Opinion
15-P-857
03-25-2016
COMMONWEALTH v. CORY Q. AGERSEA.
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
In this appeal from the revocation of his probation, the defendant argues only that the hearsay statements upon which the judge based his decision that the defendant had committed a new crime were not substantially reliable because they contradicted each other in a way that undermined their reliability. See Commonwealth v. Bukin, 467 Mass. 516, 520 (2014) ("[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' [citations omitted]). One statement was the statement of the victim to a police officer that her boy friend, the defendant, had punched her in the face while she was driving. She said that as a result she drove into a parked car, and that the defendant had run off before the police arrived. The second was the statement of an eyewitness, who did not testify at the hearing, and who said she saw a man get out of the driver's side door of the vehicle, go around to the passenger side door, and argue with a woman. The eyewitness said that she saw the man pushing and punching the woman and then she saw the woman try to scoot over and drive the car, which then hit the parked vehicle.
The judge stated that he based his decision to revoke the defendant's probation predominantly, but not solely, on hearsay evidence.
The victim subsequently recanted, and the judge did not find her recantation credible.
These statements are not in fact contradictory and, as a consequence we conclude that the defendant's argument is without merit. We see no error in the judge's conclusion on all the facts and circumstances that the hearsay upon which he relied was sufficiently reliable under Commonwealth v. Durling, 407 Mass. 108 (1990), assuming, without deciding that an assessment under that case was required.
Order revoking probation and imposing sentence affirmed.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.