Commonwealth v. Matthew Rocha. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-957
COMMONWEALTH
vs.
MATTHEW ROCHA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Matthew Rocha, argues that a Superior Court
judge improperly admitted at a probation violation hearing a
recording of a 911 call. The defendant contends that the caller
related statements of the victim that were inadmissible double
hearsay. He also contends that the caller's statement that the
victim was "constantly getting beat up by her boyfriend," as
well as an exhibit documenting the recent dismissal of domestic
violence charges against the defendant in Rhode Island, were
improper bad act evidence. Because the judge did not abuse her
discretion in concluding that the 911 call was substantially
reliable and the evidence was admissible, we affirm.
Background. As of February 28, 2021, the defendant was on
probation on a Superior Court conviction for kidnapping, subject
to conditions including that he obey all laws. After a notice
of probation violation issued alleging that he had been charged
with assault and battery on a family or household member and
assault on a family or household member, a final probation
violation hearing was held in the Bristol County Superior Court.
At the hearing, the victim testified that on February 28,
2021, she and the defendant had a nonviolent verbal argument.
The victim testified that she was upset, went outside to her
truck, and, from her truck, telephoned a friend in North
Carolina to "vent[]." Immediately after that call the friend
called 911 to report that the victim had been assaulted. The
victim denied telling the 911 caller that the victim had any
injuries or that the defendant had assaulted her, but she
acknowledged that soon after she hung up with the friend the
police arrived. Shown a photograph taken of her that night, the
victim explained that her face was extremely puffy from crying
and that she had probably bitten her own lip from being upset.
When the Commonwealth offered the recording of the 911
call, the defendant objected on grounds that the caller was not
a percipient witness to the assault and that the call contained
hearsay. The judge admitted the recording, noting that the
victim had already testified that she had telephoned the friend
who made the 911 call; the judge stated that she would determine
from the contents of the call whether any hearsay was
substantially reliable. The victim then identified the voice of
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the 911 caller as that of her friend. In the 911 call, the
caller identified herself, said she was calling from North
Carolina, and stated that she just got off the phone with the
victim, "who is constantly getting beat up by her boyfriend."
The caller gave the victim's name, address, and telephone
number, and informed police that the victim was sitting in a
cranberry-colored truck in the driveway of that address. The
caller also told the dispatcher that the victim had disclosed
that her boyfriend, whose name was "Matt," had "choked her and
messed up her face," and that the victim "has marks on her face
right now." The caller said that the victim's boyfriend was on
some kind of probation, and that the victim had recently
"dropped the charges" against him in Rhode Island "for the same
thing."
Fall River Police Officer Samuel Chace responded to the
address reported by the 911 caller and found the victim locked
in a red pickup truck. The victim was "startled," "evasive,"
and "nervous," kept looking at the window of her apartment, and
said something about consequences from her boyfriend, so the
officer brought her a short distance away to speak to her. The
victim looked like she had been crying and had a bruised lower
lip, redness around her neckline, blood around the crown of her
nose, and watery eyes. The victim declined medical treatment
and denied that a physical altercation had occurred. The victim
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did tell Officer Chace that a charge against the defendant in
Rhode Island had been "dropped."1
Officer Chace then telephoned the 911 caller, who said that
she was in fear for the victim's safety and that the victim and
defendant had been in a physical altercation a few minutes
earlier. After Officer Chace spoke to the 911 caller, officers
knocked on the apartment door. The defendant opened the door;
he was naked, had no visible injuries, and seemed confused. The
apartment was "a mess," with food burning on the stove.
The judge concluded that the Commonwealth had shown by a
preponderance of the evidence that the defendant had violated
his probation by committing assault and battery on a family or
household member. On the kidnapping conviction, the judge
revoked the defendant's probation and sentenced him to two years
in State prison.
