COMMONWEALTH v. OSBOURNE (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2013, the defendant pleaded guilty to armed assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury (A&BDW-SBI), and carrying a firearm without a license. His sentence included two years of probation on the A&BDW-SBI conviction to follow his prison sentence on the armed assault with intent to murder conviction. In November of 2018, while the defendant was serving his probation, he was indicted for new charges involving an attack on his sister. The Commonwealth also moved to revoke his probation based on the new charges. Following an evidentiary hearing, a Superior Court judge found that the defendant had violated his probation, revoked that probation, and sentenced the defendant to a prison term of two years to two years and one day. The defendant subsequently filed a motion for release from unlawful restraint, which was denied. The defendant has appealed both the denial of that motion and the revocation of his probation, and the appeals were consolidated. We affirm.

The defendant accurately points out that the Commonwealth's sole witness who testified at the probation revocation hearing lacked personal knowledge of the incidents underlying the 2018 indictments.³ Instead, the Commonwealth relied on documentary evidence to prove the new violations, including grand jury minutes, police reports that summarized eyewitness statements and police observations, and a recording of a 911 call. The case law has long established that a judge may rely on hearsay statements in a probation revocation hearing without violating the defendant's due process rights so long as the evidence presents “substantial indicia of reliability.” See Commonwealth v. Durling, 407 Mass. 108, 118 (1990).

In the case before us, the multiple detailed eyewitness accounts provided to the police in the 911 call and during the immediate aftermath of the attack on the defendant's sister, the grand jury testimony, and corroborating police observations had the effect of reinforcing the reliability of each constituent piece of evidence. The transcript of the probation revocation hearing, including the judge's explanation of his reasoning,⁴ reveals that the judge applied proper factors in considering whether any hearsay here was sufficiently reliable.⁵ See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016) (setting forth list of nonexclusive factors). The defendant has not demonstrated that the judge abused his discretion in applying such factors.

We recognize that the defendant's sister and another eyewitness to the incident (the sister's husband) submitted affidavits in which they partially recanted their earlier statements to police.⁶ However, this did not negate the reliability of their earlier statements, because it was up to the judge whether to credit any subsequent retractions based on the paper evidence before him. See Commonwealth v. Patton, 458 Mass. 119, 131 (2010).⁷ The fact that the Commonwealth ultimately chose to issue a nolle prosequi for the 2018 indictments is of no moment in light of the different evidentiary rules and standard of proof that apply to criminal proceedings.

Having found by a preponderance of the admissible evidence that the defendant had violated his probation, the judge concluded that revocation of that probation was warranted. The defendant makes no claim that the judge abused his discretion at this second step in the process.

Because we discern no error, we affirm the revocation of probation and the denial of the defendant's postrevocation motion for release from unlawful restraint.

So ordered.

affirmed

FOOTNOTES

3.   The witness was able to speak to what the judge characterized as certain “technical violations” of the probation conditions. However, it is evident from the judge's statements at the hearing that he did not rely on those violations alone in deciding to revoke the defendant's probation.

4.   The defendant argues that the judge failed to make required written findings regarding the reliability of the hearsay statements. See Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 725 (2019). However, the judge did make on-the-record oral findings that later were transcribed, and these satisfy the need for written findings. See Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980). Even if the judge's explanation could have benefitted from more specificity, we conclude that it was sufficient.

5.   As the Commonwealth points out, some of the key underlying out-of-court statements were not hearsay at all, qualifying instead as “excited utterances.”

6.   Notably, the sister and her husband recanted only their earlier statements that the defendant had possessed a firearm, not those that he had brutally attacked her.

7.   The sister was present in the courtroom during the probation revocation hearing but neither side chose to call her as a witness.