Commonwealth v. Ogarro

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18-P-719 Appeals Court
COMMONWEALTH vs. KERRY OGARRO.
No. 18-P-719.
Middlesex. May 1, 2019. - July 24, 2019.
Present: Sullivan, Massing, & Lemire, JJ.
Due Process of Law, Probation revocation. Practice, Criminal,
Revocation of probation, Presumptions and burden of proof,
Findings by judge, Hearsay. Evidence, Hearsay. Defense of
Property.
Indictments found and returned in the Superior Court
Department on January 28, 2010.
A proceeding for revocation of probation was heard by
Laurence D. Pierce, J.
Max Bauer for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Commonwealth.
MASSING, J. A Superior Court judge found that the
defendant, Kerry Ogarro, violated the terms of his probation by
committing a new crime, assaulting a family or household member.
The defendant claimed that his actions were in defense of
property -- the victim had stolen his cell phone, and he was
2
just trying to get it back -- and that the statements attributed
to the victim by the testifying police officer were unreliable
hearsay. While we agree with the defendant that the judge was
required to find by a preponderance of the evidence that the
Commonwealth had disproved defense of property in order to find
that the defendant had committed the alleged crime, we disagree
that such a finding must be explicit. Concluding that the
evidence amply disproved the defense of property claim, that the
judge implicitly rejected the defense, and that the judge did
not abuse his discretion by accepting the victim's out-of-court
statements, we affirm.
Background. In December 2011, after a jury trial in the
Superior Court, the defendant was convicted of assault and
battery by means of a dangerous weapon (a knife), for which he
received a State prison sentence of from five to seven years,
and assault and battery, for which he received a consecutive
three-year term of probation. A panel of this court affirmed
the convictions in an unpublished memorandum and order issued
pursuant to our rule 1:28. See Commonwealth v. Ogarro, 83 Mass.
App. Ct. 1113 (2013). The defendant was subsequently found in
violation of probation,1 and the judge imposed a two and one-half
1 The defendant violated an order that he have no contact
with the victim, a condition of probation that was imposed at
sentencing and made effective immediately, notwithstanding his
incarceration.
3
year house of correction sentence on the assault and battery
conviction, one year to be served and the balance suspended
until December 2024. The defendant appealed from the extension
of probation, which a second panel of this court affirmed. See
Commonwealth v. Ogarro, 85 Mass. App. Ct. 1110 (2014).
The defendant began serving the probationary portion of his
second sentence on or about May 3, 2017. The first condition of
his probation was to "obey all local, state, and federal laws
and all court orders." On August 1, 2017, a notice of violation
issued alleging that he had violated that condition based on new
criminal charges of assault on a family or household member and
disorderly conduct. The final probation violation hearing was
held over the course of two days in January 2018. Lynn Police
Officer Craig Fountain was the principal witness.
Fountain testified that he and his partner, in response to
a radio call, drove their marked cruiser to the area of Union
and Silsbee Streets in downtown Lynn in the early afternoon of
July 29, 2017. Several people on the street "frantically" waved
them down and directed them toward a location on Broad Street,
where they found the defendant on top of a screaming woman,
straddling her and holding her wrists to the ground. The
officers instructed him to get away from the woman, and he
obeyed.
4
The woman, upset and crying, told the officers that she and
the defendant had met at a bus stop so the defendant could
"return some of her stuff to her." When she told the defendant
"that she did not want to be in a relationship [with] him no
more," he "became enraged and assaulted her several times." She
tried to run away, but the defendant caught her, threw her to
the ground, and got on top of her. Fountain observed scrapes on
the woman's knees, and she "complained of knee pain." She told
the officers that she and the defendant had been dating for
three months. The defendant told the officers that the woman
had stolen his cell phone.
Defense counsel argued that the judge should discredit the
statements attributed to the victim as unreliable hearsay, and
that the defendant used reasonable force in defense of property:
he was holding the woman down "in the process of trying to
retrieve his phone." Accordingly, he argued, the Commonwealth
had the burden not only to prove that the defendant committed an
assault, but "also to prove that he didn't act with reasonable
force to retain his property." The prosecutor argued that the
defendant's single self-serving statement that the victim took
his cell phone was not sufficient to raise the issue of defense
of property, but even if it were, his use of force was not
reasonable: "the defendant, or a reasonable person in the
defendant's shoes, did not need to run down this individual,
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grab her, throw her down forcefully and hold her down" to get
his cell phone back.
The judge found, "based on trustworthy and reliable
evidence," that the Commonwealth had shown by a preponderance of
the evidence that the defendant assaulted the victim.2 The judge
found that the victim, who had been dating the defendant, "no
longer wanted to be in a relationship with the defendant, [and]
that the defendant became enraged, that she fled down Silsbee
Street to Broad Street, that the defendant caught her at that
location, [and] threw her to the ground." The judge found
Fountain's personal observations to be corroborative of the
victim's hearsay statements, "demonstrat[ing] trustworthiness,
reliability." Finding that the defendant had violated the terms
of probation, the judge imposed the remaining eighteen months of
the suspended sentence.
