Opinion
10-P-1506
10-05-2011
COMMONWEALTH v. ANNA BENTLEY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a surrender hearing in Superior Court, the defendant was found to be in violation of her probation. On appeal, she argues that the evidence did not support the judge's finding.
Discussion. In order to find that the defendant violated her probation, the judge must determine 'at least to a reasonable degree of certainty, that the defendant had violated a condition or conditions of [her] probation.' Commonwealth v. Maggio, 414 Mass. 193, 198 (1993). The Commonwealth has the burden of establishing by a preponderance of the evidence that the probationer violated a condition of her probation. Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). Here there was sufficient evidence to support such a finding where an eyewitness who had known the defendant for seven or eight years positively identified the defendant as the driver of a vehicle. The eyewitness was not only familiar with the defendant but was also familiar with her car, which had previously been owned by his son. Furthermore, the eyewitness's testimony was corroborated by cellular telephone records indicating that he called the police department within minutes of sighting the defendant. The Waltham police department dispatcher's testimony was also consistent with the witness's version of events.
One of the conditions of the defendant's probation was that her license to operate a motor vehicle was revoked for fifteen years.
The defendant argues that the judge should have discounted the eyewitness's testimony due to inconsistencies and motive to fabricate, and instead should have credited the testimony of the defendant's witnesses. 'The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses' testify. Commonwealth v. Sinforoso, 434 Mass. 320, 321 (2001), quoting from Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). Here the judge found that 'the witnesses for the defendant were neither credible nor believable' while conversely finding that the eyewitness was 'an extremely credible witness.' Furthermore, the judge found the evidence so convincing that she concluded not just to a reasonable degree of certainty but beyond a reasonable doubt that the defendant violated the terms of her probation. 'Ordinarily, 'we will . . . not disturb the findings of a judge who saw and heard the witnesses, who was free to make credibility determinations and to accept all, some, or none of their testimony, unless there is a showing of clear error in those findings." Buster v. George W. Moore, Inc., 438 Mass. 635, 644 (2003), quoting from Commonwealth v. Mock, 54 Mass. App. Ct. 276, 278 (2002). We discern no showing of clear error here.
The crime for which the defendant was on probation was a vehicular homicide that had claimed the life of her fiancé, the eyewitness's son.
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Order revoking probation and imposing sentence affirmed.
By the Court (Grasso, Katzmann & Rubin, JJ.),