Commonwealth v. Hartfield , 474 Mass. 474 ( 2016 )

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SJC-11948
COMMONWEALTH vs. NKRUMAH N. HARTFIELD.
Suffolk. February 9, 2016. - June 9, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Due Process of Law, Probation revocation. Practice, Criminal,
Revocation of probation, Hearsay, Confrontation of
witnesses, Findings by judge. Witness, Victim. Evidence,
Hearsay.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on December 7, 2009.
A proceeding for revocation of probation was heard by
Jonathan R. Tynes, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Kathleen J. Hill for the probationer.
Helle Sachse, Assistant District Attorney (Lynn S.
Feigenbaum, Assistant District Attorney, with her) for the
Commonwealth.
Crispin Birnbaum, Special Assistant Attorney General,
& Nina L. Pomponio for Commissioner of Probation, amicus curiae,
submitted a brief.
2
GANTS, C.J. The primary issue on appeal is whether a
judge's decision in a probation violation hearing to admit in
evidence hearsay statements of an alleged victim regarding a new
criminal offense bars the probationer from calling the alleged
victim to testify. We conclude that it does not. Because the
judge erred in concluding that it was inherently inconsistent to
allow the alleged victim to be called to testify by the
probationer after her hearsay statements were admitted in
evidence when offered by the probation department, and because
the error was constitutional in nature and not harmless beyond a
reasonable doubt, we vacate the finding of a violation of
probation and the order revoking probation, and remand for a new
hearing.
Background. We recite the facts based on the testimony and
documentary evidence from the probation violation hearing held
in the Dorchester Division of the Boston Municipal Court
Department on July 2, 2013. During the probation department's
presentation of evidence, the judge heard testimony from the
assistant chief probation officer and a Boston police detective,
Ediberto Figueroa, who investigated the case.1 Over the
probationer's objection, the judge also admitted in evidence the
1
An assistant district attorney assisted the probation
officer who was prosecuting the alleged violation by presenting
evidence and making a closing argument.
3
alleged victim's testimony before the grand jury, two serology
reports, and a deoxyribonucleic acid (DNA) report from the
Boston police crime laboratory. The reports were admitted
through the testimony of Detective Figueroa; no criminalist
testified.
The probationer had been placed on probation supervision
after pleading guilty to one count of possession of a class D
substance with intent to distribute on March 29, 2011. He was
sentenced to two and one-half years in a house of correction,
which was suspended, and he was placed on probation until March
28, 2013. The conditions of probation required the probationer
not to commit any crime and to pay all fees ordered by the
court. On March 25, 2013, the probationer was found in
violation of the terms of his probation for failure to pay $540
in fees, and his probation was extended until May 24, 2013, to
allow him time to pay these fees.2
On April 3, 2013, a notice of probation violation issued
alleging that the probationer violated the conditions of his
probation by having committed three criminal offenses
2
At the time he was found in violation, he had been
assessed fees totaling approximately $1,950, including a $90
victim/witness fee, a $150 indigent counsel fee, a $150 drug
analysis fee, and a $65 per month probation service fee. The
probationer does not challenge on appeal the extension of his
probation term based on his failure to pay these fees. The
alleged violation of probation at issue in this appeal occurred
during the original probationary period.
4
(aggravated rape, assault and battery, and threatening to commit
a crime), and by failing to pay the balance of $540 in fees.
The new offense allegedly occurred in the early morning of
August 12, 2012, when the alleged victim, a seventeen year old
girl who was the daughter of the probationer's girl friend,
reported to police that she had been sexually assaulted by the
probationer.