Discussion. 1. Asserting defense of property in probation
violation proceedings. The defendant asserts that because he
raised defense of property as justification for his assault of
the victim, the Commonwealth had the burden to disprove the
defense. He further claims that the judge was obligated to
2 The notice of probation violation alleged that the
defendant had committed the crime of "Aslt on Family/Household
Member." The relevant statute, G. L. c. 265, § 13M, provides
punishment for "[w]hoever commits an assault or assault and
battery on a family or household member" (emphasis added).
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address the defense of property claim explicitly in his
findings. We agree that when a defendant adequately raises a
claim of defense of property in the context of probation
violation proceedings, due process requires that the
Commonwealth disprove the defense by a preponderance of the
evidence. Due process does not require explicit findings,
however, where the judge's findings and the record are
sufficient to show that the violation decision rests on
permissible grounds.
"A probation violation proceeding is not the equivalent of
a criminal trial, and thus a probationer is not accorded 'the
full panoply of constitutional protections applicable at a
criminal trial.'" Commonwealth v. Hartfield, 474 Mass. 474, 479
(2016), quoting Commonwealth v. Durling, 407 Mass. 108, 112
(1990). Because the revocation of probation results in a
deprivation of liberty, the due process clause requires that the
Commonwealth provide probationers with certain procedural
protections, including the right to be heard, the right to
present a defense, and the right to a written statement by the
judge setting forth the reasons for revoking probation and the
evidence relied upon. See Hartfield, supra; Commonwealth v.
Kelsey, 464 Mass. 315, 319-322 (2013); Durling, supra at 112-
113. The "central concern in determining the scope of a
probationer's due process rights" is the probationer's and the
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Commonwealth's shared interest "in a 'reliable, accurate
evaluation of whether the probationer indeed violated the
conditions of his probation.'" Kelsey, supra at 321, quoting
Durling, supra at 116. "[T]he requirements of the due process
clause have, at their base, the goal of providing an accurate
determination whether revocation is proper." Durling, supra.
"Due process entitles a probationer 'to an opportunity to
show not only that he did not violate the conditions [of
probation], but also that there was a justifiable excuse for any
violation or that revocation is not the appropriate
disposition.'" Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 18
(2014), quoting Black v. Romano, 471 U.S. 606, 612 (1985). The
basic due process principles applicable in probation violation
proceedings dictate that a probationer has the right to assert
self-defense or defense of property, where relevant, as
justification for an alleged probation violation. See Thompson
v. Riveland, 109 Wis. 2d 580, 586 (1982) ("A claim of self-
defense is available to all persons in society whether on
probation or not"). A claim of self-defense or defense of
property is a claim that the probationer's conduct was, in fact,
lawful. See Commonwealth v. Williams, 481 Mass. 799, 805
(2019), quoting Commonwealth v. Rodriguez, 370 Mass. 684, 688
(1976) ("we have long recognized that self-defense negates the
element of 'unlawfulness'"). See also Williams, supra at 806
8
(in context of G. L. c. 278A motion for postconviction forensic
testing, assertion of self-defense is claim of "factual
innocence").3
The concept of defense of property "relates to the right to
use limited force to defend personal property from theft."
Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248 n.2 (1999).
A person "may defend or regain his momentarily interrupted
possession by the use of reasonable force, short of wounding or
the employment of a dangerous weapon." Commonwealth v. Donahue,
148 Mass. 529, 531 (1889). If the victim had just stolen the
defendant's cell phone, and he used reasonable force to get it
back, he would not have been guilty of a crime and would not
have violated the terms of his probation.
In a criminal case, where the defendant raises a colorable
claim of self-defense or defense of property, the Commonwealth
must prove beyond a reasonable doubt that the defendant did not
legitimately act in self-defense or in defense of property. See
Rodriguez, 370 Mass. at 688; Haddock, 46 Mass. App. Ct. at 248
3 We limit our discussion to self-defense and defense of
property, which "provide[] a justification, so that action which
society otherwise seeks to prevent becomes permissible under the
circumstances." People v. Allegri, 109 Ill. 2d 309, 315 (1985).
Our reasoning does not extend, for example, to a defense based
on the absence of criminal responsibility, which "does not turn
unacceptable behavior into permissible conduct, but only excuses
the individual from criminal punishment for having violated a
penal statute." Id. at 315.
 9
("Where there is credible evidence to raise these defenses, the
burden is on the Commonwealth to prove beyond a reasonable doubt
that the defendant acted with force that was excessive in kind
or degree"). But in probation violation proceedings, "[t]he
finding of a violation is not by a jury but by a judge, and is
based only on a preponderance of the evidence, not proof beyond
a reasonable doubt." Commonwealth v. Wilcox, 446 Mass. 61, 65
(2006). See Commonwealth v. Holmgren, 421 Mass. 224, 226
(1995). Accordingly, when a colorable claim of self-defense or
defense of property is raised to contest an alleged probation
violation, the Commonwealth need only show by a preponderance of
the evidence that the probationer did not legitimately exercise
the defense. The burden of proof properly rests with the
Commonwealth, as a finding that the defendant violated probation
may result in a deprivation of liberty. See State v. Sligh, 115
Conn. App. 197, 203-204 (2009) (although not conclusively
resolving issue, suggesting that burden of proof should not be
on probationer).
