Opinion
18-P-1403
10-10-2019
COMMONWEALTH v. Marvin LAMBERT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Marvin Lambert, appeals from an order revoking his probation. He challenges the sufficiency of the evidence to support the judge's finding that he committed a new criminal offense (possession of a stolen motor vehicle), and claims that the judge denied him due process by finding him in violation of probation for nonpayment of probation fees, which requirement, he submits, had been eliminated. We affirm.
Background. On December 1, 2016, the defendant pleaded guilty to possession of a class C substance, subsequent offense, and was sentenced to one year of probation. The order of probation conditions required the defendant to pay $65 per month in probation supervision fees. In February 2017, a notice of probation violation issued, alleging that the defendant violated his probation by disturbing the peace, failing to pay probation fees, and failing to remain alcohol free. Subsequently, the Commonwealth charged the defendant with operating a motor vehicle with a suspended license. At the probation violation hearing, the defendant stipulated to operating with a suspended license, disturbing the peace, and failing to remain alcohol free. The judge found the defendant in violation of his probation based on the new offenses, but did not find him in violation for failing to pay probation fees. The judge reprobated the defendant, issuing a modified order of probation conditions, reimposing all previous conditions, and adding a requirement that he complete eight hours of community service. In this probation order, the judge did not require the defendant to pay any probation fees.
Thereafter, following a hearing in April 2018, a different judge revoked the defendant's probation based on findings that he committed the new criminal offense of receiving a stolen motor vehicle, and that he failed to pay probation fees totaling $780. The defendant now appeals from that order.
Standard of review. "The Commonwealth must prove a violation of probation by a preponderance of the evidence." Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). The determination that a probation violation occurred "lies within the discretion of the hearing judge," who must assess the weight of the evidence against the defendant. See id. Accordingly, we review an order revoking probation for an abuse of discretion. Id. at 521. We determine "whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the specified conditions of his probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).
Discussion. 1. Possession of stolen motor vehicle. "A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation." Commonwealth v. Durling, 407 Mass. 108, 111 (1990). If an alleged probation violation "involve[s] the violation of criminal laws ... there is no prerequisite that the probationer be convicted thereof to permit the violation to be used as the basis for the revocation." Rubera v. Commonwealth, 371 Mass. 177, 181 (1976). Nevertheless, "[t]he mere filing of criminal charges against a probationer is not enough to show a violation of probation ... because it does not give the probationer a realistic chance to confront his accusers and meet the evidence against him." Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996). Rather, when revoking probation, the judge must find by a preponderance of the evidence that the defendant violated a criminal law. See Bukin, 467 Mass. at 520.
At the hearing, the Commonwealth alleged that the defendant violated his probation because he violated a criminal law by possessing a stolen motor vehicle. Accordingly, pursuant to G. L. c. 266, § 28, the Commonwealth had the burden of proving by a preponderance of the evidence that "(1) the vehicle is stolen, (2) the defendant possessed the vehicle, and (3) the defendant knew that the vehicle was stolen" (citation omitted). Commonwealth v. Campbell, 60 Mass. App. Ct. 215, 217 (2003). "[P]ossession need not be exclusive. It may be joint and constructive, and it may be proved by circumstantial evidence" (citation omitted). Commonwealth v. Namey, 67 Mass. App. Ct. 94, 98 n.7 (2006). Constructive possession requires "knowledge plus ability and intention to control" (citation omitted). Id. See Commonwealth v. Pridgett, 481 Mass. 437, 441 (2019) ("when one is in possession of recently stolen property, knowledge of its status as stolen may be inferred").
"A person's presence in a vehicle as a passenger, without more, is insufficient to prove that he possessed the vehicle," Commonwealth v. Darnell D., 445 Mass. 670, 673 (2005), but "additional facts beyond mere presence or access [can demonstrate that a passenger] had constructive possession of the stolen vehicle" (quotation and citation omitted). Namey, 67 Mass. App. Ct. at 101 n.10. A judge may consider evidence suggesting that the passenger knew the driver as a sufficient additional fact. See id., citing Commonwealth v. Perry, 432 Mass. 214, 230 n.12 (2000) (concluding that the Commonwealth's case was "strengthened ... by, among other evidence, the defendant's testimony that he had known the driver ‘for a while’ "). Contrast Campbell, 60 Mass. App. Ct. at 217 (finding of constructive possession was improper where "there was no evidence of [the defendant-passengers'] relationship to the driver"). Additionally, the fact finder may interpret flight as a "plus" factor substantiating an inference of constructive possession. See Commonwealth v. Summers, 93 Mass. App. Ct. 260, 264 (2018), citing Namey, supra at 98-102.
