New Bedford Man’s Murder Conviction Highlights Need for Update Wire Communications Interception Statute

Bristol County District Attorney’s Office 

Thomas M. Quinn III 

District Attorney

Press Release

April 1, 2016

Bristol County District Attorney Thomas M. Quinn III announced today that a 31-year-old New Bedford man who had previously had his first degree murder conviction overturn due in large part to the state’s outdated wiretap statute has pleaded guilty to second degree murder and was sentenced to serve 15 to 17 year in state prison.

John Burgos, 31, stood accused of the July 4, 2005 shooting death of 31-year-old Dana Haywood in New Bedford.

The murder of Mr. Haywood went unsolved for four years until 2009 when investigators developed enough evidence to charge him with the murder. The case went to trial the following year and a jury of his peers found the defendant guilty of first degree murder, which carried an automatic life prison term with no possibility of parole.

A key piece of evidence at trial was a recorded confession by Mr. Burgos. On March 2, 2009 the defendant, while incarcerated on unrelated gun and drug charges, engaged in conversation with a friend who was also detained.  The conversation was recorded pursuant to a court order.  During the approximately one hour conversation, the defendant admitted to killing Mr. Haywood with William Payne, who is now deceased.  The defendant explained that he and Payne went to the Monte Park area to kill someone from the area, that Mr. Haywood was the first such person they saw and consequently it was his “judgment day.” 

The defendant’s legal counsel attempted to have the confession suppressed prior to trial, but that motion was denied by the trial judge. 

However, on November 21, 2014 the state’s Supreme Judicial Court ordered that the motion to suppress was erroneously denied by the trial judge . The SJC found that because the defendant was not engaged in a Mafia organization activity when he committed the murder, the court ordered warrant allowing the recording of the jailhouse confession was invalid.

The SJC ruling in this case illustrates the inherent weaknesses in the state’s current wire communications interception (wiretap) statute and the dire need to update it. Despite several attempts during the past decade to update the state’s wiretap statute, legislation continues to languish. The current wiretap statute in the Commonwealth of Massachusetts has not been modified to keep up with the changing times since its passage in 1968. 

Senate Bill 941, An Act to Assist in the Investigation of Serious Crimes, co-sponsored by Sen. James Timilty and Rep. Tackey Chan, seeks to once again amend the state’s wiretap statute, and calls the current statute “grossly outdated.” The bill specifically calls to replace the definition of “wire communication” with “transmitted communication” in an effort to update the statute to include current technology like text messaging. The bill would also amend the definition of “designated offense” to include homicides, crimes involving the use of force, drug crimes, firearm crimes and being an accessory to these types of crimes. This limited expansion of the statute would give law enforcement the tools it needs to target violent street crimes, which have been shown to utilize organizational structures similar to that of the mafia from previous generations.

SJC Chief Justice Gants, in a similar case of Commonwealth vs. Tavares, cited the need for the legislature to act when he wrote, “In short, the legislative inclusion of five words, “in connection with organized crime,” means that electronic surveillance is unavailable to investigate and prosecute the hundreds of shootings and killings committed by street gangs in Massachusetts, which are among the most difficult crimes to solve and prosecute using more traditional means of investigation. If the Legislature wishes to avoid this result, it should amend § 99 to delete those words.

 “This case is a clear example of why the statute needs to be updated. The statute needs to keep up with modern criminal enterprises, not just limited to the mafia. The defendant was convicted of first degree murder. As the chief justice said, the elimination of those five words would have upheld a conviction in this case and others like it,” said District Attorney Quinn. “The Massachusetts District Attorney’s Association has helped to file legislation to rectify the problem with the outdated nature of the language in the statute, and I will be meeting with our local legislative delegation to emphasize the need for the statute to be amended. We are not seeking to target low level offenders, but violent street gangs who sell narcotics and engage in organized criminal activity which often leads to serious violence.”

Gregg Miliote

Director of Communications