Opinion
14-P-1832
12-09-2015
COMMONWEALTH v. RAYMOND BALDWIN.
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 revocation of his probation, which was based on his having committed a new crime (assault and battery), and failing to attend and complete a batterers' treatment program. He argues that the revocation was based solely on unreliable hearsay.
As an initial matter, we address the defendant's argument that the judge failed to satisfy Rule 6 of the District & Municipal Court Rules for Probation Violation Proceedings (2000), because her findings were not written. The judge made oral findings (including a finding that the hearsay testimony by the officer was reliable) on the record in the defendant's presence, and those findings were transcribed. Although written findings are preferable, the oral statement of revocation, when transcribed, was enough to satisfy the due process protections afforded by strict compliance with rule 6. See Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980).
The defendant is correct that probation cannot be revoked solely on the basis of "[u]nsubstantiated and unreliable hearsay" evidence. Commonwealth v. Durling, 407 Mass. 108, 118 (1990). "When hearsay evidence is reliable, however, then it can be the basis of a revocation. 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." Ibid. Among the factors that may be considered to determine whether the particular hearsay at issue is substantially reliable are: (1) whether the statement is factually detailed, (2) whether the statement is based on personal knowledge, (3) whether the statement is corroborated by evidence submitted by the probationer, (4) whether the statement was provided under circumstances that support the veracity of the source, and (5) whether the statement was provided by a disinterested witness. See commentary to Rule 6 of the District & Municipal Court Rules for Probation Violation Proceedings, Massachusetts Rules of Court, at 94-95 (LexisNexis 2015-2016); Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). Not all factors need be present in any given case.
Here, the defendant argues that the judge erred in considering the officer's testimony that, when he arrived at the scene, the victim said that the defendant had punched her in the mouth. There were many indications that this testimony was reliable. The officer was a disinterested witness. His firsthand observations of the scene corroborated the victim's statement. The scene at the house when he arrived was chaotic, with the victim's family members upset at what had occurred. The defendant had fled the scene. Someone had called 911 to report an incident of domestic violence. The victim's injuries were consistent with having been punched in the mouth with a closed fist; her mouth was still bleeding when the officer arrived. In short, there were ample indicia to support the judge's determination that the hearsay was substantially reliable.
The evidence, as set out above, was also sufficient to prove, by a preponderance of the evidence, that the defendant had violated his probation by committing an assault and battery. See Commonwealth v. Bukin, 467 Mass. 516, 520 (2014) ("The Commonwealth must prove a violation of probation by a preponderance of the evidence"). The question whether to credit the victim's statement to the officer who responded to the scene or her subsequent recantation was for the judge to decide. See Commonwealth v. McLeod, 394 Mass. 727, 743 (1985) (no presumption that recanted or altered testimony is false); Commonwealth v. Fritz, 472 Mass. 341, 354 (2015) (it is for the finder of fact to decide whether to credit a recanting witness). The judge was not required to credit the victim's recantation of her earlier statement.
As a condition of his probation, the defendant was ordered to "attend and complete" a certified batterers' treatment program. The judge found that the defendant violated this condition by failing to attend the program "on a regular basis." The defendant argues that there was no requirement that he attend a batterers' treatment program "on a regular basis" and, therefore, revoking his probation on that basis violates due process. The requirement that the defendant "attend and complete" a certified batterers' treatment program could only be understood to mean that he would attend it according to its terms and rules, i.e., as and when the program required. The evidence showed that the defendant had failed to attend seven out of the forty required treatment sessions. He therefore did not attend it as required.
For these reasons, the order revoking the defendant's probation is affirmed.
So ordered.
By the Court (Cohen, Grainger & Wolohojian, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 9, 2015.