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COMMONWEALTH v. Daniel CLANCY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On February 3, 2012, the defendant pleaded guilty to three counts of armed robbery and three counts of assault. He was sentenced to a period of incarceration followed by concurrent ten-year terms of probation. After a probation violation hearing, the defendant was found in violation of the conditions of his probation. As a result, his probation was revoked and he was sentenced. On appeal, he claims that the judge erred in admitting unreliable hearsay evidence. He also claims that the judge abused her discretion in denying his motion for new trial and abused her discretion by refusing to recuse herself. We affirm.
1. Probation revocation. The defendant claims the judge improperly admitted unreliable hearsay statements made to a police detective by the defendant's wife, her uncle, and her sons.2 We disagree.
At a probation violation hearing, the Commonwealth need prove a violation of probation only by a preponderance of the evidence. See Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). Such hearings are not part of a criminal prosecution. Therefore a probationer is not entitled to the “full panoply of constitutional protections applicable at a criminal trial.” Commonwealth v. Durling, 407 Mass. 108, 112 (1990). Where the only available evidence to prove the defendant violated his probation is hearsay, it must bear substantial indicia of reliability. Id. at 118-122.
In this defendant's case, his violation of the terms of his probation was established with more than mere hearsay. During the hearing, seventeen photographs of his wife's injuries and the scene of the assault were admitted without objection. Also, based on corroboration, the judge was entitled to find that the hearsay evidence that was admitted was also reliable. That is, the photographs, as well as the detective's own observations, corroborated the statements made by the defendant's wife, the uncle, and the sons.3
The defendant's probation revocation was also properly based on his being charged with possession of cocaine, a charge to which he later pleaded guilty. Indeed, his counsel explicitly requested that he be found in violation based on this new criminal charge. Accordingly, the defendant's probation was properly revoked.
2. Rule 30 motion. The defendant also claims that the judge abused her discretion in denying his rule 30 motion, where he asserts that the judge was not impartial during any of his criminal proceedings before her due to his alleged sexual advances towards her in the 1980s. He also claims that the judge was required to sua sponte recuse herself. We disagree.
We review the denial of the defendant's rule 30 (b) motion for a significant error of law or abuse of discretion. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The defendant claims that he did not realize that the judge was the subject of his alleged harassment during his original plea, sentencing, or probation violation hearing, and thus is entitled to a new trial due to “newly discovered evidence.” However, not only must evidence be newly discovered,4 it must “cast[ ] real doubt on the justice of the conviction.” Id. at 305. We see no such doubt.
When a judge is faced with a question as to her impartiality, she must consult “first [her] own emotions and conscience. If [she] passed the internal test of freedom from disabling prejudice, [she] must next attempt an objective appraisal of whether this is a ‘proceeding in which [her] impartiality might reasonably be questioned’ ” (citations omitted). Lena v. Commonwealth, 369 Mass. 571, 575 (1976).
The only evidence the defendant provided was his affidavit in which he asserted that he and the judge worked at the same law firm in the 1980s and that the judge filed a sexual harassment claim against him that resulted in his termination. However, the judge declared on the record that she has no memory of the alleged circumstances, and contradicted the defendant's specific claims. Accordingly, the defendant has failed to meet his burden establishing facts that the alleged encounter with the judge ever occurred, or its impact on the judge's partiality.5 See Commonwealth v. Vaughn, 471 Mass. 398, 403 (2015). See also Commonwealth v. Rzepphiewski, 431 Mass. 48, 55 (2000) (“A judge is not required to accept as true the allegations in a defendant's affidavit”).
Order revoking probation and imposing sentence affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
2. The defendant also incorrectly claims the judge failed to set forth on the record her reason for finding the hearsay evidence reliable. See Commonwealth v. Nunez, 446 Mass. 54, 59 n.6 (2006) (advisable for determination that hearsay is reliable to be stated on record). However, the judge did orally describe her reasons for relying on hearsay after reading Commonwealth v. Durling, 407 Mass. 108 (1990).
3. The defendant also asks us to conclude that the right to confrontation applies to probation revocation hearings, despite the Supreme Judicial Court's ruling to the contrary in Commonwealth v. Wilcox, 446 Mass. 61, 68 (2006). However, “we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided.” Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
4. Here, the evidence was not “newly discovered.” To qualify as such, the evidence “must ․ have been unknown to the defendant or his counsel and not reasonably discoverable by them.” Grace, 397 Mass. at 306. The defendant had appeared in front of the judge in multiple proceedings spanning over six years. As demonstrated by the defendant's affidavit, in which he claims he researched the judge's background on LexisNexis, the alleged connection between the defendant and the judge was “reasonably discoverable.” Unable to show the evidence was “newly discovered,” the defendant's argument must fail. Id. at 305.
5. Likewise, no error occurred in the denial of the defendant's request for an evidentiary hearing, as the judge had the discretion to discredit the defendant's self-serving affidavit. See Commonwealth v. Denis, 442 Mass. 617, 633-634 (2004).
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Docket No: 19-P-969
Decided: April 16, 2020
Court: Appeals Court of Massachusetts.
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