Opinion
14-P-448
05-22-2015
COMMONWEALTH v. DAQUAN SPARKS.
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 defendant argues that the judge violated his constitutional rights by revoking his probation based upon his admitted technical violations of probation and a new offense, which he claims was only supported by an unreliable hearsay statement. This argument lacks merit. The defendant stipulated to three technical violations of probation. The stipulated violations alone provide a "valid basis for the revocation of probation." Commonwealth v. Pena, 462 Mass. 183, 186 n.4 (2012), citing Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976).
Furthermore, the judge was warranted in finding that the Commonwealth proved by a preponderance of the evidence that the defendant had committed a new offense. See Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995) ("[T]the burden of proof in a revocation of probation . . . is proof by a preponderance of the evidence"). It is clear that all parties agree the defendant was present when the victim was stabbed. In the first hearsay statement made to a police officer, the victim, who considered herself to be the defendant's girl friend, stated that the defendant held her while his other girl friend stabbed her. The judge could have concluded that statement was reliable because it was made close in time to the event, before she was exposed to the media coverage of the incident, and while she was still visibly upset and in pain. The judge was not required to find the later hearsay recantation by the victim, in which she stated that the defendant was not involved, to another police officer and in her grand jury testimony to be reliable. The evidence was clear that the victim had a child with the defendant and was also a girl friend.
The witness the defendant called identified the defendant as the individual who was arguing and swearing at a black woman, who had a baby, on the street.
In addition, contrary to the defendant's assertion, this is not a case where the judge relied solely on hearsay evidence. Compare Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 905-906 (2003). The judge was provided with the defendant's cellular telephone records, which indicate his statement concerning the event was not accurate because he did not receive a call at the time the victim was stabbed. In addition, the judge was provided with text messages between the defendant's other girl friend, who the victim has consistently stated was the individual who stabbed her and who had bloody clothes in her possession when the police searched her house, and the defendant. The text messages suggest that the defendant informed his other girl friend that he was going to meet the victim that afternoon. Finally, the police testified that the defendant was not found at the scene, he admitted that he left after the victim collapsed, and he was arrested three days later by the fugitive unit of the Boston police department.
The defendant told the police that he tried to help the victim before leaving.
Order revoking probation affirmed.
By the Court (Kantrowitz, Trainor & Fecteau, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: May 22, 2015.