Commonwealth v. Jarrett

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SJC-13243
COMMONWEALTH vs. JEROME JARRETT.
Suffolk. September 9, 2022. - March 10, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Practice, Criminal, Revocation of probation, Identification of
defendant in courtroom. Identification. Evidence,
Identification. Due Process of Law, Identification.
Controlled Substances.
Indictments found and returned in the Superior Court
Department on June 10, 2016.
A proceeding for revocation of probation was heard by
Robert L. Ullmann, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Joseph Visone for the defendant.
Monica J. DeLateur, Assistant District Attorney, for the
Commonwealth.
Patrick Levin, Committee for Public Counsel Services, &
Radha Natarajan, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.
2
GEORGES, J. The probationer, Jerome Jarrett, appeals from
a Superior Court judge's order revoking his probation and
imposing the remainder of his suspended sentence. The
probationer challenges the determination that he violated the
terms of his probation. In particular, he argues that the judge
could not have found him in violation without relying upon an
unreliable, in-court identification by a witness who had made no
prior, out-of-court identification. The probationer asks us to
extend the rule excluding such identifications in criminal
trials without a showing of good reason, see Commonwealth v.
Crayton, 470 Mass. 228, 241 (2014), to probation violation
hearings, because such identifications are just as inherently
suggestive and unreliable at those proceedings as they are in a
criminal trial. The probationer also challenges the sufficiency
of the evidence that he violated the terms of his probation by
committing a new criminal offense.
We decline to extend Crayton, 470 Mass. at 241, to
probation violation hearings. In addition, we conclude that
sufficient evidence was presented at the hearing for the judge
to find, by a preponderance of the evidence, that the
3
probationer had violated a term of his probation by committing a
new offense.1
1. Background. In September of 2018, the probationer
pleaded guilty to two counts of attempting to derive support
from a prostitute, in violation of G. L. c. 274, § 6. He was
sentenced to a term of two and one-half years in a house of
correction, with two years to serve and the balance suspended
for eighteen months, with conditions of probation. Among those
conditions were that the probationer stay away from children
under the age of sixteen who were not family members and obey
all local, State, and Federal laws. Because the probationer had
been held in pretrial detention for 763 days while awaiting
trial, the two years were deemed served.
In June of 2019, the probation department issued a notice
of surrender based, in part, on allegations that the probationer
had violated a term of his probation by committing a new offense
related to the distribution of cocaine. A Superior Court judge
held a probation violation hearing on November 22, 2019. The
evidence at the hearing consisted primarily of the testimony of
Boston police Officer Shana Rivera. The judge also considered
several exhibits introduced by the Commonwealth: the notice of
1 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services and the New England Innocence
Project.
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violation, the order of probation, and a summary of the
probationer's financial information. Based on the evidence
presented, the judge could have found the following.
At around 1:30 P.M. on the afternoon of June 17, 2019,
Rivera and her partner, Officer Chris Adams, were patrolling in
an area of downtown Boston that included Tremont, Winter, and
Summer Streets. Rivera had been employed as a police officer
for three years and had received specialized training on
identifying controlled substances and identifying drug
transactions.
While on routine patrol, Rivera saw Gregory Gomes, whom she
knew to be a drug user, and an unknown white male, later
identified as Sean McCarthy, following a tall, thin Black male
with a red shirt and a "man bun,"2 walking into a nearby mall.
Rivera then saw McCarthy hand Gomes a sum of money. Rivera
testified that, once Gomes noticed her and Adams, he started
walking quickly and met the probationer immediately inside the
mall doors. All three men left the mall within approximately
one minute from when they entered, from which Rivera inferred
that they had not been in the mall to shop. The probationer
headed toward Tremont Street, while McCarthy and Gomes walked
2 A man bun is "a hairstyle for men, comprising long hair
looped into a bun and fixed in position with a hair tie."
Macquarie Dictionary (7th ed. 2017).
5
toward Washington Street. Rivera and Adams followed McCarthy
and Gomes to Bromfield Street, where they observed Gomes hand
McCarthy an object later learned to be a piece of "crack"
cocaine.
The officers then followed McCarthy and Gomes into Wesleyan
Place, a location known as a place for drug users to consume
drugs. When McCarthy entered a no-trespassing area, Rivera
stopped him and found that McCarthy had a piece of crack cocaine
and a crack pipe on his person. McCarthy told her that he had
obtained it from Gomes, who had received it from a tall Black
male with a red shirt and dreadlocks. Gomes fled as soon as he
saw the officers stop to talk to McCarthy.3
Rivera returned to the mall, where she saw the probationer.
