COMMONWEALTH v. Jeffrey GUTIERREZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant's probation was revoked after a judge found that the defendant had violated his probation by committing assault and battery, G. L. c. 265, § 13 (a), and assault with a dangerous weapon, G. L. c. 265, § 15 (b). On appeal, the defendant argues that the judge improperly relied upon the police report to establish that he committed the attack, because the police report contained within it unreliable hearsay, and in particular, an unreliable hearsay identification. We affirm.
Background. On January 24, 2020, police officers were called to a McDonald's restaurant in Somerville, where a victim who worked at the restaurant reported that he had been attacked on consecutive nights by a person he knew as “Jeffrey,” an UberEats delivery driver who frequented the restaurant. The victim reported that the night before, January 23, 2020, Jeffrey had approached the take-out window of the restaurant and “smacked [the victim] across the face making threatening comments about beating him for ․ bad [UberEats] reviews.” That evening, January 24, Jeffrey had returned, and had spat in the victim's face and threatened the victim “while holding a crow bar saying he was going to beat him and that he knows where [the victim] lives.” The victim explained that Jeffrey had given the victim “a ride home on several occasions,” so he did know where the victim lived. The victim stated to officers that Jeffrey “drove off in a black Ford Explorer.” The victim also showed the police a surveillance video of the incident from the night before. A second officer reported that as he arrived at the scene, he observed a black Ford Explorer driving nearby. The officer ran the registration plates for the Explorer, and determined that it was registered to the defendant.
The defendant was charged with crimes in relation to the second incident, and the Commonwealth moved to revoke his probation. At the revocation hearing, the Commonwealth relied primarily on the police report, which contained the officer's recount of the victim's hearsay statements and the observations of the responding officers. The police report also states “the surveillance video that [the victim] showed [the officer] of the male smacking [the victim] across the face looked like” the defendant's Registry of Motor Vehicles (RMV) photograph. The judge found by a preponderance of the evidence that the defendant had violated the terms of his probation.
Discussion. The defendant argues among other things that the video shown to the police was not authenticated, that the Commonwealth should have provided the video at the revocation hearing, and that there was insufficient evidence identifying the defendant as the attacker. We discern no error. In particular, neither the video from the assault the night before, nor the officer's impressions of that video, were necessary to the judge's finding that the defendant had committed the attack on January 24, which was the attack that the victim called the police about and that was charged as the probation violation.
The Commonwealth bears the burden of proving a violation of probation by a preponderance of the evidence. Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995). “[S]tandard evidentiary rules do not apply to probation revocation hearings” and hearsay evidence that is reliable may be the “basis of a revocation.” Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990). See Commonwealth v. Thissell, 457 Mass. 191, 195-196 (2010) (the “preeminent concern with respect to the evidence presented and considered at revocation proceedings is its reliability”). Where hearsay is the only evidence of the violation, it must be substantially reliable. Commonwealth v. Patton, 458 Mass. 119, 132 (2010).
Here the police report was based upon reliable information from the victim, which was reported to the police immediately after the assault occurred on September 24. The victim knew his attacker. See Commonwealth v. Adams, 458 Mass. 766, 770-771 (2011). The victim described the vehicle that his attacker drove, and a vehicle matching that description and registered to the defendant was observed driving nearby shortly after the incident. The name the victim provided matched the first name on the vehicle registration. In short, the victim's statements were detailed and indicative of personal knowledge of his attacker,2 were made shortly after the event, and were corroborated by the officers’ observation of the defendant's car nearby. These are all elements, reflected in the case law, which demonstrate the reliability of hearsay documents. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016) (listing factors relevant to the substantial reliability determination); Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (hearsay substantially reliable where “factually detailed, based on personal knowledge and direct observation and made soon after the events ․ Moreover, at least one of [the statements] is corroborated by the observations of [the police officer]”). They provide a sufficient basis to find by a preponderance of the evidence that the defendant violated the terms of his probation, even without reference to the video depicting the uncharged attack.
We note in addition that the hearing judge has broad discretion over the admission of evidence, see Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019), and we do not perceive an abuse of that discretion regarding the admission of the contested portion of the report, or the reference to the video. The victim himself showed the officers the video, thereby authenticating that it “was what it was purported to be” -- that is, that it showed him being assaulted the night before. The police report establishes that the officer viewed the video and that it was consistent with what the victim stated had occurred.3 The statements in the police report regarding the video thus bore sufficient indicia of reliability to be considered, although as noted, the statements were not critical because the event shown in the video was not charged, and the video evidence was not necessary to the judge's findings. For similar reasons, we perceive no reversible error in the admission of the statement as to the resemblance between the attacker in the video footage and the defendant's RMV photo. The officers were competent to make the observation, and it was merely an additional fact that was consistent with the facts already provided.
Order revoking probation affirmed.
FOOTNOTES
2. The defendant also argues that the victim's statements are not substantially reliable, relying on the omission of several superficial details from the police report. Several of the claimed omitted details are in fact readily apparent from the police report, however, and in any event, for the reasons stated herein we disagree that the victim's statements were not substantially reliable.
3. The judge could have inferred from the police report that the video also contained self-authenticating characteristics that would have been evident to the officers -- the video was being shown to the officers by an employee of the restaurant, the video reportedly showed an event at the drive-thru window of that restaurant, and the officers were at the restaurant and could observe the drive-thru area and compare it to the video. See Commonwealth v. Sargent, 98 Mass. App. Ct. 27, 29-32 (2020) (formal procedures for authenticating evidence need not be followed in revocation hearing as long as evidence is sufficiently reliable).