Opinion
15-P-81
02-23-2016
COMMONWEALTH v. IVO C. DEPINA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the revocation of his probation, arguing that there was insufficient evidence to establish disorderly conduct and that the hearsay evidence concerning the assault and battery was unreliable. We affirm.
A determination whether a violation of probation has occurred lies within the discretion of the hearing judge. Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990). The Commonwealth must prove a violation of probation by a preponderance of the evidence. Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). Under that standard a proposition is proved if "it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001) (citation omitted).
The defendant first argues that the public element of disorderly conduct, G. L. c. 272, § 53, was not shown because there was no evidence concerning where the defendant assaulted the victim. We are not persuaded. For these purposes, "public" is defined as "affecting or likely to affect persons in a place to which the public or a substantial group has access." Commonwealth v. A Juvenile, 368 Mass. 580, 586 (1975) (citation omitted). This requirement is met where the conduct takes place on a public street. Commonwealth v. Mulvey, 57 Mass. App. Ct. 579, 582 (2003). Here, an unnamed person telephoned 911 to report having observed a man (the defendant) assaulting a woman inside a car and having a hold on her neck. The victim testified that she had been out driving in the car with the defendant before police arrived. From this evidence, the judge could reasonably infer that the assault took place on or near the public ways.
Although it is true, as the defendant argues, that "[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation," "[w]hen hearsay evidence is reliable, . . . then it can be the basis of a revocation." Durling, 407 Mass. at 118. Here, the defendant challenges the reliability of the police report. "The use of police reports has long been recognized as appropriate in probation revocation proceedings, provided that the reports bear indicia of reliability." Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 536 (2014). Those indicia were present here. The report was detailed and based on the firsthand observations of the police officer. Much of the report's contents consisted of physical observations confirming the assault, including blood in the car, the trail of blood leading from the car to the house of the victim, and the defendant's flight when the officers arrived. The report was written on the same day as the observations. There is nothing to suggest that the responding police officer's observations were inaccurate or biased.
Order revoking probation affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.