Opinion
No. 12–P–711.
2013-03-4
COMMONWEALTH v. Jonathan AQUASVIVAS.
By the Court (KANTROWITZ, BERRY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the Commonwealth after a Boston Municipal Court judge, having excluded a grand jury transcript containing testimony from police officers involved in the arrest of the defendant for various firearm violations, ruled that there was not sufficient evidence of a probation violation. , We vacate the judge's order finding no probation violation, and remand for further proceedings.
“[W]hen the office of the district attorney participates in probation revocation proceedings, it is a party to those proceedings for purposes of appeal and may take a direct appeal from an order finding that a defendant did not violate the terms of his probation.” Commonwealth v. Negron, 441 Mass. 685, 686 (2004).
The defendant's three-year probationary period arose out of prior convictions of assault by means of a dangerous weapon and witness intimidation. As a result of subsequent firearm violations, the Commonwealth initiated the probation revocation proceedings at issue here.
We conclude that the judge's exclusion of the grand jury testimony was error. The judge thought the grand jury testimony inadmissible, citing the defendant's inability to cross-examine the grand jury witness. However, the judge had expressly found that the proffered grand jury testimony was reliable hearsay. “Reliable, factually detailed hearsay ... could be furnished, for example, by ... a copy of the grand jury minutes.” Commonwealth v. Maggio, 414 Mass. 193, 199 n. 3 (1993). Once the judge determined that the grand jury testimony was reliable, good cause existed so that the defendant did not have the right to confront and cross-examine the grand jury witness, and the transcript of the testimony should have been admitted. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004). In a probation revocation hearing, a defendant has no right to confront and cross-examine witnesses if “the judge finds ‘good cause’ to dispense with these requirements.” Ibid., quoting from Commonwealth v. Maggio, supra at 197. “[I]f reliable hearsay is presented, the good cause requirement is satisfied.” Commonwealth v. Negron, supra. The record indicates that the judge refused to mark the transcript as an exhibit when requested to do so by the prosecutor and ordered him to bring the police officer in question into the courtroom even though the officer was not called as a witness by either party. This was a marked departure from sound judicial practice.
In the judge's words: “Certainly it's hearsay, it's reliable hearsay because I would accept that the officers are under oath and are sworn to tell the truth.”
Accordingly, the order finding no probation violation is vacated, and the matter is remanded for further proceedings before a different judge, consistent with this memorandum and order.
So ordered.