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SJC-12835

COMMONWEALTH vs. JEROME MORRIS.

Plymouth. November 7, 2022. - July 25, 2023.

Present: Budd, C.J., Gaziano, Cypher, Kafker, Wendlandt, & 

Georges, JJ.

Homicide. Firearms. Electronic Surveillance. Telephone.

Constitutional Law, Admissions and confessions, Waiver of 

constitutional rights. Evidence, Admissions and 

confessions, Tape recording, Redirect examination.

Practice, Criminal, Capital case, Motion to suppress, 

Admissions and confessions, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on January 2, 2015.

A pretrial motion to suppress evidence was heard by 

Cornelius J. Moriarty, II, J., and the cases were tried before

Gregg J. Pasquale, J.

Cathryn A. Neaves for the defendant.

Mary Nguyen, Assistant District Attorney, for the 

Commonwealth.

WENDLANDT, J. The defendant, Jerome Morris, was convicted 

of murder in the first degree on the theory of deliberate 

premeditation in connection with the August 2014 shooting of the 
2

victim, Quentin Phillip.1 Following a verbal altercation with 

the victim outside a bar in Brockton, the defendant walked away, 

retrieved a firearm from a friend, and converged on a vehicle in 

which the victim and his three friends were sitting. The victim

was seated in the rear passenger's seat; the defendant took aim 

at the rear passenger's seat window and fired at least two shots 

at the window. One hit the victim in the chest, killing him. 

The defendant, who was caught on a video surveillance camera

arguing with the victim and then retrieving a firearm just prior 

to the killing, admitted to discharging the firearm at the 

vehicle's window during a police station interrogation following 

his arrest and waiver of his Miranda rights; the surveillance 

camera footage and a recording of the interrogation were 

introduced at trial. The defendant argued at trial that the 

killing occurred in self-defense, contending that he believed

the victim was armed.

On his direct appeal, the defendant contends that his 

statement at the police station should have been suppressed 

because police officers impermissibly recorded it without his 

express consent, in violation of G. L. c. 272, § 99 (wiretap

statute). In addition, he maintains that the statement should 

1 The defendant also was convicted of unlawful possession of 

a firearm and unlawful discharge of a firearm within 500 feet of 

a building.
3

have been suppressed because he was not informed promptly of his 

right to make a telephone call and only was permitted a call 

after his interrogation, in violation of G. L. c. 276, § 33A. 

He further asserts that the prosecutor improperly referred to 

omissions in his statement to police officers. The defendant

also asks the court to exercise its authority under G. L. 

c. 278, § 33E, to reduce the degree of guilt or order a new 

trial. Finally, the defendant requests that we vacate his 

conviction of unlawful possession of a firearm in light of our 

recent opinion in Commonwealth v. Guardado, 491 Mass. 666 

(2023). We affirm the convictions other than the unlawful 

possession conviction and discern no reason to grant relief 

under G. L. c. 278, § 33E.

1. Background. a. Facts. The following facts are 

supported by the evidence admitted at trial. Certain details 

are reserved for discussion of specific issues.

i. Surveillance footage and witness testimony. Shortly 

after 2:10 A.M. on August 9, 2014, the victim was fatally shot

in the chest while seated in the rear passenger's seat of a 

vehicle that was exiting the parking lot of a Brockton bar.

Approximately twenty minutes prior to the killing, the 

victim and the defendant verbally argued outside the bar. 

During the confrontation, which lasted several minutes, the 

victim looked angry, but the defendant appeared calm. The 
4

victim called the defendant a "bitch" in an aggravated tone. 

Surveillance footage of the argument captured the victim waving 

his arms and appearing to push the defendant.

The defendant and the victim separated; the victim went to 

a vehicle with his friends. The victim initially stood outside 

the vehicle, seemingly frustrated and angry. The victim then 

sat in the rear passenger's seat, talking to his friends, and 

making plans for where next to go. The vehicle doors were 

closed, and the windows, which were "very" tinted, were shut. 

The victim asked one friend to "pass [him] that"; the friend 

responded by telling the victim, "Chill." The victim said, "I 

don't trust these n*ggas," a phrase he repeated multiple times.

Meanwhile, the defendant retrieved an item, later 

determined to be a firearm, from one of his friends in the 

parking lot. With the firearm in hand, the defendant walked

toward the vehicle in which the victim's group were sitting.

The victim's group, which had been waiting in the vehicle

for another friend, soon learned that the friend would not join 

them; the defendant silently approached the rear passenger's

window next to where the victim was sitting. The victim either 

was using his cell phone or was talking to the other passengers 

about their plans. The victim had his hand in his pocket. He 
5

was not facing the window.2 Upon noticing the defendant

approaching, the victim said, "What's wrong with these dudes?" 

and one of the victim's friends either warned, "[Y]our people's 

coming to the door," or asked, "What does he want?" As the 

vehicle was slowly driven out of the parking lot, the defendant 

fired multiple gunshots into the rear passenger's side window; 

one bullet struck the victim in the chest.

The defendant fled. Surveillance footage shows the 

defendant handing the firearm to someone and continuing to run 

away.

Minutes later, the victim arrived at a hospital, where he 

was pronounced dead. The cause of death was a gunshot wound to 

the chest.

The victim was not seen with a firearm that night, no 

firearm was seen or found in the vehicle, and no gunshot residue 

was found on the victim's hands.

ii. Defendant's statement. The defendant was identified 

from the surveillance footage by the mother of one of his 

children. He was arrested, and after being given the Miranda 

warnings and waiving his rights, the defendant was interviewed

at a police station. The interrogation was audio and video

2 A medical examiner later testified that the victim was 

shot from the front, but at an angle, with the bullet entering 

the top of his right chest and exiting the bottom of his left 

chest.
6

recorded; a redacted copy of the recording was played for the 

jury. In the interrogation, the defendant admitted that he 

fired two shots at the vehicle window, behind which sat the 

victim.

The defendant explained that, prior to the shooting, he 

"went outside to talk with" the victim after the victim "called 

[him] outside." The victim asked the defendant if the two of 

them "had a problem"; the defendant responded that if they did, 

he "would've [already] did [sic] something to [the victim]." 

