Opinion
19-P-1470
06-11-2020
COMMONWEALTH v. ISAIAH HAWKINS.
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, Isaiah Hawkins, appeals from a Superior Court judge's order revoking his probation based on his commission of a new assault and battery offense against his former girlfriend. The defendant argues, as he did unsuccessfully to the judge, that the hearsay forming the sole evidence of the new offense was not substantially reliable. We agree and reverse.
Background. The evidence at the surrender hearing consisted of (1) an affidavit that the victim had signed in support of her request for a G. L. c. 209A restraining order, and (2) a police report recounting what the victim had told a police officer the day after the alleged assault and battery. The affidavit stated in pertinent part that the defendant had "[h]it me multiple times in the head [and] slap[p]ed me." The affidavit included numerous other details of the defendant's threatening and disturbing conduct toward the victim and the child they had together.
An order appears to have issued on an ex parte basis, without a hearing. An extension hearing was scheduled a date two weeks later.
The police report recited what the victim told an officer at a police station the day after the incident. In pertinent part, the report recounted the victim's statements that the defendant had "slapped her across the back of the head" and "hit her to the nose/face area." She was "unsure if he struck her with a closed fist or backhand. [She] states her face stung for at least 10 minutes, no visible injuries." The police report contained numerous other details of the incident as reported by the victim; these were generally consistent with her G. L. c. 209A affidavit.
At the surrender hearing, the judge noted the consistency between the affidavit and the police report. She found both to be "sufficiently reliable," credited them, and found the defendant in violation and revoked his probation.
Discussion. When hearsay is the only evidence of a probation violation, it "must be substantially reliable" in order to support a finding of a violation. Commonwealth v. Durling, 407 Mass. 108, 118 (1990). See Commonwealth v. Foster, 77 Mass. App. Ct. 444, 450-451 (2010) (question is not whether hearsay is admissible but whether it is substantially reliable). To evaluate whether the hearsay relied upon here was substantially reliable, we turn to the factors listed in Commonwealth v. Hartfield, 474 Mass. 474 (2016). These include:
"(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. at 484. Not all of these criteria must be satisfied. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010). Because the evidence the judge relied upon was exclusively documentary, we review her findings without deference. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).
Here, the police report includes no evidence of an assault and battery beyond what the victim reported. The report was "nothing more than an account of [the victim's] statement. There were no indicia of reliability . . . no corroboration, [and] no investigation." Commonwealth v. Wilson, 47 Mass. App. Ct. 924, 925 (1999). See Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 905 (2003) (where sole evidence was officer's hearsay testimony, which "was nothing more than a repetition of what [the officer] had been told by the complainant," evidence was not substantially reliable). Thus, even if we assume that the police report itself is a substantially reliable recitation of what the victim told the officer, the principal question is whether the victim's accounts, as contained in the report and in her affidavit, were substantially reliable.
An additional consideration in Wilson, 47 Mass. App. Ct. at 925, was that the report contained "no observations of the police." Here, the one observation contained in the police report -- "no visible injuries" -- does not tend to establish the reliability of the victim's account.
We acknowledge that many of the Hartfield factors weigh in favor of the accounts' reliability. The accounts were based on personal knowledge, were recorded close in time to the events in question, were factually detailed, and were internally consistent, as well as largely consistent with each other. Moreover, both statements were made under circumstances that support their veracity. The victim's affidavit was signed under the penalties of perjury. See Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 676 (2012) ("sworn statements in the nature of affidavits . . . have traditionally been eligible for admission at revocation hearings"). And the fact that it is a crime to make a false report of a crime to a police officer bolsters the reliability of the account contained in the police report. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006); Commonwealth v. Negron, 441 Mass. 685, 691 (2004).
The affidavit and the report differ slightly in their descriptions of where and how the defendant struck the victim. We do not view these slight discrepancies as significantly detracting from the accounts' reliability.
It does not appear, however, that the judge who issued the G. L. c. 209A order heard any testimony from the victim or otherwise had an opportunity to evaluate the victim's credibility.
The remaining Hartfield factors, however, weigh against reliability here. First, the victim was not a disinterested witness. See Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019); Commonwealth v. Cates, 57 Mass. App. Ct. 759, 762-763 (2003). See also Patton, 458 Mass. at 134 (alleged rape victim's hearsay account met "four of the five criteria" for determining substantial reliability; discussing all criteria except victim being disinterested).
Second, and most significant here, the victim's accounts were not "corroborated by information from other sources." Hartfield, 474 Mass. at 484. Of the cases the parties rely upon here, the most factually similar case is Henderson, 82 Mass. App. Ct. 674. There, the evidence of a probation violation (in the form of an assault and battery) consisted of (1) the victim's G. L. c. 209A affidavit; (2) a responding police officer's report that he observed "visible bruises to [the victim's] face as well as a cut lip"; and (3) a probation officer's testimony that he had spoken to the responding officer and the latter had confirmed the victim's bloody lip. Id. at 677-679. Thus, in Henderson, the victim's report was corroborated by a police officer's personal observation of the victim's injuries, both as recorded in the officer's report and as related by him to the probation officer.
The corroboration present in Henderson is missing here. Nor do the parties cite any case in which entirely uncorroborated hearsay was held substantially reliable. In every case we have reviewed where hearsay was held substantially reliable as the sole basis for finding a probation violation, there was some form of corroboration from a source other than the declarant. See Commonwealth v. Bukin, 467 Mass. 516, 520-521 (2014); Patton, 458 Mass. at 134; Nunez, 446 Mass. at 59; Negron, 441 Mass. at 691; Ogarro, 95 Mass. App. Ct. at 667-668; Cates, 57 Mass. App. Ct. at 763; Commonwealth v. Mejias, 44 Mass. App. Ct. 948, 949 (1998); Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996). See also Durling, 407 Mass. at 121 (similarity of detailed police reports about separate incidents involving defendant indicated reliability of each report). In other cases, the lack of such corroboration contributed to a determination that hearsay was not substantially reliable. See Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 727 (2019); Ortiz, 58 Mass. App. Ct. at 905; Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 454 (2001); Wilson, 47 Mass. App. Ct. at 925-926. See also Commonwealth v. King, 71 Mass. App. Ct. 737, 741-742 (2008) (although one of officer's personal observations corroborated detail of victim's hearsay report, officer's other observations "fundamentally undermine[d] [victim's] credibility, stripping it of the requisite substantial indicia of reliability and trustworthiness").
In Negron, 441 Mass. at 691-692, the court made no final determination of reliability, but instead remanded the case to allow cross-examination of the corroborating witness.
We therefore conclude that the victim's accounts here, as contained in the affidavit and the police report, were not substantially reliable. Thus they could not support the finding of a probation violation.
Order revoking probation and imposing sentence reversed.
By the Court (Sacks, Singh & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 11, 2020.