Commonwealth v. Williams

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21-P-844 Appeals Court
COMMONWEALTH vs. KYRONNE D. WILLIAMS.
No. 21-P-844.
Bristol. January 5, 2023. - May 23, 2023.
Present: Meade, Rubin, & Blake, JJ.
Practice, Criminal, Revocation of probation, Nolle prosequi,
Assistance of counsel. Motor Vehicle, License to operate.
Registrar of Motor Vehicles, Revocation of license to
operate. License. Forgery.
Complaint received and sworn to in the Taunton Division of
the District Court Department on August 21, 2020.
A proceeding for revocation of probation was heard by
Maureen H. McManus, J.
Jenny L. Margeson for the defendant.
Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. The defendant appeals from an order of a judge
of the District Court (1) finding that he violated his probation
by committing new offenses and (2) revoking his probation. The
defendant argues primarily that this was improper because
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criminal complaints charging him with these new offenses were
disposed of by nolle prosequi prior to his final probation
violation hearing. We disagree, and affirm.
Background. On October 14, 2020, the defendant pleaded
guilty to larceny over $1,200. See G. L. c. 266, § 30 (1). The
defendant was sentenced to one year in the house of correction
with fifty-six days to be served and the balance suspended for
one year, until October 13, 2021. As a general condition of his
probation, the defendant was required to obey all local, State,
and Federal laws.
On December 3, 2020, the defendant was driving a rental car
on Route 91 south when he was stopped by Trooper Robert Bardier.
The trooper had noticed that one of the defendant's front
headlights was out. The trooper approached and asked for the
defendant's identification. The defendant provided the trooper
with a North Carolina driver's license.
The trooper entered the information from the license into
the Criminal Justice Information Services (CJIS) database, which
showed that the license was suspended. After further
investigation, the trooper discovered that the defendant "had
active warrants out of Rhode Island, . . . as well as a[n]
active warrant out of New Bedford court."
The trooper arrested the defendant. He arranged for the
vehicle to be towed, and conducted a motor vehicle inventory
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search in anticipation of its towing. During this search, the
trooper found a New Jersey driver's license that, he testified,
had what he believed to be the defendant's picture on it, but
with a different name.
The trooper entered the information from the New Jersey
driver's license into the CJIS database, and the query returned
no results. The trooper asked the defendant about the New
Jersey driver's license, and the defendant stated that he did
not know whose picture was on the license but that he would
never provide a "fake ID" to an officer.
The following day, a criminal complaint issued from the
District Court, charging the defendant with unlicensed operation
of a motor vehicle, see G. L. c. 90, § 10, and "falsely
mak[ing], steal[ing], alter[ing], forg[ing], or
counterfeit[ing], or procur[ing] or assist[ing] another to
falsely make, steal, alter, forge or counterfeit . . . a license
to operate motor vehicles," see G. L. c. 90, § 24B.1
The probation department subsequently issued a notice of
violation.2 On December 21, 2020, a judge found, after a
1 The latter charge was based on his possession of the New
Jersey driver's license. Neither party suggests that the
statute does not reach licenses to operate motor vehicles issued
by other States.
2 Although the notice of violation was not included in the
record appendix, the probation violation finding and disposition
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nonevidentiary hearing, probable cause that the defendant had
violated his probation and ordered that the defendant be held in
custody pending a final violation hearing. Three days later, on
December 24, 2020, all the charges stemming from the defendant's
traffic stop were nol prossed by the Commonwealth.
The final probation violation hearing took place a little
over a month later. The probation officer called Trooper
Bardier, who testified regarding the traffic stop. The
Commonwealth assisted the probation officer with the questioning
of the trooper. In response to a question from the Commonwealth
about whether he concluded that it was the defendant in the
photograph on the New Jersey driver's license, the trooper
testified, "I believe that it was [the defendant], yes." The
trooper was questioned about the New Jersey driver's license on
cross-examination and asked by defense counsel whether he had
found any evidence that the defendant had relied on the alias
found on the New Jersey driver's license, "Elliott Itol," in the
past. The trooper responded that he had not. After this
testimony, the probation officer rested.
