Opinion
20-P-722
03-25-2022
COMMONWEALTH v. KIRK P. GORDON.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant appeals from a District Court order revoking his probation and imposing sentence. He contends that the finding of a probation violation was based solely on unreliable hearsay and that the judge imposed an improper sentence. We affirm.
Background.
In May 2019, while the defendant was on probation, a complaint issued against him alleging assault and battery on a child causing injury, possession of controlled substance, and operating a motor vehicle with a suspended license. The defendant was issued a notice of a probation violation and hearing. At the revocation hearing, two witnesses testified: a police officer for the Commonwealth and the defendant's brother for the defendant.
The officer testified that, after receiving a report of an allegation of child abuse, he spoke with the defendant's sister. She told the officer that she had observed injuries on the face of the defendant's son, and that she believed the defendant was responsible. When the officer located the defendant's vehicle, approximately five hours later, it was parked with the defendant's son alone in the backseat. The officer testified that he observed "some swelling on [the child's] face," and "discoloration consistent with a punch." The child told the officer that his father, the defendant, had struck him on the face. In contrast, the defendant's brother testified that he had also been with the child that day but had not seen any injuries to the child's face. He further testified that his "sister has always been sort of volatile[, ] especially towards my brother."
When the police arrested the defendant, they discovered a vial of oxycodone, prescribed to his girlfriend, on his person. Although the defendant claimed that he possessed the pills with his girlfriend's permission, an officer testified that she later told police that the defendant had stolen them from her.
The judge found that the defendant had violated his probation by having committed an assault and battery on a child causing injury and being in possession of a controlled substance. He sentenced the defendant to eighteen months in the house of correction.
The judge did not find that the defendant had violated the conditions of his probation based on the charge of operating a motor vehicle with a suspended license because "the Commonwealth [had] provided no evidence of the status of the . . . probationer's license at the time of the alleged operation."
Discussion.
1. Evidence of violation.
We review an order revoking probation for an abuse of discretion, Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014), and to determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the probationer] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass.App.Ct. 582, 594 (2000). Because a revocation hearing is not a criminal prosecution, requiring "the full panoply of constitutional protections," Commonwealth v. Purling, 407 Mass. 108, 112 (1990), "[h]earsay evidence that is substantially reliable may serve as the basis for finding a probation violation, and a determination of substantial reliability obviates what would otherwise be the defendant's due process right to confront the witnesses against him." Commonwealth v. Costa, 99 Mass.App.Ct. 435, 438 (2021) .
Here, the judge acted within his discretion in finding that the hearsay evidence was sufficiently reliable. The officer received two separate reports that the defendant had assaulted his son. The first, from the defendant's sister, was made just after the defendant had left with his son, when the sister was "frantic." The second, from the child himself, who explained to the testifying officer in detail that, "his dad gets angry a lot, yells a lot, and that he does feel afraid when he's around his dad." The child specified that the defendant struck him on "the right jaw line." These reports were corroborated by the officer's personal observations of the child's injuries. See Purling, 407 Mass. at 121.
From the bench, the judge found that the hearsay was "substantially credible." In his written findings, he indicated that he found the hearsay evidence to be substantially reliable because it was "based on personal knowledge and/or direct observation, "involve[d] observations recorded close in time to the events in question, was "provided under circumstances that support the veracity of the source," and was "factually detailed."
We are likewise satisfied that the probation violation based on the charge of possession of a controlled substance was supported by substantially reliable hearsay. The judge was not required to credit the defendant's self-serving statement, nor his brother's testimony, that the defendant possessed the pills lawfully. See Bukin, 467 Mass. at 521 ("It is the exclusive province of the hearing judge to assess the weight of the evidence") .
2. Sentencing.
The defendant argues next that the judge imposed a sentence based on improper considerations. As the Commonwealth notes, the eighteen-month house sentence did not exceed the statutory limit for either of the underlying offenses of assault and battery or resisting arrest. See G. L. c. 265, § 13J (b); G. L. c. 268, § 32B. "Once the sentence of straight probation was revoked, the judge was permitted to impose any sentence recognized under law for the original offense." Commonwealth v. Doucette, 81 Mass.App.Ct. 740, 744 (2012).
Order revoking probation and imposing sentence affirmed.
The panelists are listed in order of seniority.