COMMONWEALTH v. GERARDO LOZA JR (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Gerardo Loza, Jr., appeals from an order of a District Court judge revoking his probation. After a hearing, the judge found by a preponderance of the evidence that the defendant had violated the conditions of his probation by violating the criminal laws. The defendant argues that the judge improperly admitted in evidence exhibit 5, a printout of his driver history compiled by the registry of motor vehicles (RMV) and contained in the criminal justice information system (CJIS) database, see G. L. c. 6, § 167A (c). The defendant contends that exhibit 5 contained inadmissible hearsay and its admission violated his due process rights because no CJIS employee testified to explain its meaning. Because the judge did not abuse his discretion in concluding that the hearsay was substantially reliable, we affirm.

Background. On July 10, 2024, in the Chelsea District Court, the defendant admitted to sufficient facts for findings of guilty on charges of operating a motor vehicle under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1); reckless operation of a motor vehicle, G. L. c. 90, § 24 (2) (a); and leaving the scene of property damage, G. L. c. 90, § 24 (2) (a) (collectively, Chelsea charges). The Chelsea charges were continued without findings for eighteen months, during which the defendant was placed on probation with conditions including a forty-five day loss of license and that he obey all State laws.

On July 18, 2024, Bedford police Sergeant Jared Weisenborn saw a red pickup truck being driven on a public way. Its driver was holding a cell phone. In the CJIS database, Sergeant Weisenborn checked the truck's registration and learned that the truck was overdue for a safety inspection. Sergeant Weisenborn stopped the truck and explained the reason for the stop to the driver, who was the defendant. The defendant admitted he had been looking at his cell phone's global positioning system display. Asked for his license and registration, the defendant produced the truck's registration. The defendant said he did not have a driver's license and that his license had been suspended. The defendant did not have any identification on him, but related his name, date of birth, and address to Sergeant Weisenborn, who checked the CJIS database and found RMV records that matched that information. The RMV records also included a license photograph that depicted the defendant, and information that his driver's license had been suspended. Sergeant Weisenborn then checked the defendant's RMV driver history in the CJIS database and learned that his license had been suspended for OUI. Sergeant Weisenborn also checked the CJIS database for the defendant's criminal history as maintained by the board of probation and learned that a continuance without a finding had been imposed on an OUI charge and he was on probation until January 2026. Sergeant Weisenborn asked the defendant if he had been to court within the past week, and the defendant admitted that he was on probation and his license had been suspended for OUI. The defendant was arrested.

On the same day, July 18, 2024, the defendant was arraigned in the Concord District Court on charges arising from his arrest. The complaint charged him with offenses including operating a motor vehicle after his license had been suspended for OUI, G. L. c. 90, § 23; operating a motor vehicle while using an electronic device, G. L. c. 90, § 13B; and failure to have an inspection sticker, G. L. c. 90, § 20.

Also on July 18, 2024, a notice of probation violation issued in the Chelsea District Court. At a probation violation hearing on July 31, 2024, Sergeant Weisenborn and the defendant's probation officer testified as outlined above.¹ The defendant objected to admission of exhibit 5, the printout of his RMV driver history.² On August 9, 2024, the judge ruled to admit exhibit 5, concluding that it bore substantial indicia of reliability. The judge noted that the defendant's biographical information in exhibit 5 matched the biographical information in his board of probation record (exhibit 2), which was in evidence without objection by the defendant. The judge found the defendant in violation of probation, revoked his probation, vacated the continuances without findings on the Chelsea charges, imposed guilty findings, and sentenced the defendant to concurrent one-year terms in the house of correction with four months to serve, the balance suspended for one year. The defendant appeals.

Discussion. 1. Admissibility of driver history. The defendant argues that revocation of his probation was improper because exhibit 5 was inadmissible hearsay. 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 its underlying evidentiary rulings are reviewed for an abuse of discretion. See Commonwealth v. Rainey, 491 Mass. 632, 648 (2023); Jarrett, supra.

In a probation violation hearing, a judge may rely on hearsay evidence if it is reliable. See Durling, 407 Mass. at 118. “[W]hen hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial.” Id. See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). For the purposes of a probation violation hearing, hearsay does not need to fall into a particular exception or exemption to be sufficiently reliable. See Commonwealth v. Thissell, 457 Mass. 191, 197 (2010). In determining whether hearsay is substantially reliable, the judge may consider a nonexhaustive list of factors, including

“whether that evidence (1) is based on personal knowledge and/or direct observation, rather than on other hearsay; (2) involves observations recorded close in time to the events in question; (3) is factually detailed, rather than generalized and conclusory; (4) is internally consistent; (5) is corroborated by any evidence provided by the probationer; (6) was provided by a disinterested witness; or (7) was provided under circumstances that support the veracity of the source (e.g., was provided under the pains and penalties of perjury or subject to criminal penalties for providing false information).”

Rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings (2024) (rule 7[b]). See Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 669 (2019). A hearsay statement need not satisfy all of those criteria to be substantially reliable. See Commonwealth v. Gelin, 494 Mass. 777, 785 (2024) (police report and grand jury testimony sufficiently reliable).

