Opinion
14-P-1274
06-08-2015
COMMONWEALTH v. ALBERTO SILVA.
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 a District Court order revoking his probation, arguing that the notices of probation violation were constitutionally inadequate and that the judge erroneously relied on hearsay testimony. We affirm.
Background. On November 16, 2012, the defendant pleaded guilty to assault and battery by means of a dangerous weapon and assault and battery. He received a sentence of two years in the house of correction, suspended, and two years of probation. The terms of probation included "[o]bey[ing] all court orders and all local, [S]tate and [F]ederal laws." Special terms of probation included staying away from and having no contact with his wife (the victim), completing a certified batterer's intervention program, and reporting to his probation officer at 11:00 A.M. on November 27, 2012.
The defendant did not report on November 27, 2012. On December 3, 2012, the defendant was notified that he had violated his probation by failing to report and having no further contact with his probation officer. He was ordered to appear in the District Court on December 11, 2012. He did not do so.
The notice bore the handwritten date "1/3/12." However, as it ordered the defendant to appear in court on "12/11/12," we assume that the correct date of the notice was December 3, 2012. The defendant does not argue that he did not receive notice to appear in court on December 11.
On August 8, 2013, the defendant received a second notice of probation violation, alleging that he had "violated one or more criminal laws, namely: Complaint No. 12-26CR-2058, Threat to Commit [a] Crime [on] 12/7/12 [in] Chatham." "Other violation(s)" included "Failure to report to Probation" and "Defaulted at Surrender on 12-11-12." The defendant was detained pending a hearing scheduled for that day, because the judge found probable cause "to believe that the following alleged violation of probation has occurred: new offense: 1226-2058 (threats [murder]), alleged victim reportedly has open restraining order; limited amounts of contact with probation." The December 3, 2012, notice was "updated" on August 8, 2013, to reflect the fact that the defendant had defaulted at the December 11, 2012, surrender hearing.
A probation hearing took place before a judge in the District Court. The victim invoked the marital privilege and did not testify. The judge heard testimony from the defendant's probation officer and from a Chatham police officer. The probation officer testified that the defendant did not report to probation on November 27, 2012. The police officer testified that on December 7, 2012, he responded to the victim's house after she called to report a restraining order violation. He spoke to the victim and established that she was the one who had made the report. The victim "detailed over the last couple weeks she'd been receiving text messages and phone calls from her husband [the defendant]. Those text messages were stated to be threatening. [The officer] did not see those text messages." The officer was "basing [his testimony] off what she told [him]." The defendant objected to the officer's hearsay testimony, arguing that it lacked sufficient indicia of reliability. The judge asked the officer what information he had about the threats, and the officer stated:
"Specifically her own words she said that she answered the phone earlier that day about twenty minutes before my arrival. She was positive that it was her husband who was calling, though he was calling from a blocked phone number. She answered the phone and in her own words what he said -- told her was that he was going to find her and he was going to kill her and go to jail happily."Further, "[h]e says he knows what time she works and what time she leaves and that he will find her." The judge found the hearsay reliable, and the officer confirmed that the defendant was charged with making threats.
The defendant was not charged with violating a restraining order, although one was in effect, because he had yet to be served.
After cross-examining the police officer, defense counsel again objected to the hearsay testimony on the basis of reliability. The judge again found the hearsay reliable, because "she's gone to the officer, there's been a -- she's been the subject of a restraining order, it was at her address, [and] she can be prosecuted for making a false statement." The judge found the defendant in violation of his probation for making the threats, and probation was revoked.
Discussion. The defendant first claims that he was denied due process of law because he was found to have violated probation by making threats to commit murder without notice of such charges. Even if this argument was not waived because the defendant failed to bring the alleged error to the judge's attention, see Commonwealth v. Morse, 50 Mass. App. Ct. 582, 589-590 (2000), and cases cited, it requires little discussion. The August 8, 2013, notice of probation violation identifies the docket number of the new case against the defendant, which charged him with threatening to commit murder. The notice identifies the nature of the charges in that case ("Threat to Commit [a] Crime"), as well as the date and location of the alleged violation. The defendant thus could identify precisely which actions he is alleged to have taken on which date that violated his probation. Moreover, the defendant was notified that he was being detained on August 8, 2013, because there was probable cause to believe he had violated probation by being charged with "new offense: 1226-2058 (threats [murder])." "These two notifications, taken together, adequately conveyed to [the defendant] the nature of the charges against h[im]." Fay v. Commonwealth, 379 Mass. 498, 503 (1980). The probation revocation hearing did not occur until four months later, giving the defendant ample time to clarify the nature of the violations alleged (if indeed he was ever confused).
We note that the hearing was twice delayed at the defendant's request.
We need not address the defendant's second argument, that the judge erred in relying on the police officer's hearsay testimony because it lacked sufficient indicia of reliability, because there was ample evidence apart from the officer's testimony that the defendant violated his probation. As part of his plea, the defendant agreed to be on probation until November, 2014, and to obey all court orders and State laws as a condition of that probation. The defendant does not deny that he never reported to probation after pleading guilty in November, 2012, that he did not appear at the surrender hearing in December, 2012, and that he was charged with violating a State law when he threatened to murder his wife (with whom he was to have no contact as part of his probation). "Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation," Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976), and the judge did not abuse his discretion in finding that a violation had occurred. See Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014) ("A determination whether a violation of probation has occurred lies within the discretion of the hearing judge").
Order revoking probation affirmed.
By the Court (Vuono, Meade & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 8, 2015.