COMMONWEALTH v. DAVIS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a probation violation hearing, the judge found that the defendant, Elliot N. Davis, had violated the terms of his probation, specifically, that the defendant had committed new offenses, including assault and battery and larceny under $250; that he had violated an order to stay away from the victim in the probation case; and that he had failed to complete a substance abuse treatment program.²

Background. The notice of probation violation alleged four new criminal charges: assault and battery; larceny under $250; assault and battery by means of a dangerous weapon; and assault and battery on a family or household member. It also alleged that the defendant failed to complete a substance abuse treatment program and stay away from the victim in the probation case.

On the larceny charge, a woman testified that she was a student, and while walking in Central Square in Cambridge, the defendant approached her and said that he had an emergency and needed $200 to fix his car. He showed her the car with two girls in it, saying they were his daughters. He also told her that no one would help him because he was black. In response, the witness withdrew $200 from an ATM and gave it to the defendant. The defendant gave her his telephone number, ostensibly so that she could contact him and he could repay the money. Later, when the witness called him, he told her that he was working, and asked her to call him back at a different time. The next day, the witness called, but the number had been disconnected.

The witness then notified the police. At the police station, she was shown a photographic array; she selected a photograph of the defendant, with “eighty percent” certainty. She also identified the defendant in the court room. A police officer corroborated the witness's identification of the defendant's photograph.

A second witness testified that the defendant had approached him at the Copley Place Mall, asking to borrow money to fix a flat tire and, when the witness suggested that he take a photograph of the defendant for identification, the defendant became verbally abusive. The witness played a video recording of the encounter for the judge and identified the defendant as the man in the video.

Linda Brown was the victim in the case for which the defendant was placed on probation, and, as a condition of probation, the defendant was ordered to have no contact with her.³ At the hearing, Brown testified that the defendant came to her house unannounced, and an argument followed, leading to a physical altercation, and that the defendant shoved Brown with two hands.⁴

Boston Police Officer Carlyle Alexandre testified that, responding to a radio call for a domestic violence incident, he met with Brown and Brown explained that the defendant had come to her house to talk, and after she told the defendant she did not want him there, he punched her in the face. Alexandre did not notice injuries on Brown's face at that time.

Probation Officer Tracy Callanan was assigned to supervise the defendant's case. At the time, the defendant had been accepted into two different substance abuse treatment programs. Callanan did not receive any correspondence from those programs indicating that the defendant had completed either of them; in addition, the defendant stopped reporting to probation.⁵ Callanan opined that the defendant had not completed his required substance abuse treatment program.⁶

The defendant did not present any evidence or call any witnesses. He argued that the four criminal charges brought against him would not be proven beyond a reasonable doubt. As noted, supra, the judge concluded that the evidence was sufficient on the allegations of assault and battery, larceny under $250, failure to complete a substance abuse treatment program, and failure to stay away from and have no contact with Brown. On that basis the judge revoked the defendant's probation and imposed the suspended sentence.⁷

Discussion. 1. Standard of proof. The defendant argues that the standard of proof at a probation violation, or “surrender” hearing, should be proof by clear and convincing evidence, rather than proof by a preponderance of the evidence. In his view, the evidence at his hearing failed to meet both standards.

The law is clear that the burden of proof in a probation violation hearing is proof by a preponderance of the evidence. See Commonwealth v. Eldred, 480 Mass. 90, 101 (2018) (“a violation of a probationary condition must be proved by a preponderance of the evidence”); Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006) (same); Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995) (same). Further, “from the very earliest decisions we issued and continuing to this day, we have uniformly and unequivocally held we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided.” Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).

2. Evidence. a. Larceny. The defendant argues that the Commonwealth “failed to marshal sufficient evidence to find [the defendant] committed larceny over $250.” Assuming the “over $250” language is a scrivener's error, as the defendant was charged with larceny under $250, the defendant's argument fails nonetheless. Larceny is the “unlawful taking and carrying away of personal property of another with the specific intent to deprive the person of property permanently.” Commonwealth v. Mills, 436 Mass. 387, 394 (2002), quoting Commonwealth v. Donovan, 395 Mass. 20, 25-26 (1985). See G. L. c. 266, § 30. Under the applicable standard of proof, the probation violation is supported “if it is made to appear more likely or probable in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.” Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).

