Opinion
14-P-207
12-17-2014
COMMONWEALTH v. WILLIE KING.
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
The defendant, Willie King, appeals from the revocation of his probation after he was charged with vandalism. He subsequently pleaded guilty to that charge, but argues that the order revoking his probation should be reversed because he did not receive a chance to cross-examine a witness due to lack of a language interpreter. We affirm.
Background. The defendant pleaded guilty to a litany of charges and was ultimately placed on probation, which he repeatedly violated. Eventually, the defendant was arrested and charged with vandalism after damaging a woman's glass door at the Algonquin Heights housing complex on August 26, 2013.
A District Court judge found the defendant in violation of the terms of his probation on September 27, 2013. The judge ordered him to serve the balance of his one-year sentence. On March 27, 2014, the defendant pleaded guilty to the vandalism charge and was sentenced.
Discussion. The defendant argues that his constitutional right to cross-examine the victim at the revocation hearing was denied because the judge did not appoint a certified language interpreter to assist with the victim's difficulty in speaking and understanding English.
At no point in the hearing did the defendant request an interpreter or request that the hearing be suspended until an interpreter became available. The hearing included testimony from the responding police officer, who explained the incident in detail, and the victim. Defense counsel cross-examined the victim until the victim indicated that she did not want to continue without an interpreter. Defense counsel then moved to strike her testimony. The judge denied the motion but said that seeking to suspend the hearing would "certainly be a reasonable request." Counsel declined and said that he wanted the hearing to continue. The judge then mentioned the possibility of a court employee, who was not a certified interpreter but was fluent in Spanish, serving as an interpreter. Defense counsel objected and declined to ask further questions of the victim on cross-examination. The hearing then resumed and concluded with the judge finding a violation.
A probation revocation hearing involves two stages: adjudication and disposition. Commonwealth v. Pena, 462 Mass. 183, 187 (2012). A conviction or guilty plea to a new charge renders moot a claim that the judge erred in finding a violation during the adjudication stage. Commonwealth v. Milot, 462 Mass. 197, 201 (2012). A conviction or guilty plea does not render moot an argument "that some aspect of the proceeding violated the probationer's constitutional rights" because of the potential impact on the second stage, disposition. Ibid.
Under the facts of this case, the subsequent guilty plea mooted the issue at hand. See id. at 200-201. Even if it did not, the defendant would fare no better. The responding police officer provided reliable testimony that independently supported the judge's finding of a violation. The officer testified that the victim identified the defendant as being among the men who damaged her door and explained to him in detail how the damage occurred. The officer also testified that the defendant was arrested nearby shortly after the incident, and that the defendant yelled to another suspect to "tell them that you did it." The officer stated that he observed the broken glass door and collected some of the wood that caused the damage. Even though the judge stated that she understood the victim's testimony, the officer's testimony alone would have been sufficient to support the judge's finding.
For these reasons and for substantially those set forth in the brief of the Commonwealth, we affirm.
Order revoking probation and imposing sentence affirmed.
By the Court (Kantrowitz,
The panelists are listed in order of seniority.
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Clerk Entered: December 17, 2014