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. The judge ruled that the defendant
violated his probation by (1) committing new criminal offenses,
operation of a motor vehicle with a suspended license and
negligent operation of a motor vehicle, and (2) testing positive
for cocaine and failing, nine times, to appear for scheduled
drug testing. 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.
After reconsideration, we conclude that the evidence was
sufficient to support the violations based on the drug testing
and the new offense of operating with a suspended license.
However, because we cannot say with certainty that the judge
would have revoked the defendant's probation absent the
violation for negligent operation, we remand for redetermination
and resentencing under Commonwealth v. King, 96 Mass. App. Ct.
703, 710-713 (2019). See Commonwealth v. Durling, 407 Mass.
108, 111 (1990).
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
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
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.
The judge ruled that the Commonwealth had shown by a
preponderance of the evidence that the defendant violated the
terms of his probation. The judge confirmed in his finding of a
probation violation that, other than as specifically excluded,
the "exhibits meet the substantial reliability test."
Discussion. "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. Durling, 407 Mass. at 117. "A judge may
rely on hearsay evidence at a probation violation hearing where
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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).
1. Reliability of evidence. 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."
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
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(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
testimony about positive drug test, as well as drug test results
themselves, constituted sufficiently reliable evidence). These
same factors support the judge's conclusion that the majority of
the police report, which was factually detailed, recorded close
in time to the crash, and based on the officer's observations,
was reliable.
2. 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). "In a probation revocation
hearing, the issue to be determined is not guilt beyond a
reasonable doubt but, rather, whether the probationer more
likely than not violated the conditions of his probation."
Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013).
(a). Drug-testing violations. Here, the evidence was
sufficient to prove, by a preponderance of the evidence, that
the defendant violated his conditions of probation. The judge
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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 Jarrett, 491 Mass. at 445 (officer's
testimony as to defendant's drug-related offense sufficient to
find defendant in violation of drug-free terms of probation). A
finding that the no-shows were willful was reasonably supported
by the officer's testimony that she "always" contacted the
defendant after each no-show and the Averhealth document showing
the dates on which the defendant failed to appear for scheduled
testing. See Rass Corp. v. Travelers Cos., 90 Mass. App. Ct.
643, 657 (2016).
(b). Motor vehicle offenses. Operating a motor vehicle
with a suspended license requires proof of three elements: (1)
operating a motor vehicle, (2) with a suspended license, (3)
with notice of the suspension. Commonwealth v. Royal, 89 Mass.
App. Ct. 168, 170 (2016). "Proof of operation of a motor
vehicle may 'rest entirely on circumstantial evidence.'"
Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006),
quoting Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438
(2002). Here, the first element was met. The defendant,
injured on his face and legs, was alone at the scene of a single
vehicle accident in which only the driver's side airbags had
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deployed, and there was no sign of another person. It did not
take a "leap of conjecture" to infer that the defendant was
operating the vehicle at the time of the crash. Commonwealth v.
Beltrandi, 89 Mass. App. Ct. 196, 202 (2016). See Commonwealth
v. Hilton, 398 Mass. 63, 67 (1986) ("A web of convincing proof
can be made up of inferences that are probable, not necessary"
[quotation omitted]); Cromwell, supra at 440. As to the second
element, we see no reason to disturb the judge's conclusion that
the police officer's report was substantially reliable. In the
report, the officer noted that the defendant's license was
suspended. Finally, the judge reasonably could have inferred
from the defendant's statements to the trooper that he knew his
license was suspended and, to avoid arrest, claimed that his
friend was driving. See Commonwealth v. Vick, 454 Mass. 418,
424 (2009), quoting Commonwealth v. Robles, 423 Mass. 62, 71
(1996) ("False statements to police may be considered as
consciousness of guilt if there is other evidence tending to
prove the falsity of the statements").
A finding of negligent operation requires proof that the
defendant (1) operated a motor vehicle (2) upon a public way (3)
negligently so that the lives or safety of the public might be
endangered. Commonwealth v. Ross, 92 Mass. App. Ct. 377, 379
(2017). Negligent operation "only requires proof that the
defendant's conduct might have endangered the safety of the
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public, not that it in fact did," Commonwealth v. Ferreira, 70
Mass. App. Ct. 32, 35 (2007), but requires more than the "mere
occurrence of an accident." Osborne v. Hemingway Transp., Inc.,
28 Mass. App. Ct. 944, 945 (1990). Although the evidence
permitted a finding of operation, and the crash occurred on a
public way, we are not persuaded that the third element was met.
The evidence established only that the defendant, driving
without a license, crashed his car. While both the operating
while suspended and the accident are relevant to the assessment
of negligent operation, see Commonwealth v. Campbell, 394 Mass.
77, 83 n.5 (1985); Commonwealth v. Cohen, 27 Mass. App. Ct.
1210, 1211 (1989), we find no precedent establishing that they
are sufficient to show it. See Commonwealth v. Zagwyn, 482
Mass. 1020, 1022 (2019); Aucella v. Commonwealth, 406 Mass. 415,
418-419 (1990).
Because the record does not reveal that the trial judge
would have imposed the same sentence had he found only two of
the three violations, we are constrained to remand for
resentencing consistent with our decision.
3. 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,
464 Mass. 315, 319 (2013), quoting Commonwealth v. Bacigalupo,
455 Mass. 485, 495 (2009). "Due process requires a judge to
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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 reasons for the decision, adequate
for the probationer to obtain a meaningful review." Id.
(quotation omitted).
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
was sufficient to indicate the specific reasons he found the
hearsay evidence sufficiently reliable. See Commonwealth v.
Bain, 93 Mass. App. Ct. 724, 726, 727 (2018) (judge's findings
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complied with due process where judge left line blank meant "to
be filled in by the judge with the specific evidence relied on
to support the violation finding"). See also Morse, 50 Mass.
App. Ct. at 592 (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.
On the order revoking probation and imposing sentence, so
much of the order that finds violations based on the drug
testing and operating with a suspended license is affirmed, and
the remaining finding of violation is reversed. The sentence is
vacated and the case is remanded to the District Court for
resentencing consistent with this memorandum and order.
So ordered.
By the Court (Blake,
Hershfang & D’Angelo, JJ.2),
Clerk
Entered: June 9, 2023.
2 The panelists are listed in order of seniority.
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