The defendant called Joshua Borden, who owned the
defendant's rental car. Borden testified that he was in the
business of renting cars, and that his cars were predominantly
form indicates that the term of probation that the defendant
violated was a prohibition on "Violat[ing] CRIMINAL LAW(s)."
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rented by young Black men, of whom, we infer based on the
transcript, the defendant is one. On cross-examination, Borden
testified that the cars were regularly cleaned between renters
and that the person who had rented the car prior to the
defendant was a man named Tray Green.
Following Borden's testimony, the judge noted that the
"defendant at this point is resting with regard to the
evidence." The judge then asked to "hear from either the
Commonwealth or Probation as to what Probation believes they
have established . . . and what they believe they've proven."
The probation officer proceeded to argue his case. During
this argument, the probation officer proffered to the judge that
he had looked "up Mr. Itol in New Jersey RMV. There was only
one Elliot Itol in New Jersey." The probation officer, despite
having rested, proceeded to enter the picture he had found of
Elliot Itol into the record, arguing that "the person in that
image could not be further from what the trooper identified as
the picture in the ID that was found in [the defendant's] car,
Your Honor. The trooper identified an African-American in the
picture, so much looking like [the defendant]. As you can see,
Judge, that is not what the picture looks like." Defense
counsel did not object to the motion to enter the picture in
evidence. The picture shows a white man.
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Defense counsel made his closing argument. The judge then
concluded that "having had the opportunity to hear the testimony
of the trooper who testified in this case, as well as the
witness produced by the defendant, Mr. Borden, I credit the
testimony of the trooper. I find his testimony was convincing
and as a result I do find by a preponderance of the evidence
that [the defendant] did, in fact, violate the terms and
conditions of his probation with regard to the charges of having
committed new offenses or having been charged with new offenses
of unlicensed operation and forgery or misuse of" a license to
operate motor vehicles.
Discussion. 1. The effect of the nolle prosequi. The
defendant's first argument on appeal is that the nolle prosequi
of his underlying criminal charges should have terminated the
probation violation proceedings. Although neither the dismissal
of an underlying complaint due to a failure to prosecute, see
Commonwealth v. Mejias, 44 Mass. App. Ct. 948, 949 (1998), nor
even a defendant's acquittal prior to probation violation
proceedings, see Commonwealth v. Holmgren, 421 Mass. 224, 225
(1995), require the termination of violation proceedings, the
defendant argues that a nolle prosequi of the underlying
complaint should. We disagree.
The focus of a probation violation hearing where the
violation alleged is the commission of a new offense is the
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defendant's conduct, not a criminal complaint based on that
conduct. As the Supreme Judicial Court has reiterated,
revocation after a probation violation hearing may be based on
"[a]ny conduct by a person on probation which constitutes a
violation of any of the conditions of his probation."
Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting
Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). A
criminal charge is irrelevant to the validity of the
proceedings. Where a complaint criminally charging a defendant
for conduct that also underlies his or her notice of a probation
violation is nol prossed, the conduct remains a valid basis for
a probation violation proceeding.
The defendant relies on Commonwealth v. Miranda, 415 Mass.
1, 5 (1993), to argue that a nolle prosequi terminates probation
violation proceedings. But Miranda did not involve probation
violation proceedings. In Miranda, the Supreme Judicial Court
held that the Commonwealth could not on the day of trial
reinstate a portion of an indictment it had nol prossed three
months before. See id. at 5-6. Miranda has nothing to do with
the relationship between a nol prossed criminal complaint and an
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ongoing parallel probation violation proceeding based on the
same underlying conduct.3
2. Late introduction of evidence. The defendant's second
argument on appeal is that the probation officer's introduction
of evidence during his closing argument was error. Recognizing
that there was no objection by counsel below, he argues that it
was error that created a substantial risk of a miscarriage of
justice.