The victim called the defendant "soft" and a "bitch," and he 

stated that the defendant would not have done anything. At that 

moment, the defendant offered to fight the victim; but the 

victim refused, asserting that he did not want to ruin his 

night. The victim also said, "I'm a see you when I see you,"

"You already know what time it is with me," and "When I see you, 

it's on." The victim told the defendant that he "stays with 

it," which the defendant understood to mean that the victim had 

a firearm that night.

The defendant claimed that he was worried that something 

would happen to him -- that he would be "caught in the 

crossfire" -- and that he "just honestly thought about [his] 

kids." The defendant explained that the victim was "a shooter,"

unlikely to engage in hand-to-hand fighting; the defendant did 
7

not want someone like that "on [his] back . . . [t]rying to 

shoot at [him] while [he's] with [his] family."

The defendant continued, asserting that he saw the victim 

behind a vehicle looking at him, "acting mad shifty," and 

"making motions . . . like he was about to do something" or 

"take cover." The defendant thought the victim was "acting

kinda funny like he got somethin' or somethin'," as if "he had a 

weapon." The defendant claimed that he was going to leave, 

because he did not have a weapon and he thought that the victim 

did, but he was worried that the victim was waiting for him.

The defendant said that he had told his friends what had 

transpired with the victim; they asked him if he was going to 

"let that shit ride." Responding, he said he was not going to 

"try to run up on somebody [he felt] as though had a weapon on 

him." One of the defendant's friends offered the defendant a 

firearm, which he took, saying, "Let me see it. I'm gonna go 

see what's up." The defendant walked to the passenger's side of 

a vehicle and shot twice at the rear window, behind which sat 

the victim. The defendant then handed the firearm to someone 

and fled.

b. Procedural history. The defendant was indicted on one 

count of murder, in violation of G. L. c. 265, § 1; one count of 

unlawful possession of a firearm, in violation of G. L. c. 269, 

§ 10 (a); and one count of unlawful discharge of a firearm 
8

within 500 feet of a building, in violation of G. L. c. 269, 

§ 12E. The defendant filed a motion to suppress his postarrest 

statement to investigators, which was denied after an 

evidentiary hearing.

At trial, the Commonwealth introduced a redacted recording 

of the defendant's interrogation. The jury found the defendant 

guilty of murder in the first degree on the theory of deliberate 

premeditation; the defendant was sentenced to life without 

parole.3 The defendant timely appealed, and subsequently filed

in this court a motion for a new trial, submitting arguments 

pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209 

(1981).4

2. Discussion. On appeal, the defendant raises several 

issues, as set forth supra. We address each in turn.

a. Motion to suppress statements made to investigators. 

The defendant argues that the motion judge erred in denying his 

3 The defendant also was found guilty of unlawful possession 

of a firearm and unlawful discharge of a firearm within 500 feet 

of a building. The defendant was sentenced to a term of from 

two and one-half years to two and one-half years and a day in 

State prison, concurrent with his life sentence, as to the 

former, and to a term of three months in the house of correction 

as to the latter, deemed served at the time of sentencing.

4 See Moffett, 383 Mass. at 208 ("If appointed counsel, on 

grounds of professional ethics deems it absolutely necessary to 

dissociate himself or herself from purportedly frivolous points, 

counsel may so state in a preface to the brief," but still 

should "present the [points] succinctly in the brief").
9

motion to suppress his postarrest statements to investigators on 

two grounds, discussed infra. "In reviewing a decision on a 

motion to suppress, we accept the judge's subsidiary findings 

absent clear error but conduct an independent review of [the] 

ultimate findings and conclusions of law" (citation and 

quotations omitted). Commonwealth v. Jones-Pannell, 472 Mass. 

429, 431 (2015).5 We review video footage independently. See 

Commonwealth v. Yusuf, 488 Mass. 379, 380-381 (2021). And "[w]e 

review questions of statutory interpretation de novo." 

Conservation Comm'n of Norton v. Pesa, 488 Mass. 325, 331 

(2021).

i. Recording under wiretap statute. The defendant argues 

that the recording of his police station statement, after police 

officers read to him, and he waived, his Miranda rights, was a 

"secret recording" prohibited by the wiretap statute. 

5 We supplement the motion judge's subsidiary findings with 

"evidence from the record that 'is uncontroverted and undisputed 

and where the judge explicitly or implicitly credited the 

witness's testimony.'" Jones-Pannell, 472 Mass. at 431, quoting 

Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 

Mass. 818 (2008). We do so "only so long as the supplemented 

facts 'do not detract from the judge's ultimate findings.'" 

Jones-Pannell, supra, quoting Commonwealth v. Jessup, 471 Mass. 

121, 127-128 (2015).
10

Accordingly, he maintains that his motion to suppress the 

recording should have been allowed.6

A. Wiretap statute. The wiretap statute makes it a crime 

to "willfully commit[] an interception . . . of any . . . oral 

communication." G. L. c. 272, § 99 C 1. The term 

"interception" is defined as "to . . . 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. A defendant whose oral communications have 

been intercepted in violation of the statute may bring a motion 

to suppress the contents of unlawfully intercepted 

communications and evidence derived therefrom. G. L. c. 272, 

§ 99 P.

B. Motion judge's findings and video footage. The motion 

judge made the following findings of fact. The defendant was 

arrested at approximately 12:30 P.M. and taken to the Brockton

police station and into an interview room, where an 

interrogation began at 1:11 P.M. The defendant was advised of 

6 The defendant also argues cursorily that the investigators 

failed to inform the defendant of the camera in order to "lull[ 

the defendant] into a false sense of security that they were 

having a 'cozy chat.'" The defendant cites nothing in the 

record to buttress this allegation, and the tenor of the 

interrogation, as reflected in the recording, does not support 

the defendant's claim of an illicit scheme.
11

his Miranda rights and his right to a prompt arraignment; he 

indicated that he understood his rights and signed written 

waivers of these rights. The interrogation, which was recorded

by an audio-visual electronic recording device in the 

interrogation room, lasted a little longer than one hour.

