Commonwealth v. Dawan Searcy. ( 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-626
COMMONWEALTH
vs.
DAWAN SEARCY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Dawan Searcy was found in violation of his probation and
claims that the Superior Court judge erred in the admission of
hearsay during his final violation of probation hearing.
Because the probationer had already admitted to being in
violation of his probation and the statement was considered by
the judge only when sentencing the probationer, we affirm.
Background. We summarize the relevant background as
follows. On September 30, 2015, the defendant pleaded guilty to
one count of home invasion, three counts of assault and battery
by means of a dangerous weapon in violation of a protective
order, and one count of assault and battery resulting in serious
bodily injury. The defendant was sentenced to not less than
seven years and not more than seven years and one day on one of
the charges and to three years of probation on all other
charges.
On July 24, 2019, the probation department filed a notice
of violation for alleged violations of probation. After
defaulting on the warrant, Searcy was brought to court and the
default was removed. On July 27, 2021, the final violation
hearing occurred. During the hearing, Searcy waived his right
to a full probation hearing and his right to appear in person.
Appearing virtually, Searcy then admitted to the court that he
had violated his probation. The defendant was represented by
counsel. After the court found the defendant had waived his
rights freely and voluntarily, the court allowed the prosecutor
to read aloud the victim impact statement from the underlying
criminal case Searcy had pleaded guilty to in 2015. The
statements detailed the defendant's movements and actions
relating to the crimes of which he was convicted.
Discussion. Searcy appeals, arguing in a brief pursuant to
Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981), that the
Superior Court judge inappropriately allowed the victim impact
statement in evidence. He argues that this admission was
hearsay and violated his confrontation clause rights. Because
these claims were not made at his final violation of probation
hearing, we review them for a substantial risk of a miscarriage
of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
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"In general, probation violation hearings follow a two-step
process: the judge first determines if a probation violation
has occurred, and then decides how to dispose of the matter."
Commonwealth v. Al Saud, 459 Mass. 221, 226 (2011). Here, the
record indicates that the probationer admitted to the
violations, which the probation officer summarized,1 and that a
police report documenting alleged subsequent criminal conduct
was introduced. Once the violation was stipulated, the next
step was for the judge to determine whether the probationer
should be re-probated, be sentenced to incarceration, or have
probation terminated. See id. ("Although the judge may revoke
or modify probation if a violation is found, the judge retains
the discretion not to take either action"). The victim impact
statement was read in evidence while the judge was considering
what, if any, sentence to impose. The admission was accordingly
not error. Commonwealth v. Doucette, 81 Mass. App. Ct. 740, 743
(2012) ("[T]he judge was entitled to read the transcript of the
previous sentencing and consider the victim impact statements
for purposes of understanding the original sentence as an
organic whole, as well as the intent of the original sentencing
judge"). Searcy argues that the judge considered the victim
1 The probation officer summarized the probationer's various
violations, including subsequent criminal activity and failure
to report to probation.
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impact statement while determining whether the probationer
violated one or more terms of probation. This argument is not
supported by the record.
Additionally, even if we were to assume that the admission
of the victim impact statement constituted error, there is no
substantial risk of a miscarriage of justice where Searcy had
already admitted that he violated his probation, because there
is little doubt that the result would have been the same without
the admission of the statement. See Commonwealth v. Azar, 435
Mass. 675, 687 (2002), quoting Commonwealth v. LeFave, 430 Mass.
169, 174 (1999) ("The substantial risk standard requires us to
determine 'if we have a serious doubt whether the result of the
trial might have been different had the error not been made'").
For those reasons, we affirm.
Orders dated July 27, 2021,
revoking probation and
imposing sentences, as
amended by order dated
August 16, 2021, affirmed.
By the Court (Milkey, Walsh &
Smyth, JJ.2),
Clerk
Entered: June 29, 2023.
2 The panelists are listed in order of seniority.
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