The defendant contends that the larceny witness's identification was unreliable and that, as a result, there was insufficient evidence to find a violation. We disagree. The witness's credibility and the reliability of her testimony were for the judge to evaluate. In addition, her photograph and in-court identifications were corroborated by the second witness who also identified the defendant, after the defendant attempted the same larceny scheme with him.

b. Assault and battery. The defendant also argues there is insufficient evidence to prove he committed an assault and battery on Brown. However, Brown's testimony, alone -- that the defendant shoved her with two hands -- would have sufficed to establish by a preponderance of the evidence that the defendant intentionally and unjustifiably used force upon another person. See Commonwealth v. Orbin O., 478 Mass. 759, 762 (2018). See also Commonwealth v. Aitahmedlamara, 63 Mass. App. Ct. 76, 78 n.3 (2005) (“The victim's testimony, of course, provides sufficient direct evidence to support the [factfinder's] conclusion”). It is true that the judge did not fully credit Brown's testimony. However, the judge did fully credit Alexandre's testimony, and that testimony alone also would support a finding that the encounter constituted a probation violation.⁸

c. Completion of substance abuse program. A term of the defendant's probation was a requirement that he complete a substance abuse program. The defendant was accepted into two different substance abuse programs but he never provided proof that he completed any program. Callanan testified that the defendant stopped checking in with probation, and that it was her opinion that he never completed any substance abuse program. The judge fully credited Callanan's testimony; he based his conclusion that the defendant had failed to complete a program on that testimony. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). We see no error.

d. Failure to stay away. The defendant concedes that there was sufficient evidence to show he failed to stay away from Brown. See Eldred, 480 Mass. at 101; Hill, 52 Mass. App. Ct. at 152. However, he argues this is merely a “technical” violation, and should not be sufficient to support probation revocation. In mitigation, he contends that Brown had considered lifting the order and that she orchestrated their rendezvous. In fact, the order remained in place. This is not a “technical” violation, as the defendant characterizes it. Here, the defendant was on probation for an assault and battery on Brown and he was ordered to stay away from her. He clearly did not do so.

Conclusion. In sum, we see ample evidence to support the judge's thoughtful decision. The order revoking probation is affirmed.

So ordered.

Affirmed

FOOTNOTES

2.   The defendant had pleaded guilty to assault and battery, assault by means of a dangerous weapon (two counts), and assault and battery by means of a dangerous weapon. He was sentenced to one year in a house of correction, suspended for two years, and placed on probation until September 4, 2017. As a condition of his probation, he was ordered not to commit any new offenses, to stay away and to have no contact with the victim in that case, and to complete a substance abuse program.

3.   Brown and the defendant had been involved in a relationship for several years. Her testimony at the hearing appears to have been reluctant and difficult to understand. Many of her responses to questions read “No audible response” in the transcript. At other, arguably significant, points, she testified that she did not remember.

4.   Probation Officer Tracy Callanan also testified that, on another occasion, she had received a voicemail from Brown describing an incident where the defendant came to her house, argued with her, and then spat in her face.

5.   The defendant was required to report at least one time every ninety days and verify his address.

6.   During the hearing, Callanan did acknowledge that the defendant may have participated in some part of the substance abuse programs but maintained that she never received any reports or any certification that the programs were completed.

7.   The judge did not find a violation based on assault and battery on a family or household member, or assault and battery by means of a dangerous weapon. The judge did credit Alexandre's testimony but did not fully credit Brown's testimony because, in his view, Brown was not completely forthcoming on certain details. Alexandre's testimony was reliable hearsay as Brown's statement to him was an excited utterance, and Alexandre was a disinterested witness. The judge also credited the larceny witness's testimony.

8.   When Alexandre arrived on the scene, Brown immediately told him about the incident. The hearing judge noted that Alexandre was a disinterested witness, his testimony was based on firsthand knowledge, and the defendant had a chance to cross-examine him.