Opinion
14-P-60
03-04-2015
COMMONWEALTH v. PRENTISS LAMAR GRIFFIN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 5, 2012, the defendant was convicted of three counts of assault and battery (counts 1-3 of the complaint) and one count of assault with a dangerous weapon, a knife (count 4). He was sentenced to one year in a house of correction on count 1. On counts 2-4, he was given a suspended sentence of two years in a house of correction, and one year of probation, the probation to run from and after the committed portion of the sentence.
On April 25, 2013, the defendant's probation was revoked after a District Court judge found there was sufficient evidence to show that the defendant violated his probation by failing to comply with a drug testing requirement on February 1, 2013, when he left the probation department after being told he would be tested; failing to be available for testing on and after February 26, 2013; and failing to report to the probation office as directed on March 6, 2013. At the revocation hearing, probation officer Bruno testified from probation officer Muscaro's chronological notes. The defendant's only objection during the revocation hearing was based on the ground that Muscaro, the defendant's unavailable supervising probation officer, did not testify, and, as such, the testimony from her chronological notes was "clearly hearsay." He now appeals from the revocation order.
The judge found no violation on a new criminal offense alleged by the probation department.
In probation revocation hearings, the rules of evidence are flexible, and reliable hearsay is admissible. Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). The defendant argues that it was error to admit probation officer Muscaro's notes because they are unreliable hearsay, despite the fact that they fall within the business records exception to the hearsay rule. We disagree. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004); Commonwealth v. Wilcox, 446 Mass. 61, 71 (2006). When evidence fits into a "firmly rooted" exception to the hearsay rule, it is presumed to be reliable. See Commonwealth v. Babbitt, 430 Mass. 700, 705 (2000); Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 44 n.3 (2002), citing the commentary to Rule 6 of the District Court Rules for Probation Violation Proceedings ("[I]f hearsay evidence qualifies under any of the legal exceptions to the hearsay rule . . . it is presumptively reliable"). The business records exception to the hearsay rule is such a firmly rooted exception. See Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 358 (2008).
The commentary to Rule 6(b) of the District Court Rules for Probation Violation Proceedings offers five criteria of substantial reliability; the hearsay admitted in a revocation hearing need not satisfy all the criteria. See Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 676 (2012). The criteria include:
"(1) whether the statements are 'factually detailed, rather than generalized and conclusory'; (2) whether the statements are 'based on personal knowledge and direct observation by the source'; (3) whether the statements are 'corroborated by evidence submitted by the probationer'; (4) whether the statements were 'provided under circumstances . . . support[ing] the veracity of the source . . .'; and (5) whether the statements come from 'a disinterested witness.'"
Quite apart from the presumption of reliability, the judge did not abuse her discretion in determining that the hearsay evidence was substantially reliable. See Commonwealth v. Patton, 458 Mass. 119, 132 (2010); Commonwealth v. Janovich, 55 Mass. App. Ct. at 44 n.3. See also Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). The judge made such a determination when, in response to the defendant's only objection at the hearing that using another probation officer's testimony from the defendant's supervising probation officer's notes was relying on hearsay because the supervisor was not present to testify, she stated, "Hearsay has always been admissible in violation of probation hearings. The question is whether it is reliable enough upon which the Court can find violation of probation." She continued, concluding that the testimony was indeed reliable, "I will allow this testimony, which is the testimony of probation officer Bruno, based on chronological notes which are kept in the probation file," and later stated, "[I have] found him in violation of probation on the basis of testimony, which I will find in writing was reliable, that coming from the probation officer business record . . . ." See Commonwealth v. Nunez, 446 Mass. at 58-59. Even though the judge did not provide that finding in writing, the oral recitations on the record are sufficient. See Commonwealth v. King, 71 Mass. App. Ct. 737, 739 n.5 (2008), citing Fay v. Commonwealth, 379 Mass. 498, 504-505 (1980). Where, as here, the judge did not abuse her discretion in determining that the hearsay testimony was substantially reliable, it was not necessary for her to make a separate finding as to good cause for proceeding without a witness with personal knowledge of the evidence presented. Commonwealth v. Bukin, 467 Mass. at 522, citing Commonwealth v. Negron, 441 Mass. at 691.
Probation officers other than those who have direct knowledge of the probationer may testify about the probation reports. See Commonwealth v. Ivers, 56 Mass. App. Ct. 444, 446 (2002).
With respect to failure to take a drug test, there was corroboration of the defendant's scheduled February 1, 2013, test. The probation officer testified to sufficient factual details including that on the day of the test, the tester went to find the defendant to administer the test, called his name twice, with no response, and it was marked on the test that no answer was given. Even though the Commonwealth acknowledges that probation officer Muscaro may not have had personal knowledge of this incident, the defendant's signature on the drug test information and signature form, which was admitted into evidence, along with the reported details of the incident, corroborate his presence at the testing site and the fact that he left after being informed of the test. Contrast Commonwealth v. Ivers, 56 Mass. App. Ct. at 446-447.
With respect to failing to be available for testing on February 26, 2013, and after, probation officer Muscaro left a message for the defendant to report to the probation office on February 26. She had conducted a home visit on February 25, but the defendant was not present. The homeowner confirmed that the defendant had received the probation officer's message to report to the probation department on February 26.
With respect to failure to report on March 6, 2013, the testimony from the chronological notes satisfied the criteria of reliability: the observations were "factually detailed, based on personal knowledge and direct observation, made close in time to the events in question, and corroborated by [other evidence]." Commonwealth v. Negron, 441 Mass. at 691.
The defendant also argues that the judge erred in not explaining her reasoning for admitting the hearsay evidence. We disagree. As discussed above, in addition to the hearing transcript, which includes the judge's reasoning, the judge also filled out a form that stated that the finding was based on "A HEARING and the preponderance of the credible evidence presented, specifically, the following TESTIMONIAL OR DOCUMENTARY EVIDENCE: The probation officer's detailed notes/records kept in the ordinary course of business regarding her interactions with def. as noted above." Sufficient findings can be provided in various ways. See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 592-593 (2000), citing Commonwealth v. Durling, 407 Mass. 108, 113-114 (1990) ("transcription of . . . proceedings accurately reflecting the evidence relied on and reasons for revocation [are] sufficient"). The judge did not abuse her discretion in finding that the defendant had violated the conditions of his probation.
Order revoking probation affirmed.
By the Court (Katzmann, Hanlon & Maldonado, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 4, 2015.
Ibid.