Discussion. 1. Hearsay. The defendant argues that the
judge improperly relied upon the recording of the 911 call in
which the caller relayed the victim's statements. He contends
that the 911 caller lacked personal knowledge of the events she
reported to the dispatcher, and that her statements contained
"double hearsay" inadmissible under any hearsay exception. The
1 About three weeks earlier in a Rhode Island court, domestic
violence charges against the defendant had been dismissed by the
prosecution.
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defendant further argues that the caller's statements were not
sufficiently reliable, and without them there was an inadequate
basis for the judge to find that he violated his probation.
In probation violation proceedings, the Commonwealth bears
the burden of proving by a preponderance of the evidence that
the probationer violated the terms and conditions of probation.
See Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 47
(2018). At a probation violation hearing, a judge may rely on
hearsay evidence that has "substantial indicia of reliability."
Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019). In
determining whether hearsay is substantially reliable, the 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."
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). See
Commonwealth v. Costa, 490 Mass. 118, 125 (2022). We review the
judge's assessment of the reliability of that evidence for an
abuse of discretion. See Ogarro, supra.
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a. Caller's report to 911 dispatcher. The judge did not
abuse her discretion in concluding that certain statements in
the 911 call were substantially reliable. Specifically, the
judge found substantially reliable the following statements:
that the caller was calling from North Carolina; that the victim
lived at a certain address; that the victim and the caller had
spoken on the telephone until about a minute before the 911
call; that the victim was very upset and was crying so much that
she had trouble speaking; that the victim was hiding in her
truck in the driveway; and that the victim had said that she and
her boyfriend, Matthew, had been involved in a physical
altercation and he had choked her and "messed up" her face.2
The judge did not abuse her discretion in concluding that
the caller's statements in the 911 call were substantially
reliable. The victim authenticated the voice of the 911 caller
as that of her friend. The judge found that the 911 caller made
the statements based on the caller's personal knowledge of her
conversation with the victim, which was close in time to the
assault and battery; the judge also found that the 911 caller
was a disinterested party. The caller's statements were
corroborated by the victim's testimony that she had telephoned
2 The 911 caller reported that she heard the victim's boyfriend
"threatening to kill her," but the judge did not find that
statement substantially reliable because the caller had never
met the defendant and could not identify his voice.
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the 911 caller that night and was very upset and "venting."
They were also corroborated by Officer Chace's observations of
the victim, just as the 911 caller had described, parked in a
red pickup truck outside her apartment with visible injuries,
and by evidence that domestic violence charges against the
defendant in Rhode Island had recently been dismissed. Officer
Chace's telephone call to the 911 caller further corroborated
the caller's statements to the dispatcher.
"In assessing whether the hearsay evidence is reliable, a
hearing judge may consider . . . whether the evidence is based
on personal knowledge or direct observation" (emphasis added).
Hartfield, 474 Mass. at 484. Although the 911 caller was in
North Carolina and the defendant and the victim were in
Massachusetts, the 911 caller's statements met this requirement.
From the amount of factual detail supplied by the 911 caller,
the judge could find that the caller had learned the information
from the victim. Where the victim herself testified,
authenticated the 911 caller's voice, and corroborated many of
the 911 caller's statements, the judge could conclude that the
statements in the 911 call were substantially reliable. Simply
because the 911 caller was not a percipient eyewitness to the
assault and battery did not mean that her statements in the 911
call about what the victim had said were not based on her
personal knowledge. Contrast Commonwealth v. Grant G., 96 Mass.
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App. Ct. 721, 726 (2019) (Department of Children and Families
case worker's statement that juvenile "ha[d] been AWOL from the
program several times" not based on case worker's personal
knowledge or corroborated by other evidence); Commonwealth v.
Hamilton, 95 Mass. App. Ct. 782, 788-789 (2019) (multilevel
hearsay not substantially reliable where hearsay statements were
internally inconsistent and declarant had no direct personal
knowledge).
