Opinion
No. 12–P–1032.
2013-06-21
COMMONWEALTH v. Tracy E. RICHARDS.
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order revoking her probation and imposing sentence in the District Court. Originally charged with larceny over $250 for shoplifting at the Quincy Stop & Shop supermarket, the defendant admitted to sufficient facts, and the judge placed her on probation for six months. During her probationary period, the defendant was issued a notice of probation violation based on allegations of shoplifting at the Weymouth Stop & Shop supermarket and possessing a class C controlled substance.
At the conclusion of the violation hearing, the judge found by a preponderance of the evidence that the defendant had violated the terms of her probation and sentenced her to six months in a house of correction on the original shoplifting charge. The defendant now appeals.
A criminal complaint issued for these two charges. The shoplifting charge was later dismissed by the Commonwealth. On the drug possession charge, the defendant admitted to sufficient facts, and the matter was continued without a finding for nine months.
Standard of review. “The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence rather than the criminal standard of beyond a reasonable doubt.” Commonwealth v. Hill, 52 Mass.App.Ct. 147, 154 (2001). On appeal, “[t]he question is whether the record discloses evidence sufficient to warrant the finding by the judge that [the defendant] had violated [a] condition of [her] probation.” Commonwealth v. Tate, 34 Mass.App.Ct. 446, 449–450 (1993).
Discussion. Sufficiency of the evidence. The defendant argues that she was deprived of due process because the evidence presented against her included several references to uncharged conduct not specified in the notice of probation violation. To support her argument, the defendant relies on several cases where reversal was required because the judge grounded his decision on charges that were not sufficiently identified in the notice. See Commonwealth v. Maggio, 414 Mass. 193, 196 (1993) (minimum requirement of due process is written notice of claimed probation violation). See, e.g., Commonwealth v. Michaels, 39 Mass.App.Ct. 646, 649 & n. 5 (1996) (notice stating “fail to comply with existing court orders” did not inform defendant that restraining order in Somerville was basis for notice of surrender); Commonwealth v. Streeter, 50 Mass.App.Ct. 128, 132 (2000) (notice stating “subsequent offense” as reason for revocation did not meet due process afforded probationer). The defendant's reliance on these cases, however, is misplaced. In those cases, the findings of probation violation were based on conduct for which the defendant was not given adequate notice. Here, however, the notice of probation violation gave ample notice of the charges for which the defendant faced revocation of her probation.
The fact that the store manager referenced the incident in Hingham was not improper because it merely established background for the store manager's decision to closely monitor the defendant's shopping behavior in Weymouth.
The notice provided that the defendant had “violated a criminal law, namely: Shoplifting by Asportation 7/14/11 Weymouth [and] Poss Cl C 7/14/11 Weymouth.”
After reviewing the hearing transcript, we conclude that there was sufficient evidence on which the judge could have found that the defendant violated her probation. The manager testified that he observed the defendant put several items in her cart without using her handheld scanner to scan them.
He also testified that after rescanning the items at a traditional register, there was a discrepancy of approximately $240 between products in the defendant's shopping cart and products that she had self-scanned. The evidence of these first-hand observations sufficiently support the judge's conclusion that the defendant violated the terms of her probation.
The Weymouth Stop & Shop supermarket has a program where the customer uses a handheld scanner to shop. When the customer takes an item off the shelf, he scans the barcode and places the item in his cart or bag. At checkout, the total from the scanner is read and the customer pays that amount.
The defendant also challenges the sufficiency of the evidence on the possession of a controlled substance charge. Specifically, she contends that the evidence to support this finding consisted solely of unreliable hearsay. We disagree. Hearsay is admissible at probation violation hearings, see Commonwealth v. Durling, 407 Mass. 108, 114 (1990), although “[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation.” Id. at 118.
The police officer found four
loose pills during the inventory search of the defendant's purse. The officer relied on two discrete sources, the Weymouth police drug manual and pillfinder .com, to confirm that the pills were a class C substance. While that evidence may be based on unreliable hearsay and thus could not form the exclusive basis for the finding, ibid., it was not the only evidence presented. In addition, the officer testified that he believed the pills to be amphetamines, a class C substance. He also testified that the pills recovered from the search did not match the prescription on the bottles. Moreover, the defendant admitted to the officer that she did not have a prescription for those four pills. Ibid. (“Evidence which would be admissible under standard evidentiary rules is presumptively reliable”). Accordingly, we conclude that there was sufficient evidence for the judge to find a violation based on the preponderance of the evidence standard.
Although the transcript indicates the officer found four pills, the defendant's brief suggests this is a transcription error and the officer found fourteen pills.
Limitation on cross-examination. The defendant next contends that the judge abused his discretion by not allowing the defendant to reopen cross-examination of the police officer, and that she suffered prejudice. We disagree.
In conducting a probation violation hearing, the judge has discretion “to limit or curtail irrelevant or redundant inquiries.” Commonwealth v. Odoardi, 397 Mass. 28, 34 (1986). After defense counsel finished his cross-examination of the police officer, the judge asked a few questions of the witness. Defense counsel then requested a few more questions, but the judge denied his request. The judge's questions did not exceed the scope of what was revealed during direct and cross-examination, so further questioning would have been redundant. See ibid. Therefore, because defense counsel had an opportunity to cross-examine the police officer, and because the judge did not open up an unexplored area during his questioning, the defendant was not prejudiced by the judge's decision to limit further cross-examination.
Sentencing. Finally, the defendant claims that the judge abused his discretion in sentencing the defendant to six months in a house of correction where her probation officer recommended a four-month sentence. According to the defendant, it is inferable, given the defendant's modest criminal record and the failure of the judge to specify the evidence he relied on, that the judge considered evidence from the previous incidents in Hingham and Quincy. We disagree.
The underlying crime that led to the imposition of probation was larceny over $250, G.L. c. 266, § 30(1), and violation of that statute is punishable by up to two years in a house of correction. “The judge is permitted great latitude in sentencing, provided the sentence does not exceed statutory limits.” Commonwealth v. Celeste, 358 Mass. 307, 310 (1970). See rule 7( f ) of the District Court Rules for Probation Violation Proceedings (2000). Because the judge did not exceed the statutory limits, we cannot say that he abused his discretion in sentencing the defendant to six months in a house of correction.
Order revoking probation and imposing sentence affirmed.