COMMONWEALTH v. LARA (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In this appeal, the defendant contends that the judge erred in admitting grand jury transcripts during the defendant's probation violation hearing without establishing their reliability and, as a result, that we should vacate the order revoking his probation and remand the case to have the judge determine the reliability of the hearsay contained in the grand jury minutes. Because the judge already made the required assessment of the hearsay's reliability, see Commonwealth v. Bukin, 467 Mass. 516, 520 (2014), spelling out his findings and reasoning on the record, we affirm.

Background. On November 5, 2013, the defendant pleaded guilty as a youthful offender to carrying a firearm without a license, armed assault with intent to rob, assault with a dangerous weapon, and unarmed assault with intent to rob. He was sentenced to serve one and one-half years in State prison on the firearm possession charge, and to five years of probation on the other charges. Among other things, his probationary conditions required that he have no contact with A.B.,² and that he not possess guns or other weapons.

On September 30, 2015, after he was charged with murder, armed assault with intent to rob, assault with a firearm, carrying a firearm without a license, and committing a firearm offense with one prior violent/drug crime, the defendant was alleged to have violated his probation. In broad summary, the new criminal charges were based on the defendant's alleged possession of a firearm on two separate dates; on one of those dates, the defendant was charged with having participated -- together with A.B. (and others) -- in a fatal shooting.

Two police officers testified at the probation violation hearing. They recounted their investigation into the shooting, including the evidence that the defendant was one of the gunmen along with A.B., and where, how, and when the defendant disposed of a firearm after the shooting. To the extent that several salient details of the officers' testimony rested on hearsay, they were corroborated and, in any event, the defendant does not challenge the officers' live testimony. In addition to the officers' testimony, the Commonwealth also introduced several volumes of grand jury minutes. These contained hearsay in the form of several witnesses' testimony before the grand jury. The defendant objected to the admission of the minutes on hearsay grounds, arguing that the Commonwealth had not made a particularized showing that each witness's testimony was reliable. The transcripts were admitted over the defendant's objection on the first day of the probation revocation hearing.

Approximately two months later, after the judge had read the transcripts, the hearing resumed. On that day, the judge addressed the defendant's hearsay objection to the grand jury minutes. The judge acknowledged that the evidence from a number of witnesses before the grand jury was hearsay. But he also determined that the evidence was reliable, largely because it was corroborated in myriad ways. More specifically, the judge pointed to the fact that multiple grand jury witnesses testified consistently about the defendant's possession of a firearm on March 17, 2015, at the Comfort Inn. As to the defendant's possession of a firearm three days later and his involvement in the shooting with A.B., the judge noted that nonhearsay corroboration came from video surveillance images, GPS monitoring data, the circumstances surrounding the recovery of the firearm, and the statements of another coparticipant. The judge accordingly found the hearsay evidence reliable. See Bukin, 467 Mass. at 521-522.

The judge then found that the defendant had violated his probation in two respects: first, by having contact with A.B.; second, by possessing weapons. He based his determination on “several witnesses testified together with testimony from grand jury minutes, exhibits showing Defendant with [A.B.] in possession of a firearm and involved in a murder on 3-20-15.” In other words, the judge did not rest his conclusion on the grand jury evidence alone, but also on the live testimony of the officers during the probation violation hearing.

Discussion. On appeal, the defendant argues that the Commonwealth should not have been permitted to introduce the grand jury testimony wholesale without a particularized showing that each witness's testimony was reliable.³ Whatever force this argument may have in the abstract, it has no legs on the record here. The judge did not make a global or wholesale determination of reliability. Indeed, he clearly stated that he understood that not “everything comes in. I think that you have to go through it and you have to look at each witness, you have to make a determination if it satisfies the requirements under Bukin ․ [T]here needs to be reliability shown with each witness and each piece of testimony ․ [s]o I'd go through 'em, I'd go through those records and if there are portions of that witness['s] [testimony] that I don't feel meet the standard, you know, I can exclude certain portions of it.”⁴ Consistent with this correct understanding of the law, the judge identified those specific portions of the hearsay evidence that he deemed reliable, after he had reviewed the grand jury evidence. In addition, the judge identified the nonhearsay corroborative evidence with precision. We note further that the testimony of the two officers during the probation violation hearing -- which the defendant does not challenge -- also corroborated many aspects of the grand jury evidence.

The defendant's reading of Commonwealth v. Hartfield, 474 Mass. 474 (2016), is incorrect. The Supreme Judicial Court did not vacate the probation revocation at issue there because hearsay contained in grand jury minutes had been admitted. Instead, the revocation was vacated because the defendant's constitutional right to present a defense had been infringed when he was not permitted to call one of the grand jury witnesses to testify live during the probation violation hearing. Id. at 483. The court held that the judge had failed to consider the totality of the circumstances, including the countervailing interests of the Commonwealth, before precluding that witness from testifying. Id. at 482-483. The court further stressed that the right to present a defense is not to be conflated with the right to confront and cross-examine witnesses, id. at 482, and that it is the latter that is implicated when hearsay evidence (such as here) is admitted -- not the former. Id. See Commonwealth v. Negron, 441 Mass. 685, 690-691 (2004). Hartfield made no change to our existing law that due process requires only that hearsay evidence carry substantial indicia of reliability to be admissible in a probation violation proceeding. See Bukin, 467 Mass. at 522; Commonwealth v. Durling, 407 Mass. 108, 118 (1990).

We accordingly affirm the order revoking the defendant's probation.

Order revoking probation and imposing sentence affirmed.

FOOTNOTES

2.   We use pseudonym initials due to this individual's status as a juvenile.

3.   A heading in the defendant's brief also states that compact discs containing recordings of police interrogations should not have been admitted because they were hearsay. However, no argument is offered on this point and, therefore, we need not consider it.

4.   It is true, as the defendant points out, that the judge stated that he would give the parties a chance to object once he had identified which portions of the grand jury evidence he deemed reliable. Although that did not occur at a separate point in time, the defendant had the opportunity to object during the second day of the hearing, when the judge identified the portions of the grand jury testimony he was relying on. At that point, the defendant did not challenge the reliability of any particular witness or portion of grand jury testimony.