Opinion
14-P-269
03-27-2015
COMMONWEALTH v. KETH PHIATHEP.
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
The defendant appeals from the order revoking his probation. The revocation was based upon the judge's findings that the defendant had violated a criminal statute by assaulting an individual named Grossi and that the defendant had failed to comply with a condition of probation that he stay away from Grossi.
The victim was identified both as Grossi and Gursey in the record. For the purposes of this opinion, the victim will be referred to as "Grossi."
The only witness at the revocation hearing was the arresting police officer. The police officer testified that he had received a report of a domestic disturbance at 129 Westford Street in Lowell and proceeded toward that address. A second dispatch came directing him to 81 West Ridge Street. When the officer arrived at 81 West Ridge Street, Grossi would not come outside, looked in the direction of 129 Westford Street, where the defendant was, and appeared to be scared and upset but not "very upset." Grossi told the police officer that she had been at 129 Westford Street when she had an argument with the defendant because she wanted the defendant "out of" 129 Westford Street and when the defendant got angry he moved toward her with a closed fist and tried to hit her in the head. Grossi told the police officer that after this incident she ran toward 81 West Ridge Street. After speaking with Grossi, the police officer went over to 129 Westford Street and arrested the defendant in front of that address.
"While '[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, 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. Bukin, 467 Mass. 516, 520 (2014), quoting from Commonwealth v. Durling, 407 Mass. 108, 118 (1990). Here, the defendant contends that the judge abused her discretion in allowing in evidence and then relying on Grossi's hearsay statements. The defendant contends this was an abuse of discretion because the hearsay statements were not substantially reliable and trustworthy. We disagree.
The record supports the judge's determination that the hearsay was substantially reliable and trustworthy. A record supports finding that statements are reliable if the statements "are factually detailed, based on personal knowledge and direct observation, made close in time to the events in question, and corroborated by the observations of [the officer]." Commonwealth v. Negron, 441 Mass. 685, 691 (2004). See Commonwealth v. Patton, 458 Mass. 119, 133-134 (2010) (Patton) (listing five nonexclusive factors that should be considered in determining when hearsay evidence that does not fit an evidentiary exception is nevertheless substantially reliable). Here, Grossi told the police officer based upon her personal knowledge and observations that "[s]he had an argument with [the defendant]. She wanted him out of [her apartment], but -- but he got angry, so he moved at her with a closed fist, tried hittin' [sic] her head, but she moved, and then was able to move away from him, ran out towards 81 West Ridge Street . . . ." The testifying officer's observations of Grossi's demeanor as well as the officer's observation of the defendant soon after taking Grossi's statement outside the location where she said the assault had occurred shortly before corroborated to some extent Grossi's statements. In addition, the judge considered the appropriate factors prior to crediting the hearsay statements. ("I find that [the police officer's] testimony regarding the statements from the alleged victim, the hearsay was substantially reliable. It was detailed. He made observations of her that corroborated in terms of her demeanor"). We discern no abuse of discretion in the judge's decision to admit the hearsay testimony and to rely upon it.
The five criteria "to be considered on the question of trustworthiness and reliability: (1) the level of factual detail, rather than generalized and conclusory assertions; (2) whether the statement is based on personal knowledge and direct observation; (3) whether the statement is corroborated by evidence submitted by the probationer; (4) whether the statement was provided under circumstances that support the veracity of the source; and (5) whether the statement was provided by a disinterested witness." Patton, supra at 133-134. "There is no requirement that hearsay satisfy all the above criteria to be trustworthy and reliable." Id. at 134.
Grossi's failure to appear after being summonsed could be indicative of the statements being unreliable or could be indicative of her fear of facing the defendant. Since this evidence "cuts both ways," as the defendant suggests, it is appropriate to rely on other information to assess the reliability of the statements.
Although the judge inappropriately indicated that "[t]he source was disinterested" on the probation violation finding and disposition sheet, this alone is not indicative of an abuse of discretion in relying on the hearsay when that reason was not discussed during the hearing and there was ample support for the judge's finding that the hearsay was reliable on the record.
Order revoking probation affirmed.
By the Court (Trainor, Brown & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 27, 2015.