Opinion
No. 16–P–121.
11-18-2016
COMMONWEALTH v. Mark MITCHELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order of a judge of the District Court revoking his probation. He argues that the Commonwealth failed to prove by a preponderance of the evidence that he violated the terms of his probation and that the judge failed to make adequate findings explaining the basis for his decision. We affirm.
Background. On April 30, 2015, the defendant pleaded guilty to assault and battery on a family or household member and assault and battery by means of a dangerous weapon. He was sentenced to concurrent one-year sentences on each count, with thirty days to serve, and the balance suspended for one year with probation. The terms of his probation included a condition that he not abuse the victim in the underlying case.
On August 13, 2015, the probation department served the defendant with a notice of probation violation, alleging "[f]ailure to comply with no abuse of victim." A probation revocation hearing was held the following month, at which the defendant's probation officer and the victim testified.
The probation officer testified that on August 12, 2015, the victim appeared in his office and reported that the defendant had physically and verbally abused her. Thereafter, she filed an application for an abuse prevention order under G.L. c. 209A (restraining order) against the defendant, along with a supporting affidavit describing the abuse. Although a judge granted the restraining order, the victim later requested that it be vacated.
In her testimony the victim confirmed that she had sought the restraining order and had written and signed the supporting affidavit, which described three separate instances of abuse by the defendant, including one that occurred on August 10, 2015. Nonetheless, she denied that the defendant had abused her at any time while he was on probation. She also claimed that she did not recall the major details of the incidents described in her affidavit. When questioned specifically about the August 10 incident, however, the victim admitted that she and the defendant had argued and that he had "kick[ed][her] in the process of [her] grabbing his leg to try to get him not to leave the room."
Over the defendant's objection, the judge admitted the victim's affidavit in evidence. At the conclusion of the hearing, the judge found the defendant in violation of his probation, revoked his probation, and ordered him to serve the balance of his sentences. The judge made a written finding that the basis for his decision was the defendant's "[f]ailure to comply with ‘No Abuse of Noted Victim’ condition."
Discussion. The defendant contends that the evidence was insufficient for the judge to find that he abused the victim. "A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 519–520 (2014). The standard of proof that applies in a probation revocation proceeding is the civil standard of a preponderance of the evidence. Id. at 520.
Here, the testimony at the hearing was sufficient to prove by a preponderance of the evidence that the defendant violated his probation. Specifically, the judge's order is supported by the probation officer's testimony that the victim came to his office reporting abuse by the defendant and later applied for a restraining order, and the victim's testimony confirming that she had applied for a restraining order and that the defendant had kicked her during an argument. Based on this testimony, the judge could permissibly find that the defendant violated the "no abuse" condition of his probation. Cf. Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) ( "Weaknesses in [the witness's] ability to ... recall affect the weight of the evidence and we do not disturb the judge's credibility determinations as fact finder").
Contrary to the defendant's assertions on appeal, the victim did not characterize the kick as "inadvertent."
Because the testimony was sufficient to support the judge's decision, we need not address the defendant's arguments that the victim's affidavit was inadmissible hearsay and that the judge erred by failing to make findings on the record as to its reliability. We remind the judge, however, that Rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings provides that "[t]he court may rely on hearsay as evidence of a probation violation only if the court finds in writing that the hearsay is substantially reliable."
The defendant also argues that due process required the judge to issue findings explaining the evidence he relied on and his reasons for revoking probation. Although we agree that it would have been preferable for the judge to make more detailed findings, "a separate written statement of the evidence relied on and the reasons for revocation ... is not an inflexible or invariably mandatory requirement and can be satisfied in other ways." Commonwealth v. Morse, 50 Mass.App.Ct. 582, 592–593 (2000). Like Morse, "this was a simple, straightforward case, and the entirety of the short transcript" supports, by itself, the judge's decision to revoke the defendant's probation. Id. at 593. The judge also made a written finding that his decision was based on the defendant's "[f]ailure to comply with ‘No Abuse of Noted Victim’ condition." We conclude that, in the circumstances of this case, the judge's finding met the minimal requirements of due process. See id. at 592–593 (basic goals of due process satisfied by judge's written finding that "defendant violated his ... probation ... [by] contact with [the] victim [on] 6/17/98").
Order revoking probation affirmed.