Opinion
12-P-1723
02-23-2015
COMMONWEALTH v. ROBERT P. HOSEA.
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
In this consolidated appeal, we consider the defendant's challenges to the admission of hearsay statements at two separate final probation surrender hearings. Because the defendant raises the same challenges for each hearing, we allowed the request for a consolidated appeal. The defendant contends that in each of his final surrender hearings, the hearing judge (which was a different judge for each) erroneously admitted unreliable hearsay. Discerning no error, we affirm in both instances.
Discussion. Reliable hearsay can "be the basis of a revocation," but "when hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial." Commonwealth v. Durling, 407 Mass. 108, 118 (1990). "Ordinarily the revocation judge should excuse the witness originating the hearsay information only for 'good cause.'" Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 676 (2012), quoting from Durling, supra at 118, 122. However, "if the hearsay information satisfies the standard of substantial reliability or trustworthiness, the need to show good cause disappears." Henderson, supra. "In other words, if reliable hearsay is presented, the good cause requirement is satisfied." Commonwealth v. Negron, 441 Mass. 685, 691 (2004).
Factors substantiating the reliability of an out-of-court testimony include: "(1) whether the statements are 'factually detailed, rather than generalized and conclusory'; (2) whether the statements are 'based on personal knowledge and direct observation by the source'; (3) whether the statements are 'corroborated by evidence submitted by the probationer'; (4) whether the statements were 'provided under circumstances . . . support[ing] the veracity of the source . . .'; and (5) whether the statements come from 'a disinterested witness.'" Henderson, supra (citation omitted). This list, however, "is not exhaustive" and "the hearsay information need not satisfy all five criteria." Ibid.
The July 31, 2012, hearing. Applying these criteria, we see no error in the first judge's determination that both good cause existed for excusing the victim's presence at the hearing and that her out-of-court declaration was admissible as substantially reliable. The evidence at the July 31 hearing consisted of the testimony of the responding officer, who responded to a report of an alleged assault and battery in the park. When he arrived at the scene, he met with the victim, who was still being treated by medical personnel. The victim's face was bandaged and swollen. Her lip was bleeding and she smelled of alcohol. The victim told the officer that the defendant had dragged, kicked, and beaten her. The Commonwealth attempted to serve the victim with notice of the hearing; however, the victim was homeless with no fixed abode, and the attempt to provide notice failed. The judge was satisfied that good cause excused the victim's absence. We see no error in that determination. See Durling, supra at 117.
The defendant was alleged to have violated his probation by (1) committing a new offense, i.e., assault and battery by means of a dangerous weapon, (2) failing to provide the probation department with an accurate address, and (3) failing to pay court fees. The judge found the defendant in violation of his probation on the basis of all three allegations. The judge vacated the continuances without findings on the underlying offenses (as to which the defendant previously had admitted to sufficient facts), entered guilty findings, and sentenced the defendant to one year committed, with forty-five days to serve and the balance suspended for one year of further probation.
The judge also did not err in finding that the victim's statement was substantially reliable. The victim gave a firsthand account of how she was injured. She told the officer that the defendant had kicked, dragged, and beaten her. The officer's observations of the victim's swollen face and bloodied lip corroborated these claims. In addition, the officer spoke to the victim while she was still under medical care, suggesting little time for fabrication. Lastly, what she reported to the officer related to a crime, further bolstering its reliability. See Negron, supra ("In addition, it is a crime for a citizen to make a false report of a crime to police officers, see G. L. c. 269, § 13A, a factor that 'bolsters the reliability of the report[]'" [citation omitted]).
The October 23, 2012, hearing. At this hearing, the Commonwealth proceeded with the testimony of the responding officer and the submission of photographic evidence of the victim's injuries. The officer testified that he was dispatched to the Dunkin' Donuts on the Southern Artery in Quincy. He arrived to find the victim hiding behind a dumpster. She was upset and crying. The left side of her face was swollen, her nose was bleeding, and there was bruising around her left eye. The victim was initially reluctant to identity her attacker because she had extricated herself from the situation by promising her attacker that she would not talk to the police. Furthermore, her attacker had threated to kill her if she went to the police. Eventually, however, the victim identified the defendant as the person who had attacked her. She stated that he threw her to the ground and punched her several times about the face. She also provided a description of the defendant and gave his last known location. The officer went to that location and found the defendant sleeping on a bench. The officer asked the defendant if he had been in a fight that evening. The defendant admitted to a verbal altercation with the victim and acknowledged the victim's injuries but attributed them to her having fallen.
While on probation, the defendant was charged with committing an assault and battery and intimidation of a witness. A second judge found the defendant in violation on this basis, revoked the defendant's probation, and imposed the remainder of his committed sentence.
The corroboration for the victim's statements is substantial. The victim was cowering from fear and still under the influence of the startling event when she spoke to the officer. In addition, she provided a detailed account of the attack, her attacker, and her attacker's whereabouts, which was corroborated by the officer's observations of her injuries, the discovery of the defendant at the precise location she provided, the photographic evidence of the victim's injuries, and the defendant's own admission to having argued with the victim. We conclude, therefore, that the second judge did not abuse her discretion in admitting the victim's out-of-court statements at the defendant's final surrender hearing.
Orders revoking probation affirmed.
By the Court (Graham, Brown & Maldonado, JJ. , ),
The panelists are listed in order of seniority.
Justice Graham participated in the deliberation on this case prior to his retirement.
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Clerk Entered: February 23, 2015.