Upon seeing Rivera and Adams, the probationer rushed into a
nearby gym. The officers followed the probationer inside and
stopped him. They found a digital scale and $292 of currency on
his person. Rivera testified that the man she had arrested was
the same man she had seen with Gomes and McCarthy shortly
before, i.e., the tall, thin, Black male wearing a red shirt and
with "dreads" formed into a "man bun," whom she identified at
the hearing as the probationer.
3 Gomes and McCarthy subsequently were issued summonses for
possession of a class B substance.
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The judge concluded that there was an "extremely strong"
circumstantial case to support a finding, by a preponderance of
the evidence, that the probationer had violated the terms of his
probation by committing a new offense. Subsequently, on January
3, 2020, the judge found the probationer in violation of
probation, revoked his probation, and ordered him to serve the
remaining six-month balance of his committed sentence. The
probationer filed a timely notice of appeal in the Superior
Court and then filed an appeal in the Appeals Court. We
transferred the case to this court on our own motion.
2. Discussion. a. Standard of review. A judge's
decision to revoke probation involves a two-part inquiry: the
judge must determine first whether the probationer willfully has
violated a condition of probation and, second, if such a
violation is found by a preponderance of the evidence, whether
the violation warrants revocation of probation. See
Commonwealth v. Eldred, 480 Mass. 90, 101 (2018), and cases
cited. In considering an appeal from a decision that a
violation of probation occurred, a reviewing court 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 conditions of his [or her] probation."
See Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594 (2000).
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The court reviews a determination to revoke probation for an
abuse of discretion. See Eldred, supra.b. Applicability of Crayton. The probationer argues that
Crayton's rule precluding in-court identifications in criminal
trials absent good reason, where there was no prior out-of-court
identification, see Crayton, 470 Mass. at 241, should be
extended to other proceedings where liberty is at stake. We do
not agree.
In Crayton, 470 Mass. at 241, we held that "[w]here an
eyewitness has not participated before trial in an
identification procedure, we shall treat the in-court
identification as an in-court showup, and shall admit it in
evidence only where there is 'good reason' for its admission."
"Good reason" may exist where "the eyewitness was familiar with
the defendant before the commission of the crime, such as where
a victim testifies to a crime of domestic violence," or "where
the witness is an arresting officer who was also an eyewitness
to the commission of the crime." Id. at 242. In both
circumstances, the identification is only "confirmatory" in
nature, as the jury will understand the in-court showup as
indicating that "the defendant sitting in the court room is the
person whose conduct is at issue rather than as identification
evidence." Id. "[I]n both of these circumstances, where the
witness is not identifying the defendant based solely on his or
8
her memory of witnessing the defendant at the time of the crime,
there is little risk of misidentification arising from the in-
court showup despite its suggestiveness." Id. at 243.
Pragmatic concerns specific to criminal trials, and
"[c]ommon law principles of fairness," guided our reasoning in
adopting this approach (citation omitted). See id. at 240, 241
n.16. More specifically, we recognized three key distinctions
between in- and out-of-court identifications in the context of a
criminal trial. First, with an in-court identification, the
jurors serve collectively as the fact finder and see the
identification procedure as it unfolds. Therefore, a juror is
"better able to evaluate the reliability of the identification
because he or she can observe the witness's demeanor and hear
the witness's statements during the identification procedure."
Id. at 239. The juror also can note "indications of witness
certainty or hesitation during [that] process, including facial
expression, voice inflection, and body language" (citation
omitted). Id. Second, an in-court identification benefits from
immediate challenge through cross-examination. Id. at 240.
Third, because defense counsel has advance notice of the
Commonwealth's intended in-court identification, counsel has the
opportunity to propose less suggestive identification
procedures. Id. at 241.