According to the alleged victim, she was sleeping in her
bedroom in the apartment she shared with her mother and three
siblings when a man entered her bedroom, threw a sweatshirt over
her head, and threatened to stab her and her siblings if she
screamed. The assailant then walked her out of her bedroom to
the bathroom. There, he took off her shorts and underwear while
she was standing and, after she got on the floor, lifted up her
shirt and took off her bra. He then kissed her breasts and
vaginally raped her. When she tried to push him off, he became
upset, punched her several times, and said that he was about to
stab her; she reported feeling a knife at her waist. He then
got up and ran the water in the sink. She put on her underwear,
and the assailant ordered her to get in the bathtub and stay in
the bathroom. He then turned off the light, closed the door,
and left. Even though the sweatshirt on her head had obstructed
her vision, she told the police that she believed the
probationer was the assailant.
5
The alleged victim was taken to a hospital and examined by
a sexual assault nurse examiner who collected the underwear she
was wearing during and after the assault and swabbed various
places on her body, including her vaginal area, to preserve any
trace evidence. The police later went to the alleged victim's
home and collected several pieces of evidence, including the
shorts the alleged victim had worn at the time of the assault,
which were found on top of the bathroom sink and were wet.
The alleged victim's mother told the police that the
probationer could not possibly have been the assailant because
she had stayed with the probationer at his house that night, and
"he was under [her] all night." The mother also stated that she
would have noticed if he had left because she is a light
sleeper. She informed the police that she is the only person
with a set of keys to the apartment. She added that the alleged
victim was known to lie.
The probationer, after waiving his Miranda rights, told the
police that he did not rape the alleged victim and that he was
at his home with her mother that evening. He also said that he
had not gotten along with the alleged victim since he found some
embarrassing photographs on her cellular telephone and
confronted her with the photographs. The probationer also
consented to a buccal swab to provide a sample of his DNA to the
police.
6
The mother also told the police about the cellular
telephone incident and the alleged victim's antagonism toward
the probationer. The alleged victim described the cellular
telephone incident in her grand jury testimony and said that,
when the probationer returned the telephone, "[h]e wanted me to
do whatever he said." She testified in the grand jury that the
probationer had been in a relationship with her mother for eight
or nine years, and she had not liked the probationer since she
met him. She moved with her mother and her siblings to the
apartment in Dorchester in October, 2011, but moved out in
March, 2012, because she and her mother were not getting along
due to the probationer. She returned home in July, 2012, but
her mother had established a rule that the probationer and her
daughter could not be in the apartment at the same time. The
daughter's return home disrupted her mother's plans to go back
to work, because the probationer was going to watch the mother's
other children but could not do so because of the aforementioned
rule.
On March 21, 2013, the police received a laboratory report
that the probationer was included as a possible source of DNA
recovered from semen stains found on the shorts retrieved from
the bathroom and the underwear the alleged victim had worn when
examined at the hospital. The likelihood that another African-
American was the source of the DNA on the shorts was one in 490
7
quintillion; the likelihood of another African-American being
the source of the DNA on the underwear was one in 720
quadrillion.3,4 However, preliminary testing for semen from two
vaginal swabs, one genital swab, and one perianal swab taken
from the alleged victim at the hospital were all negative.
After the probation department rested, the probationer
sought to call the alleged victim as a witness; the probationer
had summonsed her for the hearing, and the Commonwealth had
transported her to the court house to avoid the possibility that
a capias would issue. The judge initially allowed her to
testify over the objection of the probation department but,
after allowing some initial questions regarding her difficult
relationship with the probationer, the judge reconsidered his
decision sua sponte and did not allow her to testify further.
The judge explained his decision by stating:
3
After learning the results of these laboratory tests, the
police filed an application for a criminal complaint charging
the probationer with aggravated rape, assault and battery, and
threatening to commit a crime. The probationer was later
indicted on two counts of rape, in violation of G. L. c. 265,
§ 22 (b); assault and battery by means of a dangerous weapon, in
violation of G. L. c. 265, § 15A (b); assault and battery, in
violation of G. L. c. 265, § 13A (a); indecent assault and
battery, in violation of G. L. c. 265, § 13H; and intimidation
of a witness, in violation of G. L. c. 268, § 13B. He was found
not guilty on all counts after a jury trial.
