Opinion
10-P-1558
10-06-2011
COMMONWEALTH v. JEFFREY H. JOHNSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from orders which revoked his probationary sentence and imposed a sentence to State prison. On appeal, he claims that (1) there was insufficient evidence to support the revocation of his probation; (2) the judge erred in considering the prior recorded statement of a deceased witness; (3) the prosecutor improperly referenced threatening and intimidating behavior attributed to the defendant; and (4) the judge improperly sentenced him based on his conduct that gave rise to his probation revocation. We affirm, but remand for resentencing.
1. Sufficiency of the evidence. As the judge found, and the defendant does not disagree, the evidence was more than sufficient to establish that on August 23, 2007, at approximately 9:30 P. M., Louis Cotto was driving home and was followed by a white Nissan Altima automobile being driven by Wayne Beeso, who was accompanied by an African-American male passenger. Someone from the Nissan fired a shot at Cotto's car and shattered his rear window. The only issue remaining for the judge to determine was the identity of the shooter. As explained below, the judge properly determined, by a preponderance of the evidence, that the defendant fired the shot at Cotto's car.
From the evidence presented, the judge could conclude that although Cotto could not positively identify the African-American male passenger by his face, Cotto testified at the hearing that the clothing worn by the defendant at the show-up matched the description of the passenger Cotto had provided to the grand jury. In the grand jury, the minutes of which were made part of the record at the hearing, Cotto testified that 'based on what [the defendant's] clothing was, I would say it was him.' Additional testimony placed the defendant in Beeso's company thirty minutes before the shooting, and Beeso identified the defendant as the shooter in his statement to the police. Beeso also told Jennifer Russell, his girlfriend, that the defendant was the shooter. Even though some of the evidence was hearsay, when coupled with the testimony given at the hearing, there existed a preponderance of evidence that the defendant shot at Cotto, and the judge properly revoked the defendant's probation.
The defendant's challenge to Beeso's statement (which we reject in any event) does not affect our calculus on this issue. As we have said in the context of evidence supporting a criminal conviction, the sufficiency of the evidence 'is to be measured upon that which was admitted in evidence without regard to the propriety of the admission.' Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010).
2. Wayne Beeso's statement. The defendant claims that the judge erred by admitting in evidence Wayne Beeso's statement because it was hearsay and unreliable. We disagree. Hearsay is admissible in a revocation proceeding if it is reliable, and if reliable, then good cause has been established for its admission without cross-examination. Here, Beeso's videotaped statement identifying the defendant as the shooter was corroborated by Officer Escobar's testimony at the hearing, and by Russell's testimony to the grand jury. There was no error. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990); Commonwealth v. Patton, 458 Mass. 119, 134 (2010).
The judge stated that he did not rely on Beeso's statement, but to the extent it shed light on the outcome as part of the evidence before the grand jury that was relied upon, the admission was not error.
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3. Reference to threats and intimidation. The defendant claims that the prosecutor improperly argued that this case was about intimidation and fear, which injected irrelevant and inflammatory elements into the proceedings. We disagree. As the prosecutor made clear to the judge at the hearing, establishing that threats and intimidating conduct took place was relevant to establishing good cause for not calling certain witnesses to present live testimony. See Abbott A. v. Commonwealth, 458 Mass. 24, 35 (2010). The prosecutor's argument was based on facts that were admitted in evidence, and the reasonable inferences drawn therefrom. There was neither error nor an abuse of discretion.
4. Sentencing. Finally, the defendant claims that the judge improperly sentenced him based on his conduct that gave rise to his probation revocation, as opposed to that which related to his underlying offense. We agree. At sentencing, the judge stated that 'in terms of disposition, the crime that the defendant was convicted of frankly has very little to do with what the sentence should be,' and instead based his sentence on the shooting conduct that led to the revocation of probation. This was error. See Commonwealth v. Odoardi, 397 Mass. 28, 30 (1986); Commonwealth v. Rodriguez, 52 Mass. App. Ct. 572, 576-577 (2001).
Order revoking probation affirmed.
Order imposing sentence vacated.
Matter remanded for resentencing.
By the Court (Berry, Meade & Milkey, JJ.),