The recording device did not look like a traditional 

camera; instead, its physical structure resembled a thermostat 

or motion sensor. The defendant was not notified that his 

statement was being recorded by electronic means. There was no 

sign indicating that there was a recording device in the 

interrogation room. The motion judge rejected the 

Commonwealth's suggestion that a small sign on the door between

the garage and adjacent police station, which stated "Audio 

Monitoring on These Premises," was sufficient to notify the 

defendant that his interrogation was being recorded by 

electronic means.7

Although finding that the defendant did not receive actual 

or constructive notice of the electronic recording, the motion 

7 In discussing the defendant's Miranda waiver, the motion 

judge noted that the defendant "has extensive experience with 

the criminal justice system," having signed Miranda waivers on 

six prior occasions. Each of these occasions occurred after the 

court's decision in Commonwealth v. DiGiambattista, 442 Mass. 

423, 447-448 (2004) (expressing "preference that [custodial 

interrogations] be recorded whenever practicable"). The 

officers knew of at least some of the defendant's prior criminal 

justice system history.
12

judge concluded that, because the defendant was advised that 

anything he said could and would be used against him in court,

the recording was not surreptitious eavesdropping in violation 

of the wiretap statute.

In addition, the interrogation footage captured each 

officer taking written notes during portions of the 

interrogation. Before the defendant's admission that he twice 

shot at the victim, the defendant was prompted by one police 

officer: "This is where the people that listen to your story 

later on determine whether you really care about someone other 

than yourself, and you want to tell the truth and . . . be 

remorseful . . . and explain what you did and why you did it. 

That's where your role comes in now." A short while later, the 

officer added, "[I]f you're not gonna tell the truth, it's not 

gonna look good for you."

C. Recording of interrogation. The defendant's argument 

requires us to construe the wiretap statute and determine 

whether the statute criminalizes the electronic recording of a 

defendant's voluntary statement to police officers under 

circumstances where the defendant understands that the statement 

can and will be used against him and nonetheless decides to 

proceed with the interrogation, the defendant is informed that 

the interrogation presents an opportunity to relay his narrative 

for future listening, and the defendant understands that 
13

officers are recording the statement (or parts thereof) in 

writing. This requires a legal determination, which we consider 

de novo, Pesa, 488 Mass. at 330-331; Jones-Pannell, 472 Mass. at 

431, based on the factual findings by the motion judge.

Our opinion in Commonwealth v. Rainey, 491 Mass. 632 

(2023), is instructive. There, unbeknownst to the person giving 

a statement to police officers (a victim of domestic violence),

her voluntary statement was recorded by an electronic recording 

device -- a body-worn camera. Id. at 634. Nonetheless, the 

victim, like the defendant in this case, understood that her 

statement was being preserved; indeed, the victim, like the 

defendant here, spoke to the police officers for the purposes of 

memorializing her statement, and the video footage shows police 

officers taking written notes during portions of her statement. 

Id. at 635, 643-644. The defendant in Rainey, like the 

defendant here, nonetheless maintained that the recording was a 

"secret recording" in violation of the wiretap statute because 

the victim was unaware of the police officer's electronic 

recording device. Id. at 640.

We acknowledged in Rainey that "subsection 99 C of the 

wiretap statute could be construed literally as the defendant 

suggests" to criminalize the recording of the victim's voluntary 

statement. Id. at 642. However, given the absurdity of such a 

result, we declined to adopt such a construction because "in the 
14

absence of more specific statutory language to that effect 

. . . , we [were] unwilling to attribute that intention to the 

Legislature." Id., quoting Commonwealth v. Gordon, 422 Mass. 

816, 832-833 (1996). Rather, we concluded that the statute did 

not prohibit the admission of the recording in question because 

"nothing in the wiretap statute as a whole, including its 

codified preamble, evince[d] an intent to prohibit recording a 

victim's volunteered report of a crime where . . . the victim 

was aware that officers already were memorializing her report in 

writing." Rainey, supra at 643. Indeed, as we explained, the 

"legislative focus [of the wiretap statute, as set forth in the 

statute's preamble,] was on the protection of privacy rights and 

the deterrence of interference therewith by law enforcement 

officers' surreptitious eavesdropping as an investigative tool."8

Id., quoting Gordon, supra at 833. See Gordon, supra

8 "In pertinent part, the preamble of the wiretap statute 

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 [C]ommonwealth.' Id." Rainey, 

491 Mass. at 643 n.20.
15

(concluding, in view of legislative purpose of wiretap statute, 

that it does not prohibit recording of booking procedures in 

police station).9 See also Rainey, supra at 642 (collecting 

cases turning to preamble to inform analysis of wiretap 

statute). The Legislature, we concluded, did not have in mind 

the type of voluntary statement given by the victim, much less 

to sanction criminally the conduct of police officers who 

preserved the victim's voluntary statement to them. Rainey,

supra at 643-644.

Similarly, here nothing in the statute as a whole, 

including its codified preamble, supports the conclusion that 

the Legislature intended to criminalize the police officers' 

recording of the defendant's voluntary statement, which the 

9 Our decision in Gordon did not rest, as the defendant 

suggests, on the ground that the electronic recording in that 

case "did not capture or reveal the defendants' thoughts or 

knowledge about some fact or subject." Gordon, 422 Mass. at 

833. Indeed, it is pellucid that the wiretap statute does not 

use the content of the recording as a trigger for a violation. 

See G. L. c. 272, § 99 C 1 ("Proof of the installation of any 

intercepting device by any person under circumstances evincing 

an intent to commit an interception . . . shall be prima facie 

evidence of a violation . . ." [emphasis added]). Our reasoning 

in Gordon, as we explained in Rainey, centered on the 

Legislature's intent, as evinced in the wiretap statute's 

preamble, see note 8, supra, to prohibit surreptitious 

eavesdropping, see Rainey, 491 Mass. at 643, citing Gordon, 

supra at 832-833; because the Legislature did not appear to have 

in mind the recording of a booking procedure at the police 

station, we did not adopt the literal construction urged by the 

defendant, Gordon, supra at 832-833.
16

defendant understood was being preserved for future use in 

connection with the investigation of the crime about which the 

defendant was speaking voluntarily. The recording "was not used 

as an investigative tool to secretly eavesdrop on an otherwise 

private conversation";10 rather, it captured the defendant's 

"voluntary statement to police officers, which [the defendant] 

knew was being memorialized by them in writing." Rainey, 491 

Mass. at 643-644. Indeed, the officers explained to the 

defendant that the interrogation provided him an opportunity to 

tell his own story, and the defendant proceeded to do so knowing 

10 We agree with the defendant that the relevant question 

for purposes of the wiretap statute is not whether the defendant 

had a reasonable expectation of privacy. See Rainey, 491 Mass.

at 644 n.21; Commonwealth v. Jackson, 370 Mass. 502, 506 (1976) 

("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"). Thus, our conclusion does not rest on 

a determination whether the defendant's rights under the Fourth 

Amendment to the United States Constitution or art. 14 of the 

Massachusetts Declaration of Rights were violated. See, e.g., 

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

may challenge search or seizure under Fourth Amendment or art. 

