Opinion
15-P-490
03-30-2016
COMMONWEALTH v. JOHN A. RODRIQUES.
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
Following an evidentiary hearing, a District Court judge found that the defendant had violated his probation based on an incident of domestic violence involving his girl friend. The evidence principally came in the form of testimony from the police officer who had conducted an extensive interview of the girl friend following the incident, and the detailed, four-page, written statement that she provided. The girl friend declined to testify at the probation revocation hearing, instead invoking her right under the Fifth Amendment to the United States Constitution.
Specifically, the judge found that the defendant had committed violations of criminal laws, namely, assault and battery, and intimidation of a witness.
The judge found she had a supportable basis for doing so. The girl friend's invoking the privilege made her unavailable for cross-examination. To the extent that the defendant suggests that his inability to confront the witness in court meant that her out-of-court statements could not be admitted in a probation revocation hearing, the defendant is incorrect. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990) ("[A] showing that the proffered [hearsay] evidence bears substantial indicia of reliability . . . obviat[es] the need for confrontation" in probation revocation context).
As the defendant acknowledges, a probation revocation can be based on hearsay so long as that hearsay presents sufficient indicia of reliability. See Commonwealth v. Durling, 407 Mass. 108, 117-119 (1990); Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). Where hearsay is the sole basis of the alleged violation, it must be "substantially reliable." Commonwealth v. Patton, supra at 132.
Here, hearsay was not the sole basis of the Commonwealth's evidence. For example, the responding officer made firsthand observations, e.g., of the girl friend's emotional state and of a "moon-shape[d]" red mark under her eye that she stated was caused by the defendant's biting her. In any event, to the extent that the girl friend's oral and written statements constituted hearsay, they exhibited significant indicia of reliability. They were made to the officer soon after the incident occurred, they were factually detailed and internally consistent, they were corroborated by the officer's own observations, and in making them, the girl friend was subjecting herself to potential prosecution for making a false report of a crime or misleading a police officer (and the written statement was signed under the pains and penalties of perjury). See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (victim's statement reliable because of its factual detail, its being made shortly after the alleged events, its corroboration by direct observations, and because it is a crime to file a false police report).
On the same day the officer spoke with the girl friend, she obtained a restraining order in District Court. The judge who allowed her application annotated it with his own observation that he "[o]bserved [a] bite mark on [the girl friend's] right cheek." We do not rely on this observation.
In addition, the Commonwealth argues with significant force that at least some of the girl friend's statements could be considered excited utterances, which are "presumptively reliable." Commonwealth v. Patton, supra. We need not resolve that issue.
In sum, the Commonwealth presented ample evidence of a probation violation, and to the extent that its case relied on hearsay, the defendant has shown no error in the judge's reliance on such hearsay.
Order revoking probation affirmed.
By the Court (Milkey, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.