Opinion
21-P-55
04-14-2022
COMMONWEALTH v. RIORDAN FRANCISCO.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an alleged altercation between the defendant and his ex-girlfriend, a notice of alleged violation of probation issued against the defendant who was on probation for attempted murder. A final probation violation hearing was held, after which a judge of the Superior Court found by a preponderance of the evidence that the defendant violated his probation by committing the offenses of assault and battery on a family or household member, in violation of G. L. c. 265, § 13M, and assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b). The judge revoked the defendant's probation and imposed a committed sentence of four to five years. The defendant now appeals.
The defendant argues first that the hearsay testimony on which his violation was based was unreliable. The Supreme Judicial Court has articulated a number of factors relevant to the evaluation of hearsay reliability under these circumstances. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016).
"In assessing whether the hearsay evidence is reliable, a hearing 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. In this case the evidence derived from a conversation between the victim and the witness, Officer William Connor. As described in the judge's findings, the victim's statements were based on personal knowledge, were recorded close in time to the events in question, included a high degree of detail, were not internally inconsistent, and indeed were corroborated by the officer's observations, photographs of the victim's injuries, and surveillance video footage that showed the defendant's pickup truck in which the victim said she was assaulted, rocking back and forth as if a fight were occurring. The statements were made under circumstances that support their veracity, having been made to a police officer shortly after and at the scene of the crime. While the victim was not disinterested, we agree with the motion judge that this was the only factor that did not point in favor of the reliability of the hearsay, and we see no abuse of discretion in the revocation of probation based on this hearsay evidence. See Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).
The defendant also argues that he raised a colorable claim of self-defense, which the Commonwealth did not disprove by a preponderance of the evidence. Commonwealth v. Ogarro, 95 Mass.App.Ct. 662, 666-667 (2019) ("when a colorable claim of self-defense or defense of property is raised to contest an alleged probation violation, the Commonwealth need only show by a preponderance of the evidence that the probationer did not legitimately exercise the defense"). The defendant did not argue self-defense during the final surrender hearing, but even if the claim had been raised below the evidence was sufficient to support the judge's finding. The evidence viewed in the light most favorable to the Commonwealth showed that during the course of a verbal disagreement the defendant reached for a knife on his pants and told the victim he would stab her. This was sufficient for the judge to conclude the defendant committed an assault on the victim by means of a dangerous weapon, with respect to which there was no evidence sufficient to support a claim of self-defense. As for the assault and battery on a family or household member, this escalation of conflict, see Commonwealth v. Miranda, 484 Mass. 799, 813 (2020), combined with the fact that the defendant had at his disposal "means to avoid physical combat," namely that he could have left the truck in which the fight was occurring, Commonwealth v. Mercado, 456 Mass. 198, 209 (2010), demonstrates that the evidence was sufficient to support a finding by a preponderance of the evidence that the defendant did not act in self-defense.
The order revoking probation and imposing sentence is affirmed.
So ordered.
The panelists are listed in order of seniority.