14 only if defendant has reasonable expectation of privacy). 

The wiretap statute evinces the Legislature's intent to provide 

broader protections than those provided by the State and Federal 

Constitutions. Accordingly, our analysis is guided by the 

Legislature's intent as set forth in the words of the statute,

in the context of the statute as a whole. See Harvard Crimson, 

Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 

749 (2006) ("Courts must ascertain the intent of a statute from 

all its parts and from the subject matter to which it relates, 

and must interpret the statute so as to render the legislation 

effective, consonant with sound reason and common sense").
17

that the statement would be preserved for later review. In 

particular, the defendant was warned that his statements could 

and would be used against him in a court of law and was reminded 

that individuals would "listen" to his statement. Presumably, 

he also saw the police officers, who were seated next to him,

taking notes during his statement.11 Regardless of whether the 

defendant recognized the electronic recording device as a 

thermostat, motion sensor, or camera, it strains credulity to 

conclude that the defendant did not understand that his 

statement was being memorialized. "The resulting video footage 

was not a clandestine recording precluded by the wiretap 

11 We do not, as the concurring justice suggests, ignore 

that the wiretap statute prohibits both secretly hearing and 

secretly recording. See G. L. c. 272, § 99 B 4 (defining 

"interception" as to "secretly hear" or "secretly record"). Our 

decision does not rest on the fact that the officers heard the 

defendant's statement. As in Rainey, we simply decline to 

attribute to the Legislature an intent to prohibit 

electronically recording a defendant's voluntary statement in 

circumstances where the defendant knows that his statement is 

being recorded by other means -- here, by use of a writing 

implement and paper. See Rainey, 491 Mass. at 644 n.22, quoting 

Commonwealth v. Moody, 466 Mass. 196, 209 (2013) ("'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"'"). 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]). A reading requiring suppression under the 

circumstances is without any foundation in the Legislature's 

intent, as expressed in the codified preamble.
18

statute; rather, it merely preserved the statement (albeit 

through an alternative, electronic medium) that the [defendant] 

voluntarily gave to law enforcement officers and which []he 

understood was being recorded by them by means of paper and 

pen." Id. at 644. See Commonwealth v. Ashley, 82 Mass. App. 

Ct. 748, 762 (2012), cert. denied, 571 U.S. 838 (2013) (wiretap 

statute did not 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 recorded, the suspect is aware 

that the interrogation is being preserved").

ii. Denial of right to telephone call. The defendant next 

maintains that his statement should have been suppressed because 

he was denied his right to make a telephone call in violation of 

G. L. c. 276, § 33A. Section 33A provides:

"The police official in charge of the station or other 

place of detention having a telephone wherein a person is 

held in custody, shall permit the use of the telephone, at 

the expense of the arrested person, for the purpose of 

allowing the arrested person to communicate with his family 

or friends, or to arrange for release on bail, or to engage 

the services of an attorney. Any such person shall be 
19

informed forthwith upon his arrival at such station or 

place of detention, of his right to so use the telephone, 

and such use shall be permitted within one hour thereafter

(emphasis added)."

Although the statute does not set forth a statutory remedy for a 

violation of the defendant's right, we have applied the 

exclusionary rule to evidence gathered as a result of a 

violation of the statute where the defendant can show that the 

violation was intentional. See Commonwealth v. Walker, 466 

Mass. 268, 278 (2013); Commonwealth v. Alicea, 428 Mass. 711, 

716 (1999); Commonwealth v. Jones, 362 Mass. 497, 502 (1972).

A. Motion judge's findings. The motion judge made the 

following findings of fact. After the defendant, at the 

Brockton police station, waived his Miranda and prompt 

arraignment rights, at 1:13 P.M., the defendant was advised that 

he would be afforded a telephone call when he was taken to 

booking; but the defendant was not told when he would be taken 

to booking. More than one hour later, toward the end of the 

interrogation, an officer asked the defendant if he wanted to 

call his parents; the defendant responded that he would like to 

call his children and the mothers of his children, but "not 

right [then]." The defendant soon thereafter was taken to 

booking and advised of his right to make a telephone call.

The defendant had prior experience with the criminal 

justice system. In particular, on ten prior occasions, after 
20

being arrested and booked at the Brockton police station, the 

defendant had been informed of, and utilized, his right to make 

a telephone call.

The motion judge concluded that G. L. c. 276, § 33A, was 

violated because the defendant neither was advised of his right 

to make a telephone call upon his arrival at the police station 

nor afforded the right to use a telephone within one hour of his 

arrival. The motion judge found that the violation, however,

was unintentional, relying on the testimony of the police 

officers, corroborated by the video footage, that they promptly 

informed the defendant of his Miranda and arraignment rights. 

The motion judge also relied on the defendant's "prior 

experience with the criminal justice system," specifically his

prior bookings.12 Accordingly, the motion judge denied the 

defendant's motion to suppress.

B. Unintentional violation of telephone call right. The 

defendant contends that the motion judge's finding that the 

violation of G. L. c. 276, § 33A, was unintentional was 

erroneous. We review the finding of the motion judge, who 

directly heard the testimony of the arresting officers, for 

clear error. Jones-Pannell, 472 Mass. at 431. See Ashley, 82 

12 The motion judge made no finding as to whether the 

officers knew of this criminal history, outside of the 

defendant's outstanding probation arrest warrant.
21

Mass. App. Ct. at 759 (reviewing judge's rejection of 

intentional motive for clear error). In support of this 

argument, the defendant points to the evidence that one of the 

police officers told the defendant that he would have the 

"opportunity" to make a telephone call later but did not, at 

that time, inform him of his "right" to make a telephone call. 

