Opinion
13-P-1399
11-20-2014
COMMONWEALTH v. JOVON COWARD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the revocation of his probation based on his alleged commission of new crimes. On appeal, he claims the revocation of his probation was based on inadmissible hearsay, he was not properly notified of the nature of the allegations against him, and there was insufficient evidence that he committed an assault by means of a dangerous weapon. We affirm.
1. Hearsay evidence. The defendant argues the judge's revocation order must be set aside because it was based, at least in part, on inadmissible hearsay. We disagree. In general, hearsay is admissible in a revocation proceeding if it is reliable, and if reliable, then good cause has been established for its admission without cross-examination.See Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990).
We need not determine whether the witnesses' prior statements constituted excited utterances because the judge did not treat the statements as falling under that exception to the hearsay rule. See Mass. G. Evid. § 803(2) (2014).
Here, two percipient witnesses (the defendant's mother and aunt) testified, and the judge admitted the witnesses' prior hearsay statements through a case worker, a probation officer, and a police officer. The judge found that "[t]he source of the hearsay statements appeared in court and were subject to cross examination of the parties" and that the hearsay "statements were factually detailed, based on personal knowledge and direct observation of the source." See id. at 118 ("Unsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation. When hearsay evidence is reliable, however, then it can be the basis of a revocation"). To the extent the percipient witnesses changed or recanted their prior statements, the judge found their new version of events to be false.
The witnesses' prior hearsay statements included, among other things, the discovery of the bullets under the defendant's pillow, the defendant pointing a gun at his aunt's face and asking whether she was worried about "something like this," and telling his aunt that his friends knew what her car looked like, and that she "better . . . shut up" and "stop talking." From this, the judge properly concluded that the Commonwealth had established by a preponderance of the evidence that the defendant had unlawfully possessed ammunition, had committed an assault by means of a dangerous weapon, and had made threats, all in violation of the terms of his probation. See Commonwealth v. Ivers, 56 Mass. App. Ct. 444, 445-446 (2002). The judge was not required to credit the in-court testimony that endeavored to exculpate the defendant. See Commonwealth v. Pagan, 73 Mass. App. Ct. 369, 374 (2008).
2. Adequate notice. The defendant also claims that the amended notice of his probation violations was inadequate because it failed to expressly allege that he assaulted anyone by means of a dangerous weapon. While this is true, the defendant had actual notice of the allegation and has failed to show how he was prejudiced.
Here, the amended notice alleged, among other things, that the defendant had made "threats to [a] family member." One of the threats that the defendant was alleged to have made involved him pointing a gun at his aunt. The defendant was aware of this allegation for several weeks prior to the revocation hearing as he spoke about it to both his mother and his case worker. In fact, the defendant told his case worker that the aunt would recant the allegation. Thus, the defendant had actual knowledge of the allegation, and suffered no violation of due process. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 593-594 (2000). Indeed, the record reveals that he was not surprised by the allegation and argued against its credibility based on the aunt's ability to see a firearm in the dark.
3. Assault by means of a dangerous weapon. The defendant further claims that the judge's finding that he committed an assault by means of a dangerous weapon was inconsistent with the judge failing to find that the defendant possessed a firearm as defined by statute. See G. L. c. 140, § 121. We disagree.
The defendant's argument is based on a flawed premise. For a gun to be considered a "dangerous weapon," it need not meet the statutory definition of a firearm. "The standard definition of 'dangerous weapon' includes those items that are, by their nature, capable of causing serious injury or death, but also includes items that are used or displayed in a way such that they reasonably appear capable of causing serious injury or death." Commonwealth v. Powell, 433 Mass. 399, 401 (2001). In other words, the gun (or something resembling a gun) that the defendant pointed at his aunt need not have been a working firearm in order to support the judge's finding that the defendant committed an assault by means of a dangerous weapon. See Commonwealth v. Appleby, 380 Mass. 296, 305 (1980). Finally, contrary to the defendant's claim, the act of pointing a gun at his aunt was more than sufficient evidence that he committed an assault. See Commonwealth v. White, 110 Mass. 407, 409 (1872); Commonwealth v. Henson, 357 Mass. 686, 688-690 (1970).
Order revoking probation affirmed.
By the Court (Grasso, Kantrowitz & Meade, JJ.),
Panel members appear in order of seniority.
--------
Clerk Entered: November 20, 2014.