COMMONWEALTH v. MARIO HERNANDEZ (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2023, the defendant pleaded guilty to two counts of assault and battery on a family or household member. He was placed on probation for one year with the condition that he attend and complete the Intimate Partner Abuse Education Program (IPAEP). As a result of new criminal charges and his failure to successfully complete the IPAEP, the defendant's probation was revoked and a sentence was imposed. On appeal, he claims the judge abused his discretion by finding the victim's hearsay statements were substantially reliable, and by finding that the defendant willfully failed to complete the IPAEP. We affirm.

1. Reliable hearsay. The defendant claims that the judge abused his discretion by permitting a police officer to testify to the victim's account of the newly charged crime where it was not reliable hearsay, and therefore, violated due process. We disagree.

“At a probation violation hearing, the Commonwealth bears the burden of proving a violation of a condition of probation by a preponderance of the evidence.” Commonwealth v. Jarrett, 491 Mass. 437, 445 (2023). “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), citing Commonwealth v. Durling, 407 Mass. 108, 111–112 (1990). The judge's decision to revoke the defendant's probation and the underlying evidentiary rulings are reviewed for an abuse of discretion. See Commonwealth v. Rainey, 491 Mass. 632, 648 (2023); Jarrett, supra.

Hearsay may be relied on to demonstrate a probation violation in a revocation of probation proceeding if it “bears substantial indicia of reliability and is substantially trustworthy.” Durling, 407 Mass. at 118. Put another way, it must be “substantially reliable.” Rainey, 491 Mass. at 648. 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.”

Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). “We review a judge's determination that hearsay is substantially reliable, like other evidentiary decisions, under an abuse of discretion standard.” Rainey, supra.

Here, although the victim was not a disinterested witness, see Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668-669 (2019), the judge properly found several factors that demonstrated the reliability of her statements. These included that her statements were based on personal knowledge of the incident, close in time to the incident, occurred in the hospital where she was getting treatment for her injuries, and her account was detailed and internally consistent. See Commonwealth v. Costa, 490 Mass. 118, 124-126 (2022); Hartfield, supra. Her account was also corroborated by the police officer who saw her injuries and noted her demeanor, and the defendant's admissions. Accordingly, the judge did not abuse his discretion by finding the victim's hearsay account was substantially reliable. From that evidence, the judge properly concluded, by a preponderance of the evidence, that the defendant violated the conditions of his probation. See Jarrett, 491 Mass. at 444 (“Police officers may be the only witnesses at probation violation hearings, even where they report on statements by others, and the proceeding may still comport with due process”).¹

2. IPAEP classes. The defendant also claims the judge abused his discretion by finding that the defendant violated his probation by failing to complete the IPAEP classes where there was no evidence that he willfully failed to attend the classes. We disagree.

The defendant was required to complete the IPAEP's forty classes. According to the “Client Monthly Report,” the defendant had completed a mere thirteen classes. The report corroborated the probation officer's testimony that the defendant did not timely complete the program. Moreover, after the defendant's probation was extended to enable him to complete the classes, he still failed to do so. Although the defendant was homeless during a portion of his probation, he offered no justification why that prevented him from attending the classes. See Commonwealth v. Pena, 462 Mass. 183, 188 (2012) (probationer entitled to show justifiable excuse for probation violation).

As the judge found, the defendant was on probation for fourteen months, and he had attended only thirteen classes in the eight-month period since his probation had been extended. The defendant offered no evidence or explanation for his difficulty attending classes. See Commonwealth v. Al Saud, 459 Mass. 221, 231 (2011) (“nothing in the record suggests that the defendant made any effort to contact [probation] and explain his situation”). Nor did the defendant make any effort to further extend his probation to complete the program. See Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 21 (2014) (onus on probationer to bring matter forward when he cannot satisfy condition of probation). Given these circumstances, as well as the defendant's “lack of a good faith effort to comply” with the terms of his probation, see Al Saud, supra, it was not an abuse of discretion for the judge to find that the defendant's IPAEP truancy was willful. Accordingly, the defendant's probation was properly violated on this basis as well.

Order revoking probation affirmed.

FOOTNOTES

1.   The defendant also claims that the hearsay was unreliable based on findings made by a different judge in connection with his G. L. c. 276, § 58A (§ 58A), dangerousness hearing. There, that judge found “multiple discrepancies” in the victim's G. L. c. 209A affidavit that related to the same event. While it is unclear whether the affidavit came into evidence at the revocation hearing, the judge did accept the § 58A findings “for what it's worth,” and later noted that the victim's statements were not inconsistent, and the victim did not testify at the § 58A hearing. Stressing the low preponderance of the evidence standard, the judge found the hearsay reliable and the standard satisfied. It was not an abuse of discretion for him to so find.