Commonwealth v. Jose A. Roman. ( 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
22-P-302
COMMONWEALTH
vs.
JOSE A. ROMAN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a District Court judge's order
revoking his probation. On appeal, the defendant claims that
(1) the judge erroneously relied on unreliable hearsay, (2)
there was insufficient evidence to find him in violation of the
terms of his probation, and (3) his due process rights were
violated. We affirm.
Background. We recite the facts as presented at the
surrender hearing, reserving certain facts for later discussion.
After being convicted of drug-related offenses, the defendant
was placed on probation, subject to conditions, including that
he (1) submit to random drug testing, (2) remain drug-free, and
(3) obey the law. He was alleged to have violated those
conditions by failing to comply with the drug testing
requirements and committing three motor vehicle offenses.
At the hearing on the probation violation, the defendant’s
probation officer testified that the defendant missed nine
random drug screens, offering the results of the drug tests to
prove these missed appointments, and that the defendant tested
positive for cocaine on October 21, 2021. The defendant's
counsel conceded the positive drug test and no-show
appointments.1
The Commonwealth also introduced an incident report (the
report) written by the police officer who responded to the scene
of the defendant's accident. According to the report, at
approximately 2:40 A.M. the officer arrived at the scene of a
single vehicle crash and found the defendant "sitting in the
median with leg and facial injuries"; the officer noted that
"only the driver's side and front airbags had deployed." The
defendant maintained that he was not the driver of the vehicle
but refused to provide the driver's name. The police searched
the area and found no one else.2
The judge ruled that the Commonwealth had shown by a
preponderance of the evidence that the defendant violated the
1 The defendant's counsel expressly stated that, "with regard to
the screens, I concede the positive cocaine and concede the no-
shows as well."
2 Because we are satisfied that the positive drug test and no-
show appointments were reliable and conclude that they provide
an adequate basis for revoking the defendant's probation, we do
not reach the defendant's arguments about the report.
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terms of his probation, "mainly by committing a new criminal
offense, . . . failing to comply with testing requirements,
specifically positive for cocaine . . . and having nine missed
screens." The judge confirmed in his finding of a probation
violation that, other than as specifically excluded, the
"exhibits meet the substantial reliability test."
Discussion. 1. Reliability and sufficiency of evidence.
"The Commonwealth must prove a violation of probation by a
preponderance of the evidence." Commonwealth v. Bukin, 467
Mass. 516, 520 (2014). "A determination whether a violation of
probation has occurred lies within the discretion of the hearing
judge." Id. at 519-520. Although "standard evidentiary rules
do not apply to probation revocation hearings," a finding of a
probation violation must be based on reliable evidence.
Commonwealth v. Durling, 407 Mass. 108, 117-118 (1990). "A
judge may rely on hearsay evidence at a probation violation
hearing where the evidence has substantial indicia of
reliability." Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,
668 (2019). We review for abuse of discretion. See
Commonwealth v. Jarrett, 491 Mass. 437, 445 (2023), citing L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
a. Reliability of evidence. In assessing whether the
hearsay evidence is reliable, a hearing judge may consider:
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"(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). "There is
no requirement that hearsay satisfy all the above criteria to be
trustworthy and reliable." Commonwealth v. Patton, 458 Mass.
119, 133 (2010).
Because the defendant conceded the positive drug test and
no-show appointments for testing, we review to determine whether
the admission of such evidence was error, and if so, whether it
caused a substantial risk of miscarriage of justice. See
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). There was no
error. The judge's finding that drug test results and no-show
appointments for testing were reliable was reasonably based on
(1) the high level of factual detail in the drug test results,
(2) the documents having been recorded close in time to the date
of the drug tests, and (3) corroboration by the probation
officer's personal experiences with and direct observations of
the defendant. See Commonwealth v. Eldred, 480 Mass. 90, 92-93
(2018) (judge reasonably determined probation officer's
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testimony about positive drug test, as well as drug test results
themselves, constituted sufficiently reliable evidence).
b. Sufficiency of evidence. On appeal, we assess "whether
the record discloses sufficient reliable evidence to warrant the
findings by the judge that [the probationer] had violated the
specified conditions of his probation." Commonwealth v. Morse,
50 Mass. App. Ct. 582, 594 (2000).
Here, the evidence was sufficient to prove, by a
preponderance of the evidence, that the defendant violated his
conditions of probation. The judge reasonably relied on the
drug test results, no-show appointments, and probation officer's
testimony in coming to this conclusion. The probation officer's
testimony corroborated evidence of the defendant's positive drug
test result and no-show appointments. See Commonwealth v.
Jarrett, 491 Mass. 437, 445 (2023) (officer's testimony as to
defendant's drug-related offense sufficient to find defendant in
violation of drug-free terms of probation).3
2. Due process claim. We review the defendant's due
process challenge "to determine whether the error, if any, was
'harmless beyond a reasonable doubt.'" Commonwealth v. Kelsey,
3 In this light, we need not address the defendant's claim,
raised for the first time on appeal, that his counsel was
ineffective for having failed to move for a required finding.
See Commonwealth v. Heywood, 484 Mass. 43, 49 (2020) (and cases
cited).
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464 Mass. 315, 319 (2013), quoting Commonwealth v. Bacigalupo,
455 Mass. 485, 495 (2009). "Due process requires a judge to
issue a written statement supporting a probation revocation to
help insure accurate factfinding with respect to any alleged
violation and provide[] an adequate basis for review to
determine if the decision rests on permissible grounds supported
by the evidence" (quotation omitted). Ogarro, 95 Mass. App. Ct.
at 667. This "is not an inflexible or invariably mandatory
requirement. . . . The judge's statement is sufficient if it
provides the probationer with the reasons for the decision,
adequate for the probationer to obtain a meaningful review"
(quotation omitted). Id.
Although it would have been preferable for the judge to
mark the relevant boxes on the probation violation finding and
disposition form, we are satisfied that the defendant's due
process rights were not violated. The judge thoughtfully
assessed the proffered hearsay evidence in the report and in
screenshots offered by the Commonwealth, reasonably excluding
some of it, and noted on the form that the remaining exhibits
"meet the substantial reliability test." See Fay v.
Commonwealth, 379 Mass. 498, 504-505 (1980) (judge's transcribed
review of evidence satisfied due process requirements).
Corroborated by the hearing record, the judge's written finding,
while scant, was sufficient to indicate the specific reasons he
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found the hearsay evidence sufficiently reliable. See
Commonwealth v. Bain, 93 Mass. App. Ct. 724, 724-727 (2018)
(judge's findings complied with due process where judge left
line blank meant "to be filled in by the judge with specific
evidence relied on to support the violation finding"). See also
Morse, 50 Mass. App. Ct. at 592-593 (judge adequately provided
reasoning for probation revocation by making written finding
that plainly derived from reliable and sufficient evidence).
Taken together, these steps satisfied due process requirements
and provided for an adequate basis for the defendant to receive
meaningful review.
Order revoking probation
affirmed.
By the Court (Blake,
Hershfang & D'Angelo, JJ.4),
Clerk
Entered: April 27, 2023.
4 The panelists are listed in order of seniority.
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