Opinion
20-P-403
06-04-2021
COMMONWEALTH v. Michael F. MCQUEEN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Michael F. Mcqueen, pleaded guilty in Boston Municipal Court to eight counts of violating an abuse prevention order, G. L. c. 209A, § 7, arising out of eight different criminal complaints, and one count of criminal harassment, G. L. c. 265, § 43A (a ). The plea judge imposed one year of probation. The defendant now appeals from an order finding him in violation of his probation and revoking his probation and imposing sentence. Concluding that only one of the two bases for revoking probation was supported by adequate evidence, but unable to determine the basis of the violation finding, we vacate the order revoking probation and imposing sentence and remand for further proceedings consistent with this memorandum and order.
Although the docket sheet does not reflect it, the assembly of the record received from the Municipal Court contains a notice of appeal in 1901CR460 that was filed with that court on October 11, 2019. Accordingly, we have appellate jurisdiction over that appeal, as well as the others.
1. Substantial reliability of hearsay. To determine whether hearsay evidence bears "substantial indicia of reliability," a judge may consider several nonexclusive factors "on the question of trustworthiness and reliability." Commonwealth v. Patton, 458 Mass. 119, 132 (2010), quoting Commonwealth v. Durling, 407 Mass. 108, 118 (1990). Those factors include "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 (2015). See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016) (providing factors judge may rely on in determining whether hearsay evidence is substantially reliable); Patton, 458 Mass. at 132-134 (factors to consider in determining trustworthiness and reliability of hearsay evidence). We review the judge's assessment for an abuse of discretion. See Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019).
The judge could have found that the hearsay evidence was substantially reliable here. First, the victim's statements in the police report were supported by her personal knowledge. See Patton, 458 Mass. at 134 (statement based on victim's personal knowledge supported hearsay statement's reliability); Commonwealth v. Leopold L., 96 Mass. App. Ct. 796, 803 (2020) (victim's "out-of-court statements of identification were reliable because the victim knew the perpetrators based on previous interactions ... and the victim relied on personal knowledge in making the identifications"). Second, it appears that the victim's statements were reported to police almost immediately after the incident. See Patton, supra at 121-122, 134 (complaint promptly reported after incident supported victim's credibility in making hearsay statement); Commonwealth v. Nunez, 446 Mass. 54, 59 (2006) (victim's statements to police officer were substantially reliable because, inter alia, they were "made soon after the events at issue when the incident was still fresh in his mind").
Third, the victim's statements were highly detailed. She described the argument that precipitated the attack, how the defendant grabbed her to try to force her out of the house, and how he attacked her when she tried to get away. She further described how he used one forearm to push her into the bed while grabbing her throat with his other hand. She also described how the attack ended when she threatened to call the police and that the defendant took one of her cell phones and then left, telling her that the phone would be gone before the police arrived. See Patton, 458 Mass. at 134 (statement "contain[ing] specific factual details," including physical location of victim in relation to probationer, supported finding of substantially reliable hearsay evidence); Commonwealth v. Foster, 77 Mass. App. Ct. 444, 450 (2010), quoting Nunez, 446 Mass. at 59 (police report containing victim's statement was substantially reliable hearsay because it was "factually detailed").
Fourth, the victim's account was corroborated by the police officer's observations that she was "visibly upset and began crying while telling [the officer] what happened." See Patton, 458 Mass. at 134 ; Commonwealth v. Costa, 99 Mass. App. Ct. 435, 439 n.5 (2021). Cf. Commonwealth v. King, 71 Mass. App. Ct. 737, 741 (2008) (victim's unemotional demeanor undermined reliability of her statements). Fifth, the fact that the victim's statements were documented in a police report supports their underlying indicia of truthfulness because filing a false police report is a crime. See G. L. c. 269, § 13A ; King, supra at 741 n.7. Accordingly, a judge could have found the defendant in violation of his probation based on the new offenses.
The defendant presented no evidence at the violation hearing that the victim had recanted. In any event, "[i]t was a matter for the judge to decide how much weight to give the evidence of recantation." Patton, 458 Mass. at 131.
To be sure, where a judge relies upon hearsay evidence to find a violation of probation, the judge is required to make written findings that the hearsay is substantially reliable. See rule 7(a) of the District/Municipal Courts Rules for Probation Violation Proceedings. Accord Hartfield, 474 Mass. at 485 ; Ogarro, 95 Mass. App. Ct. at 668. Although the docket sheets suggest the existence of written findings, both parties agree that no such document exists in the court files. To the extent that the probation violation was based on hearsay evidence of the new offenses, the judge on remand should make written findings explaining why he found the hearsay substantially reliable. See Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 725 (2019).
2. Anger management class. "When no specific date is established by the sentencing judge by which time a probationer must complete a treatment program, the defendant's obligation is to act with reasonable promptness to comply with the schedule established by his probation officer." Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 19-20 (2014). Here, the testifying probation officer was not the supervising probation officer. She testified that, on August 20, 2019, the defendant "agreed to do his anger management treatment at the South Boston Health Clinic" and that the next office visit was scheduled for November 19. She further testified that she believed the anger management program lasted fourteen weeks. There was, however, no evidence providing the schedule established by the supervising probation officer, nor was it obvious that any such schedule necessarily would have required the defendant to start the class before October 10, 2019, the date of the violation hearing. Accordingly, the Commonwealth did not establish that the defendant failed to comply with the schedule set by probation.
3. Conclusion. The judge here did not state whether the finding of a violation was based on the new offenses, the failure to take an anger management class, or both. As stated, although there may have been a written document memorializing the bases for the finding, no such document exists in the court files. As we cannot determine whether the violation finding was based on the new offenses, we vacate the order revoking probation and imposing sentence and remand for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded