Opinion
19-P-895
10-22-2020
COMMONWEALTH v. Xavier WYATT.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal, Xavier Wyatt appeals from a judgment revoking his probation and from the denial of his motion for rehearing pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). We affirm.
On January 26, 2017, Wyatt tendered a plea to the charge of receiving stolen property over $250; a judge of the Dorchester Division of the Boston Municipal Court Department (BMC) continued the matter without a finding for six months. In July 2017, Wyatt was issued a notice of probation violation based on a new criminal offense -- assault and battery on a family or household member. A final violation hearing was held on August 15, 2017. Having heard testimony of Boston Police Officer Michael Mahoney, who recounted both his own observations and statements made by the parties, and Wyatt's private investigator, the judge found Wyatt in violation of his probation. The judge revoked the continuation without a finding on the charge of receiving stolen property and substituted a guilty finding, then sentenced Wyatt on that charge to the house of correction for a term of four months. Wyatt filed a timely notice of appeal from the judgment revoking his probation; his appeal was stayed in order to allow him to file a motion for rehearing in the BMC. The motion was denied on April 22, 2019, after a hearing. Wyatt filed a timely notice of appeal from that ruling; his appeals have been consolidated under the instant docket number. We review for an abuse of discretion or significant error of law. See Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 172 (2018).
The victim did not respond to a witness summons issued on behalf of the probation department and so did not testify.
Wyatt's first argument, raised in his rule 30 (b) motion for rehearing, is that his due process rights were violated when the probation department's witness testified to a statement, attributed to Wyatt, that was not included in the police report. We are not persuaded.
At the hearing, Officer Mahoney testified that he and his partner had been dispatched to a report of a domestic disturbance, and that the vehicle involved had been the subject of two earlier calls involving the same parties. When he arrived at the address to which he had been dispatched, Mahoney met Wyatt and a woman (the victim), who looked "emotionally upset." He saw that Wyatt had a cut on his finger and that there was blood on the victim's clothing and on a small dog that the victim held. Mahoney testified that the victim told him she and Wyatt had been arguing all morning, that she had been trying to end a relationship with Wyatt for two weeks, and that Wyatt had been following her. The victim told Mahoney she had been in a moving car with Wyatt, that Wyatt had grabbed her seatbelt to foil her efforts to get out of the car, and that when he stopped the car, she got out and ran up the street. She told Mahoney that when she told Wyatt she planned to end the relationship, Wyatt gave her an "ultimatum": "He said ... you could be with me or you could die." Mahoney was dispatched to the area based on a report by a third party who had witnessed a portion of the incident.
Mahoney testified that when placed in the police cruiser, Wyatt slammed his head against the interior of the vehicle, yelled out the victim's name, and "was saying that she was supposed to have his child."
According to Mahoney, he telephoned the victim later on the day of the incident in order to obtain additional information relevant to the appropriate charges to be brought against Wyatt. In the course of that conversation, the victim told Mahoney that in addition to grabbing her seatbelt, Wyatt had gotten her into a headlock and punched her in the head.
While the substance of nearly all of Mahoney's testimony was included in the police report, the report did not include the statement allegedly made by Wyatt while in the police cruiser.
The right to disclosure of evidence against a probationer and the right to cross-examine witnesses are included in the "minimum requirements of due process." Commonwealth v. Durling, 407 Mass. 108, 113 (1990). Mindful that "probationers facing revocation proceedings enjoy fewer and more flexible due process rights than criminal defendants," we nonetheless review Wyatt's due process challenges under the standards applicable to constitutional claims "to determine whether the error, if any, was ‘harmless beyond a reasonable doubt.’ " Commonwealth v. Kelsey, 464 Mass. 315, 319 (2013), quoting Commonwealth v. Bacigalupo, 455 Mass. 485, 495 (2009). See Commonwealth v. Wilcox, 446 Mass. 61, 66, (2006) (outlining due process rights to which probationer is entitled).
