Commomwealth v. Farmion R. Williams. ( 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-373
COMMOMWEALTH
vs.
FARMION R. WILLIAMS. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a judge of the
Superior Court revoking his probation. He asserts that the
judge erred by declining to apply the exclusionary rule to
evidence presented at the probation violation hearing and abused
his discretion by (1) denying the defendant's request to recall
a witness, and (2) finding the defendant in violation of
probation without sufficient evidence to prove that he committed
criminal offenses while on probation. 2 We affirm.
Background. In 2012 the defendant pleaded guilty to
carrying a firearm without a valid license and possessing
ammunition without a firearm identification card, having
1 Also known as Reginald Williams.
2 The judge also found that the defendant violated noncriminal
conditions of his probation.
previously been convicted of three violent crimes or serious
drug offenses. 3 He was sentenced to seven to ten years in State
prison, with five years of probation to be served after his
release. The defendant began his probation in September 2016.
In November 2019, the defendant was arrested and charged with
new offenses, including carrying a firearm without a valid
license and the unlawful possession of a loaded firearm, large
capacity firearm, and ammunition.
Prior to his probation violation hearing, the defendant
filed a motion to apply the exclusionary rule at the probation
violation proceeding to the evidence seized in conjunction with
the searches underlying the new criminal charges, as well as a
motion to suppress that evidence. On February 5, 2021, a judge
heard testimony from a probation officer and two police
officers. The defendant sought to call another police officer
who was unavailable that day, so the hearing was continued to
March 12, 2021, for the officer's testimony.
The defendant failed to appear for the March 12 hearing and
a default warrant was issued. Over seven months later, on
October 27, 2021, the defendant was arrested on the warrant. On
November 4, 2021, the matter came before a different judge. The
3 The plea occurred after the defendant's motion for new trial
was allowed on his conviction of a 2005 multi-count indictment
for which he originally was sentenced to concurrent State prison
terms of fifteen years to fifteen years and one day.
2
defendant requested that the hearing be started "from scratch."
In particular, he pointed to "a real issue with credibility" in
the testimony of one of the police officers who testified on the
first day of the hearing. After taking the matter under
advisement, the second judge listened to recordings and reviewed
transcripts of the prior hearing. On November 15, 2021, the
second judge denied the defendant's request to recall the
witnesses. He reasoned that the issues to be resolved at the
hearing were relatively simple, the witnesses had already
testified at length and been cross-examined in the defendant's
presence, and the defendant forfeited his right to recall the
witnesses when he did not appear in court on the second hearing
date. On December 1, 2021, after hearing from the defendant's
final witness, the second judge found the defendant in violation
of probation.
Discussion. 1. Application of the exclusionary rule. 4
"[T]he exclusionary rule does not generally apply to probation
violation proceedings." Commonwealth v. Rainey, 491 Mass. 632,
637 (2023), citing Commonwealth v. Olsen, 405 Mass. 491, 494
(1989). 5 The defendant argues that Olsen, supra, requires
4 Although the parties agreed that the defendant's motion to
suppress evidence would be heard simultaneously with the
probation violation hearing, the second judge did not explicitly
rule on the motion to suppress.
5 The defendant filed a letter pursuant to Mass. R. A. P. 16 (l),
as appearing in 481 Mass. 1628 (2019), directing us to a case
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exclusion of evidence from a probation violation hearing when
officers "specifically direct[] unlawful conduct at a
probationer knowing that they are subject to probation
supervision." He asserts that the second judge should have
concluded that investigating officers knew of the defendant's
probationary status in November 2019 and "specifically targeted
him for a surveillance operation and multiple searches." We
disagree.
In Olsen, 405 Mass. at 496, the Supreme Judicial Court left
open the question whether evidence should be excluded at a
probation violation hearing where it was "the product of police
harassment or the result of a police focus to obtain evidence
specifically for a probation revocation hearing." Commonwealth
v. Simon, 57 Mass. App. Ct. 80, 90 (2003). To the defendant's
benefit, the judge applied this framework when he analyzed the
defendant's motion to apply the exclusionary rule to the
violation proceeding. Here, there was evidence that (1) the
arresting officers had been involved in an unrelated arrest of
pending in the Supreme Judicial Court in which that court has
solicited amicus briefs on an issue related to Olsen. See
Commonwealth v. Gelin, SJC-13433. We have reviewed the
appellant's brief in Gelin, which argues for the ability to
raise a Fourteenth Amendment equal protection claim to suppress
the results of a racially-motivated search at a probation
violation hearing. The defendant has not argued, here or in the
trial court, that the search was racially motivated. Nor has
the defendant moved to stay this appeal pending the outcome of
Gelin.
