Opinion
No. 11–P–1791.
2013-07-2
COMMONWEALTH v. Joshua McKENZIE.
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a Superior Court judgment finding him in violation of the terms of his probation by committing new criminal acts. He argues on appeal that he was not properly notified of the violation and the judge erred in finding, based only on hearsay testimony that substantially lacked reliability, that he had committed a probation violation. We affirm.
Background. On November 8, 2010, while on probation for violation of a restraining order, the defendant was charged in the Concord District Court with threatening to commit a crime, witness intimidation, and unarmed robbery in Maynard. The following day, he was served in hand with a notice of probation violation, specifically alleging those facts. The hearing was split over two days, as the prosecutor was hopeful that she would obtain the testimony of the larceny victim, Naomi Brown. Keith Calareso and the arresting officer, Tony Rego, testified on the first hearing day; the defendant and his probation officer, Joseph Centrella, testified on day two. Calareso was obviously a reluctant witness, but he testified that Naomi Brown was sitting in his car when the defendant drove up and there was “a little altercation. He took her purse ... He just took it and walked away.” Calareso also testified that, “before he took off” the defendant said to him, “You're dead.”
At the time of the plea on the underlying case, the defendant had also pleaded guilty to two charges of threats, for which he received a sentence of 172 days, deemed served.
The District Court charges were later dismissed.
Earlier, on March 18, 2010, the defendant had been found in violation of the terms of his probation in this case. As a result of that violation, he had been sentenced to two and one-half years in a house of correction, six months to serve, with the balance suspended during a probationary period of two years. It is this suspended sentence that is at issue in the present case.
Brown did not testify although she was subpoenaed to appear by Probation Officer Centrella; after informing the court by telephone that she was ill and unable to attend the first day of the hearing (February 8, 2011), she again contacted Centrella and informed him of her intention not to appear on the second day of hearing. The judge did not “draw any inference from ... her absence.”
Rego testified that he was sent to a location, where his sergeant told him to place the defendant under arrest; at the same time, he was given a purse that had been retrieved from the car in which the defendant was travelling. Rego later took a statement from Brown, who “seemed scared and ... distraught.” He asked her to go through the purse and to see if anything was missing. Another officer retrieved, from McKenzie's wallet, Brown's social security card and a twenty dollar bill. There was no cell phone. The police returned to Brown her purse and social security card and the twenty dollars.
On the second day, the defense attorney asked questions of Probation Officer Centrella, pointing out the defendant's employment and enrollment in a batterers' intervention program. The defendant testified that, when he and Brown ended their relationship, she had “three different cell phones” he said belonged to him. On November 8, 2010, he met Brown by chance and “went over and asked her where my cell phone was and at the time she told [me] she didn't want to talk to me.... And I got aggravated so I was a little upset, you know, my phone had a lot of pictures of family, a lot of personal information on that phone so I took Ms. Naomi Brown's pocket book.... I was actually really aggravated because she was with Keith who used to be quote, unquote, my friend.” He said that, after searching the purse and finding no cell phone, he intended to return the purse to Brown but he was stopped by the police before he could do that. He also said that he had kept the social security card on his person because he “initially had purposes of just dropping off the card, I didn't want to leave her property, especially identification purposes like that ...”
In addition, the parties appear to agree that the judge reviewed and relied upon Officer Rego's police report, which is included in the record before this court, although there is no mention of it in the transcript. The report contains the officer's description of his interview with Brown; she told him that the defendant had ripped her purse away from her; that she had tried to hold on to it, but that he had succeeded in taking it and then jumped into a car and drove off. Afterwards, the defendant called her and told her that, “if she called the police, he would make sure that she and her family be killed.”
The judge found that the defendant had possessed the “intent to deprive indefinitely” the victim of her pocketbook and had threatened Calareso; for these reasons, he found that the defendant had “violated the terms of his probation, at least by reason of a larceny, a larceny from a person and by reason of making threats.” The defendant was ordered to serve the balance of his suspended sentence
Notice of violation. The defendant first argues that the written notice of violation was deficient because the crimes referenced pertained only to Brown but not to any threat made to Calareso. His position is that, because he never received a supplemental written notice specifically alleging the threat against Calareso, he could not be found in violation of his probation. This argument is meritless.
First, the notice of probation violation states “Threat [to Commit a] Crime,” without specifying a victim. Second, Calareso was the first witness; he testified to the threat on February 8, 2011, and he was cross-examined; the hearing was then continued to March 1, when the judge found the violation. At no time, did the defendant object to the hearing, or to Calareso's testimony, ask for a continuance or otherwise bring to the judge's attention his claim that the notice was defective. His objection, therefore, was waived.
In addition, the defendant agrees that he received a written notice of an alleged probation violation, bringing to his attention the events of November 8, 2010. See Commonwealth v. Durling, 407 Mass. 108, 113 (1990). The notice gave the defendant “fair warning of the charges” that he had violated a criminal law.
Finally, even if the defendant had objected timely to considering the threat to Calareso as a probation violation, and had prevailed in having it eliminated as a basis for finding a violation, the judge properly could have heard the testimony and considered it in deciding whether to revoke the defendant's probation. See Commonwealth v. Herrera, 52 Mass.App.Ct. 294, 295 (2001) ( “reliable evidence of misconduct not charged as a ground of probation violation, where relevant to the judge's discretionary decision whether to revoke probation or modify conditions, may be considered without offending” due process principles). We see no error.
Hearsay testimony. The defendant next argues that the judge erroneously relied upon unreliable and untrustworthy hearsay evidence in finding him in violation of probation. He contends that, although two witnesses testified for the Commonwealth, their testimony was not based on personal observations, but rather, the witnesses were merely repeating statements made by third parties; the defendant also asserts that Brown's statements contained in the police report should be considered unreliable because she did not appear to testify. This argument also fails.
The Maynard police report was prepared by Rego and contained “primary facts, not mere conclusions or opinions.” See Durling, supra at 121. The report included the officer's observations of Brown and her detailed recounting of what had occurred. In addition, Officer Rego testified that he had arrested the defendant and taken from the scene a purse, later identified by Brown as hers, along with her social security card and a twenty-dollar bill she said that the defendant had taken from her. Calareso testified about his personal observations of the incident, essentially corroborating the account that Brown had given to the officer; he testified specifically that the defendant said to him “you're dead” as he left the scene. Finally, the defendant also testified, largely corroborating Brown's statement of the incident, at least to the extent that he took her purse away from her. This record clearly supports the judge's determination that the portion of the evidence that was hearsay was reliable. See Commonwealth v. Thissell, 457 Mass. 191, 195–196 (2010), and Commonwealth v. Henderson, 82 Mass.App.Ct. 674, 677–679 (2012). In addition, the record amply supports the judge's finding that the probation department had met its burden of proving, by a preponderance of the evidence, that the defendant violated the terms of his probation by committing new offenses.
Order revoking probation affirmed.