Opinion
15-P-606
04-26-2017
COMMONWEALTH v. Curtis D. STUBBS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Curtis D. Stubbs, appeals from the order of probation revocation and from the denial of his motion for a new revocation hearing. He claims that the judge erred in finding him in violation of the conditions of his probation because (1) the judge's finding was based on unreliable hearsay, (2) there was "no evidence" that the defendant possessed a firearm while on probation, and (3) the revocation hearing did not meet minimal due process requirements. We affirm.
Background. In June, 2012, the defendant pleaded guilty to armed robbery and two counts of assault and battery by means of a dangerous weapon. He was sentenced to a term of incarceration and concurrent terms of probation. Among various conditions of his probation, the defendant was prohibited from possessing a firearm.
On April 5, 2014, a photograph of the defendant holding an AK47 assault rifle was posted on the defendant's Instagram account. A bayonet is attached to the rifle and three ammunition clips are visible. Two clips are taped together and attached to the rifle, a so-called "banana clip." A third clip is tucked into the defendant's waistband. "5:38 p.m." appears in the corner of the photograph, and the accompanying caption reads: "curtbuggatti Stop the sneak dissing. Im in the Hood Pull Up!!!" On the same day, April 5, 2014, the police obtained a copy of the photograph and commenced an investigation. In the course of their work, the police identified the background in one of the defendant's other Instagram photographs as Stephen Toucher's apartment. They then recovered surveillance video of the defendant entering Toucher's apartment at approximately 5:15 p.m. on April 5, 2014, and exiting over an hour later. In the video, the defendant is wearing "the same black knit hat he has on in the [Instagram] picture, a pair of jeans, and a blue Boston Red Sox jacket." The video shows that he did not carry anything into, or out of, Toucher's apartment.
Lynn police Detective Stephen Withrow testified that one cannot discern from the photograph whether the two clips taped together were loaded with ammunition, but the third clip tucked in the defendant's waistband was loaded with ammunition.
The officers obtained a search warrant for Toucher's apartment. After a search thereof failed to turn up the rifle, Detective Withrow showed Toucher and his lawyer the Instagram photograph. Toucher agreed to provide "that AK47" from the photograph, and thereafter, he turned over an AK47 assault rifle, three ammunition clips, and fifteen rounds of ammunition. Detective Withrow testified that the AK47 Toucher provided to the police was functional and the ammunition was real. He acknowledged that it would be impossible to know with certainty, from an examination of the photograph alone, whether the rifle in the Instagram photograph was the same rifle that Toucher had turned over.
At the probation revocation hearing, the judge had the opportunity to view the rifle and ammunition provided by Toucher to Detective Withrow.
At the conclusion of the hearing, the judge found that the defendant had violated the terms and conditions of his probation, and ordered revocation thereof. The defendant subsequently moved for a new revocation hearing, arguing that Detective Withrow had erroneously testified that one could ascertain the date and time an Instagram photograph was taken. At the hearing which followed, the judge accepted a stipulation that "you cannot tell from the Instagram posting or any evidence received at the first hearing when the photo was actually taken." That notwithstanding, the judge denied the defendant's motion for a new hearing.
At the probation revocation hearing, Detective Withrow testified that the photograph must have been taken one minute before it was posted to Instagram at 5:38 p.m.
Discussion. "The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). See Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013) (articulating standard as "whether the probationer more likely than not violated the conditions of his probation"). On appeal, we consider "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the specified conditions of his probation; and whether the basic due process goals, of providing ‘fair treatment’ to the probationer and an accurate basis for determining whether revocation was proper, were achieved." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000). We review for abuse of discretion. Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).
1. Evidence supporting finding of violation. Here, the evidence adduced at the revocation hearing was sufficient to support the judge's finding that the defendant had violated his probation, i.e., that the defendant was holding a real AK47 assault rifle in his Instagram photograph, which was taken while the defendant was on probation.
When Detective Withrow showed Toucher the Instagram photograph, Toucher said that he could provide "that AK47." Toucher's assertion that he could turn over the rifle from the photograph was corroborated when he later provided an AK47 assault rifle, three ammunition clips, and fifteen rounds of ammunition, all appearing to match those depicted in the photograph. See Commonwealth v. Patton, 458 Mass. 119, 134 (2010) (corroborating evidence contributes to finding of substantial reliability). Further, surveillance footage from the same day the Instagram photograph was posted shows the defendant entering and leaving Toucher's apartment around the same time the photograph was posted, wearing some of the same clothing as in the photograph, but not carrying anything either time.
It was not critical for Toucher to testify at the revocation hearing. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990) ("In our view, a showing that the proffered evidence bears substantial indicia of reliability and is substantially trustworthy is a showing of good cause obviating the need for confrontation").
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The inferences drawn from such circumstantial evidence "need only be reasonable and possible"; they need not be "necessary or inescapable." Commonwealth v. Joyner, 467 Mass. 176, 179-180 (2014) ("Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense"). Here, it was more than reasonable for the judge to conclude that the rifle, clips, and ammunition Toucher provided were the same rifle, clips, and ammunition depicted in the Instagram photograph, and that the photograph had been taken at Toucher's apartment shortly before it was posted. We do not disturb the findings of the judge absent clear error, and here there was none.
2. Due process requirements. The defendant also argues that he was denied due process in four instances.
First, the defendant claims error because he was given only four days to prepare for the initial surrender hearing. This argument fails because four days has been determined to be sufficient. See Morse, 50 Mass. App. Ct. at 586-587 (defendant was not denied due process where he was given four-day notice before probation revocation hearing, counsel was appointed on day of hearing, and notice did not specify whether hearing was preliminary or final hearing). Furthermore, the defendant did not request a continuance, and the record demonstrates that defense counsel was well prepared. Finally, the claim is unavailing where it is raised for the first time on appeal.
Second, the defendant claims that the judge should have recused himself from the final hearing because at the initial surrender hearing, the judge told the defendant, "[I]f that's a fake gun, then I recommend you make arrangements very carefully for the police to pick it up and bring it in," and in so doing put the onus on the defendant to prove compliance with probation, rather than on the Commonwealth to show a violation. This argument is unavailing. The judge's remark at the initial surrender hearing was in response to the defendant's repeated declarations that the gun in the photograph was a "prop." Further, at the final hearing the judge explored whether the rifle was fake and considered Detective Withrow's testimony on the issue. There is nothing in the record to suggest that the judge improperly shifted the burden of proof to the defendant.
Third, the defendant argues that the judge improperly found that he had violated his probation by committing a new crime, in addition to finding that he had violated his probation by possessing a firearm. The defendant correctly points out that the notice of surrender alleges only possession of a firearm as a basis for revocation. However, reversal of the revocation is not required because sufficient evidence supports the judge's finding that the defendant violated his probation by possessing a firearm. Moreover, in finding that the defendant had violated the conditions of probation, the judge specifically referenced the condition that the defendant "must not possess any guns."
Finally, the defendant claims that the judge erred in failing to issue written findings regarding the evidence upon which he relied and his rationale for revoking probation. However, the judge stated his findings in open court, in the defendant's presence. Additionally, the defendant had access to a transcript of the hearing. Failure to issue written findings is not an error requiring reversal under these circumstances. See Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980) (defendant had actual knowledge of evidence relied on and rationale for revocation where judge stated his findings in open court and defendant subsequently obtained transcript of hearing); Commonwealth v. Durling, 407 Mass. 108, 113 (1990) (citing Fay, supra, as example of due process flexibility).
Order of probation revocation affirmed.
Order denying motion for new revocation hearing affirmed.