Opinion
16-P-1005
05-31-2017
COMMONWEALTH v. EVAN E., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile appeals from an order of a Juvenile Court judge finding that the juvenile violated a condition of his probation. We affirm.
Background. On May 13, 2015, after the juvenile admitted to sufficient facts for an adjudication of delinquency on an assault and battery charge, the matter was continued without a finding (CWOF) until December 31, 2015. He was ordered to supervised probation with several conditions, including that he stay twenty-five yards away from the victim's person.
After the juvenile was found to be a passenger in a vehicle that was stopped by police just before 2:00 a.m. and in which police discovered marijuana, and a hearing on September 25, 2015, the judge modified the conditions of probation to add that the juvenile comply with a nightly 7:00 p.m. curfew, refrain from the use of illicit drugs and alcohol, and undergo random urine screenings.
After a subsequent probation revocation hearing on October 16 and 23, 2015, the judge found that the juvenile had violated the stay-away order on September 1 and 9, 2015. She ordered the CWOF extended to October 21, 2016, and further modified the terms of probation to require that the juvenile stay one hundred yards away from the victim. The juvenile filed a motion to reconsider, which was denied except as to the stay-away order, which was modified to thirty-five yards in order to permit the juvenile to attend school.
The judge also offered the juvenile the opportunity to request a revision of the 7:00 p.m. curfew after thirty days of continuous compliance.
Discussion. 1. Probation violations. The standard of proof in a probation violation proceeding is preponderance of the evidence; on appeal, the question is whether "the record discloses sufficient reliable evidence to warrant the findings by the judge that [the juvenile] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).
The juvenile concedes that the evidence establishes that he came within twenty-five yards of the victim on September 1 and 9. He challenges whether the Commonwealth established that the violation was intentional, i.e., not accidental or incidental to lawful activity. See Commonwealth v. Shea, 467 Mass. 788, 792 (2014). We conclude that the Commonwealth met its burden.
The victim testified that on September 1, 2015, he was inside a market when the juvenile entered. When the juvenile saw the victim inside, the juvenile "got his stuff and then went outside." Once the juvenile became aware that the victim was in the market, he was on notice that in order to comply with the stay-away order, he was required to remain at least twenty-five yards from the victim. However, the juvenile waited "[r]ight outside," "in front of the building," and when the victim exited the store, he passed within one yard of the juvenile.
The victim also testified that on September 9, 2015, he was walking home from school on the sidewalk of Pond Street when the juvenile skateboarded past, coming within one "shoulder length" of the victim. There were approximately fifty students in the area, but the victim testified he was alone with his back to the juvenile when he skated past. We discern no error in the judge's determination that the juvenile violated the stay-away order. The juvenile had known the victim for several years, since the fifth grade, and was aware that the victim and he attended the same high school. The judge could have inferred that the juvenile knew that the victim would be walking home from school in the area in which the juvenile was skateboarding, and he could have avoided this group of students. As discussed supra, it was the juvenile's responsibility to comply with the stay-away order by remaining at least twenty-five yards from the victim. This evidence was "sufficient[ly] reliable ... to warrant the finding[ ] by the judge that [the juvenile] had violated the specified conditions of his probation," Morse, supra, on September 1 and 9, 2015.
The judge implied that she credited the victim's testimony when she said, "My assessment of the demeanor and credibility of [the victim] ... is that he remains intimidated." The juvenile argues that this finding was erroneous because the victim did not testify as to his continued intimidation. The judge was entitled to find, based on her assessment, that the victim remained intimidated by the juvenile. See Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 50 (2002), quoting from Commonwealth v. Ruci, 409 Mass. 94, 97 (1991) ("Assessing the weight and credibility of the evidence [is] within the judge's exclusive province, as [is] the determination to 'accept or reject, in whole or in part, the testimony presented"').
2. Right to counsel. The juvenile argues that he was denied his right to counsel by the judge's denial of two requests for continuances. Action on a request for a continuance lies within the sound discretion of the judge, and will not be disturbed unless there is an abuse of discretion. However, "[t]he discretion of the ... judge cannot be exercised in such a way as to impair the constitutional right to have counsel who has had reasonable opportunity to prepare a defense." Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976).
First, at the modification hearing, the juvenile's attorney requested a continuance to allow her to speak to the juvenile's mother to determine whether the mother had imposed on the juvenile a curfew and/or punishment for breaking curfew on the night the juvenile was found to be the passenger in a vehicle that was stopped by police just before 2:00 a.m. and in which police discovered marijuana. However, the judge found that either the mother had not imposed a curfew or the juvenile had not followed his mother's rules, and in either case the judge was warranted in imposing a curfew. Speaking to the mother was not likely to provide additional information. We conclude that the denial of this continuance did not impair the reasonable ability to prepare a defense and was not an abuse of discretion.
Second, at the first day of the probation revocation hearing on October 16, 2015, the juvenile's newly appointed attorney requested a continuance of two to three weeks in order to review the case and to prepare to summons and cross-examine witnesses. Because the victim was present and missing school, the judge instead commenced the hearing that day, but suspended the hearing and allowed the juvenile to continue cross-examination of the victim and to summons witnesses for the next hearing date, October 23, 2015. The juvenile relies on a remark made by the judge on October 16, arguing that her statement that she had "made up her mind" indicated that she had decided the matter and further cross-examination of the victim or testimony from other witnesses in the juvenile's defense would have been futile. While the judge could have been more artful, taking the statement in context, including that the juvenile was alleged to have violated the stay-away order more than once in eight days, we conclude that the judge was expressing her decision to caution the juvenile to abide by the stay-away order. Indeed, the fact that the judge granted in part the subsequent motion to reconsider demonstrated that she continued to be open to persuasion even after the conclusion of the revocation hearing. Given the seriousness of the underlying offense and alleged repeat violations in a short time span, and that counsel had the opportunity to prepare additional cross-examination and to summons witnesses, we conclude that the denial of the juvenile's request for a continuance cannot be said to have impaired counsel's reasonable opportunity to present a defense and was not an abuse of discretion.
The judge stated:
"I would like to remind this probationer that he's serving a sentence in the community. I'd like to remind this probationer—I've made up my mind. I've just heard what I've heard. You've heard the same exact thing I've heard from a victim in the case. A victim who is reporting that some—that you as a probationer is serving a sentence in the community as a condition of you being in the community has not remained at least 25 yards apart from him.
"I remind you, 25 yards is a considerable distance. I remind you it should be clear to you what 25 yards is. I remind you [that] you are under an order of this court to remain away from him. It's not—in school, out of school, in public, in private, wherever, a minimum of 25 yards. Am I clear about that?"
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Conclusion. The October 23, 2015, order on probation violation as modified by the order dated November 20, 2015, on the motion to reconsider, is affirmed.
So ordered.
Affirmed.