COMMONWEALTH v. BETHUNE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order revoking his probation based on the commission of new criminal offenses. The notice of probation surrender hearing alleged that, in April 2015, the defendant had failed to comply with the “stay away” order that was a condition of his probation. The notice subsequently was amended to also allege that the defendant violated an abuse prevention order, intimidated a witness, and engaged in criminal harassment. Following an evidentiary hearing at which the victim testified, the judge concluded by a preponderance of the evidence that the defendant had committed the offenses as alleged. The defendant was found in violation of his probation, his probation was revoked, and he was sentenced to serve two years in the house of correction.

The defendant asserts that the evidence was insufficient to find him in violation of his probation and that the prosecutor engaged in misconduct by allegedly relying on evidence that was not presented at the hearing. We affirm.

Background. The victim, T.M., had a relationship with the defendant that ended in February 2001. That relationship was briefly rekindled years later and ended again. On September 23, 2011, the victim obtained a permanent restraining order against the defendant. That order specified that the defendant was not to contact the victim “either in person, by telephone, in writing or otherwise, either directly or through someone else.” In October 2013, the defendant was charged with violating that restraining order (four charges) and intimidation of a witness.² On December 18, 2013, the defendant pleaded guilty to three charges of violation of an abuse protection order and to one charge of intimidation of a witness. The court imposed a sentence of probation for a period of two years and eight months with special conditions including that he “have no contact with and stay away from” the victim. By October 2013, the defendant was incarcerated at Massachusetts Correctional Institution –- Cedar Junction, in Walpole. From October 2013, through July 2014, the defendant contacted the victim seven times by sending letters to the victim's home address. Most of the envelopes indicated that the letter was being sent to the victim's adult son, who no longer lived at the victim's address. One of the envelopes was addressed to “Mrs. Bethune.” The letters themselves were addressed to the victim, using names such as “beautiful” and “gorgeous” and referring to their relationship. The defendant also called the victim on the telephone from prison. The victim testified that she recognized the defendant's handwriting on each of the envelopes and that she did not open the letters. Instead, she brought them to the police department, where they were opened. She testified that the defendant had contacted her in writing numerous times over the previous eight years.

Discussion. An order revoking probation is reviewed for an abuse of discretion. See Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). The defendant's violation of his probation must be established by a preponderance of the evidence. See Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).

The defendant contends that the judge abused his discretion because there was insufficient evidence that he contacted the victim. He argues that, because the letters were not addressed to the victim or opened or read by her, he did not violate the abuse prevention order. A “no contact” order is broad and “mandates that the defendant not communicate by any means with the protected party, in addition to remaining physically separated.” Commonwealth v. Finase, 435 Mass. 310, 314 (2001). While the envelopes were addressed to the victim's son, there was evidence that the son did not live with the victim and that the letters themselves were addressed to the victim. It is of no consequence that the victim did not open the letters and instead brought them to the police department, where they were opened by police officers. The evidence sufficed to show that the defendant effected contact by sending the letters to the victim's home. In addition, the evidence demonstrated that the defendant had directly contacted the victim by calling her cell phone from prison. Thus, the evidence was sufficient to support the conclusion that the defendant contacted the victim.

Next, the defendant claims that the evidence presented at the surrender hearing was not reliable. Specifically, he points to the admission of the transcript of the testimony presented to the grand jury and claims that this evidence constituted unreliable hearsay. However, our case law and Rule 7 of the District/Municipal Court Rules for Probation Violation Proceedings allow hearsay evidence to be presented at probation revocation hearings if it bears substantial indicia of reliability. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). The defendant claims that the judge erred by failing to make a determination regarding the reliability of the testimony before the grand jury. We have previously observed that the transcript of a grand jury hearing is reliable hearsay that appropriately may be admitted at a probation revocation hearing. See Commonwealth v. Maggio, 414 Mass. 193, 199 n.3 (1993). We thus discern no error in the admission of the transcript of the grand jury hearing.

The defendant next asserts that the judge considered evidence of prior bad acts both in determining whether the defendant violated his probation and in determining the appropriate sentence. In support of this argument, the defendant relies on the admission of letters he sent to T.M. before he was placed on probation on December 18, 2013. However, the letters at issue were admitted for the permissible purpose of showing the defendant's pattern of conduct. See Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). The defendant argues that the judge did not differentiate between the letters sent before and after the commencement of his probation; that the judge considered the earlier letters when describing the defendant's disregard for his probation as an “affront to the court”; and that the letters were used improperly as evidence of bad character or propensity to commit a crime. This argument is not persuasive. The portions of the record on which the defendant relies do not support his contentions.

Finally, the defendant claims that the prosecutor engaged in misconduct by referring to facts not presented at the hearing; namely, letters from 2015, referred to in the grand jury transcript. The prosecutor referred to these letters only during her offer of proof and did not otherwise rely on them improperly. In addition, there was sufficient evidence to support the revocation of the defendant's probation, regardless of the prosecutor's reference to the 2015 letters.

Because the evidence was sufficient to satisfy the preponderance of the evidence standard, see Hill, 52 Mass. App. Ct. at 154, and there was no prosecutorial misconduct, we affirm the order revoking probation.

Order revoking probation affirmed.

FOOTNOTES

2.   The defendant was charged in two complaints: the first complaint issued on October 11, 2013, and the second complaint issued on October 23, 2013.