4
the defendant in January 2019; (2) the defendant had filed an
internal affairs complaint against one of the officers who
testified at the first part of the violation hearing, as well as
other members of that officer's investigative unit, in August
2019; (3) investigating officers knew that the defendant had a
criminal record that included illegal drug and firearm
convictions; and (4) officers checked the defendant's board of
probation record before conducting the surveillance that
resulted in the arrest at issue. 6 On this record, we discern no
error in the judge's determination that "notwithstanding the
fact that there was an Internal Affairs complaint filed against
[one of the police witnesses] by the defendant[,] [t]here's no
indication . . . that there was any harassment of [the
defendant] with respect to this particular stop or that the stop
was solely because they knew that he was on probation." 7
6 Although the defendant's counsel did not ask either of the
officers who testified at the first part of the hearing whether
they knew that the defendant was on probation, the defendant
argues from the police testimony about checking his criminal
record that the record "overwhelmingly supports" that
investigating officers knew he was on probation before
surveilling him. A review of his board of probation record
makes this less than clear based on the various entries relating
to his motion for new trial and resentencing.
7 Because we agree with the second judge that the exclusionary
rule does not apply in these circumstances, we need not reach
the issue whether the search was in fact unlawful, which, on the
record before us, does not necessarily appear to be the case.
5
2. The defendant's request to recall witnesses. "The
manner and order of the presentation of evidence and the
interrogation of witnesses is entrusted to the sound discretion
of the [hearing] judge." Commonwealth v. Forte, 469 Mass. 469,
488 (2014). The defendant contends that the second judge
violated his due process rights and committed an abuse of
discretion by denying him the opportunity to present live
witnesses without conducting the analysis required under
Commonwealth v. Costa, 490 Mass. 118, 127-128 (2022), and
Commonwealth v. Hartfield, 474 Mass. 474, 480-481 (2016).
Again, we disagree.
To begin, the cases cited by the defendant in support of
this argument are inapposite, because the witnesses here did
testify in person. Although some of the witnesses testified
before a different judge, their testimony was part of the same
hearing, and the defendant had a full opportunity to question
them. Thus, "[h]e was . . . not denied his constitutional right
to confront the witnesses against him, or the opportunity to
challenge the witnesses' credibility and the truth or accuracy
of their testimony." Forte, 469 Mass. at 488.
Nor do we think it unreasonable for the second judge to
find that the defendant waived his right to recall witnesses
after he failed to appear for the second day of hearing without
explanation. The defendant was present when the date for
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continuation of hearing was announced, but he did not return to
court until he was arrested on the warrant. Even had the
defendant not forfeited his right to recall witnesses, we
discern no abuse of discretion in the second judge's ruling.
See Commonwealth v. Hicks, 375 Mass. 274, 276 (1978) (within
judge's discretion to determine "[w]hether or not a witness
should be recalled in a criminal case"). Beyond simply finding
waiver, the judge explored the reasons the defendant sought to
recall witnesses. The defendant focused on witness credibility
and particularly cited the internal affairs complaint he filed
against one of the police witnesses. Yet, he acknowledged that
he had already cross-examined the witnesses on those subjects.
See Forte, 469 Mass. at 488 (recall of witnesses appropriate if
defendant would otherwise be unreasonably deprived of
opportunity to present newly discovered information material to
defense). The second judge read the transcript of the
witnesses' testimony before the first judge and listened to the
audio recording of the testimony.
3. Sufficiency of the 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. The defendant contends that the second judge abused his
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discretion because there was insufficient evidence to support a
finding that the defendant constructively possessed the firearm
recovered from his vehicle or had knowledge that the firearm
contained ammunition or had a large capacity feeding device. We
disagree.
"To establish constructive possession, the Commonwealth
must prove a defendant's (a) knowledge of the contraband; (b)
ability to control it; and (c) intention to exercise control
over it." Commonwealth v. Crapps, 84 Mass. App. Ct. 442, 444
(2013). Here, officers testified that they saw the defendant
approach a vehicle and remotely unlock it. He then opened the
front passenger door and leaned into the passenger compartment
for several minutes. When police subsequently searched the
vehicle, they saw the butt of a firearm sticking up from between
the front passenger seat and the middle console. The defendant
was the vehicle's registered owner, and there was no evidence
that anyone else went near the vehicle from the time the
defendant entered it until the police searched it. This
evidence was sufficient for the judge to find by a preponderance
of the evidence that the defendant constructively possessed the
firearm and knew both that it was loaded and that it contained a
high capacity feeding device. See Commonwealth v. Clark, 446
Mass. 620, 624 (2006) (evidence sufficed to prove constructive
possession in criminal prosecution where contraband found in
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center console and defendant had control of vehicle);
Commonwealth v. Elysee, 77 Mass. App. Ct. 833, 848 n.12 (2010)
(evidence sufficed to prove constructive possession at probation
revocation proceeding where gun found under defendant's car seat
and defendant exhibited consciousness of guilt).
Order revoking probation
affirmed.
By the Court (Massing,
Grant & Brennan, JJ. 8),
Clerk
Entered: October 13, 2023.
8 The panelists are listed in order of seniority.
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