Court rules wiretapped confession can be used against alleged gang member charged with gunning down a 14-year-old on a JP basketball court

The Supreme Judicial Court ruled today that a wiretapped statement by an H-Block associate charged with murdering a young teen in a feud with the rival Heath Street gang can be used against him because H-Block is involved with the sort of "organized crime" for which state law allows wiretaps.

Timothy Hearns faces trial for a double shooting on May 8, 2010 that left Jaewon Martin dead and a second teen seriously injured. Prosecutors say the two victims had nothing to do with the feud and that Hearns was on a "mission" to intimidate Heath Street by opening fire on random people on its turf.

Because of the appeals, a trial date has yet to be set, although that could happen at a hearing on Thursday, the Suffolk County District Attorney's office reports.

At issue was how Hearns allegedly detailed how he shot his victims in a conversation with an informant who was wearing a wire.

Hearns's lawyers argued police failed to prove H-Block was an "organized crime" organization, which would make the tape of the conversation illegal because the state's wiretapping law only allows for surreptitious recordings in a few specific cases, including investigations of "designated offenses" related to organized crime.

The court ruled police provided more than enough evidence to suggest H-Block was organized - including information on how it had a central storage area for guns, which would be used by junior members on "missions" overseen by more senior gang members. Further, law enforcement provided sufficient evidence to make the case that Hearns was on just such a mission to intimidate the rival Heath Street gang by shooting up its turf at the Bromley-Health housing project.

Here, the information set forth in the affidavit and provided to MacDonald [the detective investigating the case] by individuals affiliated with H-Block was that the defendant, an H-Block member and known drug dealer, was sent on a "mission" by H-Block, a mission that was guided and observed by senior members in the organization, and that the mission was part of an ongoing "feud" (or war) between turf-conscious criminal organizations involved in the sale of illegal drugs in adjoining territory.

Although the specific origins and dimensions of the ongoing feud were not included in the affidavit, it is reasonable to infer from the information available to the police at the time, that the shooting at issue was intended as an act of intimidation directed at Heath Street and related to its competing illegal enterprises. In these circumstances, the Commonwealth, objectively, had a reasonable suspicion that the interception of conversations between a cooperating witness and an H-Block member, who had admitted involvement in the shooting would lead to evidence regarding the commission of the crime, its motivation, and its relationship to H-Block's organized criminal activities. That is, evidence of a "designated offense."

The court also upheld a lower-court judge's conclusion that the state constitution does not call for a warrant for recording a conversation in a car by an informant or undercover officer, unlike recordings of conversations in a home.

However, the court did rule prosecutors cannot use statements Hearns made in an interview with a police detective after he refused to talk any further.

Prosecutors argued Hearns only made the statement after the detective refused to say what evidence he had against Hearns and that he was just trying to negotiate some sort of deal, not exercising his Miranda rights. The court declined to accept that argument:

The defendant's statement, "Well then, I don't want to talk. I haven't got nothing to say," was a clear invocation of his right to remain silent.

Even if the officers were uncertain whether the defendant had chosen to invoke his right to remain silent, we have said that the proper course of action in circumstances such as these, is to attempt to clarify the defendant's statement to determine what he had intended. ... Rather than attempting to clarify the defendant's intentions, MacDonald attempted to convince the defendant to continue talking, erroneously telling him that he would be liable only for manslaughter or murder in the second degree if Martin had not been his intended target.

Finally, we do not agree with the Commonwealth's argument, or the motion judge's ruling, that the defendant's statement was merely a negotiating ploy, indicating that he wished to continue with the interview contingent on the actions of MacDonald. On review of the interrogation, no such negotiation took place. The defendant asked MacDonald if he would outline the evidence against him, and when MacDonald refused, the defendant indicated that he no longer wished to speak. What followed was not a negotiation, but further interrogation by MacDonald in an attempt to persuade the defendant to continue the interview.

• Complete ruling, Commonwealth vs. Timothy Hearns