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Appeals Court of Massachusetts.



Decided: October 27, 2021

By the Court (Rubin, Milkey & Henry, JJ.1)


In 2014, the defendant pleaded guilty in Superior Court to six offenses: two counts of armed assault with intent to murder, two counts of assault and battery by means of a dangerous weapon causing serious bodily injury (ABDW-SBI), and two counts of assault and battery. The convictions were based on an incident in which the defendant stabbed two women. For the two ABDW-SBI convictions, the defendant was sentenced to consecutive terms of incarceration of two years each, to be followed by three years of probation on the remaining four convictions.

Based on an incident that occurred in the early morning of September 8, 2019, the Commonwealth charged the defendant with two new offenses: 1) breaking and entering in the nighttime with intent to commit a felony, and 2) making a threat to commit a crime. Based on the new violations, the Commonwealth also moved to revoke the defendant's existing probation for the earlier convictions. Following an evidentiary hearing, a Superior Court judge found the defendant in violation of his probation and resentenced him to an additional two- to four-year term of incarceration for the assault with intent to murder convictions.2 Before us now is the defendant's appeal from the revocation of his probation.3

Many of the facts are uncontested. On the night of September 7, 2019, the defendant went to a club where he was drinking with Moneika Graham. By the defendant's own admission, he became drunk. After the club closed, Graham drove the defendant, in his car, to her apartment building in the Dorchester section of Boston. On the way, Graham scraped the wheel rims on the defendant's car on the curb, prompting a heated argument between them.

The Boston police responded to three separate calls that morning regarding disturbances at the victim's apartment building. In response to the first call, which came in at approximately 2 a.m., they found Graham standing at the front door of her home. She told police that she had been ringing her doorbell and trying to get her children to let her in. At approximately 3 a.m., the police responded to a second call in which the caller stated that the defendant was on the outside porch of the apartment building “repeatedly ringing the doorbell and wouldn't leave.” The police did not see him there when they arrived. Within the next hour, the police responded to a third call and found the door to Graham's third-floor apartment “broken,” with “the locks and the threshold and everything smashed and missing.” The first person they encountered was Graham's daughter who was “in distress, scared, crying.” The daughter “stated that somebody was kicking the door downstairs and then that somebody had kicked in the front door of their apartment, and that her mother's boyfriend stated that he was not leaving until, ‘I kill your mother.’ ” The judge credited the officer's testimony and found the statements of the daughter embedded in that testimony reliable.

The defendant testified on his own behalf. He acknowledged that he had been drinking with Graham at the club, that Graham drove him back to her apartment in his car because he was too drunk to drive, and that when they reached her apartment building, they had gotten into an argument about the damage to the rims of his car. The defendant denied repeatedly ringing the doorbell, kicking in Graham's door, or threatening to kill her. In fact, the defendant claimed that by 2:30 a.m., he was about a one-half hour walk away in Dorchester, namely, at the apartment where Katanya Russell, the mother of his child, was staying. Russell testified that the defendant arrived there at approximately 2:30 a.m., after which they promptly went to bed.

At the evidentiary hearing, the defendant's counsel handed the judge an affidavit in which Graham claimed that she was the one who broke her own door.4 The evidentiary status of the affidavit is not clear; for example, it was not offered through a witness, and the transcript of the evidentiary hearing does not indicate that it was admitted in evidence as an exhibit.5 Nevertheless, the Commonwealth did not object when the affidavit was handed to the judge, and in its appellate brief, the Commonwealth characterizes the affidavit as part of the defendant's “evidence.” For present purposes, we treat it as such despite its questionable status.

To the extent the facts were in dispute, it was, of course, up to the judge as fact finder to resolve those conflicts. The defendant is left to argue that it was improper for the judge to rely on the statements that Graham's daughter made to the police, because those statements constitute hearsay that does not have sufficient reliability to satisfy due process concerns. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990). We disagree. Even if the statements constituted hearsay -- something that is far from clear 6 -- the judge did not abuse his discretion in concluding that they carried with them sufficient indicia of reliability. As the judge reasoned, the daughter's statements were corroborated in great part by other evidence, and the daughter had no demonstrated reason to lie.

The Commonwealth's evidence amply supported the judge's finding that the defendant had violated his probation by committing the new offenses charged. The fact that the defendant presented contrary evidence is ultimately beside the point, because the judge had no obligation to credit that evidence, especially where the judge could have considered the defendant, Russell (the mother of the defendant's child), and Graham (the defendant's ostensible girlfriend) all subject to bias.

Once the judge determined that the defendant had violated his probation, it was up to him to determine whether to reprobate the defendant or to revoke his probation and resentence him on the original convictions. Commonwealth v. Pena, 462 Mass. 183, 187 (2012). The judge acted well within his discretion in deciding to revoke the defendant's probation, and the defendant has not alleged, much less shown, that there was anything illegal about the new sentence that the judge imposed for the assault with intent to murder convictions.

Order revoking probation and imposing sentence affirmed.


2.   Probation was terminated for the two assault and battery convictions.

3.   The criminal charges underlying the new violation then were dismissed for lack of prosecution.

4.   She claimed to have broken down the door earlier that day, because she panicked after inadvertently locking one of her children in the apartment.

5.   A “List of Exhibits” included in the assembly of the record does list it as an exhibit.

6.   The statement by the defendant to Graham's daughter that he would kill Graham would appear to qualify as a verbal act, and the various statements by the daughter to the police would appear to qualify as “excited utterances.” See generally Commonwealth v. Purdy, 459 Mass. 442, 452-453 (2011); Commonwealth v. Wilson, 94 Mass. App. Ct. 416, 421 (2018).

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