Opinion
18-P-1484
05-06-2020
COMMONWEALTH v. ALIA A. MUMAINAIM.
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
Following a probation violation hearing in the District Court, the defendant was found to be in violation of his probation and sentenced. In this appeal, the defendant claims that the judge impermissibly relied on uncorroborated hearsay, the evidence was insufficient to support the violation, and his counsel provided ineffective assistance. We affirm.
Background. The defendant's former girlfriend, A.S., obtained an abuse prevention order against the defendant on May 5, 2016. The order became permanent on May 8, 2017. Among other things, the defendant was ordered not to contact A.S. by any means, directly or indirectly or through another person. On September 19, 2017, A.S. received a voicemail on her cell phone from the defendant's brother requesting A.S. to call the brother. Upon returning the call, A.S. was told by the defendant's brother that he had talked to the defendant and that the defendant wanted him to tell A.S. to drop the restraining order so the defendant could see his children. The defendant was on probation at the time A.S. received the call from his brother. One of the conditions of the defendant's probation was that he abide by the terms of the abuse prevention order. A.S. reported the contact with the defendant's brother to the police. The defendant was charged in a criminal complaint with violation of the abuse prevention order and was issued a notice of violation of probation.
Discussion. 1. Hearsay. A.S. testified at the violation hearing to her cell phone conversation with the defendant's brother; in addition, there was testimony from the investigating police officer, and the police report of the investigation was submitted as an exhibit. The defendant contends there was insufficient evidence to support the judge's finding that the defendant violated a condition of his probation because the judge erred in relying upon the cell phone conversation, as it was uncorroborated hearsay and therefore should not have been admitted as evidence. We disagree.
The defendant claims the judge's finding was based entirely on the hearsay conversation between A.S. and the defendant's brother. The judge, however, indicated in his decision on the defendant's motion for a new trial that he had based his finding on "substantially reliable hearsay and non-hearsay statements." The judge indicated that the finding of a violation was based on the testimony of A.S., the investigating police officer, and the police report of the incident. The judge specified that it was his determination that the conversation between A.S. and the defendant's brother was not hearsay, but was a verbal act that had legal significance.
The defendant does not challenge the judge's finding that the hearsay evidence in the police report was substantially reliable.
In evaluating A.S.'s testimony about her conversation with the defendant's brother, we encounter two out-of-court conversations. The first conversation occurred between the defendant and his brother. We agree that this conversation constitutes a verbal act and would not be hearsay. "An out-of-court statement is hearsay where it is offered in evidence to prove the truth of the matter asserted. Mass. G. Evid. § 801(c), at 230 (2011). '[W]hen out-of-court statements are offered for a reason other than to prove the truth of the matter asserted or when they have independent legal significance, they are not hearsay.'" Commonwealth v. Purdy, 459 Mass. 442, 452 (2011), quoting Mass. G. Evid. § 801(c), at 233 (2011). "[W]ords used to effectuate the commission of a crime, or to make a contractual promise or describe its terms, or to form a criminal conspiracy or set forth its aims" are operative words that do not constitute hearsay. Purdy, 459 Mass. at 452-453.
Here, the notice of violation of probation included an allegation that the defendant failed "to abide by the restraining order." What the defendant said to his brother was not offered for the truth of what was asserted, namely that the defendant wanted A.S. to drop the restraining order so that the defendant could see his children, but was introduced to establish that the defendant contacted A.S. through another person. The portion of the conversation where the brother told A.S. that the defendant wanted him to tell A.S. to drop the restraining order had legal significance independent of trying to establish the truth of what the defendant wanted A.S. to do -- it was the operative language of the violation of probation, and did not constitute hearsay. The contact of A.S. by the brother at the request of the defendant, if believed, would establish the violation of the condition of probation. See Commonwealth v. Alvarez, 480 Mass. 1017, 1019 (2018); Mass. G. Evid. § 801(c), at 282-283 (2019).
