Opinion
14-P-216
03-09-2015
COMMONWEALTH v. ANTHONY CAMPBELL.
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
The defendant appeals from a finding that he violated the terms of his probation, alleging that the adjudication was impermissibly based upon inadmissible hearsay. We affirm.
Background. The defendant was alleged to have violated the terms of his probation by committing a new offense. An evidentiary hearing was held on the allegation. We summarize the facts as presented at the probation violation hearing.
At approximately 9:15 P.M. on September 25, 2013, Officer Joel Reyes was dispatched to the area of Layzon Brothers Road in Springfield. Arriving police were approached by an older woman who was waving down their vehicle. She seemed frantic, and said that she had been beaten up. The woman, later identified as Mary Walden, was sweating profusely and had marks on her neck. She told the officers that her grandson (the defendant) grabbed her by the neck, pushed her to the floor, and choked her. The responding officers notified other officers to be on the lookout for the defendant, who was now wanted for domestic assault and battery. Officer Reyes soon located the defendant on the front steps of his property at 57 Oakwood Terrace. When the defendant saw the police vehicle approaching, he ran up the two stairs to his house, entered the house, and closed the door. He then was arrested without incident.
Officer Reyes testified that "we" responded, but there is no indication in the record as to the identity of his partner.
Two witnesses testified at the probation violation hearing. Officer Reyes testified on behalf of the Commonwealth and recounted his interactions with Walden on the day of the alleged assault. In overruling the defendant's objection to Officer Reyes's testimony about what Walden said to him, the judge stated:
Walden did not testify. Neither party disputes that Walden invoked her Fifth Amendment to the United States Constitution right against self-incrimination, and therefore was "unavailable."
"The detail in the statements by Ms. Walden were -- (sic) suggested personal knowledge of what her -- she was relaying personal knowledge of what happened to the police officers. There was corroborating -- police corroborated some of that by seeing the red marks. She was excited, she seemed agitated, and she is not available. So I am going to overrule the defendant's objection, and allow the testimony to come into evidence."The defendant offered the testimony of private investigator Julio Ortiz, who had interacted with Walden on several occasions. Ortiz testified that Walden told him that she had lied in her call to the police; she mentioned a gun in order to get the police to the scene more quickly.
"[A]pplying the standard of proof by a preponderance of the evidence, and the testimony of the officer that Ms. Walden had red marks on her neck, the fact that the defendant ran from the police when the police approached," the judge ruled "that there is probable cause to believe that an assault and battery occurred and [the defendant] was -- violated his probation[.]" The judge made an oral finding of a violation.
Discussion. The defendant raises two issues, both alleging a violation of District Court Rules for Probation Violation Proceedings 6(b) (West 2001) (Rule 6[b]). Under Rule 6(b),
"Where the sole evidence submitted to prove a violation of probation is hearsay, that evidence will be sufficient only if the court finds, in writing, (1) that such evidence is substantially trustworthy and demonstrably reliable and (2) if the alleged violation is charged or uncharged criminal behavior, that the probation officer has good cause for proceeding without a witness with personal knowledge of the evidence presented."
The defendant first argues that the judge could not consider the statements testified to by Officer Reyes and attributed to Walden to be "substantially trustworthy and demonstrably reliable," Rule 6(b), because Walden admitted to the private investigator that she had lied to the police about the presence of a gun. According to the defendant, this admission undermines Walden's credibility, making it error for the judge to rely on her hearsay statements. This argument fails because it is clear from the record that the judge did not rely on Walden's statements alone in finding a violation. Instead, the judge explicitly relied on Officer Reyes's testimony regarding his (the officer's) personal observations. The judge's recitation of the corroborating facts, upon which he based his finding, renders Rule 6(b) inapplicable. The judge heard sufficient facts to support his conclusion, by a preponderance of the evidence, that the defendant violated the terms of his probation. There was no error.
We note that the Commonwealth's argument at the hearing and in its brief, that Walden's statements to Officer Reyes are excepted from the hearsay rule because they were excited utterances, has compelling force. However, we need not reach that argument because the statements were not the sole evidence before the judge and Rule 6(b) does not apply.
The defendant's second argument is that the adjudication must be reversed because the judge failed to make written findings as required by Rule 6(b). This argument fails because Rule 6(b) is inapplicable. While due process and District Court Rules for Probation Violation Proceedings 7(c) require written findings to support a finding of violation, see Morrisey v. Brewer, 408 U.S. 471 (1972), the requirements of due process are "flexible." See Gagnon v. Scarpelli, 411 U.S. 778 (1973); Commonwealth v. Durling, 407 Mass. 108, 113 (1990). "The judge in open court, and in [the defendant's] presence, reviewed the evidence and stated his findings and his reasons for revoking probation." Fay v. Commonwealth, 379 Mass. 498, 504 (1980). The defendant obtained a written transcript, and due process was satisfied. Id. at 505.
Order revoking probation affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 9, 2015.