COMMONWEALTH v. BRANCH (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a Superior Court judge's order revoking his probation based on findings that he committed three new offenses: assault by means of a dangerous weapon (ADW), violation of a G. L. c. 209A restraining order, and malicious destruction of property over $250. One day after those findings, the defendant pleaded guilty to the latter two charges, thereby rendering moot his challenge to the findings concerning those offenses. See Commonwealth v. Milot, 462 Mass. 197, 201 (2012). The only remaining issue on appeal, therefore, is the defendant's argument that the judge's finding that he violated his probation by committing ADW was based on unreliable hearsay, in violation of his rights to due process and to confront the witnesses against him. We affirm.

Background. The ADW finding was based on evidence at the probation revocation hearing that the defendant, after being discovered in a bathroom in the home of his former girlfriend S.B., swung or lunged at S.B.'s adult son D.B. with a screwdriver; the defendant then fled the house on foot, with D.B. in pursuit, and was apprehended by police on a nearby street. More specifically, the evidence included Malden police Officer Cameron DiCarlo's testimony that, after he arrived at the scene in response to a 911 call from S.B., both she and D.B. recounted to him the details of the assault with the screwdriver. DiCarlo's contemporaneous police report setting forth these details was admitted in evidence. The evidence also included recordings of two 911 calls -- one from S.B. during the confrontation between the defendant and D.B., and the other from a male reporting that he was chasing a man who had tried to cut him with a screwdriver. Although the male declined to identify himself during the call, the judge found as fact -- based on the contents of the call and DiCarlo's testimony -- that the caller was D.B.

Discussion. Due process requires that a finding of a probation violation be based on reliable evidence. See Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990). “Even though standard evidentiary rules do not apply to probation revocation hearings, the first step is to determine whether the evidence would be admissible under those rules, including the exceptions to the hearsay rule. Evidence which would be admissible under standard evidentiary rules is presumptively reliable.” Id. In addition, hearsay, if “substantially reliable,” may be the basis of a probation revocation; “a showing that the proffered evidence bears substantial indicia of reliability and is substantially trustworthy is a showing of good cause obviating the need for confrontation.” Id. at 118. See Commonwealth v. Nunez, 446 Mass. 54, 58-59 (2006) (same).

1. The 911 calls. The judge ruled that S.B.'s and D.B.'s statements during the 911 calls fell within the exception to the hearsay rule for excited utterances, which made them “presumptively reliable.” Durling, 407 Mass. at 118. We see no abuse of discretion or other error of law in that ruling. Under the excited utterance exception, a statement is admissible, without regard to the availability of the declarant to testify, “if [a] there is an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and [b] the declarant's statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Mass. G. Evid. § 803(2) (2020).

The defendant contends that the statements in the second 911 call here were different in several respects from those in Commonwealth v. Beatrice, 460 Mass. 255 (2011), and therefore were not excited utterances. First, the defendant asserts that, unlike in Beatrice, the 911 caller here did not identify himself. Putting aside that nothing in Beatrice indicates that the 911 caller there identified herself, id. at 257, the defendant points to no language in Beatrice or any other case suggesting that such self-identification is a requirement for the admissibility of an excited utterance. The decision in Commonwealth v. Rockett, 41 Mass. App. Ct. 5, 5-6 & n.1 (1996), indicates the contrary.²

Second, the defendant observes that the caller in Beatrice had just retreated in fear, see 460 Mass. at 257, whereas the caller here was pursuing the assailant. Again, the defendant points to nothing in Beatrice or elsewhere suggesting that a statement is an excited utterance only if the declarant is retreating. Compare Commonwealth v. Harbin, 435 Mass. 654, 657-658 (2002) (bystander's excited utterance may be admissible). We see no reason that an assault and a subsequent pursuit of a fleeing assailant cannot be “sufficiently startling to render inoperative the [declarant's] normal reflective thought processes” and result in the statements that are “spontaneous reaction[s]” to the unfolding chase. Mass. G. Evid. § 803(2). The content of the male's statements and his tone of voice in the second 911 call (a recording of which we have listened to) amply support the judge's determination that the statements were excited utterances.