Moreover, the allocation of the burden of proof to the
Commonwealth, rather than the defendant, will affect the
probation violation determination "only in a narrow class of
cases where the evidence is in equipoise," Medina v. California,
505 U.S. 437, 449 (1992), that is, where the evidence of self-
defense or defense of property is equally as strong as the
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evidence that the probationer did not properly avail himself of
the defense. See Commonwealth v. Chatman, 466 Mass. 327, 336
n.7 (2013) (discussing significance of allocating burden of
proof by a preponderance of evidence). In this narrow class of
cases, we err on the side of liberty.
2. Explicit finding unnecessary. "Due process requires a
judge to 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'" (emphasis omitted). Commonwealth v.
Bain, 93 Mass. App. Ct. 724, 726 (2018), quoting Black v.
Romano, 471 U.S. at 613-614. This aspect of due process,
however, "is not an inflexible or invariably mandatory
requirement." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 593
(2000).4 The judge's statement is sufficient if it provides the
probationer with the reasons for the decision, adequate for the
probationer to obtain a meaningful review. See Bain, supra at
726-727; Morse, supra at 592-594.
4 For example, "a judge satisfies this due process
requirement where the findings are made orally on the record and
the probationer obtains a transcript of the findings,"
Hartfield, 474 Mass. at 484 n.8, as was the case here. See Fay
v. Commonwealth, 379 Mass. 498, 504-505 (1980).
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The judge's statement of reasons here was consistent with
the flexible requirements of due process applicable in probation
violation proceedings. The judge specifically credited the
victim's statements that the defendant became enraged because
she wanted to break up with him, chased her down, and threw her
to the ground. The victim's version was corroborated by the
officer's eyewitness testimony that the defendant was straddling
the victim and holding her down while she was screaming, and
that the victim's knees were scraped. Just before the judge
announced his findings, the parties presented argument on the
defense of property claim, which the defendant spun entirely
from a single hearsay statement he made to the officer. "[T]his
was a simple, straightforward case, and the entirety of the
short transcript (aside from [the defendant's single self-
serving hearsay statement]) is th[e] inculpatory evidence."
Morse, 50 Mass. App. Ct. at 593. Although the judge did not
explicitly mention the defendant's defense of property claim,
his findings make it clear that he found no justification for
the defendant's action. See Commonwealth v. Nunez, 446 Mass.
54, 59 (2006) ("Although the judge did not explicitly state that
he found the hearsay reliable, that conclusion is implicit in
the fact that he made findings based on the hearsay evidence").
The defense of property claim was reed thin, and the evidence
amply negated it.
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3. Reliance on hearsay. The judge did not abuse his
discretion in relying on the out-of-court statements that the
victim made to the testifying police officer. A judge may rely
on hearsay evidence at a probation violation hearing where the
evidence has substantial indicia of reliability. See, e.g.,
Hartfield, 474 Mass. at 482; Commonwealth v. Patton, 458 Mass.
119, 132 (2010); Durling, 407 Mass. at 118; Commonwealth v.
Henderson, 82 Mass. App. Ct. 674, 676 (2012). "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." Hartfield, supra at 484.
"[W]here a judge relies on hearsay evidence in finding a
violation of probation, the judge should set forth in writing or
on the record why the judge found the hearsay evidence to be
reliable." Id. at 485. We review the judge's assessment of the
reliability of evidence for abuse of discretion. See
Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).
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Here the judge properly set forth his conclusion that the
statements attributed to the victim were corroborated by the
responding officer's personal observations, "demonstrat[ing]
trustworthiness, reliability." Although the victim was an
interested party, all of the other factors demonstrating
reliability were present. Her statements were based on her
personal participation in the incident and made to the officer
immediately thereafter. She gave a detailed, internally
consistent account of the events, without time for reflection or
fabrication. Indeed, the judge might have accepted the victim's
statements on the alternate ground that they qualified as
excited utterances, an exception to the rule against hearsay.
See Commonwealth v. Santiago, 437 Mass. 620, 624-626 (2002);
Mass. G. Evid. § 803 (2) (2019). "Evidence which would be
admissible under standard evidentiary rules is presumptively
reliable." Durling, 407 Mass. at 118. See § 6(B) of the
Guidelines for Probation Violation Proceedings in the Superior
Court, Mass. Rules of Court, at 1049 (Thomson Reuters 2019)
("Hearsay evidence shall be admissible at a Violation Hearing as
permitted under Sections 802 through 804 of the Massachusetts
Guide to Evidence, or when determined by the judge to be
substantially reliable"). The judge did not abuse his
discretion in relying on the officer's account of the victim's
statements.
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Conclusion. The order entered on January 26, 2018,
revoking probation and imposing sentence, is affirmed.
So ordered.