcement officers' use of devices to record 

a crime victim's voluntary reporting of a crime under 

circumstances where, as here, the victim understood her 

statement was being preserved by them. In sum, the legislative 
27

history (like the statutory framework, including the preamble)

is devoid of anything to support the defendant's proposed 

construction, and accordingly, we reject it.

b. Constitutional analysis. The defendant's contention 

that the recording violated the State and Federal Constitutions 

requires little attention. Where, as here,

"the officer was lawfully present in the home and the bodyworn camera captured only the areas and items in the plain 

view of the officer as he or she traversed the home, in a 

manner consistent with the reasons for the officer's lawful 

presence, the recording is not a search in the 

constitutional sense and does not violate the Fourth 

Amendment or art. 14."

Yusuf, 488 Mass. at 390.

c. Hearsay. The defendant next maintains that the judge 

erred in relying on the video footage and the GPS evidence, 

which he contends were not substantially reliable hearsay.

i. Standard of review. "[R]evocation proceedings must be 

flexible in nature" and "all reliable evidence should be 

considered." Durling, 407 Mass. at 114. "[W]hen hearsay is 

offered as the only evidence of the alleged violation, the 

indicia of reliability must be substantial . . . because the 

probationer's interest in cross-examining the actual source (and 

hence testing its reliability) is greater when the hearsay is 

the only evidence offered." Id. at 118.

To determine whether hearsay has substantial indicia of 

reliability, a judge may consider, inter alia,
28

"(1) whether the evidence is based on personal knowledge or 

direct observation; (2) whether the evidence, if based on 

direct observation, was recorded close in time to the 

events in question; (3) the level of factual detail; (4) 

whether the statements are internally consistent; (5) 

whether the evidence is corroborated by information from 

other sources; (6) whether the declarant was disinterested 

when the statements were made; and (7) whether the 

statements were made under circumstances that support their 

veracity."

Hartfield, 474 Mass. at 484. "There is no requirement that 

hearsay satisfy all the above criteria to be trustworthy and 

reliable." Costa, 490 Mass. at 124, quoting Commonwealth v. 

Patton, 458 Mass. 119, 133 (2010). "[W]here a judge relies on 

hearsay evidence in finding a violation of probation, the judge 

should set forth in writing or on the record why the judge found 

the hearsay evidence to be [substantially] reliable." 

Hartfield, supra at 485. See Matter of a Minor, 484 Mass. 295, 

308 (2020) ("For probation [violation] hearings, in which 

substantially reliable hearsay . . . is admissible, we have 

required judges to state explicitly the reasons supporting the 

reliability of any hearsay they rely upon"). We review a 

judge's determination that hearsay is substantially reliable, 

like other evidentiary decisions, under an abuse of discretion 

standard. See, e.g., N.E. Physical Therapy Plus, Inc. v. 

Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013) (trial judge's 

ruling on applicability of exception to hearsay rule reviewed 

for abuse of discretion).
29

ii. The recorded statements. The judge found the victim's 

statements in the body-worn camera footage to be substantially 

reliable, noting that the statements were made based on personal 

knowledge,24 factually detailed, internally consistent, and 

corroborated (e.g., the victim's injuries were visible on the 

video footage and were observed by Santiago). The judge

determined that, while the victim was not disinterested, her 

daughter may have been, and the daughter confirmed some of the 

events. And he found that the circumstances of the statements, 

particularly the emotional distress of the victim, lent them 

credibility. Balancing the factors, the judge found that the

statements were substantially reliable; none of the defendant's 

arguments to the contrary suggests that the judge abused his 

discretion.

iii. The GPS evidence. Based on the GPS records, which 

were introduced without objection, the judge also found that the 

24 Contrary to the defendant's argument that the statements 

were made two hours after the events, it is clear from the video 

footage that, while the defendant took the victim's keys two 

hours prior to his assaulting the victim, he did not return to 

the apartment at that time; instead, the altercation occurred 

shortly before the statements were made. See Yusuf, 488 Mass. 

at 380-381, citing Clarke, 461 Mass. at 341 (independent review 

of video footage); Commonwealth v. Tremblay, 480 Mass. 645, 654-

655 (2018), quoting Commonwealth v. Jones-Pannell, 472 Mass. 

429, 438 (2015) (reviewing court may supplement judge's 

subsidiary findings with evidence from documentary evidence 

unless that would cause it to "reach a conclusion of law that is 

contrary to that of [the] . . . judge").
30

defendant violated the GPS conditions of his probation. On 

appeal, the defendant argues that, because the GPS records were 

unreliable, the judge's reliance on the records requires the 

revocation to be vacated. Seeing no reason to doubt the judge's 

statement that the GPS violations did not "drive the result," we 

disagree.

3. Conclusion. The order revoking probation and imposing 

sentence are affirmed.

So ordered.