COMMONWEALTH v. ENCARNACION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from a District Court judge's order revoking his probation based upon findings that he violated the terms of his probation. The defendant claims that the judge abused his discretion when he relied on hearsay evidence and that his attorney provided ineffective assistance of counsel. We affirm.

Background. In August 2016, the defendant pleaded guilty to offenses in Salem District Court and received a committed sentence as well as probation for five years. In December 2018, the defendant was arrested in East Providence, Rhode Island for two domestic related offenses. The defendant was alleged to be in violation of his probation by virtue of the new charges and for leaving the State without the knowledge or consent of his probation officer. The probation officer, Jeffrey Dowd, was the only witness who testified at the defendant's violation hearing. Dowd testified to a conversation he had with Detective Jose Taveira of the East Providence Police Department regarding the facts surrounding Taveira's arrest of the defendant. In addition, the judge considered Taveira's police report, in which the officer reported the details of his observations of the defendant restraining the defendant's girlfriend, Janissa Gonzalez, in a stairwell and the statement Gonzalez made to Taveira and another officer regarding the defendant breaking into her apartment and her need to jump out a window to get away from the defendant. The defendant offered no evidence at the hearing, and argued that the hearsay evidence was not sufficiently reliable to support a finding of a probation violation.

The judge found that the defendant had violated probation by committing new crimes and leaving the State without permission.² The judge acknowledged in written findings that his decision was based on hearsay evidence that he found to be substantially reliable.

Discussion. 1. Hearsay. “A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation.” Commonwealth v. Durling, 407 Mass. 108, 111 (1990). “A determination whether a violation of probation has occurred lies within the discretion of the hearing judge.” Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). Probation revocation hearings are not subject to the strict rules of evidence, Durling, supra at 114, and hearsay evidence is admissible if it is substantially reliable. Rule 7 (b) of the District/Municipal Courts Rules for Probation Violation Proceedings, Mass. Ann. Laws Court Rules, at 97 (LexisNexis 2015-2016) (Rule 7 [b] ). See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). We conclude that the record provided sufficient indicia of reliability to admit the hearsay evidence and that it supported the probation violation order. Bukin, supra.

The hearsay statements from Taveira were based in part on his direct observations, and they involved “observations recorded close in time to the events in question.” They were “factually detailed, rather than generalized and conclusory,” “internally consistent,” and information was provided by disinterested witnesses “under circumstances that support the veracity of the source”; namely, people reporting a crime.³ Rule 7 (b) (1)-(7). Coupled with the description of Gonzalez's demeanor and her partial statement as set forth in the police report, which was corroborated by Dowd when she spoke with him, “we are convinced that the proffered evidence was imbued with sufficient indicia of reliability to warrant a denial of the defendant's limited right to cross-examination.” Durling, 407 Mass. at 120.⁴

2. Ineffective assistance of counsel. Next, the defendant claims that he received ineffective assistance of counsel because counsel failed to establish the fact that there was no evidence of a struggle in Gonzalez's apartment. The defendant did not assert the ineffective assistance claim through the preferred method, i.e., in a motion for a new probation violation hearing. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). Instead, he raises the issue for the first time on appeal. The defendant bears the burden of establishing that counsel's behavior fell “measurably below [that] which might be expected from an ordinary fallible lawyer” and that such behavior has deprived the defendant “of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

Here, the defendant has failed to meet his burden of proof because he did not file an affidavit from defense counsel explaining counsel's strategy at the revocation hearing. Without such a statement, we cannot conclude on the record before us that defense counsel's failure to point out there was no evidence of a struggle at Gonzalez's apartment at the revocation hearing was a manifestly unreasonable tactical decision. See Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006) (“A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was ‘manifestly unreasonable’ when made” [citation omitted] ).

Order revoking probation affirmed.

FOOTNOTES

2.   The defendant does not contest that he violated his probation by traveling out of State without the permission of his probation officer.

3.   Taveira's report indicates that a caller reported to the police that a female was screaming “help” in Spanish.

4.   Although Taveira's statements to the probation officer and his police report contained hearsay within hearsay, the judge did not abuse his discretion by relying on this “totem pole” hearsay since the judge had made a determination that the hearsay contained sufficient indicia of reliability.