Opinion
10-P-2124
03-19-2012
COMMONWEALTH v. GWYNNE DOYLE.
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
On appeal from an order revoking her probation, the defendant argues that (1) the hearsay evidence relied upon by the judge was not sufficiently reliable, (2) the evidence was insufficient to establish a violation, and (3) the judge failed to make adequate written findings to satisfy due process requirements. For substantially the reasons set forth in the Commonwealth's brief at pages 19 through 38, we affirm.
1. Reliability of the hearsay. We reject the defendant's claim that the finding that she had committed a new offense rested on unreliable hearsay evidence, thereby denying her the right to confront her accuser and to due process of law. To the extent that the finding rested in part on hearsay, the hearsay was sufficiently reliable and trustworthy to show good cause and obviate the need for confrontation. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990); Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Although Brittany Ricketts did not testify, her father, Officer Stephen Ricketts, did. Officer Ricketts testified that Brittany told him that she checked her bank account on February 10, 2010, and discovered that her debit card had been used without her permission to make two withdrawals from an ATM at Waltz Auto in Taunton on February 9, 2010. She also told him that she had driven the defendant to Waltz Auto on February 9 and waited in her car while the defendant, who had previously asked to borrow money, went inside. She did not give the defendant her debit card or PIN number, but she had used the card in the defendant's presence in the past.
The judge did not err in finding, albeit implicitly, that Brittany's hearsay statements to her father were reliable. See Commonwealth v. Nunez, 446 Mass. 54, 58-59 (2006). Her statements were factually detailed, based on her personal knowledge and observations, and made when the events at issue were still fresh in her mind. See ibid. Moreover, her statements were corroborated by the defendant's admissions to Officer Ricketts and Sergeant Carreiro. See Commonwealth v. Durling, 407 Mass. at 118 (evidence that would be admissible under standard evidentiary rules presumptively reliable). Officer Ricketts overheard the defendant apologize for using the debit card as he listened to a conversation between the victim and the defendant over speaker phone. The defendant also admitted to Sergeant Carreiro that she had used the victim's card to get money so she would not lose her home. Indeed, the defendant herself testified that she used the victim's card to make the withdrawals from the Waltz Auto ATM, although she claimed that the victim gave her permission to do so and provided the PIN number. The judge plainly did not credit the defendant's explanation.
2. Sufficiency of the evidence. The evidence just recounted sufficed to establish by a preponderance of the evidence that the defendant violated her probation by committing larceny from a person and misuse of a credit card. See Commonwealth v. Kendrick, 63 Mass. App. Ct. 142, 149-150 (2005) (record disclosed sufficient reliable evidence to support finding of violation). In addition, testimony from a probation officer and documentary evidence (including a letter, reports from the probation department and a mental health counselor, and the probation ledger) sufficed to establish the technical violations alleged in the violation notice, including the defendant's failure to appear in court, to attend counseling sessions that were a condition of her probation, and to pay ordered probation supervision fees.
3. The record findings. The transcript of the surrender hearing provides a sufficient written record of the evidence and the basis of the violations found to satisfy due process requirements. See Commonwealth v. King, 71 Mass. App. Ct. 737, 739 n.5 (2008). In revoking the defendant's probation, the judge stated that she was 'satisfied by a preponderance of the evidence that the probationer ha[d] violated the terms and conditions of her probation' and that her decision was based on 'all the proposed violations.' The defendant did not request written findings, and the judge made clear the evidence on which she relied and the basis for the determination that the defendant, who had previously violated probation, had again violated her probation in particular respects and was not a suitable candidate for continued probation. See Commonwealth v. MacDonald, 53 Mass. App. Ct. 156, 159-160 (2001).
While written findings are preferable, the judge here made oral findings on the record. The oral recitation of reasons for revocation, when transcribed, satisfies the requirement of a written statement by the fact finder. See Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980).
Order revoking probation affirmed.
By the Court (Grasso, Kafker & Milkey, JJ.),