Opinion
14-P-304
05-15-2015
COMMONWEALTH v. NKRUMAH N. HARTFIELD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from an order revoking his probation on the ground that he had violated his probation by committing new offenses. He contends that the revocation order violated his right to due process and was based on insufficient evidence. We affirm the order.
Background. In March, 2011, the defendant pleaded guilty in the Dorchester Division of the Boston Municipal Court to a charge of possession of marijuana with the intent to distribute. He was sentenced to a two and one-half year term of incarceration. The sentence was suspended for two years and he was placed on probation. The defendant signed a conditions of probation form listing the terms of his probation, including the requirements that he obey all city, State, and Federal laws and pay certain costs in connection with his case and probation. In March, 2013, the defendant's probation was extended due to outstanding probation costs in the amount of $540. In April, 2013, while still on probation, the defendant was arrested for aggravated rape, assault and battery, and threatening to commit a crime. The victim was the daughter of the defendant's girlfriend. The defendant was served with a notice of probation violation and hearing which alleged that he had violated his probation by committing new offenses and failing to pay the probation costs.
At the probation surrender hearing, the Commonwealth presented the testimony of two witnesses: the assistant chief probation officer and the investigating officer, Detective Ediberto Figueroa. Their testimony established, among other things, that the defendant was on probation when the victim reported to the police that she had been raped. The victim believed that the defendant, who she identified as her mother's boyfriend, was the perpetrator. The Commonwealth also introduced the results of serology and deoxyribonucleic acid (DNA) testing which revealed that the defendant was a possible source of the DNA profile taken from the victim's underwear and spandex shorts. Both the serology and DNA reports and the transcript of the victim's grand jury testimony were introduced as exhibits.
Following the close of the Commonwealth's presentation of evidence, the defendant sought permission to have the victim testify. The judge initially granted the request on the condition that defense counsel refrain from any questioning approaching discovery or cross-examination. Shortly after direct examination began, however, the judge sua sponte reconsidered his position, excused the witness, and ruled that defense counsel could not examine the victim because the grand jury testimony had already been admitted in evidence. The judge subsequently concluded that the defendant had violated the terms and conditions of his probation and imposed the balance of the two and one-half year sentence.
(1) Alleged due process violations. The defendant contends that the revocation order must be vacated because it was based on unreliable hearsay consisting of the victim's grand jury testimony, the DNA report, and the serology report. The defendant asserts that the admission of the grand jury testimony, coupled with the foreclosure of his presentation of the victim's live testimony and the admission of the reports without the person who conducted the analyses reported therein, violated his right of confrontation as explicated in Crawford v. Washington, 541 U.S. 36 (2004). These arguments are unavailing. In Commonwealth v. Wilcox, 446 Mass. 61, 66-68 (2006), the Supreme Judicial Court clarified that the Crawford case does not apply to probation revocation hearings. Rather, in this context our cases hold that "[i]f reliable hearsay is presented, the good cause requirement is satisfied" making it permissible to dispense with a defendant's right to confront and cross-examine witnesses. Commonwealth v. Bukin, 467 Mass. 516, 522 (2014), quoting from Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Here, in order to make a determination with respect to the judge's assessment of reliability regarding the victim's testimony before the grand jury, we have reviewed the transcript and observe that the victim's testimony is factually detailed, based on personal knowledge, and made under oath. We therefore conclude that the testimony is reliable. See ibid. Furthermore, "[a]lthough the judge did not explicitly state that he found the hearsay reliable," that he reached such a "conclusion is implicit in the fact that he made findings based on the hearsay evidence." Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). We also agree with the judge's determination that the serology and DNA reports were sufficiently reliable, and note that any concerns about chain of custody go to the weight, not the admissibility, of the evidence. See Commonwealth v. Greineder, 464 Mass. 580, 597 n.18 (2013).
The Commonwealth maintains that because the violation of probation was also based on the defendant's failure to pay $540 in probation costs, we need not address whether the finding of a violation based on the commission of new crimes was based on unreliable hearsay. The problem with this argument is that it does not appear from the record that the judge revoked the defendant's probation on this ground.
As the Supreme Judicial Court has noted, it is certainly preferable, while not required, to have explicit findings. Commonwealth v. Nunez, 446 Mass. at 59 n.6.
(2) The sufficiency of the evidence. The defendant's final claim concerns the sufficiency of the evidence. In probation revocation hearings, the parties are held to the "civil standard of preponderance of the evidence" under which a proposition is proved if "it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). Here, the evidence consisted of a reliable report of rape and corroborating DNA analysis. This evidence was sufficient to prove that the defendant had violated his probation.
Order revoking probation affirmed.
By the Court (Trainor, Vuono & Hanlon, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 15, 2015.