Opinion
11-P-635
03-08-2012
COMMONWEALTH v. PHILIP RUSSO.
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
Defendant Philip Russo appeals, after a finding by a District Court judge of his violation of probation, from the judge's resulting order extending the duration of his probation by three months. The defendant challenges the sufficiency of the evidence submitted in support of the finding of violation. For the following reasons, we affirm the order.
Background. On June 7, 2010, the defendant admitted to facts sufficient for findings of guilt of charges of disorderly conduct, G. L. c. 272, § 53, and trespass, G. L. c. 266, § 120. A judge of the District Court continued the case without a finding for one year until June 7, 2011, with conditions of probation. The defendant signed, and the judge approved, an 'Order of Probation Conditions' form. The form included as its first general condition the requirement that the defendant '[o]bey all court orders.' The form included also, apparently for purposes of communication, the defendant's cellular telephone (cell phone) number.
Meanwhile, on February 28, 2008, pursuant to G. L. c. 209A, a District Court had issued an abuse prevention order forbidding the defendant to engage in any contact with the minor daughter of Susan Gallagher of Beverly. The expiration date of the order was March 9, 2011. On November 10, 2010, while the abuse prevention order remained in force, Susan Gallagher signed a Beverly police department 'Victim/Witness Statement Form' alleging that the defendant had engaged in contact with her daughter and attached to her statement a copy of her daughter's cell phone record showing that an 'incoming' call had originated from the defendant's cell phone number to the daughter's phone on four different occasions during November 2, 2010, and had resulted in conversations of forty-seven, twenty-five, six, and six minutes. The Beverly police department created a police report of one page reflecting Susan Gallagher's allegation and attaching her statement form and a copy of the telephone account record.
The same telephone account record indicated that the daughter's phone on sixteen other occasions during the period of October 28 through November 6, 2010, had originated calls to the defendant's cell phone ranging from one minute to eighty-two minutes in duration.
The defendant's probation officer then issued a notice of probation violation. At the ensuing evidentiary hearing, the sole witness was the defendant's probation officer. As evidence of the violation, she submitted the Beverly police report and its appended statement of Susan Gallagher and the cellular telephone record of her daughter.
Defense counsel objected to the use of the police report and the attachments as evidence of a violation on the grounds that the report and attachment were not, and did not contain, reliable hearsay evidence of the quality required in a probation violation hearing. The judge ruled that the police report and attachment did constitute hearsay of sufficient reliability for factfinding. The judge indicated that the report had inherent trustworthiness and that a magistrate of a separate District Court had found from it probable cause for the issuance of a criminal complaint for violation of the abuse prevention order.
As a sanction for the violation, the judge extended the original period of probation from an end date of June 7, 2011, to August 26, 2011. This appeal ensued.
Analysis. A finding of a probation violation must have the support of preponderant evidence. Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006). Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001). Reliable hearsay alone may be sufficient evidence. Commonwealth v. Durling, 407 Mass. 108, 118 (1990). Trustworthy police reports may constitute the vehicles of such hearsay. The degree of detail of a police report is an important indicium of reliability. Id. at 121. In this instance, three indicia of reliability support the judge's finding. First, Susan Gallagher came forward to the police and signed a statement likely to expose her to challenge or contradiction. Second, she substantiated her allegation with a detailed and itemized telephone account log in the nature of a record created and maintained in the routine course of business. Third, the log contained the extremely specific connection between the ten-digit cell phone number of the defendant and that of the daughter for four calls from his number to hers. The cumulative strength of these factors renders the hearsay information sufficiently reliable for the finding of a violation.
Order extending probation period affirmed.
By the Court (Rapoza, C.J., Grainger & Sikora, JJ.),