Opinion
15-P-82
02-11-2016
COMMONWEALTH v. ANGEL VASQUEZ.
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
Angel Vasquez (probationer) was found in violation of probation by a judge of the District Court. On appeal, he argues that the judge relied on inadmissible hearsay in violation of the minimal due process rights afforded in probation revocation hearings. We affirm.
The probationer was charged with four new crimes while on probation and a probation revocation hearing was held. Although the probation officer testified at the hearing, no percipient witnesses were summoned or appeared. The judge relied solely on a police report containing statements from the victim in finding, by a preponderance of the evidence, that the probationer committed an assault and battery.
One count of assault and battery in violation of G. L. c. 265, § 13A(a), two counts of assault by means of a dangerous weapon in violation of G. L. c. 265, § 15B(b), and one count of witness intimidation in violation of G. L. c. 268, § 13B.
The allowance of reliable hearsay in probation revocation hearings furthers the principles "that revocation proceedings must be flexible in nature, and that all reliable evidence should be considered." Commonwealth v. Durling, 407 Mass. 108, 114 (1990). The judge, on the Commonwealth's motion, made findings that portions of the police report he relied on were "admissible, as they constituted excited utterances," and "are backed up by the [police] officer's factually detailed observations." Such "reliable hearsay evidence provides good cause to deny a defendant his right to confront and to cross-examine witnesses during a final probation revocation proceeding." Commonwealth v. Negron, 441 Mass. 685, 691 (2004). Accordingly, we perceive no error; the probationer was afforded the due process required in probation revocation hearings. See Durling, supra at 113.
As the judge noted, the police report included observations that the victim's neck was "red[] and sw[ollen]" and that the victim was "holding her arm and appeared to be in a lot of pain." The report was very detailed and was written after the officer interviewed several witnesses, including a witness who was on the telephone with the victim at the time of the incident.
Order revoking probation affirmed.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 11, 2016.