4
It appears that Boston police Detective Ediberto Figueroa
erroneously testified that the likelihood of an African-American
being the source of the deoxyribonucleic acid (DNA) on the
underwear was one in 8.9 billion. The probationer is African-
American.
8
"I do feel it's inconsistent to . . . allow the
Commonwealth to not call [the alleged victim], but then
have the defendant call her when it seems that one of the
overriding principles is that . . . she shouldn't have to
go through recounting this event several times."
At a subsequent hearing on July 23, 2013, the judge found
by a preponderance of the evidence that the probationer violated
his probation by committing a new offense, noting that "the
testimony of Detective Figueroa and the DNA evidence . . . is
the most compelling evidence."5 The judge then imposed the
suspended sentence.6
The Appeals Court affirmed the revocation order in an
unpublished memorandum and order issued pursuant to its rule
1:28, and we granted the defendant’s application for further
appellate review.
Discussion. The probationer argues that by terminating his
examination of the alleged victim, the hearing judge violated
his due process right to present a defense. He further argues
that the admission of the alleged victim's grand jury testimony
and the serology and DNA reports from the Boston police crime
5
The judge did not make written findings. Nor did the
judge make oral findings on the record beyond those described.
6
The judge, however, stayed imposition of the sentence at
the request of the probationer, recognizing that the probationer
would be held in custody until his trial on the charges stemming
from the alleged sexual assault and that, if the sentence were
not stayed, the probationer might not receive credit for the
time served if he were convicted of those charges. The stay
appears to have been lifted the day after the probationer's
acquittal on those charges.
9
laboratory violated his due process right to confront adverse
witnesses.
A probation violation proceeding is not the equivalent of a
criminal trial, and thus a probationer is not accorded "the full
panoply of constitutional protections applicable at a criminal
trial." Commonwealth v. Durling, 407 Mass. 108, 112 (1990). In
Durling, supra at 113-114, this court adopted the minimum
requirements of due process applicable to probation violation
proceedings established by the United States Supreme Court in
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). To conform with
due process principles, a probationer must be provided:
"(a) written notice of the claimed violations of [probation
or] parole; (b) disclosure to the [probationer or] parolee
of the evidence against him; (c) opportunity to be heard in
person and to present witnesses and documentary evidence;
(d) the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds
good cause for not allowing confrontation); (e) a 'neutral
and detached' hearing body such as a traditional parole
board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as
to the evidence relied on and reasons for revoking
[probation or] parole."
Durling, supra at 113, quoting Gagnon, supra.
It is important to distinguish between the due process
rights raised by the probationer's claims. "[T]he right to
confront adverse witnesses and the right to present a defense
are distinct due process rights separately guaranteed to
probationers" and should not be conflated. Commonwealth v.
10
Kelsey, 464 Mass. 315, 327 n.12 (2013). The probationer's claim
that the hearing judge terminated his examination of the alleged
victim during the defense case implicates the right to present a
defense. Id. The probationer's claim that hearsay evidence was
wrongfully admitted against him during the probation
department's case-in-chief implicates his right to confront and
cross-examine adverse witnesses. See Commonwealth v. Negron,
441 Mass. 685, 690-691 (2004). These claims must be analyzed
separately.
1. Right to present a defense. In Kelsey, 464 Mass. at
319-320, we examined for the first time the due process right to
present a defense in a probation violation proceeding. In that
case, a probationer was alleged to have violated his probation
by selling cocaine to a confidential informant. Id. at 315.
The confidential informant was "a participant in the alleged
offense, the only nongovernment witness to the offense, and the
only percipient witness to the entire alleged transaction." Id.
at 316.
