v.
Jeffrey A. BARCA.
The defendant, Jeffrey A. Barca, admitted to sufficient facts to warrant a finding of guilt on one count of possession of marijuana with the intent to distribute, in violation of G. L. c. 94C, § 32C (a ), and one count of possession of cocaine with intent to distribute, in violation of G. L. c. 94C, § 32A (a ). On a separate docket, the defendant admitted to sufficient facts on two counts of assault by means of a dangerous weapon, in violation of G. L. c. 265, § 15B (b ), and one count of assault, in violation of G. L. c. 265, § 13A (a ). The judge continued the charges on both dockets without a finding, and placed the defendant on probation until July 24, 2018.
On April 12, 2018, following an evidentiary hearing, a judge of the District Court found that the defendant violated the terms of his probation by violating an abuse prevention order, committing larceny over $250, and assault and battery. The judge revoked the defendant's probation and sentenced him to two concurrent one-year suspended sentences in a house of correction. The defendant now appeals the judge's order revoking his probation, contending that the judge erroneously considered unreliable hearsay testimony. We affirm.
Standard of review. "The Commonwealth must prove a violation of probation by a preponderance of the evidence." Commonwealth v. Bukin,
Discussion. 1. Reliability of hearsay testimony. A probation revocation hearing does not involve "the full panoply of constitutional protections applicable at a criminal trial." Bukin,
When evaluating the reliability of hearsay evidence, a judge may consider "(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."
Here, the defendant contends that the judge improperly revoked his probation solely based on the police officers' hearsay testimony.[2] The defendant maintains that the police officers' testimony was not substantially reliable because the testimony was based on the victim's reports rather than the officers' personal observations.
Significantly, the judge did not rely exclusively on the officers' hearsay testimony. See ibr.US_Case_Law.Schema.Case_Body:v1">id
Moreover, the record supports the judge's explicit findings that the probation department presented substantially reliable hearsay evidence regarding the defendant's probation violations. See Hartfield,
The record also substantiates the judge's finding that the hearsay testimony was provided under circumstances that support the veracity of the source. See Hartfield,
2. Notice of probation violations. The defendant also claims that he did not receive sufficient notice of the basis of his probation violations. See Durling,
The defendant specifically contends that he did not have notice that the judge would consider his text messages to the victim during the revocation hearing. The Revere police officer who testified at the probation revocation hearing incorporated text messages between the victim and the defendant in the police report accompanying the defendant's criminal complaint for that incident. The defendant also conceded on cross-examination that he likely sent the victim several threatening messages, including one where he threatened to "come to [the victim's] location and drag [her] out." The judge was entitled to consider this "reliable evidence of misconduct not charged as a ground of probation violation" to the extent that it supported the victim's account of the events of December 2, 2017. Commonwealth v. Herrera,
Conclusion. Given the defendant's notice of the basis of his probation violation, in addition to the substantial indicia of reliability in the officers' hearsay testimony, we find no abuse of discretion in the judge's determination that the defendant violated his probation. See Hartfield,
So ordered.
Affirmed.
The defendant appears to assert that the Commonwealth lacked "good cause" for its decision not to call the girlfriend and her friend as witnesses regarding the December 2, 2017 incident. Pursuant to Bukin,
The defendant argues that the judge should only have relied on information that the probation department presented in its case-in-chief because his "mid-hearing request to revisit the Durling question should reasonably be understood as" a motion for a required finding of not guilty. Defendant's counsel did not make such a motion, and we decline to analyze it as such. See Mass. R. Crim. P. 25 (a), as amended,