A.S.'s testimony relating what the defendant's brother said to her constitutes the second out-of-court conversation and, because it is being offered for the truth of what the brother said to A.S., it is hearsay. Even so, the admission of the conversation between A.S. and the defendant's brother was still proper. In general, hearsay is admissible in a probation revocation proceeding either as an exception under the standard evidentiary rules or if determined by the judge to be reliable. See Commonwealth v. Bukin, 467 Mass. 516, 520, (2014). Indicia of reliability include statements that are factually detailed, based on personal knowledge and direct observation soon after the incident, corroborated in part by other evidence, provided under circumstances that support the veracity of the source, or provided by a disinterested witness. See Commonwealth v. Patton, 458 Mass. 119, 132 (2010). Hearsay must be substantially reliable if presented as the sole evidence of the probation violation. The record here provides sufficient indicia of reliability of the hearsay in the conversation between A.S. and the defendant's brother. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (finding of reliability implicit in fact that judge based findings on hearsay evidence). A.S.'s testimony of the conversation was detailed and based on her personal knowledge. A.S. immediately reported the call to the police and the police report provided corroboration of the existence of communication between A.S. and the defendant's brother. Further, the circumstances here supported the veracity of A.S. The police officer confirmed that a voicemail was left on A.S.'s cell phone and supported A.S.'s testimony that the defendant's brother wanted her to return his call. Any inconsistencies in the witnesses' testimony was for the judge to weigh in assessing credibility. See Commonwealth v. Buttimer, 482 Mass. 754, 765 (2019). The evidence provided sufficient support for the reasonable inference that the brother contacted A.S. on behalf of the defendant. See Commonwealth v. Russell, 46 Mass. App. Ct. 307, 310-311 (1999). We conclude that the record provided sufficient indicia of reliability to admit the hearsay evidence and that it supported the probation violation order.
We note that defense counsel objected, on hearsay grounds, when A.S. started to testify as to what was said by the defendant's brother in the voicemail message, but did not object to the conversation between the brother and A.S. when she returned the call to the brother.
"A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation." Commonwealth v. Durling, 407 Mass. 108, 111 (1990).
2. Ineffective assistance of counsel. Next, the defendant claims he received ineffective assistance of counsel because his defense counsel failed to object to A.S.'s testimony relating to her conversation with the defendant's brother on the ground that it was inadmissible as uncorroborated hearsay, and failed to call the defendant's brother as a witness at the violation hearing to testify that he did not make the call to A.S. We review claims of ineffective assistance of counsel using the two-prong test outlined in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The defendant bears the burden of establishing that counsel's behavior fell "measurably below that which might be expected from an ordinary fallible lawyer" and that such behavior has deprived the defendant "of an otherwise available, substantial ground of defence." Commonwealth v. Pike, 53 Mass. App. Ct. 757, 760 (2002), quoting Saferian, supra at 96.
Because we have determined that there was no error in admitting the conversation between A.S. and the defendant's brother, we conclude that defense counsel was not ineffective for failing to object. Further, we determine that the defendant failed to meet his burden of proof that defense counsel's failure to call the defendant's brother as a witness was ineffective. Defense counsel's strategy at the revocation hearing, as explained in his affidavit, was to argue that A.S. was not credible and therefore the probation violation was not supported by a preponderance of the evidence. We cannot conclude that defense counsel's failure to call the defendant's brother as a witness at the probation hearing was a manifestly unreasonable tactical decision. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006), quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978) ("A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was 'manifestly unreasonable' when made"). See also Commonwealth v. Hernandez, 63 Mass. App. Ct. 426, 430-431 (2005).
See note 2 supra.
The defendant produced no affidavits, from defense counsel or his brother, explaining the brother's absence from the probation hearing and indicating that his brother's testimony at the probation hearing would have benefitted the defendant's case. See Commonwealth v. Ortega, 441 Mass. 170, 178-179 (2004), quoting Commonwealth v. Collins, 36 Mass. App. Ct. 25, 30 (1994) ("without affidavits, no way to determine whether prospective witnesses' testimony would likely have made material difference"). Even assuming the brother would have testified at the probation hearing in a manner similar to his testimony at the defendant's trial, the judge's decision on the motion for new trial makes it clear that this testimony would not have made a difference. Therefore, the defendant has not proved that his defense counsel's performance fell "measurably below" that of an "ordinary fallible lawyer." Saferian, 366 Mass. at 96. See Ortega, 441 Mass. at 178-179 (defense counsel's failure to call certain witnesses not ineffective where defendant provided no affidavits from prospective witnesses setting forth their testimony).
At the defendant's jury-waived trial for violating the abuse prevention order, which was presided over by the same judge who heard the probation violation, the defendant's brother testified that he did not call or speak with A.S.
Order revoking probation and imposing sentence affirmed.
By the Court (Hanlon, Lemire & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 6, 2020.