Here, there was adequate evidence to support the judge's finding that the defendant constructively possessed a stolen motor vehicle. See Rubera, 371 Mass. at 181 ; Namey, 67 Mass. App. Ct. at 98 n.7. The judge's finding did not rest solely on the defendant's mere presence in the stolen vehicle. See Darnell D., 445 Mass. at 673. Rather, the judge relied upon additional facts that supported an inference of constructive possession. See Rubera, supra. The judge specifically found from the bench that, because the defendant was "getting out of the vehicle [twice while the operator was evading the police, per the police report], ... there could be knowledge that he's in a stolen vehicle, even if there's no other indicia. It's 1:00 in the morning. So I do find that there's a violation of the criminal law." Further, there was evidence in the police report that when he was detained, the defendant demonstrated that he knew the driver by his first name by providing it to the officers. We agree with the judge that there was adequate reliable evidence that the defendant knew that the vehicle was stolen, namely (1) the defendant's familiarity by name with the driver of the stolen vehicle, (2) his attempted flight from the vehicle, and (3) the early morning hour of these events. See, e.g., Commonwealth v. Albano, 373 Mass. 132, 135 (1977) (defendant driving at 4:30 A.M. contributed to inference of defendant's knowing possession of gun under driver's seat); Summers, 93 Mass. App. Ct. at 264 (defendant's "effort to escape from the Kia and to leave the scene is redolent of guilt"). These facts supported the judge's finding that the defendant constructively possessed the stolen vehicle. See Bukin, 467 Mass. at 520 ; Namey, supra.
The police report further records that while the defendant was being pat frisked, he stated, "I am on probation. I don't need this."
2. Nonpayment of probation fees. The defendant next contends that the judge's finding that he violated his probation based on unpaid probation fees infringes on his right to due process because his conditions of probation, as modified in March 2017, did not require that he pay any probation fees. We are not persuaded. "Due process requires that a probationer receive fair warning of conduct that may result in revocation of probation; thus, probation conditions must provide reasonable guidance with respect to what activities are prohibited" (quotation and citation omitted). Commonwealth v. Medeiros, 95 Mass. App. Ct. 132, 135-136 (2019). The defendant was given fair notice that his alleged unpaid probation fees would be addressed at his violation hearing as a basis for revoking his probation. The February 12, 2018 notice of probation violation specifically advised the defendant that the probation department was seeking to revoke his probation for nonpayment of supervision fees in the amount of $780. "The notice requirement [of Rule 4(c) of the District/Municipal Courts Rules for Probation Violation Proceedings (2015) ] assures that the defendant has been adequately notified of the nature of the charges against him." Commonwealth v. Bain, 93 Mass. App. Ct. 724, 727 (2018).
Moreover, the defendant raises this issue -- that there were no outstanding probation fees -- for the first time on appeal, having failed to raise it (or his due process argument) at his probation violation hearing. Because the defendant failed to raise this issue at the hearing, it is waived. Commonwealth v. Mauricio, 477 Mass. 588, 594 (2017). We therefore review for a substantial risk of a miscarriage of justice. See Commonwealth v. Conroy, 333 Mass. 751, 757 (1956). "A substantial risk of a miscarriage of justice exists when we have a serious doubt whether the result ... might have been different had the error not been made" (quotation and citation omitted). Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). We find no miscarriage of justice with respect to the judge's finding of unpaid probation fees. Just before finding that the defendant had not paid past due probation fees, the judge had already found that the defendant violated his probation by possessing a stolen motor vehicle. The defendant had fair warning that committing a new criminal offense would constitute "conduct that may result in revocation of probation." Medeiros, 95 Mass. App. Ct. at 136. Based solely on her finding that the defendant had violated a criminal law, the judge acted within her discretion in revoking his probation. See Durling, 407 Mass. at 111-112. Thus, even assuming arguendo that the defendant did not owe any outstanding probation fees, we have no "serious doubt whether the result of the [probation hearing] might have been different had [an] error not been made" regarding alleged unpaid fees. Randolph, 438 Mass. at 297.
In its brief, the Commonwealth persuasively submits that the judge's March 31, 2017 modified order of conditions, although not requiring payment of probation fees, did not exempt the defendant from paying previously assessed unpaid probation fees (at least three months of the $65 probation supervision fee in addition to a $35 outstanding counsel fee) accumulated from December 1, 2016, through March 31, 2017, because those fees had not then been paid.
The parties disagree as to which fees, if any, were outstanding as of the hearing. Had the defendant timely raised the issue at the hearing, the judge would have had the opportunity to make detailed findings on what fees remained outstanding. The judge, from the bench, found that the defendant "failed to make payments," but followed this by qualifying, "I understand that we're going to have an argument as to what that means." As is, the record does not permit us to discern which fees the judge had in mind when she found that the defendant had violated his probation based in part on nonpayment of fees.
The order of probation conditions form, signed on three occasions by the defendant, states under the "General Conditions of Probation" that the probationer must "[o]bey ... all local, state and federal laws." The defendant acknowledged the consequences of noncompliance by signing the form under language which included, "I understand that if I violate any such condition it may result in ... revocation of probation."
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Lastly, as a practical matter, the defendant suffered no financial prejudice from the judge's finding on the issue of unpaid probation fees, because ultimately, in her order, the judge waived all outstanding fees.
For the reasons set forth above, we affirm the judge's order revoking the defendant's probation.
So ordered.
Affirmed.