Opinion
16-P-477
03-10-2017
COMMONWEALTH v. Caitlyn SPRAGUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a District Court judge's finding that she violated the terms of her probation. We affirm.
Background . In June and December, 2015, the defendant pleaded guilty to offenses in Barnstable District Court and was sentenced to two years of probation. The sentencing judge retained jurisdiction over her cases.
In January, 2016, a criminal complaint issued charging the defendant with uttering a forged check and receiving stolen property under $250. The defendant was alleged to be in violation of her probation by virtue of the new charges, and a surrender hearing took place before the same judge. Barnstable police officer Jonathan Pass testified that, on January 2, 2016, he took a report concerning a stolen check from business owner Francisco Conceicao. Conceicao stated that he was contacted by a local bank and advised that someone had attempted to cash one of his business checks with a forged signature. Pass met with the Hyannis branch manager of the Cooperative Bank of Cape Cod, who stated that she and the staff are very familiar with Conceicao. One of the tellers came to her and told her that a check, made out to the defendant for $425, was presented with a signature that she knew was not Conceicao's. The teller took the driver's license of the person attempting to cash the check; it was the defendant. According to Pass, the defendant admitted trying to cash the check and stated that she believed it was real.
In addition to Pass's testimony, the judge considered Pass's police report, in which Conceicao reported that Chelsea Savoie is a former employee of his who had come to his office that morning. After she left, he thought that three checks were missing. Savoie told Pass that both she and the defendant had gone to Conceicao's shop that morning, and that the defendant must have stolen the checks. The defendant stated that she did not go into Conceicao's shop, but that Savoie "steals checks from [Conceicao] all the time." "She stated [to Pass] that this time she believed the check to be legitimate and had no idea that any crime was being committed." A teller told Pass that Savoie had come into the bank and "vouched for the signature" on the forged check while the defendant was cashing it. Pass's report documents his observations "[d]uring the booking process, [that] both females placed the blame on the other girl, but left no doubt that they were both involved in the venture."
The judge "overwhelmingly" found probable cause to believe that the defendant had violated probation by committing new crimes, based "both on the direct observations and contacts with the police, as well as the hearsay statements [he] found inherently reliable from the officer who testified." In harsh terms, the judge reprimanded the defendant for reoffending. The Commonwealth dismissed the pending charges, probation on the prior convictions was revoked, and the judge sentenced the defendant to two years in a house of correction.
Discussion . We review for an abuse of discretion the judge's finding of probable cause to believe that the defendant was in violation of her probation, Commonwealth v. Bukin , 467 Mass. 516, 519-520 (2014), and see none. Probation revocation hearings are not subject to the strict rules of evidence, Commonwealth v. Durling , 407 Mass. 108, 114 (1990), and hearsay evidence is admissible if it is substantially reliable. Rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Ann. Laws Court Rules, at 97 (LexisNexis 2015-2016). See also Commonwealth v. Hartfield , 474 Mass. 474, 484 (2016). While the judge's finding that "anything that police reports say about what police officers did when questioning people [are] inherently reliable" may not be sound, upon our review of the transcript of the violation hearing and the police report, his "assessment of reliability was supported by the record." Commonwealth v. Bukin , supra . The hearsay statements were based on Conceicao's and bank personnel's personal knowledge and direct observations, and they involved "observations recorded close in time to the events in question." They were "factually detailed, rather than generalized and conclusory," "internally consistent," and provided by disinterested witnesses "under circumstances that support the veracity of the source;" namely, people reporting a crime. Rule 7(b)(1)-(7). Coupled with the defendant's and Savoie's admissions, as set forth in the police report, "we are convinced that the proffered evidence was imbued with sufficient indicia of reliability to warrant a denial of the defendant's limited right to cross-examination." Commonwealth v. Durling , supra at 120.
There was no evidence that bank personnel or Conceicao were familiar with the defendant.
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There is no merit to the defendant's claim that the judge applied an incorrect standard of proof in deciding whether the defendant had violated the terms of her probation, as evidenced by his use of the term "probable cause." See Commonwealth v. Bukin , supra ("The Commonwealth must prove a violation of probation by a preponderance of the evidence."). The judge also stated that "it is a civil standard," and that "there's no doubt [the defendant is] guilty of this." Clearly he was satisfied, at least by a preponderance of the evidence, that the defendant had committed the newly charged offenses.
Finally, the judge did find on the record that Pass's testimony and police report were "inherently reliable." While he did not make written findings as to why he reached that conclusion, which the Supreme Judicial Court has recommended that judges do, see Commonwealth v. Hartfield , supra at 484-485, it is abundantly clear from the transcript that the judge credited Pass's testimony and the hearsay statements contained in his report. He did not credit Savoie or the defendant, and he had "no doubt" that the defendant was guilty of the newly charged offenses. On this record, the defendant "had actual knowledge of the evidence relied on and [the] reasons for revoking [her probation], and fundamental due process was not violated" by the judge's failure to enter written findings. Commonwealth v. Morse , 50 Mass. App. Ct. 582, 593-594 (2000), quoting from Fay v. Commonwealth , 379 Mass. 498, 504-505 (1980) (quotations omitted).
Order revoking probation affirmed .