Opinion
No. 11–P–548.
2012-05-23
COMMONWEALTH v. Zeph PITT.
By the Court (KATZMANN, RUBIN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In December, 2004, the defendant was sentenced to eighteen months in the house of correction for assault by means of a dangerous weapon, followed by five years of probation on the remaining charges. While the defendant was on probation, a Norfolk grand jury indicted him for a masked armed robbery that occurred on October 28, 2009, and a Middlesex grand jury indicted him for another armed robbery that occurred on October 31, 2009. As a result of the new charges, a probation surrender hearing was held. A Superior Court judge found the defendant in violation, revoked his probation, and sentenced him to two concurrent terms of three years to three years and one day at MCI–Cedar Junction. The defendant now appeals from the revocation.
Discussion. I. Due process. The defendant argues that his due process rights were violated because he did not have an opportunity to cross-examine any witnesses or to object to any evidence in his probation revocation hearing. In probation revocation hearings, the defendant has the right to confront and cross-examine “unless the hearing officer specifically finds that there is good cause for not allowing confrontation or the hearsay evidence is reliable.” Commonwealth v. Wilcox, 446 Mass. 61, 66 (2006). If, however, “the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes.” Commonwealth v. Durling, 407 Mass. 108, 118 (1990) (citation omitted). Here, the defendant stipulated to the admission of all of the evidence before the Superior Court. Such a stipulation “bears substantial guarantees of trustworthiness,” obviating the need for a showing of good cause for not allowing confrontation during the probation revocation hearing. Ibid. Therefore, the lack of confrontation in this case did not violate the defendant's due process rights. II. Insufficient evidence. The defendant also argues that the evidence was insufficient for the judge to find by a preponderance, that, for the purposes of a probation violation, the defendant participated in the two bank robberies. Specifically, he argues that the evidence relied on by the judge was unreliable and that the exculpatory evidence overwhelmed the inculpatory evidence.
The judge's finding was “based on the evidence that was submitted with particular emphasis upon the evidence seized pursuant to the execution of the search warrants[,] specifically the jacket and the hat as well as the telephone records ... and the surveillance photographs taken from the two robberies, particularly the second robbery.”
The assessment of “the weight and credibility of the evidence [is] within the judge's exclusive province.” Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50 (2002). On review, therefore, we must 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). Where, however, a defendant “stipulate[s] to the admission [of] evidence ..., he waive[s] any objections to this evidence” and the reliability thereof. Lane, petitioner, 35 Mass.App.Ct. 901, 901 (1993). As such, by stipulating to all of the evidence, the defendant has waived the issue of the reliability and admissibility of the evidence. Thus, the only question before us is “whether the record discloses sufficient ... evidence” to support the judge's finding. Morse, supra.
The evidence consisted of testimony that the defendant had worked at the car dealership from which the getaway cars were stolen, testimony that Detective Hart identified the defendant as the man in the security video photographs, testimony identifying the defendant as the man who paid Dawn Keane's past due bills, testimony, as well as telephone records, which cast doubt on the defendant's alibi witnesses, telephone records placing the defendant's phone near the bank three minutes after the Needham robbery, and a hat and jacket found in the defendant's girlfriend's home and car which matched those worn by the robber. We conclude that this is sufficient evidence to support the judge's finding by a preponderance that the defendant participated in the Needham and Framingham robberies, thus violating his probation. See Commonwealth v. Hector H., 69 Mass.App.Ct. 43, 47 (2007). See also Commonwealth v. Durling, 407 Mass. at 112.
III. Ineffective assistance of counsel. The defendant also argues that he was not afforded effective assistance of counsel because his attorney failed to exclude the hat and jacket as products of an illegal search. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
The defendant's brief lacks sufficient detail in relation to the alleged ineffective assistance of counsel based on counsel's failure to object to “totem pole hearsay” and his failure to present unspecified exculpatory evidence. A claim is waived if it is not argued with adequate detail in the defendant's appellate brief. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Horton, 434 Mass. 823, 836 (2001).
We note that “[a]lthough the rules of criminal procedure do not apply to probation violation proceedings, questions of ineffective assistance of counsel involving those proceedings may most appropriately be raised in a motion for a new trial under rule 30(b) .” Commonwealth v. Patton, 458 Mass. 119, 129 (2010). A “claim of ineffective assistance may [also] be resolved on direct appeal of the defendant's conviction when the factual basis of the claim appears indisputably on the ... record.” Commonwealth v.. Zinser, 446 Mass. 807, 811 (2006) (citation omitted). No such motion or record was made here.
A defendant claiming ineffective assistance of counsel due to counsel's failure to file a motion to suppress evidence “has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). “[W]here the police who unlawfully obtained the evidence neither knew nor had reason to know of the probationary status of the person whose property was seized, the evidence is admissible in a proceeding to revoke probation.” Commonwealth v. Olsen, 405 Mass. 491, 491 (1989). As such, the defendant argues that counsel's failure to question the police as to their knowledge of the defendant's probationary status and counsel's subsequent failure to exclude the fruits of the illegal search constituted ineffective assistance of counsel. The defendant, however, merely asserts that had counsel questioned the police officers, “he may have been able to establish that the police knew of defendant's probationary status .” Such speculation is insufficient “to demonstrate a likelihood that the motion to suppress would have been successful.” Comita, supra. Moreover, in light of the strength of the evidence, successful exclusion of the hat and jacket would not have accomplished anything material for the defense. Commonwealth v. Henley, 63 Mass.App.Ct. 1, 10 (2005). In sum, counsel's assistance was not ineffective.
Order revoking probation and imposing sentence affirmed.