Wyatt correctly cites to Commonwealth v. Maggio, 414 Mass. 193, 197 (1993), for the proposition that a probationer is entitled to be made aware of the evidence supporting an alleged violation. He does not, however, provide any authority to support his claim that he is entitled to notice of every detail of that evidence, and we find none. See Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 44 (2002) (noting "accepted law that revocation proceedings do not endow probationers with plenary constitutional protections"). Cf. Maggio, supra (inadequate disclosure where probationer not present for grand jury presentation and "[t]here [was] no showing that the defendant was otherwise informed of any of the facts underlying [the] indictments" on which violation was based). We discern no error in the admission of the defendant's statement.
Furthermore, were we to conclude that it was error to admit Wyatt's statements under these circumstances, we are satisfied that the statements were not significant to the judge's decision, as he did not refer to them in his findings.
Next, Wyatt contends that his ability to present a defense was impaired when the judge precluded his investigator from testifying about what the victim told him about her childhood and her medical conditions. The disputed testimony was offered only for the purposes of impeachment. The issue was preserved, and so we review for prejudicial error. See Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 (2015). See also Commonwealth v. Allen, 474 Mass. 162, 168 (2016).
On this record, we conclude that it was error to preclude Wyatt from eliciting the investigator's account of the victim's statement to him. Although Wyatt was not permitted to make an offer of proof as to the investigator's testimony on this disputed point, it appears from the transcript that the investigator's testimony would have gone to the victim's ability to perceive the events at issue and to her ability to recall them accurately. "Although there is discretion involved in determining whether to admit or exclude evidence offered for impeachment, when the impeaching evidence is directly related to testimony on a central issue in the case, there is no discretion to exclude it." Commonwealth v. Niemic, 483 Mass. 571, 581 (2019), quoting Mass. G. Evid. § 613(a)(4) note (2019).
Under the circumstances here, however, we are confident that "the error did not influence the [fact-finder], or had but [very] slight effect." Commonwealth v. Ridge, 455 Mass. 307, 318 (2009), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Wyatt's witness was permitted to testify that the victim's position at the time of the hearing was that the police reports were "not accurate," and that "she didn't think [the probation violation] should go forward, that she thought he would be innocent." The evidence that the judge did hear in this regard -- that the victim affirmatively believed that the information in the report was "not accurate" -- was arguably more favorable to the defendant than evidence that she was unable to remember the events at issue would have been. We are satisfied that the defendant was not prejudiced by the limitations on his investigator's testimony.
To the extent that Wyatt contends that failure to refresh the investigator's recollection using his report -- which, although not a part of the appellate record apparently incorporated the disputed statements of the victim -- amounted to ineffective assistance of counsel, he does so only in a footnote. Those contentions "do not rise to the level of appellate argument." Commonwealth v. Arias, 78 Mass. App. Ct. 429, 437 n.7 (2010), citing Commonwealth v. Lydon, 413 Mass. 309, 317-318 (1992).
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Lastly, Wyatt challenges the judge's determination that the hearsay evidence presented in support of the violation was substantially reliable. Again, we are not persuaded. Hearsay evidence is admissible in probation violation hearings, and may be the sole basis for a finding of violation where admissible under the rules of evidence or where the evidence "has substantial indicia of reliability." Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). See Commonwealth v. Bukin, 467 Mass. 516, 520 (2014) ; Commonwealth v. Patton, 458 Mass. 119, 132 (2010). "In assessing whether the hearsay evidence is reliable, a hearing judge may consider (1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity." Hartfield, supra, citing Patton, supra at 132–133. See rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings (2015). "There is no requirement that hearsay satisfy all the above criteria to be trustworthy and reliable." Patton, supra at 133.
Here, the judge's written findings document his consideration of the relevant factors and his determination that the hearsay evidence presented satisfied the majority of the criteria for reliability, including factors (1), (2), (3), (4), (6), and (7). The record supports the judge's assessment of reliability. It is for the judge to assess the weight of the evidence presented. See Bukin, 467 Mass. at 521. We discern no abuse of discretion in the judge's finding that Wyatt violated his probation in this case. See id. (discussing appropriate standard of review for reliability of hearsay evidence).
Judgment revoking probation affirmed.
Order denying rule 30 motion for rehearing affirmed.