The judge also did not abuse her discretion in concluding
that the 911 caller was a disinterested witness. Despite the
fact that the caller had been friends with the victim for twenty
years, she did not know the defendant and there was no evidence
presented that she had a bias against him. Contrast
Commonwealth v. Wilson, 47 Mass. App. Ct. 924, 925-926 (1999)
(hearsay insufficiently reliable, where declarant had motive to
retaliate against defendant). Further, the caller called 911
against the wishes of the victim, and as a result their
friendship ended.
b. Victim's statements to 911 caller. The judge also
concluded that the victim's statements to the 911 caller on the
phone that evening were substantially reliable because they
qualified as excited utterances, noting that "[the victim] being
upset in the moment that she makes those phone calls provides
inherent reliability as to their trustworthiness in
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circumstances where she was still under the stress of the event
that had occurred." The defendant contests that finding.
"A statement meets the test for admissibility as an excited
utterance if (1) there is an occurrence or event sufficiently
startling to render inoperative the normal reflective thought
processes of the observer, and (2) if the declarant's statement
was a spontaneous reaction to the occurrence or event and not
the result of reflective thought" (quotations omitted).
Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017). See Mass.
G. Evid. § 803(2) (2022).
The 911 caller described the victim as very upset during
their call, that she was crying so hard she had trouble
speaking. The victim herself testified that she was "extremely
upset" and "venting" when she spoke to the 911 caller. The
judge did not abuse her discretion in concluding that the
victim's statements related by the caller in the 911 call were
substantially reliable, as required for admissibility at a
probation violation hearing. See Ogarro, 95 Mass. App. Ct. at
668-669. See also Commonwealth v. Napolitano, 42 Mass. App. Ct.
549, 557 (1997) (jury could credit excited utterance over trial
testimony of victim recanting accusation; "Excited utterance
hearsay has been judicially viewed as of such substantial
trustworthiness that it may justifiably carry more
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weight . . . than a . . . statement offered [subsequently] in
the relative calm of the courtroom" [quotation omitted]).
2. Prior bad acts. The defendant argues that the
admission of the 911 caller's statement that the victim was
"constantly getting beat up by her boyfriend," and the case
summary for the dismissed Rhode Island charges, were improper
bad acts evidence. The defendant did not object to the
admission of this evidence below, so we review for a substantial
risk of a miscarriage of justice. See Commonwealth v.
Pickering, 479 Mass. 589, 596 (2018).
"Generally, evidence of a defendant's prior misconduct may
not be admitted to show bad character or propensity to commit
the crime charged." Commonwealth v. Montez, 450 Mass. 736, 744
(2008). "However, such evidence may be admissible, if relevant,
to show a common scheme or course of conduct, a pattern of
operation, absence of accident or mistake, intent, or motive."
Commonwealth v. Moran, 101 Mass. App. Ct. 745, 748 (2022),
quoting Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994).
The judge has broad discretion to make admissibility
determinations. Moran, supra at 750.
Admission of the 911 caller's statements and the Rhode
Island case summary did not create a substantial risk of a
miscarriage of justice. That evidence was admissible to
corroborate the 911 caller's statement that the victim had said
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that the defendant's Rhode Island charges had recently been
dismissed, about which the victim also testified. Further, that
evidence was relevant on the issue of the victim's credibility.
See Commonwealth v. Butler, 445 Mass. 568, 576 (2005) (fact
finder entitled to consider evidence of hostile relationship
between defendant and victim to adequately assess victim's
credibility).
Conclusion. The judge did not abuse her discretion in
relying at the probation violation hearing on the substantially
reliable hearsay statements contained in the recording of the
911 call, and no substantial risk of a miscarriage of justice
arose from admission of evidence of the dismissal of the
defendant's Rhode Island charges.
April 1, 2021 order revoking
probation affirmed.
May 25, 2021 order denying
motion for reconsideration
affirmed.
By the Court (Ditkoff,
Singh & Grant, JJ.3),
Clerk
Entered: February 15, 2023.
3 The panelists are listed in order of seniority.
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