He maintains that the statutory violation, in conjunction with 

the electronic recording of his statement, constituted an 

intentional plan to extract a confession. The defendant also 

contends that the motion judge erred in relying on his prior 

arrest history, including his prior exercise of his statutory 

right to make a telephone call; this history, the defendant 

asserts, has no bearing on the question whether the officers 

intentionally violated the statute.

We have concluded previously that a finding that a

violation of § 33A was unintentional may be supported by 

evidence that officers informed a defendant of other rights. 

See, e.g., Walker, 466 Mass. at 278-279 ("The judge's reliance 

on the fact that the [officers] informed the defendant of . . . 

other rights is not misplaced, nor was the judge's consideration 

of the defendant's prior experience in the criminal justice 

system"). We also have concluded that, where the defendant 

previously has been informed of his right to a telephone call

because, inter alia, the defendant has "prior experience in the 
22

criminal justice system," the motion judge's consideration of 

the prior experience in determining whether to impose the 

exclusionary remedy is apt. See id. See also Commonwealth v. 

Leahy, 445 Mass. 481, 490 (2005) (where defendant "told the 

investigating officer that he knew his rights and had been 

arrested before" and defendant previously was seated across from 

large poster explaining telephone rights, "it was reasonable for 

the officer to assume that [the defendant] was well aware of his 

right to make a telephone call").

The defendant points to nothing in the record to support 

his contention that the violation was intentional, let alone 

that it was part of an illicit scheme.13 Contrast Jones, 362 

Mass. at 500 (applying exclusionary rule to preclude admission 

of defendant's statement where defendant was not allowed to make 

telephone call despite repeatedly asking for opportunity). A 

detainee's rights under § 33A are important. See, e.g.,

Commonwealth v. Bradshaw, 385 Mass. 244, 266 (1982), and cases 

cited. However, without more than the fact of the violation 

itself, the defendant has not carried his burden to show that 

13 The defendant's additional reliance on the electronic 

recording of his statement is misplaced. As discussed supra, 

the record shows the defendant was given Miranda warnings, 

waived them, and understood that his voluntary statement was 

being preserved.
23

the motion judge clearly erred in finding that the officers' 

conduct was not intentional.

b. Prosecutor's comments on defendant's omissions. During 

the redirect examination of one of the police officers who had 

conducted the defendant's interrogation, the prosecutor asked, 

"During [the defendant's] lengthy interview with you, did the 

defendant ever say he saw a gun in the car that night?" The 

investigator answered that he had not. Then, during her closing 

statement, the prosecutor referenced this testimony, stating:

"At that point in time [the victim] doesn't point a gun at 

him, doesn't shoot at him, doesn't threaten him, nothing; 

and you know that because the defendant says none of that 

in his statement. He has the opportunity there in the 

statement to tell everything."

"The police practically beg him, tell us everything you can 

to help you. Tell us every detail. They even at the end 

say, you know, we're going to go do booking but if you 

think of anything, we can come back. Tell us everything. 

He never says that [the victim] pointed a gun at him or 

threatened him or that he saw a gun." (Emphases added.)14

14 During the interrogation, the defendant did not say that 

he saw the victim with a gun, but he did say that the victim 

"was a shooter," was "making motions," and was "acting kinda 

funny like he got somethin' or somethin' . . . actin' like he 

had a weapon." Toward the end of the interrogation, one of the 

investigators stated, "Tell me what we don't know. Tell me what 

we didn't ask you that we should've asked you." The

investigator asked multiple times whether there was anything the 

defendant wanted to "add or subtract" to his story or otherwise 

change, then or after booking. It is a reasonable inference 

that, if the defendant had seen the victim with a firearm, he 

would have said so, rather than limiting his account to these 

statements. See Commonwealth v. Doughty, 491 Mass. 788, 799 

(2023), quoting Commonwealth v. Joyner, 467 Mass. 176, 189 
24

The defendant contends that these statements violated his

privilege against self-incrimination, protected by the Fifth 

Amendment to the United States Constitution and art. 12 of the 

Massachusetts Declaration of Rights. The Commonwealth maintains 

that, because the defendant waived his Miranda rights and 

decided to proceed with the interrogation, it was not improper 

for the prosecutor to identify inconsistencies between omissions 

during the post-Miranda interview and the trial defense.15 The 

defendant did not object to either the direct examination 

testimony of the officer or the closing statement; accordingly, 

we review to determine whether either was improper and, if so, 

whether it created a substantial likelihood of a miscarriage of 

justice. See Commonwealth v. Alemany, 488 Mass. 499, 511 

(2021).

"'A defendant's silence after the police have given the 

warnings mandated by Miranda v. Arizona, 384 U.S. 436, 467-479 

(1966), may not be used against the defendant' to impeach an 

(2014) ("a prosecutor may argue reasonable inferences from the 

evidence").

15 In opening, the defense counsel contended that, based on 

certain facts to be introduced in evidence, such as the victim 

asking a friend to hand him something, the jury should ask, "Was 

there a gun in the car?" And in closing, the defense counsel 

argued that the police investigation was "a very shoddy way to 

look for evidence of a gun in that car," and again focused on 

the victim asking his friend to pass him something and putting

his hand in his pocket, inferring that the victim had a gun.
25

exculpatory explanation subsequently offered at trial." 

Commonwealth v. Guy, 441 Mass. 96, 103 (2004), quoting 

Commonwealth v. Waite, 422 Mass. 792, 797 (1996). See Doyle v. 

Ohio, 426 U.S. 610, 619 (1976) ("the use for impeachment 

purposes of [defendant's] silence, at the time of arrest and 

after receiving Miranda warnings, violated the Due Process 

Clause"). However, where a defendant voluntarily chooses to 

speak to police officers and waives his Miranda rights, "[w]hat 

the defendant thereafter [chooses] to say or not say to each 

officer on the subject [can] properly be commented on by the 

prosecutor to expose inconsistencies." Guy, supra at 104. "A 

defendant cannot have it both ways. If he talks, what he says 

or omits is to be judged on its merits or demerits, and not on 

some artificial standard that only the part that helps him can 

be later referred to." Id. at 104-105, quoting United States v.