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We recognized, however, that neither immediate cross-
examination nor the jury's ability to observe the identification
in person guarantees an accurate identification. Id. at 240-
241. Accordingly, we limited the use of in-court identification
of a defendant, where a witness had never made a nonsuggestive
out-of-court identification, to situations in which there was
"good reason" to use such a procedure. Id. at 241-242. We also
left open to defendants the ability to challenge the use of an
in-court identification even where there was good reason for its
use. Id. at 243. Notably, however, we did not adopt the
approach followed by courts in other jurisdictions that places
the burden on the defendant to propose less suggestive in-court
identification procedures. Id.As stated, Crayton, 470 Mass. at 241-243, addressed the
introduction of in-court, showup identifications at criminal
trials. Probation violation hearings, however, are not one of
the stages of a criminal prosecution. See Commonwealth v.
Durling, 407 Mass. 108, 112 (1990). Thus, a probationer is not
entitled to all of the due process protections applicable at a
criminal trial. Id. In addition, at a probation violation
hearing, a judge acts as the fact finder and is able to assess
an in-court identification, in conjunction with the other
evidence presented, to determine whether the evidence contains
substantial indicia of reliability. The judge can make the same
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observations of a witness's hesitancy or uncertainty that we
concluded in Crayton, supra at 238-244, that a jury could make
at a criminal trial, but without the same likelihood of being
influenced by an identification that might appear unnecessarily
suggestive to a jury, based on the witness's apparent
confidence, see id.Moreover, at a probation violation hearing, concerns about
injustice due to a potentially unreliable in-court
identification are significantly reduced and conditional;
"[w]hen an individual is on probation, the Commonwealth has
already gone through the expense and effort of convicting him
[or her]." Durling, 407 Mass. at 115-116. A probationer is
released on probation, rather than having been incarcerated, as
a "matter of grace." Id. at 115. Nonetheless, while
probationers have fewer and "more flexible" due process rights
at a probation violation hearing than do defendants at a
criminal trial, those constitutional rights probationers do
possess are protected with "equal vigilance." See Commonwealth
v. Kelsey, 464 Mass. 315, 319 (2013).
In Durling, 407 Mass. at 113, this court examined at some
length the minimum requirements of due process applicable at
probation violation hearings, in reliance on the Federal
requirements set forth by the United States Supreme Court in
Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973). The court
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explained that, to comport with due process, a probationer must
be provided with at least "(a) written notice of the claimed
violations of [probation or] parole; (b) disclosure to the
[probationer or] parolee of the evidence against him [or her];
(c) opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and cross-
examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation);
(e) a 'neutral and detached' hearing body such as a traditional
parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking [probation or]
parole." Durling, supra, quoting Gagnon, supra. See
Commonwealth v. Hartfield, 474 Mass. 474, 479 (2016).
At the same time, given the differing concerns at a
probation violation hearing, where the probationer already has
been found guilty of the underlying offense beyond a reasonable
doubt and is not at risk of conviction of any new offense, and a
criminal trial, where the Commonwealth must prove a defendant's
guilt beyond a reasonable doubt, probation violation hearings do
not afford probationers the full panoply of constitutional
protections afforded a defendant at a criminal trial. See
Abbott A. v. Commonwealth, 458 Mass. 24, 34 (2010), citing
Durling, 407 Mass. at 114-120. In particular, probation
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violation hearings are not subject to the rule against the
introduction of hearsay. See Abbott A., supra.The question we must address here is whether due process
requires us to extend the protections against in-court showup
identifications of defendants at criminal trials to probation
violation hearings. Given the flexible due process standard
applicable to probation violation hearings, and given that the
judge acts as the fact finder, in-court identifications may be
introduced without arbitrarily depriving the probationer of his
or her (attenuated) liberty interest. Accordingly, we conclude
that the "good reason" standard set forth in Crayton, 470 Mass.
at 238-244, regarding in-court showup identifications does not
apply to probation violation hearings.4
c. Reliability of the in-court identification. Although
we conclude that the requirements of Crayton, 470 Mass. at 241-
243, are inapplicable here, that does not end our inquiry. The
4 The Commonwealth asks us, in effect, to broaden the type
of testimony Crayton's "good reason" standard permits. More
specifically, the Commonwealth contends that if Crayton, 470
Mass. at 238-244, is applicable to probation violation hearings,
Rivera's in-court identification of the probationer as "being
the person she saw near the [mall] being followed by Gomes and
McCarthy," and the "person she arrested who had a digital scale
and money on his person," would have been permissible, because
she did not actually see an exchange of drugs for money. In the
Commonwealth's view, Rivera was not a percipient witness within
the meaning of Crayton, supra, because she did not personally
observe the probationer commit the offense for which he was
arrested. Because we conclude that Crayton is not applicable to
probation violation hearings, we need not reach this issue.
