Opinion
No. 11–P–476.
2012-10-1
COMMONWEALTH v. Michael CZEPIEL.
By the Court (GREEN, FECTEAU & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant's probation was revoked based in part upon a finding that he had committed assault and battery upon Nicole Crigger, the mother of his child. On appeal, the defendant argues that the hearsay evidence relied upon by the judge was not sufficiently reliable. We affirm.
The allegation of assault and battery arose from an altercation between Crigger and the defendant at Crigger's apartment in Holyoke. A police officer testified that when he responded to the apartment, the defendant answered the door with his hand wrapped in blood-soaked paper towels. There was blood “all over the floors” of the apartment, which Crigger was attempting to clean up. The defendant and Crigger were both agitated, and were yelling at each other, with Crigger telling the defendant, “I told you you should have left.” The defendant was evasive and uncooperative when the officer attempted to find out what had happened, claiming that his injury was old and had been bleeding for a long time. Crigger told the officer that the defendant had twice grabbed her from behind and put his hands around her neck, trying to choke her, and that she had cut him with a kitchen knife in self-defense. During this conversation, the officer observed that Crigger's neck and upper chest were red. Crigger later repeated the same story to another officer, who also noticed the redness on her neck, along with other injuries on her arms. Crigger did not testify at the revocation hearing, instead invoking her Fifth Amendment to the United States Constitution privilege. In a probation revocation proceeding, hearsay evidence that would be inadmissible in a criminal trial “may be admissible if the judge makes a determination that it is reliable.” Commonwealth v. Patton, 458 Mass. 119, 132 (2010). In this case, the judge specifically determined that Crigger's statements to police were sufficiently reliable to be admitted. We discern no error in the judge's conclusion. Crigger's statements were “factually detailed, based on personal knowledge and direct observation and made soon after the events at issue when the incident was still fresh in [her] mind.” Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). Her version of events was corroborated by the officers' observations of the scene upon their arrival and of Crigger's visible injuries, and apparently also in part by a recording of her 911 call.
See, e.g., Commonwealth v. Szerlong, 457 Mass. 858, 868 (2010) (witness's observation of red marks on declarant's neck corroborated hearsay statement that defendant had attempted to strangle declarant). “In addition, it is a criminal offense to make a false report of a crime to a police officer. See G.L. c. 269, § 13A. This factor ‘bolsters the reliability of the report[ ].’ “ Commonwealth v. Nunez, supra, quoting from Commonwealth v. Durling, 407 Mass. 108, 121 (1990).
The recording was played at the hearing, but its content was not transcribed. In her findings the judge noted that “in listening to the dispatch, Ms. Crigger sounds quite angry and determined that the defendant leave her apartment.” This is consistent with Crigger's claim that she was trying to get the defendant to leave when he assaulted her, and inconsistent with the defendant's claim to police that he had not assaulted her, but that she had stabbed him when he tried to leave.
The defendant relies heavily upon a stipulation entered by the Commonwealth that on a previous occasion, Crigger had recanted grand jury testimony regarding another alleged assault by the defendant. He also points to representations made by Crigger's counsel during his colloquy with the judge regarding Crigger's invocation of her Fifth Amendment privilege, which suggested that the story Crigger had told to the police was in some respects inconsistent with what she would testify to at the hearing if she were not permitted to invoke the privilege. The judge did not abuse her discretion in deciding that these factors were sufficiently outweighed by the indicia of reliability detailed above to permit the hearsay to be admitted. See Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50 (2002). The hearsay statements, along with the personal observations of the testifying officers, were plainly sufficient to permit the judge to find by a preponderance of the evidence that the defendant had violated the terms of his probation.
Order revoking probation affirmed.