Opinion
16-P-976
03-10-2017
COMMONWEALTH v. Kevin R. JONES.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals a District Court judge's decision to revoke his probation. On appeal, the defendant contends that the judge erred in crediting hearsay statements as reliable and in determining that there was sufficient evidence that the defendant had violated his probation. We affirm.
Background . In March, 2016, while the defendant was on probation, a complaint was issued against him alleging assault and battery on a family or household member. A notice of a violation of probation was served on the defendant, indicating that he had violated the terms of his probation by violating a criminal law. A probation revocation hearing was held, at which three witnesses testified: a police officer for the Commonwealth, a private investigator for the defendant, and the defendant in his own defense.
The defendant pleaded guilty for operating a vehicle after revocation of a license and of assault and battery on a household member. He received a sentence of two years in a house of correction, six months to be served and the balance suspended until May of 2016.
The victim did not testify at the revocation hearing, nor did she testify before the grand jury the previous day. She was unable to testify because "her medical condition didn't allow her to travel."
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The officer testified that he responded to a call at Beverly Hospital, arriving to find the victim and her adult son in a hospital room. The victim was being treated for injuries sustained in an assault. The officer spoke to the victim, who stated that the defendant had "hit her, causing her to go to the floor" during an "altercation." Shortly after, the victim recanted, telling the officer that there had been no altercation and that her injuries—three fractured ribs and a fractured wrist—were the result of a fall. The officer then asked the victim's adult son to leave the room, at which point the victim again told him that the defendant had pushed her to the ground and had struck her with a closed fist.
The private investigator called by the defendant testified that the victim had told him that she had fallen while walking up the stairs, that the defendant "did nothing to her," and "she told me that the police made a bogus statement." The defendant testified that the victim had called him at work on the day of the alleged incident, saying that she had fallen and hurt her wrist. He further stated that they went to the hospital, went back to their apartment, and the defendant returned to work. When he later arrived at their apartment, he testified that the victim had told him that she had tripped and hurt her ribs but did not remember how.
The judge considered the evidence and stated that he credited the testimony of the police officer and the private investigator, but "I disbelieve the statements that were made to [the investigator] by [the victim]. And I do not credit the testimony of the defendant." Based on that, he found the defendant to be in violation of his probation. Subsequently, in response to the Commonwealth's motion for written findings, the judge wrote that the officer's hearsay testimony "was substantially trustworthy and demonstrably reliable," and reiterated the pertinent portions of the officer's testimony.
Discussion . The defendant contends that the judge's consideration of the victim's hearsay statements offered through the officer's testimony violated his right to confrontation, the judge erred in crediting the hearsay statements, and the judge abused his discretion in finding that sufficient evidence existed to conclude the defendant had violated the terms of his probation.
Hearsay has always been accepted at probation revocation hearings, and while "[u]nsubstantiated and unreliable hearsay cannot ... be the entire basis of a probation revocation," "[w]hen hearsay evidence is reliable ... then it can be the basis of a revocation." Commonwealth v. Durling , 407 Mass. 108, 118 (1990). The Supreme Judicial Court has established that "if reliable hearsay is presented, the good cause requirement [for the admission of hearsay] is satisfied." Commonwealth v. Negron , 441 Mass. 685, 691 (2004).
"[I]n assessing whether the hearsay evidence is reliable, a hearing judge may consider [a nonexhaustive list of factors, including] (1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity." Commonwealth v. Hartfield , 474 Mass. 474, 484 (2016). See rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Ann. Laws Court Rules, at 97 (LexisNexis 2015-2016). "There is no requirement that hearsay satisfy all ... criteria to be trustworthy and reliable." Commonwealth v. Patton , 458 Mass. 119, 133 (2010).
We conclude there was no error in the judge's determination that the victim's hearsay statements elicited through the testifying officer were reliable. The judge made written findings regarding the reliability of the officer's testimony, noting that the hearsay statements were consistent with the victim's injuries and provided specific details about the time, location, and circumstances around the altercation. Considering the facts of this case and the indicia of reliability detailed above, we conclude that the judge did not err in crediting the victim's hearsay statements.
The judge's ultimate decision whether to revoke the defendant's probation hinged largely on the victim's hearsay statements and the testimony of the defendant. As such, his crediting of the officer's testimony is determinative to the defendant's argument that the judge's ultimate decision to revoke his probation was erroneous. We review the judge's decision to determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge." Commonwealth v. Morse , 50 Mass. App. Ct. 582, 594 (2000).
Having already determined that there was no error in the judge's crediting hearsay statements offered by the officer as reliable, and being mindful that "[a]ssessing the weight and credibility of the evidence was within the judge's exclusive province," we conclude that there was sufficient reliable evidence to support the judge's ultimate findings. Commonwealth v. Janovich , 55 Mass. App. Ct. 42, 50 (2002). As such, the judge's finding the defendant to be in violation of his probation was warranted and the order revoking his probation is affirmed.
So ordered .
Order affirmed .