COMMONWEALTH v. BOLSTAD (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The probationer, Sean Bolstad, appeals from an order of a Superior Court judge finding him in violation of probation. The judge found the probationer had violated numerous terms of probation, including failing to comply with global positioning system (GPS) monitoring, failing to remain drug and alcohol free, failing to cooperate with screening requirements, and engaging in criminal conduct, specifically the malicious destruction of property, a Jeep, belonging to the probationer's ex-girlfriend, Juliet (a pseudonym).

In this appeal, the probationer claims that the judge improperly relied on unreliable hearsay -- statements made by Juliet to Boston police officer Mitchell Gambone on the day of the new crime -- to find the probationer in violation. We affirm.

A finding of a probation violation requires proof by a preponderance of the evidence, see Commonwealth v. Holmgren, 421 Mass. 224, 226 (1995), under relaxed evidentiary rules, without the “full panoply of constitutional protections applicable at a criminal trial.” Commonwealth v. Costa, 490 Mass. 118, 123 (2022), quoting Commonwealth v. Durling, 407 Mass. 108, 112 (1990). In a probation violation hearing, “[i]f hearsay is not admissible under standard evidentiary rules, it nevertheless may be admissible if the judge makes a determination that it is reliable.” Commonwealth v. Patton, 458 Mass. 119, 132 (2010). The hearsay must be “substantially reliable” if it is the only evidence of the violation. Id. In determining the reliability of hearsay, a judge may consider the following factors:

“(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.”

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). Not all of these criteria need be satisfied for hearsay to be considered trustworthy and reliable. See Costa, supra at 124; Patton, supra at 133.

Gambone testified that he responded to a 911 call from Juliet's address, where he found her “frantic” and “a little frightened.” Juliet told Gambone that the probationer had just banged on her bedroom window and demanded that she come outside to talk. When she refused, the probationer threatened, “I'll slash all your tires or break all your windows to your car.” Because the probationer was not present and Juliet's car was undamaged, Gambone left. About four hours later, Gambone returned to Juliet's residence, this time in response to a radio report of vandalism. On arrival, Gambone saw that all four tires of Juliet's Jeep had been slashed and the windshield had been smashed. Juliet, who was again “frantic, fearful,” told Gambone that the probationer had done the damage. Juliet showed Gambone a text message from the probationer, which read, “Look outside your window at your car.” The probationer objected to Gambone's testimony regarding Juliet's statements.

Juliet's two hearsay statements to Gambone -- that the probationer threatened to vandalize her car, and that the probationer did vandalize her car ² -- were not the only evidence of the violation. The police saw the damage. The Commonwealth introduced GPS evidence placing the probationer at Juliet's address at the time she said he had banged on her window and at the time her Jeep was damaged. By texting Juliet and telling her to look out her window, the probationer was essentially boasting that he had committed the act. Moreover, a text message that Juliet later sent to the probationer's attorney was introduced, in which Juliet recanted an allegation that the probationer had posted nude photographs of her, but continued, “[A]s far as my Jeep, it's been unregistered and uninsured for about six months now & I was looking to buy a new vehicle so I don't care about any damage done to the [J]eep and will not be pressing charges.” The judge found that Juliet “was talking about actions of [the probationer], including not only not posting naked photos, but damaging the Jeep.”

The hearsay statements attributed to Juliet were reliable under the Hartfield factors. Although Juliet may not have actually caught the probationer in the act of vandalizing her car, her statements were based on personal knowledge that she related to the police as events unfolded. The details of her statements were accurate and internally consistent; indeed, her report of the probationer's threat to vandalize her car, before it happened, later proved true. Her agitated demeanor further supported the veracity of her statements. Cf. Commonwealth v. Moquette, 439 Mass. 697, 704-706 (2003) (explaining why spontaneous utterances are considered trustworthy). Finally, as discussed supra, Juliet's statements were corroborated by direct police observation, GPS evidence, a text message from the probationer, and her own text message. The judge did not abuse his discretion in finding Juliet's hearsay statements to be reliable. See Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019).

The order finding the probationer in violation of the terms of probation and revoking probation is affirmed.

So ordered.

FOOTNOTES

2.   Gambone's testimony about the text message from the probationer was not based on any statement by Juliet, but rather was from Gambone's direct observation of Juliet's cell phone.