The probationer sought and was denied disclosure of the
identity of the confidential informant for the purpose of
defending against the alleged violation. Id. at 317-318. The
probationer argued that the denial of disclosure violated his
due process right to present a defense by denying him the
opportunity to call the informant as a witness. Id. at 318,
 11
319. We declared that "a probationer must be given a meaningful
opportunity to present a defense," id. at 321, which, "[i]n some
cases, . . . will require disclosure to the probationer of
information crucial to his ability to prepare a defense." Id.
at 322. We further concluded that the right to present a
defense in a probation violation proceeding "is parallel to, but
not coextensive with, the right to present a defense at trial,"
id., and that the scope of that right "depends on the totality
of the circumstances in each case" (citation omitted). Id.
"Where a probationer alleges a violation of the right to present
a defense," we held, "the judge must consider whether a ruling
in the probationer's favor will sufficiently advance the
'reliable, accurate evaluation of whether the probationer indeed
violated the conditions of his probation,' . . . so as to
outweigh the Commonwealth's 'significant interests in
informality, flexibility, and economy'" (citations omitted).
Id.
Because the judge in that case denied disclosure of the
confidential informant's identity on the mistaken premise that
such disclosure is never warranted in probation revocation
proceedings, we remanded the matter to the District Court to
permit the judge to determine, based on relevant case-specific
factors, "whether, in the totality of the circumstances,
12
disclosure was necessary to effectuate the defendant's right to
present a defense." Id. at 327.
In Kelsey, 464 Mass. at 323, the probationer's right to
present a defense clashed with "the Government's privilege to
withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with
enforcement of that law," Roviaro v. United States, 353 U.S. 53,
59 (1957), known as "the informer's privilege." Id. Here, the
probationer's constitutional right to present a defense did not
clash with any privilege.
Where this constitutional right does not conflict with any
privilege, the totality of the circumstances test must be
structured and applied to ensure that adequate weight is given
to the protection of the constitutional right and to the
importance of making a "reliable, accurate evaluation of whether
the probationer indeed violated the conditions of his
probation." Kelsey, 464 Mass. at 322, quoting Durling, 407
Mass. at 116. We conclude that this is best accomplished by
recognizing that a probationer has a presumptive due process
right to call witnesses in his or her defense, but that the
presumption may be overcome by countervailing interests,
generally that the proposed testimony is unnecessary to a fair
adjudication of the alleged violation or unduly burdensome to
the witness or the resources of the court. In determining
13
whether the countervailing interests overcome the presumption
after considering the totality of the circumstances, a judge
should consider, at a minimum, the following factors: (1)
whether the proposed testimony of the witness might be
significant in determining whether it is more likely than not
that the probationer violated the conditions of probation, see
Kelsey, supra; (2) whether, based on the proffer of the
witness's testimony, the witness would provide evidence that
adds to or differs from previously admitted evidence rather than
be cumulative of that evidence, cf. Commonwealth v. Carroll, 439
Mass. 547, 552-553 (2003); and (3) whether, based on an
individualized assessment of the witness, there is an
unacceptable risk that the witness's physical, psychological, or
emotional health would be significantly jeopardized if the
witness were required to testify in court at the probation
hearing, cf. Commonwealth v. Housewright, 470 Mass. 665, 671
(2015). As to the third factor, we recognize the risk that an
alleged sexual assault victim might suffer trauma from having to
testify at a probation violation hearing. See Durling, 407
Mass. at 117 n.4; Commonwealth v. Hill, 52 Mass. App. Ct. 147,
153 (2001). But we reject a general rule that would prevent a
probationer from ever calling such an alleged victim to testify
in his or her defense. The assessment whether testifying will
adversely affect the physical, psychological, or emotional
14
health of an alleged sexual assault victim must be
individualized and evidence-based. See Durling, supra at 114
("the requirements of due process depend on the circumstances of
each case and an analysis of the various interests at stake").
Here, the judge determined that, because he admitted
hearsay evidence regarding what the alleged victim reported to
Detective Figueroa and what she said under oath in the grand
jury proceeding, the probationer had no right to call her to
testify. This reasoning reflects the error of conflating the
probationer's right to confront and cross-examine adverse
witnesses with the probationer's right to present a defense.