Third, the defendant argues that, unlike in Beatrice, 460 Mass. at 259, neither 911 caller here was facing an “ongoing emergency.”³ But, even putting aside the judge's ruling to the contrary (with which we agree), the existence of an ongoing emergency is not required for a statement to be an excited utterance.⁴ See id. at 258-259. In sum, for all of the above reasons, the 911 calls were properly admitted as excited utterances and therefore were presumptively reliable evidence.

2. Statements of S.B. and D.B. to DiCarlo. The statements of S.B. and D.B. to DiCarlo, as recounted both in his police report admitted in evidence and in his testimony at the hearing, were hearsay. To evaluate whether the hearsay was substantially reliable, we turn to the factors listed in Commonwealth v. Hartfield, 474 Mass. 474 (2016). These include:

“(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity.”

Id. at 484. Not all of these criteria must be satisfied. See Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). Here, the defendant does not challenge the reliability of DiCarlo's report or his testimony recounting what S.B. and D.B. told him,⁵ but rather the reliability of S.B.'s and D.B.'s statements themselves.

Here, those statements were based on S.B.'s and D.B.'s personal knowledge; were recorded by DiCarlo close in time to the events in question; were factually detailed, were internally consistent; and were corroborated by each other, by the 911 calls, and in some details by DiCarlo's own observations. The statements were made under circumstances supporting their veracity, as it is a crime to make a false report of a crime to a police officer. See Nunez, 446 Mass. at 59; Commonwealth v. Negron, 441 Mass. 685, 691 (2004). That S.B. and D.B. were not necessarily disinterested witnesses does not preclude a determination that their statements were reliable. See Patton, 458 Mass. at 134 (alleged rape victim's hearsay account was substantially reliable where it met all criteria except that of victim being disinterested).

The defendant nevertheless asserts that the statements were unreliable because there was insufficient evidence that S.B. and D.B. were “unavailable” as witnesses. To whatever extent this argument is not disposed of by the rule that the Federal and State confrontation clauses do not apply at probation revocation hearings, see note 3, supra, it fails because the admissibility of substantially reliable hearsay does not depend on a determination that the declarant is unavailable. See Commonwealth v. Calvo, 41 Mass. App. Ct. 903, 904 (1996).

Order revoking probation and imposing sentence affirmed.

FOOTNOTES

2.   The defendant's related argument here that the 911 call was not authenticated as being from D.B. also fails. Formal authentication procedures need not be followed in probation revocation hearings as long as the evidence is “reliable.” Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 30-31 (2020). Moreover, the judge here made a well-supported finding that the caller was indeed D.B.

3.   In a related vein, the defendant observes that one of the 911 callers here, S.B., was not the alleged victim of the crime (here, assault) to which the call related, whereas the caller in Beatrice was the victim. The defendant cites nothing in Beatrice or elsewhere limiting excited utterances to statements by victims rather than witnesses. To the contrary, in Harbin, 435 Mass. at 657-658, the court stated that “there is no requirement that the declarant have been a participant in the exciting event.”

4.   The judge also determined that the statements were not testimonial for confrontation clause purposes. We need not review that determination because, in any event, the Federal and State confrontation clauses do not apply at probation revocation hearings. See Commonwealth v. Wilcox, 446 Mass. 61, 66-70 (2006). Whether a statement is an excited utterance is a separate inquiry from whether that statement is testimonial. See Beatrice, 460 Mass. at 258-259.

5.   Circumstances supporting the veracity of DiCarlo's statements include that it is a crime for a police officer to file a false report, see Durling, 407 Mass. at 121 (citing G. L. c. 268, § 6A), and that DiCarlo's hearing testimony was under oath.