Goldman, 563 F.2d 501, 503 (1st Cir. 1977), cert. denied, 434 

U.S. 1067 (1978). Cf. Commonwealth v. Belton, 352 Mass. 263, 

270, cert. denied, 389 U.S. 872 (1967) ("The remark complained 

of was not in effect directed at the defendant's silence while 

under arrest but rather at an inconsistency in his alibi which 

had been brought out during the trial").
26

The defendant does not now dispute that he voluntarily 

waived his Miranda rights.16 Accordingly, the prosecutor 

permissibly commented on the inconsistency between the 

defendant's position at trial that the victim had a firearm and 

that the defendant acted in self-defense, on the one hand, and 

his statement to the interrogating police officers that he 

believed the victim was armed based only on his knowledge of the 

victim and the victim's movements prior to the shooting, on the 

other.

The defendant misapprehends our decision in Commonwealth v. 

Haas, 373 Mass. 545, 559 (1977), S.C., 398 Mass. 806 (1986). 

There, we held that the defendant's failure to volunteer that he 

was innocent could not be used against him to imply tacit 

admission of guilt. Id. at 559-560. We have distinguished 

"asking the jury to infer guilt from the fact that a defendant 

had not spontaneously volunteered his innocence during an 

interrogation" from commenting on omissions in the defendant's 

statement to officers. See, e.g., Commonwealth v. Thompson, 431 

Mass. 108, 118, cert. denied, 531 U.S. 864 (2000), citing Haas, 

16 The defendant pressed this argument below, but has 

dropped it on appeal, and for good reason. His primary 

challenge to the validity of the Miranda waiver was that he was 

only advised that he was under arrest on his probation warrant, 

but the motion judge found that he was informed that he was 

under arrest for murder as well, and there is nothing in the 

record to suggest that the finding was clearly erroneous.
27

supra at 558-559 ("proper for the prosecutor to comment on the 

fact that the defendant did not ask appropriate questions" about 

what had happened to victim, his wife, during "far-ranging 

statement"). A prosecutor may comment on "the fact that the 

defendant did not inform the police at any time of certain 

important details of [his story] which was presented at trial," 

where the defendant told some details to the police. Belton, 

352 Mass. at 270.17 "The defendant had a constitutional right to 

silence, not a right to tell a story and then avoid explaining 

crucial omissions by stating they were an exercise of the right 

17 Nor are we persuaded that the reasoning of Commonwealth

v. Rivera, 62 Mass. App. Ct. 859, 862 (2005), cited by the 

defendant, suggests a different holding. See id. ("The 

defendant certainly was under no burden spontaneously to 

volunteer potentially exculpatory information in his statement 

to police"). There, the prosecutor commented on the defendant's 

failure to mention during his interrogation that there were

witnesses to the event; not mentioning witnesses during the 

interrogation was not inconsistent with presenting witnesses at 

trial. Id. By contrast, here, the defendant specifically told 

officers that he believed that the victim was armed based on the 

victim's prior statements and his movements in the car; he did 

not mention, as a basis for his belief that the victim was 

armed, that he actually saw that the victim carrying a firearm. 

At trial, the defendant's position was that one of the reasons 

he thought the victim was armed was that the victim actually had 

a firearm. The prosecutor's comment on the inconsistency was 

fair. See Commonwealth v. Lodge, 89 Mass. App. Ct. 415, 419 

(2016) ("Contrary to the defendant's claim, because the 

defendant waived his right to remain silent, and made a 

voluntary statement about the [issue], the concerns outlined in 

[Haas] do not apply here").
28

to silence." Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113 

(2011).

c. Review under G. L. c. 278, § 33E. After a review of 

the entire record, we discern no error warranting relief under 

G. L. c. 278, § 33E.18

3. Conclusion. We affirm the defendant's convictions of 

murder in the first degree and unlawful discharge of a firearm 

within 500 feet of a building. We vacate and set aside the 

defendant's conviction of unlawful possession of a firearm.19 

The defendant's motion for a new trial is denied.

So ordered.

18 We have considered the additional arguments in the 

defendant's brief filed pursuant to Moffett, 382 Mass. at 207-

208, and we conclude that they do not warrant granting his 

motion for a new trial.

19 "[T]he defendant's rights under the Second Amendment [to 

the United States Constitution] and his rights to due process 

were violated when he was convicted of unlawfully possessing [a 

firearm] although the jury were not instructed that licensure is 

an essential element of the crime." Guardado, 491 Mass. at 693.

"[O]ur holding [in Guardado] applies prospectively and to those 

cases that were active or pending on direct review as of the 

date of the issuance of [New York State Rifle & Pistol Ass'n v. 

Bruen, 142 S. Ct. 2111 (2022)]." Guardado, supra at 694. As to 

whether retrial shall be permitted, that issue is currently 

pending before the court and is scheduled for oral argument in 

September 2023. See Commonwealth vs. Guardado, No. SJC-13315. 

The rescript in this opinion shall be stayed pending our 

decision in that case.
BUDD, C.J. (concurring). I agree that the motion judge was 

correct to deny the defendant's motion to suppress and that the 

defendant's convictions should be affirmed. I write separately 

because, in my view, the plain and unambiguous language of the 

wiretap statute, G. L. c. 272, § 99 B 4 (§ 99), should apply 

even where police officers adhere to other legal requirements, 

such as providing a Miranda warning. Applying the plain 

statutory language in this case, I conclude that the officers 

violated § 99. Nevertheless, because the officers did not 

deliberately record the defendant without his knowledge during 

his confession, his statements need not be suppressed.

