Opinion
10-P-2168
02-16-2012
COMMONWEALTH v. JASON C. DOROSZ.
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
Jason Dorosz appeals from the revocation of his probation, arguing that the District Court judge based her decision on unreliable hearsay. We affirm.
The defendant has asked to have the probation surrender hearing transcript corrected to reflect the name of the judge who presided at the hearing. This request should be directed to the trial court. See Mass.R.A.P. 8(e), as amended, 378 Mass. 932 (1979).
Background. The defendant was on probation for a conviction of aggravated assault and battery when a complaint issued charging him with armed robbery, home invasion, and malicious destruction of property. At the ensuing probation revocation hearing, the investigating police officer testified as follows. He was dispatched to a hotel or halfway house in response to a 911 call, where a room occupant, J.V., reported that he had been robbed of $5.00. The officer verified that the room had been ransacked and that the telephone had been pulled from the wall. J.V. told the officer that a woman named A.O. had been involved in the robbery. He reported that two hooded men, one of whom had a knife, kicked the door down and rifled through his things, with A.O.'s assistance. One of the men asked A.O., by name, 'where's the money.'
After A.O. had been booked and advised of her Miranda rights, she told the officers that she knew J.V., that she stayed with him, that she occasionally had sex with him, that she was his friend but not his girlfriend, and that he helped her out by supporting her heroin habit. She admitted to having been part of the robbery, and said that one of the hooded men was 'Jason,' the former boyfriend of her aunt. The officer then looked up the aunt in a database, found that a 'Jason Dorosz' was named with the aunt in those records, and obtained a photograph of the defendant. The officer showed the photograph, obscuring biographical data, to A.O., who identified the defendant '[r]ight away' as 'Jason.' He also showed a photographic array containing the defendant's picture to J.V., who was unable to identify either of the hooded men. The defendant timely objected to the officer's testimony concerning the statements made by A.O.
Discussion. At the conclusion of the hearing, the judge found the defendant in violation of the terms of his probation and imposed the balance of his sentence. The judge stated no factual findings, but we think the record, as described above, is sufficiently clear to permit us to evaluate the implied finding that the hearsay evidence was demonstrably reliable. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006).
Rule 6 of the District Court Rules for Probation Violation Proceedings (2000) requires that findings be made both as to the availability of the witness and the reliability of the testimony in cases where the sole evidence of probation violation is hearsay. We are ever mindful of the increasing burdens placed on the District Court, but reiterate that findings should be made. Due process is satisfied when findings include a written statement, but this requirement can be satisfied if the judge reviews the evidence and orally recites her reason for revocation in open court, with the defendant present. Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980).
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We treat the testimony concerning A.O.'s statements as hearsay, as there was no evidence presented at the hearing that she had invoked her privilege against self-incrimination or was otherwise unavailable. See Mass. G. Evid. § 804(b)(3) (2011 ed.). Reliable hearsay evidence is admissible in probation revocation proceedings. See Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990); Commonwealth v. Maggio, 414 Mass. 193, 197 (1993). A defendant's probation may be revoked 'based solely on hearsay evidence of his violation of probation, as long as the hearsay evidence [bears] substantial indicia of reliability.' Commonwealth v. Negron, 441 Mass. 685, 691 (2004), quoting from Maggio, supra at 196.
The evidence here bore those indicia. There was clearly a theft and vandalism; J.V. described three individuals, two men and a woman; he stated that he knew the woman; there was an immediate 911 call which was played for the court; the officer went to the scene and saw that the room was tossed and the phone was pulled from the wall; A.O. was apprehended at the scene and admitted her own participation; the defendant was known to her; she volunteered his first name before any photograph was shown; and she did not hesitate to identify him when she saw his picture.
Although A.O. had a history of drug use, the officer testified that he was familiar with the signs of impairment. He stated that she was clear in her statements, was not drowsy, and was not nodding off. A.O.'s statement to the officer that she had sex with J.V. but was not his girlfriend is not internally inconsistent or inherently unreliable. Her statement suggests a barter of sex for money or drugs, not a romantic relationship. The single-photograph array was not unreliable, where, as here, the defendant was already known to the witness. The officer testified that she was nervous, but this was equally attributable to the fact that the other two individuals involved had left her behind and that she, and she alone, had been caught. Viewed as a whole, the hearsay testimony had sufficient indicia of reliability. The judge did not err in finding a violation of probation by a preponderance of the evidence.
Order revoking probation affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),