Opinion
No. 15–P–1505.
10-17-2016
COMMONWEALTH v. Kenya FERRELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a District Court judge's order revoking her probation, arguing error in the judge's reliance on hearsay testimony and in his failure to issue a written statement. We affirm.
Background. The defendant pleaded guilty to the crime of intimidation of a witness in December of 2013 and was placed on probation for three years. Conditions of her probation included “[o]bey[ing] all court orders and all local, state and federal laws .” On October 17, 2014, a criminal complaint issued charging the defendant with assault and battery by means of a dangerous weapon, assault with intent to murder, and malicious damage to a motor vehicle. Four days later, notice of a probation violation and hearing issued to the defendant.
An evidentiary hearing took place before the same judge who had accepted the defendant's plea. Lawrence police Officer Kevin Schiavoae testified that the alleged victim in the new charges “said that she was assaulted with a baseball bat, and that her attacker had come at her from the passenger's side of the vehicle [and] struck her in her left eye.” The victim identified the defendant as her attacker. Schiavoae testified that the defendant telephoned him after the incident and confirmed that she had been at the scene. She then stated that “she dented the door with her foot and punched the window with her fist, not a bat,” and that she and the victim “scrapped.” The defendant was found to be in violation of her probation for committing assault and battery by means of a dangerous weapon and assault by means of a dangerous weapon.
Discussion. The issue before the judge was whether the defendant “more likely than not violated the conditions of [her] probation.” Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013). We review his determination for an abuse of discretion. Commonwealth v. Bukin, 467 Mass. 516, 519–520 (2014). The defendant argues error in the judge's reliance upon Schiavoae's hearsay testimony regarding the victim's statements. However, Schiavoae also testified to the defendant's statements that she was at the scene, that she struck the car with her fists and broke a window, and that she and the victim “scrapped.” From Schiavoae's testimony that he personally observed injuries on the victim's face, the judge could infer that “scrapp[ing]” included touching. The defendant's statements are “presumptively reliable” evidence, Commonwealth v. Durling, 407 Mass. 108, 118 (1990), that she “indeed violated the law” by committing an assault and battery, Commonwealth v. Kelsey, supra at 325. Where this evidence (1) provided an independent basis for the judge's determination, see Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006) (“A breach of a condition of probation constitutes a violation”), and (2) corroborated the victim's statements, there could be no prejudice to the defendant from the introduction of hearsay.
The record belies the defendant's claim that the judge failed to issue “a written statement of the evidence relied on and the reasons for revoking probation.” Id. at 66. There was no due process violation.
Order revoking probation affirmed.