Commonwealth v. Brandon Carrion. ( 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-62
COMMONWEALTH
vs.
BRANDON CARRION.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order (1) finding that he had
violated the terms of his probation by committing new criminal
offenses and (2) revoking his probation. In this appeal, the
defendant makes three arguments. First, he argues that due
process dictates that proof of a probation violation be
established by clear and convincing evidence, rather than by a
preponderance of the evidence. Second, he argues that the judge
failed to make written findings of fact, and failed to find that
the hearsay evidence was reliable. Finally, he argues that the
evidence was insufficient to establish that he had violated his
probation. We affirm.
The defendant's first argument requires little discussion
because the Supreme Judicial Court has repeatedly and
unambiguously stated that a probation violation requires only
proof by a preponderance of the evidence. See, e.g.,
Commonwealth v. Jarrett, 491 Mass. 437, 440 (2023). It is
beyond our power as an intermediate court of appeal "to alter,
overrule or decline to follow the holding of cases the Supreme
Judicial Court has decided." Commonwealth v. Dube, 59 Mass.
App. Ct. 476, 485 (2003).
Before addressing the merits of the defendant's remaining
arguments, we set out the following background. The
Commonwealth presented the testimony of four police witnesses to
establish that the defendant had violated the terms of his
probation.1 The officers' testimony was undisputed and
consistent. Some of the officers' testimony was based on their
own observations and investigation. Other important parts,
however, consisted of hearsay in that the officers recounted
what others had told them. We recite the facts as the judge
could have found them.
The police were dispatched to an apartment on Clarkson
Street in Worcester around 2 A.M. on December 3, 2020. The
first officer to arrive observed a man (victim) sitting on a
chair inside the apartment, bleeding from multiple stab wounds
to his stomach. The victim had also been cut on his head and
1 The defendant stipulated that he was on probation at the
relevant time, that he had received the terms and conditions of
his probation, and that he was aware of those terms and
conditions.
2
hand. A witness on the scene told the officer that his uncle
Brandon, the defendant, had been arguing with the victim outside
the back door of the house. The defendant had then run into the
house and out the front door. The victim had then come into the
house, bleeding. This description of events was corroborated by
the trail of blood that led from outside the back of the house,
through the back door, and ended where the victim was seated.
The witness claimed not to have seen what had happened outside
the house (apart from seeing an argument), or the defendant with
a knife. But he later stated at the station that the only
people involved in the fight were the defendant and the victim.
He also said that the defendant had "launched" at the victim.
The defendant's girlfriend told police that the victim had
been drinking and trying to smoke inside the house, to which the
defendant and the girlfriend's sons objected.2 Eventually, the
defendant and the victim went outside and began to fight. The
girlfriend saw the defendant throw a punch at the victim. She
physically intervened between the two men and broke them apart.
She then went inside the house for three to five minutes; when
2 The girlfriend also stated that a locked, upstairs bedroom had
been a guest room, but was no longer occupied. The police
forced entry and discovered that the room appeared to have been
recently inhabited, and found a paystub belonging to the
defendant in the closet.
3
she returned, the victim had been stabbed, and the defendant was
no longer there.
When the defendant was arrested later that day, he had
recent lacerations on his hands, and blood splatter on his
shoes. He admitted to police that he had been at his
girlfriend's house and that he had been wearing the same
clothes. He stated that he had been drinking and had no memory
of the events of the night before, or why blood was on his
shoes. The victim, too, admitted to police that he had been
drinking, and recalled that he had been in an argument, but
remembered nothing further.
Against this backdrop, we now consider the defendant's
remaining legal arguments. First, the defendant argues that the
judge did not make written findings regarding the reliability of
the hearsay evidence. This argument fails because the record
does not support it. The judge indicated on the "Probation
Violation Finding & Disposition" form that he found the hearsay
evidence to be reliable for six reasons which we set out in the
margin.3 Nothing more was required by way of written findings
3 The six reasons were that the evidence was based on personal
knowledge and/or direct observation, that it involved
observations recorded close in time to the events in question,
that it was provided by a disinterested witness, that it was
provided under circumstances that supported the veracity of the
source, that it was factually detailed, and that it was
internally consistent.
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regarding the reliability of the hearsay evidence. See
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016) ("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").
Next, the defendant argues that his due process rights were
violated because the judge did not make written findings
regarding the evidence. "Although a separate written statement
of the evidence relied on and the reasons for revocation is one
of the probationer's due process rights in such proceedings, it
is not an inflexible or invariable mandatory requirement and can
be satisfied in other ways." Commonwealth v. Morse, 50 Mass.
App. Ct. 582, 592-593 (2000). Here, it is true that the judge
did not make written findings of fact, and the better course
would have been for him to do so. But the judge's oral
determination on the record that the defendant had violated his
probation, combined with his written notation on the Probation
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Violation Finding & Disposition form that the violation was
based on the defendant's violation of criminal laws identified
in a particular criminal complaint (which the judge identified
by docket number), and his indication that the finding was based
on the four officers' testimony (which, as we have noted, was
consistent and corroborated), satisfied due process. See
Commonwealth v. Bain, 93 Mass. App. Ct. 724, 725-727 (2018).
Moreover, the defendant has not articulated, let alone shown,
how the absence of detailed findings of fact makes any
difference in this case. The testimony of the officers was
consistent and corroborated. Not only did each officer speak to
a percipient witness, but the percipient witnesses recounted the
same rough sequence of events: the defendant and the victim had
been arguing behind the house, after which the defendant ran
through the house and out the front door, while the victim came
back inside with stab wounds to the stomach, head, and hand.
The defendant has failed to identify any pertinent factual
dispute that required resolution by the judge, or any reason to
think that the officers' testimony was not credible.
Finally, the defendant argues that the evidence was
insufficient because there was no direct evidence that the
defendant stabbed the victim. Although it is true there was no
direct evidence of the stabbing, the circumstantial evidence
more than amply permitted the reasonable inference that it was
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the defendant (as opposed to some other person) who stabbed the
victim. See Commonwealth v. Coates, 89 Mass. App. Ct. 728, 732
(2016) (circumstantial evidence suffices to prove identity).
For these reasons, we affirm the order revoking the
defendant's probation.
So ordered.
By the Court (Wolohojian,
Singh & Hand, JJ.4),
Clerk
Entered: July 20, 2023.
4 The panelists are listed in order of seniority.
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