Opinion
14-P-562
03-10-2015
COMMONWEALTH v. JAMES MARTIN.
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 a Boston Municipal Court order revoking his probation and imposing the balance of a suspended sentence that he received after pleading guilty to the charge of intimidation of a witness on November 10, 2011. The defendant complains that the evidence presented during the probation revocation hearing was insufficient to justify the revocation of his probation, especially given the hearsay evidence. We affirm.
"To warrant revocation of probation, the Commonwealth must prove one or more violations of the conditions of probation by a preponderance of the evidence." Commonwealth v. Hector H., 69 Mass. App. Ct. 43, 47 (2007). The task of this court is to determine whether, upon the record, there is "sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the . . . conditions of his probation . . . and an accurate basis for determining whether revocation was proper." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).
In determining the propriety of a probation revocation, "the best source of information for such a determination is the testimony of one or more persons who have personal knowledge of the facts which the Commonwealth alleges constitute a violation. Such testimony can be tested by cross-examination." Commonwealth v. Durling, 407 Mass. 108, 116-117 (1990). It is well within the judge's exclusive province to "[a]ssess[] the weight and credibility of the evidence" and to "accept or reject, in whole or in part, the testimony presented." Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 50 (2002), quoting from Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). If a probation violation is based on 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." Commonwealth v. Durling, supra at 112, quoting from Rubera v. Commonwealth, 371 Mass. 177, 181 (1976). See Commonwealth v. Holmgren, 421 Mass. 224, 225-226 (1995).
After several prior findings of probation violations that had resulted in the imposition of additional special conditions and terms of probation, the defendant was served with notice of the hearing date and the alleged probation violations relevant here. During the final revocation hearing, the defendant's probation officer presented, in an introductory and outline fashion, the alleged violations for which notice had been given. With respect to the alleged violations described by the defendant as "technical," no actual sworn testimony was given, nor does it appear that the defendant had admitted those violations. Consequently, we agree with so much of the defendant's argument that the evidence was insufficient to prove those technical violations.
The notice alleged the following probation violations: subsequently charged criminal offenses in two District Courts, failing to attend and complete mental health evaluation and treatment, cutting off his GPS bracelet on August 8, 2013, failing to adhere to his 9:00 P.M. curfew, failing to pay court-ordered fees, failing to report to his probation officer since August 8, 2013, failing to verify his address since the same date, and failing to obtain employment or attend school.
However, we do not agree that the alleged violations of subsequently charged criminal offenses were inadequately supported by reliable evidence. With respect to the assault and battery charge, notwithstanding the defendant's girlfriend's statement that she pushed the defendant, a police officer testified at the probation revocation hearing that he witnessed the defendant push his girlfriend. Thus, this evidence alone sufficed to support the revocation of probation.
With respect to the evidence of the breaking and entering charge, while not as strong as the assault and battery matter and no percipient witness testified to the actual breaking and entering, sufficient evidence, even though circumstantial, was presented to support the finding of a violation on this ground. Within a very narrow time frame, the property owner left the building, his apartment alarm sounded, and the defendant along with a young male and female were seen on the building's rear first-floor porch area, gave false reasons for being there, fled suddenly into a neighboring house in which the young male lived, and the defendant told one of the two women present in that house, "You didn't see anything." In our view, that evidence, along with the reasonable inferences that may be drawn therefrom, was sufficient to show the defendant's involvement with the breaking and entering. The evidence was therefore sufficient to support the revocation of probation based on the finding that the defendant violated the criminal laws.
Order revoking probation affirmed.
By the Court (Fecteau, Wolohojian & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 10, 2015.