COMMONWEALTH v. KHALIL (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The juvenile appeals from an order revoking his probation on the ground that he violated the terms of his probation by committing new criminal offenses. On appeal, he argues that the revocation order was based on unreliable hearsay and, as a result, the evidence failed to establish that he committed the new offenses by a preponderance of the evidence. We affirm.

Background. On July 6, 2016, the juvenile admitted to facts sufficient to support findings of delinquency on charges of receiving stolen property with a value over $250, assault and battery, and malicious destruction of property, and was placed on probation. About one year later, while still on probation, the juvenile was permitted to move to Florida. On October 6, 2017, an officer from the Orange County Sheriff's Office in Florida went to the juvenile's house and, after obtaining permission from the juvenile's mother, searched the juvenile's bedroom where he found a loaded pistol and a stolen credit card. The juvenile admitted to possession of the firearm and ammunition but denied knowledge of the credit card. At a second interview, the juvenile admitted that he stole the card from a vehicle and had used it to pay for an Uber ride. Ultimately, the juvenile pleaded guilty to unlawful possession of a firearm, burglary, illegal use of a credit card, and larceny of a credit card. The juvenile was placed on probation and his adjudication withheld.

Following his pleas of guilty in Florida, the juvenile was transported to Massachusetts. A probation violation hearing was held on November 28, 2017. Before the hearing commenced, defense counsel objected to the introduction of three police reports written by officers in Florida. The objection was overruled and the judge proceeded to receive testimony from the juvenile's Massachusetts probation officer, who was present in the courtroom, and the probation officer who supervised the juvenile in Florida, Jessica Burger, who testified over the telephone.² Burger explained that the juvenile pleaded guilty, as described above, and was placed on probation until his nineteenth birthday.

Discussion. There is no merit to the juvenile's argument that the evidence was insufficient to find that he violated his probation. To begin with, we agree with the judge's conclusion that the information contained within the police reports was reliable and that there was good reason to accept hearsay evidence given the expense of transporting witnesses from Florida. Even if we were to assume, which we do not, that some of the hearsay evidence upon which the judge relied was unreliable, any deficiency in this regard was rendered irrelevant by the juvenile's own admissions and his guilty pleas. See Commonwealth v. Marcus M., 92 Mass. App. Ct. 1, 3 (2017), and cases cited.³ We therefore conclude that the juvenile's probation was properly revoked.

Order revoking probation affirmed.

FOOTNOTES

2.   We discern no impropriety let alone a violation of due process in permitting the probation officer to testify telephonically. See Adoption of Thea, 78 Mass. App. Ct. 818, 826 (2011).

3.   Contrary to the juvenile's argument, the fact that the record is unclear as to whether a disposition of adjudication withheld is equivalent of a finding of guilt beyond a reasonable doubt is of no consequence. The point is that the evidence demonstrated that the juvenile admitted to having committed the new offenses.