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"touchstone" of an "accurate and reliable determination," which
underpins the due process question of fundamental fairness,
remains. See Durling, 407 Mass. at 117-118. The probationer
argues that, absent a nonsuggestive identification by McCarthy
at the time of the probationer's arrest, Rivera's in-court
identification was "inherently unreliable." We do not agree.
As stated, at a probation violation hearing, somewhat
different concerns animate the inquiry concerning fundamental
fairness from those at trial. At such a hearing, the concern is
whether an in-court identification is substantially reliable,
and not whether there was "good reason" for the introduction of
evidence that could appear to a jury to be worthy of an inflated
level of confidence, due to the inherently suggestive nature of
a showup identification. Where evidence bears "substantial
indicia of reliability," admission of the evidence furthers the
shared interests of the Commonwealth and the probationer in
reaching "a reliable, accurate evaluation of whether the
probationer indeed violated the conditions of his [or her]
probation." Durling, 407 Mass. at 116, 118. In making such a
determination, the judge is guided by the principles that
pervade all questions of due process and must carefully define
the various interests involved and then balance those according
to the weight society places on them. Id. at 115.
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Although, as the probationer argues, the Commonwealth's
case would have been strengthened by a nonsuggestive
identification of him by McCarthy at the time of the arrest, its
absence is not fatal to a determination of reliability. See
Commonwealth v. Wilcox, 446 Mass. 61, 67-68 (2006). Police
officers may be the only witnesses at probation violation
hearings, even where they report on statements by others, and
the proceeding may still comport with due process. See, e.g.,
Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). "[I]f
reliable hearsay is presented, the good cause requirement is
satisfied." Id. at 522, quoting Commonwealth v. Negron, 441
Mass. 685, 691 (2004). Indeed, in Durling itself, the
probationer was found in violation of a term of his probation by
having committed a new crime, based on testimony by his
probation officer reading from two police reports and the
introduction of those reports; the probation officer had not
been a witness to any part of the events described in the
reports. See Durling, 407 Mass. at 110.
Here, Rivera provided a detailed account of the incidents
she observed on the day of the probationer's arrest, including
her observations of a man whose description matched that of the
probationer. Rivera testified that she was on routine patrol in
an area she believed, based on her experience, to be one where
drug transactions and drug use were frequent. She saw an
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unknown man hand money to someone whom she knew to be a drug
user; the two followed a man who matched the description of the
probationer into a mall and left within a minute. Rivera then
saw the man she knew to be a drug user hand something to the
unknown man. She followed the suspected buyer, stopped him, and
found crack cocaine on his person. He told her that he had
asked the known drug user for drugs and had received them from
someone matching the description of the man the two had followed
into the mall. When that man saw officers approaching, he
rushed into a building. They followed him, arrested him, and
seized a digital scale and $292 in cash from his person. Rivera
testified that the man, whom she described as a tall, thin,
Black man with a red shirt and a man bun, was the same one she
had seen entering the mall followed by the others. In these
circumstances, the in-court identification was sufficiently
reliable to be considered among the other evidence presented.
d. Sufficiency of the evidence. Relatedly, the
probationer also challenges the sufficiency of the evidence that
he violated the terms of his probation by committing a new
crime, i.e., that he distributed cocaine. At a probation
violation hearing, the Commonwealth bears the burden of proving
a violation of a condition of probation by a preponderance of
the evidence. Bukin, 467 Mass. at 520. We review a decision to
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revoke probation for an abuse of discretion. See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the judge properly focused on the reliability of the
in-court identification when deciding what weight it was due.
Contrary to the probationer's argument, the judge did not rely
solely on the hearsay evidence concerning McCarthy's reported
statements; Rivera testified to numerous direct observations she
made at the time of the offense that supported a determination,
by a preponderance of the evidence, that the probationer had
participated in the distribution of cocaine, a controlled
substance.
In conjunction with the other evidence introduced, Rivera's
in-court identification of the probationer provided sufficient,
substantially reliable evidence for the judge to conclude, by a
preponderance of the evidence, that the probationer "more likely
than not violated the conditions of his probation." See
Commonwealth. v. Kelsey, 464 Mass. 315, 324 (2013).
3. Conclusion. The order finding the probationer in
violation of his probation and revoking his probation is
affirmed.
So ordered.