Commonwealth v. Dylan J. St. Francis. ( 2024 )

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
23-P-724
COMMONWEALTH
vs.
DYLAN J. ST. FRANCIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Dylan J. St. Francis, appeals from an order
of a District Court judge revoking his probation. The defendant
argues that his due process rights were violated when the judge
based the probation violation finding on information in a police
report that was unreliable hearsay. We affirm.
Background. On June 17, 2021, the defendant pleaded guilty
in the Uxbridge District Court to indecent assault and battery
and was sentenced to two years in the house of correction, with
one year to serve and the balance suspended for eighteen months.
His conditions of probation included that he obey all state
laws.
On July 17, 2022, a complaint issued in the Worcester
District Court alleging that the defendant had committed rape in
violation of G. L. c. 265, § 22 (b), and assault and battery on
a household member in violation of G. L. c. 265, § 13M (a).1 As
a result, a notice of probation violation issued in the Uxbridge
case. The probation officer summonsed the alleged victim in the
Worcester case to testify at the probation violation hearing.
The probation violation hearing was held on October 5,
2022. The probation officer testified that the alleged victim
in the Worcester case was unable to attend because she was
living in New Hampshire and had difficulty obtaining
transportation. The probation officer asked to submit a police
report in evidence; the defendant objected, arguing that it was
not reliable. The judge found that the police report was
factually detailed and reliable. The judge concluded that the
defendant had violated his probation by violating a criminal
law, noting the docket number of the Worcester case. On the
probation violation finding and disposition form, the judge
indicated the basis for the violation by checking the box next
to the words "PROBATIONER'S ADMISSION." On the same form, the
judge did not check the boxes next to the option that the
finding of a violation was based on testimonial, documentary, or
1 That complaint involved a different alleged victim from
the one in the Uxbridge case.
2
hearsay evidence. The judge revoked the defendant's probation
and sentenced him to one year in the house of correction.2
On February 24, 2023, on the Worcester District Court
complaint, the defendant pleaded guilty to so much of the count
for assault and battery on a household member as alleged assault
and battery, and by agreement of the parties was sentenced to
one year probation. As to the count alleging rape, it was
amended to indecent assault and battery and dismissed. The
tender of plea form noted that the probation officer objected to
the disposition. It set forth the judge's reasons for the
disposition as "Victim has left state & did not appear at VOP.
Comm. represents she doesn't want to further prosecute & wants
prob[ation]."
Discussion. The defendant argues that the judge improperly
based the finding of a probation violation on unreliable hearsay
in the police report.3 The judge's findings make clear that he
revoked the defendant's probation based on the defendant's
2 At oral argument, defense counsel informed the panel that
the defendant has completed serving that sentence.
3 To the extent that the defendant argues that the testimony
of the alleged victim in the Worcester case was "necessary" at
the probation violation hearing, he waived that argument because
he did not seek to call her to testify. Contrast Commonwealth
v. Costa, 490 Mass. 118, 131 (2022) (judge erred in precluding
defendant from calling sexual assault victim to testify at
probation violation hearing).
3
admission that he "pushed" the victim, which, as the defendant
later admitted at the plea, amounted to an assault and battery.4
We review a judge's finding of a probation violation for
abuse of discretion. See Commonwealth v. Durling, 407 Mass.
108, 111-112 (1990). To decide whether there was an abuse of
discretion, we must determine "whether the record discloses
sufficient reliable evidence to warrant the findings by the
judge, by a preponderance of the evidence, that the probationer
had violated the specified [probation] conditions" (citation and
alterations omitted). Commonwealth v. Jarrett, 491 Mass. 437,
440 (2023). If a defendant's probation is revoked "based solely
on hearsay evidence, the proffered hearsay must have
'substantial indicia of reliability' to satisfy the good cause
requirement" for proceeding without a witness with personal
knowledge of the evidence. Commonwealth v. Costa, 490 Mass.
118, 124 (2022), quoting Commonwealth v. Hartfield, 474 Mass.
474, 484 (2016). See Rule 7(b) of the District Court Rules for
Probation Violation Proceedings (2015). To determine whether
4 Because we conclude that the police report contained
reliable hearsay, we do not reach the Commonwealth's argument
that the defendant's subsequent plea to assault and battery
rendered moot his claim that the judge impermissibly considered
unreliable hearsay at the probation violation hearing. See
Commonwealth v. Milot, 462 Mass. 197, 201 (2012).
4
hearsay has "substantial indicia of reliability," a 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."
Hartfield, supra at 484.
At the probation violation hearing, the judge found that
the Worcester police report was "factually detailed and
reliable." The police report documented that the defendant's
brother called the police and reported that while on the
telephone with the defendant, the brother heard arguing; the
brother reported that the defendant was drunk and aggressive.
Responding officers spoke to the defendant, who admitted that he
and his "girlfriend" had been drinking alcohol with others
present. The defendant told police that he pushed his
girlfriend to try to get her outside so they could discuss the
matter privately. The officers then spoke to the alleged
victim, who reported that the defendant pushed her once in the
shoulder or chest area with both hands. After police arrested
the defendant and placed him in a patrol wagon, the alleged
victim disclosed that the defendant had also raped her.
5
We conclude that the judge did not abuse his discretion in
determining that the police report contained substantial indicia
of reliability warranting the judge to find by a preponderance
of the evidence that the defendant had violated the probation
condition not to violate the criminal laws. The police report
documented statements from three witnesses: the defendant's
brother, the defendant, and the alleged victim. Contrary to the
defendant's argument the mere fact that those three witnesses'
statements were contained in a single police report did not make
their statements any less reliable. Those statements were made
soon after the events they described. The statements were
detailed, and each corroborated the statements of the other two
witnesses. Indeed, the defendant's own statement contained an
admission to assault and battery.5 Cf. Commonwealth v. Simon, 57
5 Of course, without the police officer present to testify,
the police report containing the defendant's admission
constituted hearsay. Here, however, it was reliable hearsay
under the Hartfield test.
6
Mass. App. Ct. 80, 85-86 (2003) (violation based in part on
probationer's own admission contained in police reports).
Order revoking probation
affirmed.
By the Court (Henry, Grant &
D'Angelo, JJ.6),
Assistant Clerk
Entered: July 31, 2024.
6 The panelists are listed in order of seniority.
7