Opinion
11-P-1527
04-20-2012
COMMONWEALTH v. KENNETH A. KRAFT.
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
This is an appeal from the revocation of probation and the denial of a motion for reconsideration. We affirm.
The defendant pleaded guilty to a charge of operating a motor vehicle while under the influence of intoxicating liquors, third offense, and was sentenced to two years' incarceration, six months to be served. He was serving the eighteen months' probation on this split sentence at the time probation was revoked. After a hearing at which the judge heard from percipient witnesses, he revoked probation and imposed the balance of the term. See Commonwealth v. Holmgren, 421 Mass. 224, 228 (1995) (revocation of probation in split sentence requires imposition of full term).
The defendant argues that the police did not properly serve the warrant in his home because they failed to adequately announce their purpose. As a result, the defendant argues, all fruits of the encounter must be suppressed. See Commonwealth v. Macias, 429 Mass. 698, 700-701 (1999); Commonwealth v. Silva, 440 Mass. 772, 776-778 (2004). We review error, if any, for whether it created a substantial risk of a miscarriage of justice, as this argument was not raised below. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). This argument is factually at odds with the defendant's alternative argument on appeal, namely that the defendant repeatedly offered to take the breathalyzer test before leaving the house and should have been afforded the opportunity to do so. See note 3, infra. As the back and forth regarding the breathalyzer demonstrates, the defendant was informed as to the reasons for the presence of the officers, and therefore there was no substantial risk of miscarriage of justice.
In the absence of a violation of the Fourth Amendment to the United States Constitution, there is no reason to apply the exclusionary rule. See Commonwealth v. Olsen, 405 Mass. 491, 495-496 (1989); Commonwealth v. Simon, 57 Mass. App. Ct. 80, 90 (2003).
The defendant further argues that he already had served eighteen months of probation, and that revocation was contrary to public policy and the weight of the evidence. The revocation of probation is a matter committed to the sound discretion of the judge. Commonwealth v. Faulkner, 418 Mass 352, 365 n.11 (1994). The judge held a full evidentiary hearing and heard from witnesses with firsthand knowledge of the events. He weighed and considered the evidence presented. The judge found that the defendant already had been found in violation of his probation for failing a breathalyzer test and a drug test, and had been allowed a last chance to remain on probation, provided he remained on Antabuse and gave a daily breath sample. The judge also found, based on the testimony of the police officers and the probation officer, whom he credited, that the defendant had failed to comply with testing requirements and was intoxicated. The defendant failed to respond to a daily telephone call to his home in connection with the process for giving the daily breath sample, as well as to a follow-up call to his cellular telephone. The police found alcohol in the home and the defendant smelled of alcohol and his speech was slurred. The probation officer urged revocation because the defendant had been given previous opportunities to remain at liberty despite a violation of the conditions of probation, and supports were lacking in the home. The judge found that he was a danger to the public and revoked probation.
The defendant claimed his home telephone was out of order and that he simply failed to answer his cellular telephone. The judge was not obligated to give great weight to this testimony, especially in light of the judge's finding that the defendant was intoxicated and therefore would have had reason to avoid giving the breath sample. Even if the failure to answer the telephone was not considered, the defendant's previous violations and his intoxication were sufficient to support the judge's findings.
At the time of his arrest the defendant offered to take a breathalyzer test. He was not given one. The judge was entitled to rely on the testimony of the officers. See Commonwealth v. Scott, 430 Mass. 351, 355-356 (1999).
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The Commonwealth met its burden of showing a violation of probation by a preponderance of the evidence. Commonwealth v. Holmgren, 421 Mass. at 226. The judge did not abuse his discretion. Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006).
Orders revoking probation and denying reconsideration affirmed.
By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),