COMMONWEALTH v. DAVID BETTENCOURT JR (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a probation revocation hearing, a District Court judge found the defendant to be in violation of his probation due to the commission of another offense. On appeal, the defendant contends that (1) a key credibility determination was improperly based on the victim's out-of-court statement from a separate proceeding; (2) testimony regarding general characteristics of domestic abuse victims was impermissibly admitted; and (3) the finding of a probation violation was improperly based on the defendant's Board of Probation record as propensity evidence for domestic violence. We affirm.

Background. In October 2022, the defendant pleaded guilty to ten counts of violating an abuse prevention order and one count of witness intimidation, stemming from the defendant's communications with his ex-girlfriend (victim) -- telephone calls and a letter -- while the defendant was in jail. The defendant was sentenced to eighteen months in the house of correction suspended for a period of two years with probation

In June 2024, the victim called 911, reporting that the defendant had assaulted her in her apartment. When police responded, the victim told them that the defendant had grabbed her by the shoulder and thrown her against the wall. She also told them that the defendant held her there, raised his fist and said, “I'll smash your fucking face right now.” The victim told the police that the defendant then left, walking down Washington Street. The police later found the defendant in a Washington Street parking lot and arrested him. The defendant denied that he had physically assaulted the victim and claimed instead that she had attempted to assault him with a frying pan.

The incident triggered a probation violation hearing, which took place in July 2024. Before the hearing, an attorney spoke to the victim regarding her Fifth Amendment privilege against self-incrimination. The attorney reported to the judge that he did not believe that the victim had such a privilege because she denied that she had assaulted the defendant. The evidence at the hearing consisted of the testimony of the victim and the responding officer, as well as the defendant's order of probation conditions and the notice of probation violation.

At the hearing, the victim testified that she had called 911 after a heated argument with the defendant concerning lying and cheating. She acknowledged having told the police that the defendant had grabbed her by the shoulder and thrown her against the wall but denied telling the police that the defendant raised his fist and threatened to smash her face. Despite what she agreed she told the police, however, she testified that the defendant did not physically assault her.

At the conclusion of the hearing, the judge found the defendant to be in violation of his probation based on his assault of the victim. She based her decision on the testimony of the victim and the responding officer, whose testimony included hearsay statements made by the victim. The judge found the hearsay to be substantially reliable because it was based on personal knowledge or direct observation, it was provided by a disinterested witness, and it was provided under circumstances supporting the veracity of the source.

Discussion. The Commonwealth must prove a violation of probation by a preponderance of the evidence. See Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). Hearsay is admissible, as long as it is substantially reliable. See Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010). We review a judge's determination whether a violation of probation has occurred for an abuse of discretion. See Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014).

1. Credibility determination based on out-of-court vouching statement. The defendant contends that the finding of probation violation was tainted by the judge's consideration of a statement made by the victim's attorney to the effect that the victim did not have a valid Fifth Amendment privilege. He argues that consideration of the attorney's statement was improper because it was not evidence at the hearing and constituted vouching for the credibility of the victim.

The record does not support the defendant's claim that the judge “openly considered the Fifth Amendment attorney's statements when announcing credibility determinations.” At the conclusion of the hearing, the judge stated:

“I do find that probation has met their burden by a preponderance of credible evidence, and that is in consideration of all of the testimony that was before me. There is certainly some concern with the testimony of the victim, some of which the Court does not credit, specifically the testimony of the recantation.

“I also want to put on the record, just to connect this to an earlier proceeding, that the named victim, indeed, appointed counsel to discuss the potential of a Fifth Amendment privilege based upon the conversation. The Fifth Amendment privilege was not found, which is why she was, indeed, called to testify.

“That said, again, I find that the probation department has met its burden by a preponderance of the evidence. I do find a violation of probation.”

The judge's mention of the appointment of counsel and the absence of a Fifth Amendment privilege was a recitation of the proceedings intended to ensure that the record reflected a formal finding that the victim did not have a privilege against self-incrimination and therefore was available to testify. The judge stated that her finding that the defendant violated his probation was based on the witnesses’ testimony and documentary evidence presented at the hearing and made it clear that the victim's attorney's statements were not part of the evidence by referring to that attorney's involvement at an “earlier proceeding.”

Moreover, there was nothing in the attorney's statements that could be construed as vouching for the victim's credibility. See Commonwealth v. Sun, 490 Mass. 196, 219 (2022) (improper vouching occurs where attorney expresses personal belief in credibility of witness or suggests possession of knowledge independent of evidence). The attorney reported that he had spoken to the victim about “what the allegations were according to [the defendant] about what she had potentially done.” Because the victim denied the allegations, the attorney reported that the victim had no valid basis to claim a Fifth Amendment privilege. Contrary to the defendant's claim, this report did not express a personal opinion about the victim's credibility. There was no error.

2. Officer opinion on domestic violence victim behavior. The defendant also claims that the finding of probation violation was tainted by the judge's consideration of improper testimony concerning the behavior of domestic violence victims. We disagree. After establishing that the police witness had experience dealing with domestic violence victims, both at the scene and later at court, the prosecutor asked the witness:

The prosecutor: “Okay. In your time as a police officer, have there been more than one cases [sic] in which you've learned, whether it be coming into trial or through any other means, that an alleged victim has changed their story after the time that you deal with them on the day of the scene?”

The witness: “Yes.”

The prosecutor: “Okay. Has it happened more than one time?”

The witness: “Yes.”

The prosecutor: “Is it often that they often try that -- is it often the case that alleged victims will not show up on the date of trial?”

The witness: “That has happened, yes.”

The prosecutor: “Okay. In your training and experience as a police officer, those two things that you've noticed, what, if anything -- could you kind of explain about them, if you know anything?”

Defense counsel: “Objection, Your Honor.”

The judge: “Sustained.”

Thus, the judge was well aware that the line of inquiry being pursued by the prosecutor was inappropriate and shut it down. See Commonwealth v. Garvey, 99 Mass. App. Ct. 139, 143 (2021) (trial judges presumed to instruct themselves correctly on consideration of evidence).

3. Consideration of defendant's past record to support finding of violation. The defendant further argues that the judge erred in considering his criminal record and history of domestic violence offenses in finding a violation of probation. Again, the record does not bear out this claim.

After making a finding of violation, the judge asked the parties for recommendations on disposition. See Commonwealth v. Eldred, 480 Mass. 90, 101-102 (2018) (probation violation hearings have two distinct phases - adjudicatory and dispositional). The prosecutor then recommended that the previously suspended sentence be imposed and, as reason therefore, outlined the defendant's extensive criminal history with emphasis on domestic violence offenses. Defense counsel asked that the suspended sentence not be imposed.

The judge then stated:

“As previously indicated, a violation of probation has been found in light of everything that I have heard and reviewing the defendant's Board of Probation record and extensive history for domestic violence offenses. I think it was 12 or 13 prior restraining orders with the underlying case involving violations of restraining order, a new case involving violations of abuse in regards the same victim. The suspended -- probation is revoked; the suspended sentence is being imposed.”

Contrary to the defendant's claim, this passage does not reflect that the judge “explicitly relied on propensity evidence, acknowledging that [the defendant's] record swayed her finding.” Rather, the judge reviewed that she had already made a finding of probation violation, and then explained that the defendant's extensive record warranted imposition of the previously suspended sentence. There was no error.

Judgment affirmed.