The defendant argues that exhibit 5 did not meet any of the seven Hartfield factors. We conclude that the judge did not abuse his discretion in finding that exhibit 5 was substantially reliable.

The defendant's RMV driver history as shown on exhibit 5 was factually detailed, and the judge permissibly found that these factual details were corroborated by other evidence. The judge noted that the defendant's biographical data as listed in that printout, including his full name and date of birth, were “consistent with ․ the Board of Probation record, which is in evidence without objection from the Defendant.” As Sergeant Weisenborn testified, the defendant provided his name and date of birth, which were consistent with the information in his RMV driver history and his board of probation record. Cf. Commonwealth v. Smith, 496 Mass. 304, 310 (2025) (evidence that search of CJIS firearm licensing database for “particular name and birth date ” turned up no results would suffice to prove lack of license); Commonwealth v. Jones, 106 Mass. 613, 617 (2026) (same).

Significantly, as relevant to the issue before the judge, exhibit 5 shows that the defendant's driver's license was suspended on July 12, 2024, with an “incident date” of July 10, 2024, which precisely matches a docket entry from the Chelsea charges. Indeed, exhibit 5 was largely irrelevant, as the judge could have found, based on the court's own records, that the defendant's license had been suspended for forty-five days on July 10, just eight days before Sergeant Weisenborn stopped the defendant while driving. Furthermore, Sergeant Weisenborn testified that the defendant admitted that his license had been suspended. Exhibit 5 was cumulative of that evidence; it was not the “only evidence” of the violation of probation. Durling, 407 Mass. at 118.

The judge did not abuse his discretion in determining that the printout of the defendant's driver history (exhibit 5) was substantially reliable.

2. Confrontation clause issues. The defendant also argues that his due process rights to confront witnesses and to present a defense were violated because the probation department did not timely disclose exhibit 5 to him, and he was deprived of the opportunity to cross-examine a CJIS employee about the statements contained in it.

“ ‘The right to present a defense’ during the adjudicatory phase of a probation violation hearing ‘is parallel to, but not coextensive with, the right to present a defense at trial.’ ” Commonwealth v. Zachairah Z., 494 Mass. 417, 425 (2024), quoting Commonwealth v. Kelsey, 464 Mass. 315, 322 (2013). Thus, as discussed, a judge has discretion to consider substantially reliable hearsay.

To the extent that the defendant argues that his due process rights were violated because the probation department did not timely disclose to him the printout of his RMV driver history, we are not persuaded. The defendant has not argued, either in the trial court or on appeal, that he was prejudiced by the timing of the disclosure of that printout. Indeed, the judge continued the probation violation hearing for ten days to give the defendant the opportunity to submit a memorandum on the admissibility of exhibit 5, but that memorandum does not argue any prejudice from the timing of its disclosure. In those circumstances, his argument cannot succeed. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 586-587 (2000) (no prejudice, where probationer received four days’ notice of violation hearing, was assigned counsel on morning of hearing, and did not move for continuance or explain what evidence would have been presented with more time to prepare).

To the extent that the defendant argues that his due process rights were violated because the printout of his RMV driver history was admitted without testimony of an employee of CJIS who maintains that database, we are again not persuaded. “Registry records of driver history are not ‘testimonial’ and do not raise Sixth Amendment ․ confrontation clause concerns.” Commonwealth v. Royal, 89 Mass. App. Ct. 168, 173 (2016). The judge was not required to hear testimony from an employee of CJIS -- or, for that matter, the RMV -- before considering exhibit 5. Cf. Smith, 496 Mass. at 312 (witness need not have comprehensive knowledge of database, but only familiarity with process of searching it and its record-keeping practices). Nor was the judge required, before admitting exhibit 5 at the probation violation hearing, to hear testimony of the probation department employee who printed out the defendant's RMV driver history. The judge took “judicial notice” that the person who generated the printout, whose name was at the top of its first page, was “a case specialist for the Massachusetts Probation Department.” The defendant did not argue that the Commonwealth was required to call the case specialist to testify, or seek to call her himself. Contrast Commonwealth v. Encarnacion, 105 Mass. App. Ct. 46, 51 (2024) (CJIS printout was hearsay inadmissible at trial, where defendant objected to testimony about results of search performed by another person). The judge did not abuse his discretion in admitting the printout as proffered by the probation officer and corroborated by other evidence.

Order dated August 9, 2024, finding probation violation, revoking probation, and imposing sentence affirmed.

FOOTNOTES

1.   The defendant failed to provide this court with the transcript of the July 31, 2024 evidentiary hearing. As appellant, it was his duty to provide us with “the transcript of all proceedings relevant to the appeal.” Mass. R. A. P. 8 (b) (1) (A), as appearing in 481 Mass. 1611 (2019). The Commonwealth has provided that transcript to this court.

2.   The defendant also objected to admission of Sergeant Weisenborn's police report and his testimony about the results of his queries to the CJIS database. The defendant does not pursue those issues on appeal.