COMMONWEALTH v. EWALD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order revoking his probation on the basis of his having committing a new offense.² On appeal, the defendant argues that there was inadequate evidence to find him in violation of his probation because the only evidence presented was unreliable and untrustworthy hearsay contained within a police report. We affirm.

Background. On July 26, 2018, the defendant pleaded guilty to offenses charged in three separate complaints. One complaint alleged possession of a class E drug with intent to distribute. A second complaint alleged operation of a motor vehicle with a suspended license, subsequent offense, and leaving the scene of property damage; a third complaint alleged assault and battery and possession of a class B drug with intent to distribute.³ The defendant was sentenced to eighteen months of probation on each charge, with all sentences to run concurrently.

About three months later, on October 21, 2018, the defendant was arrested in the Roxbury section of Boston and charged with possession of cocaine with intent to distribute. He subsequently was served with a notice of surrender and hearing for an alleged violation of probation based on the new offense. A violation hearing was held on November 19, 2018. The Commonwealth did not present any witnesses and relied solely on a police report authored by Officer Golden, the arresting officer.

In his report, Officer Golden stated that on October 21, 2018, shortly before 11:30 a.m., he and his partner, Officer Kaplan, were on patrol in the area of Atkinson and Southampton Streets in Boston. The officers noticed two men, one of whom, Patrick Glennon, they recognized from a previous drug-related incident. The other individual was later identified as the defendant. After observing what the officers believed was a hand-to-hand drug transaction between the defendant and a group of three individuals, the officers approached the defendant. They noticed that the defendant appeared to be stuffing something into his right sock. Then, when Officer Golden identified himself, the defendant began to run. Officer Golden grabbed the defendant by the shirt and held him against a fence to prevent him from escaping. He saw the defendant remove an item from behind his back and toss it through an opening in the fence. The defendant then complied with Officer Golden's commands.

Meanwhile, Officer Kaplan spoke with Glennon at the nearby intersection and escorted him to the area where Officer Golden stood with the defendant. Officer Golden pointed out a plastic “bag” inside a planter on the opposite side of the fence, and Officer Kaplan retrieved it. The bag in fact appeared to be a piece of a latex glove. Within the bag were several individually wrapped bags containing what the officers believed to be “crack” cocaine.

During a search of the defendant, Officer Golden discovered a total of $165 in cash in the defendant's right sock. Of that amount, $145 was rolled together and a single twenty dollar bill was separate. At this point, the defendant told the officers that the bag contained four bags of crack cocaine for personal use. Officer Kaplan searched Glennon and found on him a large amount of cash and several latex gloves that appeared to be the same color, material, and texture as the bag containing the four bags of crack cocaine. The officers placed the defendant under arrest.

At the hearing, the defendant objected to the admission of Officer Golden's report on two grounds. First, he claimed that the report included hearsay. Second, he argued that, because he was disputing the factual allegations in the report, he was entitled to cross-examine Officer Golden. Although defense counsel did not subpoena Officer Golden, she claimed that she was led to believe that a subpoena had been issued by the probation department and that he had failed to appear. The objection was overruled and the report was introduced in evidence.

The defendant testified at the hearing and claimed that he had met Glennon at a halfway house where they both were staying and that they had left the house to buy cigarettes. According to the defendant, three individuals approached Glennon, not him, when they arrived at the store, and Glennon sold drugs to them while the defendant was inside the store. Two officers later stopped him and found nothing on him, but found a plastic bag nearby containing four other bags. The defendant denied knowing what was in the four bags or telling the officers that they contained crack cocaine for personal use. The defendant also denied having removed anything from his pants or having thrown anything through the fence. Asked how he had known that the bag discovered nearby contained four smaller bags, the defendant explained that the officers had opened the bag close enough to him so that he could see what was inside.

At the conclusion of the hearing, the judge found the defendant in violation of his probation, stating:

“In looking at the police report and balancing that with the testimony of Mr. Ewald, I have to say that a lot of what Mr. Ewald testified to on its face was not credible to the Court.

“That in conjunction with the police report, I do find that there is a violation.”

With respect to the police report, the judge ruled that, while hearsay, the information in the report was substantially reliable based on the observations of the officers.

Discussion. “A determination whether a violation of probation has occurred lies within the discretion of the hearing judge. The Commonwealth must prove a violation of probation by a preponderance of the evidence.” (Citation omitted.) Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). While a judge may consider reliable hearsay at the hearing, “[u]nsubstantiated and unreliable hearsay cannot ․ be the entire basis of a probation revocation.” Commonwealth v. Durling, 407 Mass. 108, 118 (1990). Where, as here, hearsay is the only evidence of a violation, “the indicia of reliability must be substantial” to overcome the defendant's interest in cross-examining the actual source. Id.

The defendant contends, as he did at the hearing, that Officer Golden's report is inherently unreliable. We disagree. In assessing whether hearsay evidence is substantially trustworthy and reliable, a court may consider

“whether that evidence (1) is based on personal knowledge and/or direct observation, rather than on other hearsay; (2) involves observations recorded close in time to the events in question; (3) is factually detailed, rather than generalized and conclusory; (4) is internally consistent; (5) is corroborated by any evidence provided by the probationer; (6) was provided by a disinterested witness; or (7) was provided under circumstances that support the veracity of the source.”

Rule 7 (b) of the District/Municipal Court Rules for Probation Violation Proceedings, Mass. Ann. Laws Court Rules, at 86 (LexisNexis 2019). Accord Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). These criteria are nonexclusive and “[t]here is no requirement that hearsay satisfy all the above criteria to be trustworthy and reliable.” Id. at 133.

We agree with the judge's conclusion that the statements contained within Officer Golden's report are substantially reliable and therefore the evidence was adequate to support a finding that the defendant had violated the conditions of his probation by committing a new offense. To begin with, the information was based on firsthand knowledge. Officer Golden observed the defendant's conduct and saw him discard the bag containing smaller bags of crack cocaine. In addition, the report indicates that Golden prepared the report approximately one hour after the arrest. Finally, certain details of the defendant's testimony corroborated the information in the report, namely, that he and Glennon encountered three individuals, that a drug deal occurred, that he had attempted to flee the officers, and that a bag containing four smaller bags was discovered in the area. In these circumstances, the judge did not err in concluding that the statements in the report were substantially reliable and thus that the defendant violated his probation by committing a new offense.

Order revoking probation affirmed.

FOOTNOTES

2.   The judge imposed a sentence of two years in a house of correction followed by five years' probation.

3.   The complaint was amended to possession of a class E drug with intent to distribute.