1. Interpretation. Subject to limited, enumerated 

exceptions,1 § 99 proscribes the secret recording of "the 

contents of any wire or oral communication through the use of 

any intercepting device by any person other than a person given 

1 In summary, the act contains exceptions for (1) employees 

or agents of common carriers, (2) persons possessing or using an 

intercommunication system in the ordinary course of their 

business, (3) United States investigative and law enforcement 

officers acting pursuant to the laws of the United States and 

within the scope of their authority, (4) any person authorized 

by warrant to make interceptions, (5) investigative or law 

enforcement officers acting to ensure the safety of another 

officer or agent who is undercover or serving as a witness for 

the Commonwealth, (6) financial institutions communicating with 

their corporate or institutional trading partners in the 

ordinary course of business, and (7) law enforcement officers 

investigating certain offenses in connection with organized 

crime. See G. L. c. 272, § 99 B 4 & 7, D. Neither the 

Commonwealth nor the court asserts that any of the statute's 

exceptions apply in this case.
2

prior authority by all parties to such communication" (emphasis 

added). G. L. c. 272, § 99 B 4. See Commonwealth v. Jackson, 

370 Mass. 502, 503 n.1 (1976), S.C., 391 Mass. 749 (1984). If 

none of the enumerated exceptions applies, "any person" includes 

law enforcement. See Commonwealth v. Burgos, 470 Mass. 133, 140 

(2014) (noting that law enforcement may record with only oneparty consent when investigating certain designated offenses in 

connection with organized crime). "Intercepting device" is 

defined as "any device or apparatus which is capable of 

transmitting, receiving, amplifying, or recording a wire or oral 

communication." G. L. c. 272, § 99 B 3. As we observed in 

Curtatone v. Barstool Sports, Inc., 487 Mass. 655, 658 (2021), 

the statute does not define "secretly." We therefore adopt its 

plain language meaning, which includes "something kept hidden or 

unexplained." Id., quoting Merriam-Webster's Collegiate 

Dictionary 1122 (11th ed. 2020).

With the all-party consent provision and the act's 

applicability to "any person," including law enforcement 

officials unless authorized, the Legislature has placed tight 

controls on secretly recording oral communications. 

Accordingly, this court has both consistently underscored the 

act's broad prohibition against secretly recording conversations 

except as authorized by the statute and maintained that the 

relevant inquiry under § 99 is whether individuals being 
3

recorded "have actual [or constructive] knowledge of the 

recording," which may be "proved where there are clear and 

unequivocal objective manifestations of knowledge" in the 

speakers' statements or conduct. Jackson, 370 Mass. at 507. 

See, e.g., Curtatone, 487 Mass. at 657-658; Commonwealth v. 

Moody, 466 Mass. 196, 208-209 (2013) (noting broad definition of 

"interception" under § 99); Commonwealth v. Tavares, 459 Mass. 

289, 297 (2011) ("clear legislative intent" to limit 

availability of wiretapping in criminal investigations); id., 

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

denied, 454 U.S. 1147 (1982) ("we have stated that the one-party 

consent exception is 'a narrow exception to the broad statutory 

prohibition against warrantless surveillance'"). See also 

Tavares, supra, quoting Thorpe, supra ("Legislature proceeded on 

the premise that electronic surveillance is anathema except 

within certain narrowly prescribed boundaries"). It is 

undisputed that the defendant did not have actual or 

constructive knowledge that he was being recorded. Given the 

language of the statute, and our prior precedent interpreting 

it, this finding is sufficient to conclude that an interception 

was made.

As a practical matter, a textual application of the statute 

in this case simply would mean that an individual being 

questioned by police must be given actual or constructive notice 
4

that he or she is being audio recorded (even where the

individual is aware that officers are taking notes and officers 

have provided a Miranda warning). See Commonwealth v. Hyde, 434 

Mass. 594, 605 (2001) (no violation of § 99 occurs when 

recording is done in plain view even if actual notice is not 

given).2 As this result is not illogical, we need not attribute 

intent to the Legislature where the statutory language speaks 

for itself. See Worcester v. College Hill Props., LLC, 465 

Mass. 134, 138 (2013) (where statutory language is clear and 

unambiguous, it is conclusive as to legislative intent and 

should be enforced unless application would lead to absurd 

result); Commissioner of Correction v. Superior Court Dep't of 

the Trial Court for the County of Worcester, 446 Mass. 123, 124 

(2006) (where statutory language is clear and unambiguous, our 

2 The United States Court of Appeals for the First Circuit 

has held that the application of the act to prohibit secret 

recording of police in carrying out their public duties violates 

the First Amendment to the United States Constitution. See 

Project Veritas Action Fund v. Rollins, 982 F.3d 813, 833-840 

(1st Cir. 2020), cert. denied, 142 S. Ct. 560 (2021) (Project 

Veritas). However, this conclusion was specific to the context 

of civilians recording police officers in the performance of 

their public duties. See id. at 831, quoting Glik v. Cunniffe, 

655 F.3d 78, 85 (1st Cir. 2011) (citation omitted) ("the 

[F]ederal constitutional guarantee of freedom of speech protects 

the right to record 'government officials, including law 

enforcement officers, in the discharge of their duties in a 

public space,' even when the recording, which there involved 

both audio and video, is undertaken without the consent of the 

person recorded"). See also Project Veritas, supra at 836-840. 

The analysis in Project Veritas does not apply here, where the 

subject of the secret recording is not a government official.
5

inquiry ends). In fact, advising suspects that their interview 

is being recorded is standard practice. See Commonwealth v. 

Alleyne, 474 Mass. 771, 785 (2016) (citing § 99 B 4, C 1, in 

clarifying that "[p]ermission to record an interview is not 

required so long as the interviewee has actual knowledge of the 

recording"); Commonwealth v. DiGiambattista, 442 Mass. 423, 445 

(2004) (citing § 99 in noting suspect may refuse to allow 

recording).3

Nor does Commonwealth v. Gordon, 422 Mass. 816 (1996), 

counsel us to go beyond the text in this case. In Gordon, we 

held that the videotaping of the defendants' booking at a police 

station did not violate § 99, even though the defendants had no 

knowledge of the taping. Id. at 832. In reaching that 

conclusion, we alluded to the act's "legislative focus . . . on 

the protection of privacy rights and the deterrence of 

interference therewith by law enforcement officers' 

surreptitious eavesdropping as an investigative tool." Id. at 

833. With that context in mind, we decided that the Legislature 

did not intend the act to apply to the recording of an 

administrative booking, where the "videotape did not capture or 

reveal the defendants' thoughts or knowledge about some fact or 

3 Indeed, an officer in this case testified that it is good 

practice for the police to inform those being interviewed that 

they are being recorded.
6

subject, but at best served only to exhibit the defendants' 

bearing and manner of speaking which were relevant on the 

question of their intoxication or sobriety at the time of the 

assaults" in question. Id. But Gordon readily is 

distinguishable from the present case because, here, the 

defendant's interrogation, not his booking, was recorded, and 

the recording plainly did capture the defendant's thoughts or 

knowledge about a fact or subject, namely, his actions, state of 

mind, and other circumstances during the night of the murder. 

