Opinion
13-P-759
02-25-2015
COMMONWEALTH v. GUY LEE SMITH.
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
On January 5, 2010, the defendant was sentenced by a Superior Court judge to two years to two years and one day for receiving stolen property over $250 (concurrently on five counts) and five years of concurrent probation for breaking and entering and receiving stolen property $250 or under (two counts). On June 29, 2012, a different Superior Court judge found that the defendant violated his probation by committing new offenses: breaking and entering in the daytime, larceny over $250, and receipt of stolen property. The judge revoked the defendant's probation, sentenced him to four to six years, committed, on the breaking and entering, and terminated probation as to the other two indictments. The defendant appeals. We affirm.
1. The defendant first argues that the assistant district attorney's participation at the probation revocation hearing violated the separation of powers principles guaranteed by art. 30 of the Massachusetts Declaration of Rights. "Probation functions are within the judicial branch . . . and the office of district attorney is considered as within the executive branch . . . ." Commonwealth v. Tate, 34 Mass. App. Ct. 446, 447-448 (1993). However, the district attorney's office may assist the probation service during revocation hearings. Id. at 448. The participation and cooperation between the assistant district attorney and the probation officer was voluntary. See ibid. We conclude that the facts do not rise to the level of unconstitutional interference.
The probation officer was present throughout the hearing.
2. The defendant also argues that his probation revocation was based on unreliable hearsay. We disagree and conclude that the admitted hearsay statements were substantially reliable and, under the relaxed evidentiary standards of probation revocation hearings, were properly admitted. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004) (probation can be revoked based solely on hearsay evidence of violation of probation, as long as the hearsay evidence bears substantial indicia of reliability); Commonwealth v. Wilcox, 446 Mass. 61, 71 (2006). "[A] probationer 'need not be provided with the full panoply of constitutional protections applicable at a criminal trial.'" Commonwealth v. Kelsey, 464 Mass. 315, 319 (2013), quoting from Commonwealth v. Durling, 407 Mass. 108, 113 (1990). During the hearing, the judge must balance both the interest of the Commonwealth in "imposing effective punishment on a convicted criminal when rehabilitation [i.e., probation] is not possible," Negron, supra at 687 (citation omitted), and the probationer's conditional liberty interest, Durling, 407 Mass. at 115. The longstanding principles that revocation proceedings must be flexible in nature and the scope of a probationer's due process right to confront witnesses depends on the totality of the circumstances in each case guide us here. See Kelsey, supra at 322.
Reliable hearsay was presented during the revocation hearing. The judge did not need to require availability of the declarant for cross-examination. Negron, supra at 691. The judge here took each hearsay statement de bene and carefully considered its reliability. He noted:
"[I]n determining reliability it's important not only to hear what the statements are, the context in which they're made, but also to -- the certainty with which they're reported. But also, to have the defendant, through counsel, have an opportunity to cross-examine the witness, providing the hearsay testimony. That may impact on the determination of reliability."The judge did not abuse his discretion when he determined that some statements were too vague and excluded them for lack of reliability. He found the other statements sufficiently reliable and we discern no reason to conclude otherwise.
For example, the judge considered the statements made by Kristen Donahue, the victim of the alleged breaking and entering offense, to Detective Porro during the course of a police investigation. The statements identified the vehicle that fled from her driveway and they were based on her personal knowledge and direct observation. Furthermore, they were corroborated by Officer Copponi's observation of the car's warmth upon his arrival at the defendant's girlfriend's house, to which the investigation had led based on the victim's identification of the license plate of the car as it fled the scene.
For example, the judge ruled inadmissible statements purportedly made by Linda James to Officer Copponi.
The standard of proof in a probation revocation proceeding is preponderance of the evidence. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). This standard was satisfied as the evidence here could be found to have demonstrated that, more likely than not, the defendant violated his probation. The judge did not err in finding that the defendant violated his probation, see Tate, supra at 450 ("[w]e do not disturb the findings of fact of the Superior Court judge absent clear error"), and the judge did not abuse his discretion in ordering probation revoked, see id. at 451 ("Revoking probation is a decision within the sound discretion of the judge in the trial court"). No issue is raised as to the resulting sentence.
Subsequent to the judge's revocation of the defendant's probation, the new charges against him -- which were the basis for the revocation -- resulted in verdicts of not guilty, dismissals, or nolle prosequis. Given the different standard of proof, this is of little consequence. See Commonwealth v. Holmgren, 421 Mass. 224, 225-227 (1995). "[A] violation may be found even if the defendant has been acquitted of the same conduct after a criminal trial." Wilcox, 446 Mass. at 66. The defendant is free to bring a motion for reconsideration in the trial court if he so desires and the judge is free to review his earlier ruling if he so wishes.
Order revoking probation and imposing sentence affirmed
By the Court (Kantrowitz, Graham & Katzmann, JJ. , ),
Justice Graham participated in the deliberation on this case prior to his retirement.
The panelists are listed in order of seniority.
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Clerk Entered: February 25, 2015.