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Appeals Court of Massachusetts.



Decided: November 29, 2021

By the Court (Vuono, Blake & Englander, JJ.1)


The defendant appeals from an order revoking his probation on the ground that he committed new offenses and failed to comply with an abuse protection order. He claims that the evidence was insufficient to revoke his probation because the judge relied on unreliable hearsay evidence and failed to make an inference in his favor. We affirm.

Background. In September 2019, the defendant pleaded guilty to offenses in the District Court and was sentenced to one and one-half years in the house of correction, six months to serve, the balance suspended for one year, with the specific probation condition that he “abide by [the] restraining order” which prohibited him from contacting his former girlfriend. Approximately one month later, in October 2019, the defendant was charged with attempted murder, strangulation, assault and battery in violation of an abuse prevention order, assault and battery by means of a dangerous weapon, intimidation of a witness, and assault and battery on a family or household member. The victim was his former girlfriend.

A notice of probation violation issued based on the new charges, and the defendant's “failure to abide by [an abuse prevention order].” After a hearing, the judge found that the defendant was in violation of his probation, revoked his probation, and imposed the remainder of the suspended sentence. This appeal followed.

Discussion. “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). The Commonwealth must prove a violation of probation by a preponderance of the evidence. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). We review an order revoking probation to determine “whether the record discloses sufficient reliable evidence to warrant the findings by the judge that [the defendant] had violated the specified conditions of his probation.” Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).

Hearsay evidence. The victim did not testify at the probation revocation hearing. Rather, two Lynn police officers testified that they were approached by a concerned citizen which led them to speak with the victim. The officers testified that although reluctant to speak with them, the victim reported that the defendant “wrap[ped] his hands around her neck and ․ choke[d] her” which caused her to nearly lose consciousness. He then held “a pocket knife with the blade exposed ․ against her chest” as he held her neck with his other hand. The defendant attempted to “grab [the victim] and pull her back toward him by her left arm” when she was able to get away from him.

The defendant claims that this hearsay testimony was unreliable because the victim's statements to the officers were not made close in time to the events in question, the corroborating evidence was negligible, and the victim's statements lacked specific factual detail and were internally inconsistent.

Probation revocation hearings are not subject to the strict rules of evidence, Durling, 407 Mass. at 114, and hearsay evidence is admissible if it is substantially reliable. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). When determining whether hearsay evidence is substantially reliable, a judge may consider:

“(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. Not all these criteria need be satisfied. See Commonwealth v. Patton, 458 Mass. 119, 133 (2010).

The victim's account of the attack was based on her personal knowledge, and direct experience with the defendant. See Patton, 458 Mass. at 134 (statement based on victim's personal knowledge supported hearsay statement's reliability). See also Commonwealth v. Leopold L., 96 Mass. App. Ct. 796, 803-804 (2020) (victim's out-of-court statements reliable because victim knew defendants and relied on personal knowledge in identifying them). And the victim's account of the attack was highly detailed and specific. See Patton, supra (level of factual detail contributes to finding of substantial reliability). Although not made contemporaneously, the victim's statement to the officers was made less than twenty-four hours after the attack. See Patton, supra at 121-122, 134 (complaint promptly reported after incident supported victim's credibility in making hearsay statement). See also Nunez, 446 Mass. at 59 (victim's statements to officer made soon after events were substantially reliable). Moreover, that the victim's statements were given to police officers supports their underlying indicia of truthfulness because filing a false police report is a crime. See G. L. c. 269, § 13A; Commonwealth v. King, 71 Mass. App. Ct. 737, 741 n.7 (2008).

In addition, the statements were corroborated by the officers’ observations of the victim's emotional and physical state. Marks on the victim's neck and arm were consistent with the manner in which she said that the defendant attacked her, and were further evidenced by photographs of the injuries. See Patton, 458 Mass. at 133 (corroborating evidence contributes to finding of substantial reliability). See also Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 677-679 (2012) (victim's report corroborated by police officer's personal observation of victim's injury). Cf. King, 71 Mass. App. Ct. at 741 (victim's unemotional demeanor undermined reliability of her statements). And the officers confirmed the existence of an active restraining order against the defendant protecting the victim from abuse.2

Based on the foregoing, we discern no abuse of discretion in the judge's conclusion that the hearsay evidence was substantially reliable.

Failure to make an inference in the defendant's favor. The defendant moved to admit a thumb drive containing surveillance video footage; it is undisputed that the judge and the attorneys were unable to actually view it. However, one of the officers previously viewed the video footage, and testified that he “did not see either party in that footage in that time frame,” with the caveat that the video “does not pick up all the areas of the MBTA garage.”

The defendant claims that the judge abused his discretion by failing to give any weight to the officer's testimony about the surveillance video footage. However, the record is unclear as to how the judge treated this testimony. On several occasions, the judge said that he would not consider the video footage, or any reference made to it. At other times, the judge said that he credited the testimony of both officers, at least one of whom testified about the contents of the video footage. We need not resolve this conflict as the judge was not obligated to infer that the victim was not credible because the attack was not captured on the video. See Morse, 50 Mass. App. Ct. at 592 n.13, quoting Commonwealth v. Tate, 34 Mass. App. Ct. 446, 449-450 (1993) (“judge was not required to accept any of the exculpatory reasons offered by the defendant”).

Order revoking probation and imposing sentence affirmed.


2.   We also note that in May 2019, the defendant sent letters to the victim threatening that his “boys” were watching her. During this attack, the defendant told the victim that he no longer needed his “boys to take care of” her.

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