Opinion
20-P-835
05-28-2021
COMMONWEALTH v. Gerald EDDINGTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a Superior Court judge's order revoking his probation based upon findings that he violated the terms of his probation. The defendant claims that the judge abused her discretion in finding a violation of probation based on unreliable hearsay evidence. We affirm.
Background. In March 2016, the defendant pleaded guilty to offenses in Superior Court and as part of his sentence he received three years’ probation. In January 2019, the defendant was arraigned in Springfield District Court on new offenses relating to a knife attack on R.L., a woman who was the mother of the defendant's daughter. Additionally, in August 2019, the defendant was arraigned in Palmer District Court on new offenses relating to an assault and battery on another inmate while the defendant was incarcerated. The defendant was alleged to be in violation of his probation by virtue of the new offenses. At the defendant's violation hearing the probation officer, a police investigator, and a sheriff's department investigator were the only witnesses who testified. Videotaped statements of the two victims, police reports, photographs, and G. L. c. 209A restraining orders were also submitted. The defendant offered no evidence at the hearing, and argued that the hearsay evidence was not sufficiently reliable to support a finding of a probation violation.
The judge found that the defendant violated the terms of his probation by committing the new crimes stemming from the knife attack on R.L. The judge acknowledged in written findings that her decision was based on hearsay evidence that she found to be substantially reliable.
The judge did not find the hearsay evidence relating to the assault and battery on the inmate substantially reliable and determined there was insufficient proof to establish a violation of probation based on this offense.
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Discussion. 1. Standard of review. "A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation." Commonwealth v. Durling, 407 Mass. 108, 111 (1990). "A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). Accordingly, we review an order revoking probation for an abuse of discretion. We determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).
2. Hearsay. Probation revocation hearings are not subject to the strict rules of evidence, Durling, supra at 114, and hearsay evidence is admissible if it is substantially reliable. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). When determining whether the hearsay evidence is substantially reliable, a judge may consider "(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity." Id. Not all of these criteria need be satisfied. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010).
Here, the defendant contends that the judge improperly revoked his probation solely based on R.L.’s videotaped statement. The defendant maintains that R.L.’s videotaped statement was not substantially reliable because the statement contained inconsistencies and was contradicted by other statements made by R.L. and others. We disagree.
Inconsistencies and contradictions do not preclude a statement from being reliable. Inconsistencies in testimony go to the credibility of the witness and do not necessarily affect the sufficiency of the evidence. See Comonwealth v. Mosby, 30 Mass. App. Ct. 181, 185 (1991). "Assessing the weight and credibility of the evidence was within the judge's exclusive province, as was the determination to ‘accept or reject, in whole or in part, the testimony presented ... [and it] does not matter that some of the evidence could be characterized as equivocal or contradictory.’ " Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 50 (2002), quoting Commonwealth v. Ruci, 409 Mass. 94, 97 (1991).
Moreover, the record supports the judge's finding that the probation department presented substantially reliable hearsay evidence regarding the defendant's probation violations. The judge made written findings outlining several factors that support her decision that the videotaped statement of R.L. was substantially reliable. The judge found that the videotaped statement "was detailed, based on personal knowl[e]dge, and made shortly after the events in question." Additionally, the judge found that "the formality of the interview lends additional credence to its contents." See Patton, 458 Mass. at 134 (videotape's use of witness's precise words and display of witness's demeanor add to its reliability). Significantly, the judge did not rely exclusively on R.L.’s recorded testimony. See Hartfield, 474 Mass. at 484. The judge found support for the reliability of R.L.’s videotaped statement in the evidence of the defendant's presence at R.L.’s house hours before the knife attack and that the police needed to respond to a 911 call while he was there. The judge also found that the fact that R.L. chose to drive the defendant home after the police came to the house following a 911 call was indicative that R.L. bore no animosity toward the defendant. Finally, the judge found that R.L.’s videotaped statement was corroborated by information from other sources. Specifically, R.L.’s recognition of the pocketknife used in the attack against her as one the defendant always had with him, the recovery of a bloodstained pocketknife on R.L.’s bedroom dresser, and her affidavit in support of her restraining order provided corroboration of R.L.’s videotaped statement of the events. See id.
We conclude that the record provided sufficient indicia of reliability to admit the videotaped statement of R.L. and that it supported the probation violation order. We discern no abuse of discretion in the judge's determination that a probation violation had occurred.
Order revoking probation affirmed.