Moreover, neither Gordon nor any of the cases decided since 

suggests that we intended to overrule Jackson. Instead, our 

decisions have continued to follow Jackson in focusing on 

whether a speaker has knowledge of the recording as the standard 

for determining whether a recording has been made "secretly" in 

violation of the act. See, e.g., Curtatone, 487 Mass. at 659 

(defendant did not secretly record telephone call in violation 

of act, where plaintiff knew that he was being recorded); 

Commonwealth v. Boyarsky, 452 Mass. 700, 705-706 (2008) 

(recording that is made with actual knowledge of all parties is 

not "an interception" under § 99); Hyde, 434 Mass. at 600-601 

(where no exceptions apply, recording made without knowledge or 

consent of all parties violates act even if no reasonable 

expectation of privacy).
7

2. Contemporaneous note-taking. For its part, the 

Commonwealth argues, and the court agrees, that because the 

defendant was aware that the officers were taking notes on his 

statement, and that his words could be used against him in 

court, the recording of the defendant's interview does not 

amount to the kind of "surreptitious eavesdropping" prohibited 

by § 99. However, nowhere does the statute state, or even 

imply, that memorializing speech through a nonintercepting

method, such as pen and paper, creates latitude to contravene 

the statute's prohibition on memorializing speech through the 

use of an intercepting device without notice.

The statute broadly defines "intercept" as to "secretly 

hear" or "secretly record." G. L. c. 272, § 99 B 4. There is

no doubt that the defendant was aware that he was being heard by 

the officers who were present and that his words were being 

memorialized through pen and paper. However, it also is 

uncontested that the defendant neither was informed nor 

otherwise made aware that he was being recorded. To determine 

that there is no "interception" where the "hearing" is not 

secret, but the recording is, ignores the phrase "to record" 

included in the definition of "interception." See Commonwealth

v. Daley, 463 Mass. 620, 623 (2012) ("In statutory 

interpretation, '[n]one of the words of a statute is to be 

regarded as superfluous'" [citation omitted]). Thus, the 
8

statute apparently contemplates circumstances in which one

openly hears a conversation and secretly records it through the 

use of an intercepting device. Such conduct is a violation of 

the statute based on its plain language.

Although strict, the Legislature passed one of the most 

stringent wiretap statutes in the nation by design. See Hyde, 

434 Mass. at 599 n.5 (discussing other States' wiretap laws);

Jackson, 370 Mass. at 506 & n.6. The preamble evinces this 

strictness by highlighting two concerns of the Legislature's 

that it attempted to balance in enacting the wiretap statute:

(1) law enforcement's ability to use "modern methods of 

electronic surveillance, under strict judicial supervision," to 

investigate organized crime and (2) protecting "the privacy of 

all citizens of the commonwealth." G. L. c. 272, § 99 A; 

Commonwealth v. Ennis, 439 Mass. 64, 68 (2003).

To effectuate this balance, the statute details the very 

limited circumstances in which law enforcement may record a 

member of the public without his or her knowledge or consent. 

See Hyde, 434 Mass. at 599 ("The commission clearly designed the 

1968 amendments to create a more restrictive electronic 

surveillance statute than comparable statutes in other States"). 

Again, neither the Commonwealth nor the court contend that any 

of these circumstances are present in this case. Bearing in 

mind the broad coverage of § 99 and the narrowness of its 
9

exceptions for law enforcement activities, we should not infer 

that the Legislature intended to exempt police officers from 

informing a member of the public that they are being recorded so 

long as the officers adhere to other, unrelated legal 

directives.

In accordance with our prior precedent, in determining 

whether the recording of the defendant's interrogation in this 

case was made "secretly" in violation of § 99, we should focus 

on whether the defendant knew that his interrogation was being 

recorded. The motion judge's findings that the defendant was 

not advised and did not have constructive notice of the 

recording have not been challenged. Thus, absent evidence of 

clear error, these findings conclusively should establish that 

the recording was made in violation of the statute.

3. Remedy. Although I conclude the interview was 

intercepted, as the term is defined in § 99, the statute "does 

not . . . require the suppression of all communications 

intercepted in violation of its provisions." Commonwealth v. 

Santoro, 406 Mass. 421, 423 (1990). As "[t]he Legislature has 

left it to the courts to decide whether unlawfully intercepted 

communications must be suppressed," id., I would affirm the 

motion judge's decision to deny the defendant's motion to 

suppress, as the court does today.
10

Exclusionary rules "are intended to deter future police 

conduct in violation of constitutional or statutory rights." 

Id. As such, this court has had occasion to affirm the denial 

of a motion to suppress recordings made in violation of the act 

where no deterrent purpose would be served by requiring 

suppression. See id. As one of the officers testified at 

trial, it was standard practice to inform those being 

interviewed that they were being recorded, and he had done so 

with another witness whom he had interviewed in the case.

Moreover, as the court notes, the motion judge found that 

the officers promptly had reviewed the defendant's Miranda and 

arraignment rights with him at the outset of the interview. 

Additionally, it is undisputed that, after being given his 

Miranda warnings, the defendant openly admitted to firing two 

shots into the car window where the victim was sitting, and the 

defendant does not contend on appeal that his confession was 

coerced. No deterrent purpose would be served by granting 

suppression in these circumstances.4

4 While § 99 defines "interception" as secretly hearing or 

recording the contents of any wire or oral communication through 

the use of any intercepting device, the act only penalizes 

individuals who commit willful interceptions. See G. L. c. 272, 

§ 99 B 4, C 1. As there is nothing to suggest that the officers 

in this case willfully recorded the defendant without his 

knowledge, they would not be subject to § 99'ssignificant 

penalties, which further supports the contention that no absurd 

result would come from adhering to the statute's plain text in 
this case. See Commonwealth v. Brennan, 481 Mass. 146, 154 

(2018) ("Wilful conduct is that which is 'intentional rather 

than accidental . . .'" [citation omitted]).