Opinion
No. 15–P–1182.
06-24-2016
COMMONWEALTH v. Derek E. SCHERER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Derek E. Scherer, appeals from an order of the District Court finding that he violated the terms of his probation by committing a new offense, specifically, assault and battery upon a household member. On appeal, he asserts that the judge violated his due process right to present evidence when the judge excluded what the defendant claims to be reliable hearsay evidence, i.e., the victim's postincident written statement. The defendant further contends that the judge erred in failing to consider that evidence at sentencing. We affirm.
Discussion. 1. Evidentiary ruling. The defendant asserts that the judge improperly excluded from evidence a written statement the victim executed subsequent to the incident and after she had already invoked spousal privilege. The defendant claims this second statement is admissible because it is consistent with the prior statement she gave to the police which was in evidence. He asserts this second statement completes her earlier version of the events. We disagree.
The defendant properly does not challenge the judge's determination that the victim's initial account to the police was reliable and admissible in that the statement was made close in time to the incident, while the victim was still under the influence of the triggering event, and was factually detailed. See Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), quoting from Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (“[W]hile ‘[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’ ”). By contrast, the second statement was made long after the incident, the victim was no longer under the influence of the event, and the statement lacked specificity and detail. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (hearsay has been seen as reliable when “factually detailed, based on personal knowledge [,] ... made soon after the events at issue,” and “corroborated by the observations” of responding police officer). See also Commonwealth v. Patton, 458 Mass. 119, 132–133 (2010) (listing five nonexclusive factors for when hearsay that does not fit evidentiary exception is nevertheless substantially reliable). Accordingly, we perceive no error. Nor do we see any prejudice flowing from the exclusion of the statement. See generally Commonwealth v. Pariseau, 466 Mass. 805, 810–812 (2014) (requiring showing of prejudice to sustain due process claim).
In her second statement, the victim does not deny the allegations. Her reference to a “verbal altercation” in that statement, without more, did not retract or contradict her prior allegation that there was an episode of physical violence. Even defense counsel acknowledged during the revocation hearing that the statement was not inconsistent with the statement she previously provided to the police and that was in evidence. In essence, the proffered statement was cumulative and provided nothing new on the question of revocation. See Commonwealth v. Alammani, 439 Mass. 605, 610–612 (2003) (exclusion of statements involving facts of which jury were already aware would have been cumulative, and any erroneous exclusion would not have prejudiced defendant).
Finally, we note that the victim made the second statement subsequent to her invoking spousal privilege and, therefore, its admission potentially could have exposed the victim to waiver of that privilege and cross-examination. In addition, to the extent the second statement materially differed from the first statement she gave to the police, its contents could have also exposed her to criminal prosecution for filing a false report. Therefore, we conclude the judge did not abuse his discretion and, further, we commend him on his exercise of caution in the circumstances.
2. Sentencing. At oral argument, counsel asserted the statement was, nevertheless, admissible and relevant to disposition. Even if the statement had been proffered for this purpose, we fail to see the prejudice from its exclusion. Defense counsel properly put the victim's sentiments before the judge, arguing “that [the victim] loves [the defendant] very much” and “wants him home.” Defense counsel also indicated that she and the defendant are “dedicated to trying to work things out.”
Order revoking probation affirmed.