See Kelsey, 464 Mass. at 327 n.12. Where hearsay evidence has
substantial indicia of reliability, there is good cause to admit
it in evidence at a probation violation hearing even though, as
is generally true of hearsay, the declarant will not be on the
witness stand and subject to cross-examination regarding the
hearsay statements. See Commonwealth v. Patton, 458 Mass. 119,
132 (2010); Negron, 441 Mass. at 690-691. The probation
department may meet its burden of proof to establish a violation
solely through the admission of hearsay with substantial indicia
of reliability. See Patton, supra; Durling, 407 Mass. at 118.
But the admission of this evidence does not mean that the
probationer is absolutely barred from calling as a witness the
declarant whose hearsay was admitted. The judge may consider
15
the admission of the hearsay evidence in determining in the
totality of circumstances whether the witness's testimony would
be merely cumulative. However, the testimony would not be
cumulative where the probationer seeks to elicit from the
witness additional information that would support the inference
that the probationer did not commit the violation or would
demonstrate that the hearsay evidence suggesting that he did
commit the violation is unworthy of belief.
A judge's decision after considering the totality of
circumstances to allow a probationer to call a witness in his or
her defense does not mean that the judge no longer controls the
scope of that testimony. Where a probationer's examination of a
witness strays into issues that are irrelevant to the
determination of whether the probationer violated the conditions
of probation, cumulative of other evidence, or unduly harassing
to the witness, the judge, consistent with due process, may
restrict the scope of such testimony. See Commonwealth v.
Odoardi, 397 Mass. 28, 34 (1986). Cf. Mass. G. Evid. § 611(a)
(2016).
Here, the record does not reveal that the hearing judge
made an individualized assessment of the totality of the
circumstances before cutting off the alleged victim's testimony.
Nor did the judge rest the decision to terminate her testimony
on a finding that the testimony was irrelevant, cumulative, or
16
harassing. Rather, as earlier noted, the judge made the error
of conflating the right to present a defense with the right to
confront and cross-examine witnesses, and determined that, where
there is good cause to admit an alleged victim's hearsay, the
probationer may not call the witness to the stand to challenge
the veracity and accuracy of the hearsay account.
Because the judge's error affects the probationer's
constitutional right to present a defense and was preserved at
the hearing, we review to determine whether the error was
"harmless beyond a reasonable doubt." Kelsey, 464 Mass. at 319,
quoting Commonwealth v. Bacigalupo, 455 Mass. 485, 495 (2009).
We conclude that it was not. See Kelsey, supra at 327-328. It
is not plain from the totality of the circumstances here that
countervailing interests overcome the probationer's presumptive
right to call the alleged victim as a witness. The results of
the DNA tests provided powerful corroborating evidence of the
probationer's commission of the sexual assault, but there were
still strong reasons to question the credibility of the alleged
victim: the implausibility that the assailant could have
covered her eyes with a sweatshirt throughout the sexual assault
where she reported that he took off her underwear, shorts, and
bra, and held a knife to her waist; her mother's corroboration
of the probationer's alibi; the strong antagonism between the
alleged victim and the probationer; and the absence of any
17
evidence of semen on the vaginal and genital swabs taken from
the alleged victim despite her report that he had penetrated her
with his penis and the presence of semen on the underwear she
claimed she put on immediately after the sexual assault.
Pragmatically, to prevail at the revocation hearing given the
evidence already admitted, the probationer needed to establish
that it was more likely than not that the alleged victim
fabricated the alleged rape and attempted falsely to implicate
the probationer by planting his DNA on her underwear and shorts.
His best chance to do so was through the alleged victim's
testimony. Where revocation would result in the imposition of a
previously suspended two and one-half year house of correction
sentence, we cannot say that it is plain that the countervailing
interests in barring her testimony so outweighed the
probationer's presumptive right to call the alleged victim in
his defense that the error in failing to apply the proper
analysis was harmless beyond a reasonable doubt. We therefore
vacate the finding of a violation of probation and the order
revoking probation, and we remand for a new hearing.
2. Right to confront adverse witnesses. The probationer
also argues that his due process right to confront adverse
witnesses was violated by the admission of two serology reports
and a DNA report from the Boston police crime laboratory and by
the admission of the alleged victim's grand jury testimony.
18
We have already noted that hearsay evidence is admissible
in a probation violation hearing where it has substantial
indicia of reliability. In assessing whether the hearsay
evidence is reliable, a hearing 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. See Patton, 458 Mass. at 132-133;
Rule 7(b) of District/Municipal Courts Rules for Probation
Violation Proceedings, Mass. Ann. Laws Court Rules, at 97
(LexisNexis 2015-2016).7
Here, the two serology reports and the DNA report from the
Boston police crime laboratory were not certified, and the
probation department sought to introduce them through Detective
Figueroa, who was not their author. The alleged victim's grand
jury testimony also was offered through the testimony of
Detective Figueroa. The probationer objected to their admission
7
The District and Municipal Courts Rules for Probation
Violation Proceedings were amended in 2015, with amended Rule 7
replacing superseded Rule 6.
19
in evidence. The judge admitted the hearsay evidence, and in
finding that the probationer violated the conditions of
probation, the judge noted his reliance on the testimony of
Detective Figueroa -- which contained many hearsay statements
from various individuals the detective interviewed -- and the
DNA report, but the judge made no written findings regarding the
reliability of the hearsay evidence on which he relied.
Consequently, apart from the DNA report, we cannot determine
which hearsay evidence the judge relied upon in finding a
violation of probation, or whether the judge found that evidence
to have substantial indicia of reliability.
Due process requires that a judge issue a written statement
regarding the evidence relied upon and the reasons for revoking
probation. Durling, 407 Mass. at 113, quoting Gagnon, 411 U.S.
at 786.8 In addition, when probation was revoked in this case,
the rules governing probation violation proceedings in the
District Court required judges, "[w]here the sole evidence
submitted to prove a violation of probation is hearsay," to make
written findings that the hearsay evidence "is substantially
8
We have declared that a judge satisfies this due process
requirement where the findings are made orally on the record and
the probationer obtains a transcript of the findings. See
Commonwealth v. Durling, 407 Mass. 108, 113 (1990), citing Fay
v. Commonwealth, 379 Mass. 498, 504-505 (1980) (judge's oral
statement on record, when transcribed, satisfied requirement of
written record).
20
trustworthy and demonstrably reliable." Rule 6(b) of the
District Court Rules for Probation Violation Proceedings, Mass.
Ann. Laws Court Rules, at 94 (LexisNexis 2011-2012). But those
rules were adopted only by the District Court, not the Boston
Municipal Court, where the probation revocation proceeding in
this case was adjudicated.9
Even if not required by court rule, we conclude that, where
a judge relies on hearsay evidence in finding a violation of
probation, the judge should set forth in writing or on the
record why the judge found the hearsay evidence to be reliable.
See Commonwealth v. Nunez, 446 Mass. 54, 59 & n.6 (2006) (where
judge admits hearsay evidence in probation revocation hearing,
"[i]t is advisable" that judge's finding regarding reliability
of that evidence "be stated on the record"). Accordingly, on
remand, if the judge were again to rely on hearsay evidence in
finding a violation of probation, the judge should make
findings, either in writing or orally on the record, why the
judge found the relevant hearsay evidence to be reliable.
Conclusion. The finding that the probationer violated the
conditions of his probation and the order revoking probation are
9
The rules as amended in 2015 contain a similar requirement
and were adopted by both the District Court and the Boston
Municipal Court. Rules 1, 7(b) of the District/Municipal Courts
Rules for Probation Violation Proceedings, Mass. Ann. Laws Court
Rules, at 75, 97 (LexisNexis 2015-2016).
21
vacated, and the case is remanded for further proceedings
consistent with this opinion.
So ordered.