The defendant relies on several cases, including
Commonwealth v. Beaudry, to argue that "[a] prosecutor may not
use 'closing argument to argue or suggest facts not previously
introduced in evidence.'" Beaudry, 445 Mass. 577, 580 (2005),
quoting Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert.
denied, 446 U.S. 955 (1980). But Beaudry, supra, and the other
cases cited by the defendant, take place in the context of
criminal trials. Probation revocation hearings are different,
and "[d]ue process is not so rigid as to" ignore that
difference. Durling, 407 Mass. at 113, quoting Gagnon v.
Scarpelli, 411 U.S. 778, 788 (1973). "[I]nformality,
3 At oral argument, the defendant raised, for the first
time, the argument that the notice of probation violation
received by the defendant stated that the violation was based on
the defendant's charges, rather than his conduct. The notice
was not included in the record appendix. Because this argument
was not briefed, we consider it waived. See Commonwealth v.
Brillante, 399 Mass. 152, 155 n.6 (1987).
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flexibility, and economy" need not "always be sacrificed"
(citation omitted), and, indeed, the Supreme Judicial Court has
identified that the "[t]wo overriding principles" regarding
probation violation proceedings are that they "must be flexible
in nature . . . and that all reliable evidence should be
considered." Durling, supra at 113-114.
Nonetheless, a probation violation proceeding is not a
free-for-all. See Rule 6(c) of the District/Municipal Court
Rules for Probation Violation Proceedings (2015) ("After the
presentation of evidence, both parties or their counsel shall be
permitted to make a closing statement"). Even acknowledging the
flexible nature of probation violation hearings, it would at the
least have been the better practice for the Commonwealth to have
entered this evidence prior to the close of the evidentiary
portion of the hearing. We will assume without deciding that it
was error to allow it in evidence during closing argument.
Nonetheless, the defendant does not contest the reliability of
the evidence, nor does he explain how he was prejudiced by the
late timing of its introduction, arguing only that its very
consideration harmed him. On this record, therefore, even
assuming that there was an error, we see no substantial risk of
a miscarriage of justice from the timing of the late admission
of the evidence.
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Relatedly, the defendant raises a claim of ineffective
assistance of counsel. Under the well-known Saferian standard,
we ask whether there has been "serious incompetency,
inefficiency, or inattention of counsel -- behavior of counsel
falling measurably below that which might be expected from an
ordinary fallible lawyer -- and, if that is found, then,
typically, whether it has likely deprived the defendant of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). As the
Supreme Judicial Court has explained, however, where a defendant
raises an unpreserved claim of error as well as a claim that the
failure to preserve the claim amounted to ineffective assistance
of counsel, and the court finds any error did not create a
substantial risk of a miscarriage of justice, the two claims are
virtually coextensive. "[W]hen a defendant alleges that his
failure to preserve an issue for appeal stems from ineffective
assistance of counsel, as this defendant has, we do not evaluate
the ineffectiveness claim separately. If we determine that an
error has been committed, we ask whether it gives rise to a
substantial risk of a miscarriage of justice -- ineffectiveness
is presumed if the attorney's omission created a substantial
risk, and disregarded if it did not." Commonwealth v. Randolph,
438 Mass. 290, 296 (2002). Consequently, the defendant's
ineffective assistance of counsel claim founders on the same
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shoals as his unpreserved claim of error. See Commonwealth v.
Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsel's omission
does not present substantial risk of miscarriage of justice,
there is no basis for ineffective assistance of counsel claim).
3. Sufficiency of the evidence. The defendant's final
argument on appeal is that there was insufficient evidence to
find that he had committed the underlying charges. Where the
defendant raises a claim that the evidence was insufficient to
prove the defendant's violation of his probation by a
preponderance of the evidence, we examine the record to
determine whether it "discloses sufficient reliable evidence to
warrant the findings by the judge." Commonwealth v. Morse, 50
Mass. App. Ct. 582, 594 (2000).
The Commonwealth has conceded insufficiency as to
unlicensed operation, on the basis that there was insufficient
evidence to prove that the defendant had notice that his license
had been suspended. See Commonwealth v. Parenteau, 460 Mass. 1,
5 (2011) ("A charge of operation of a motor vehicle with a
suspended or revoked license requires the Commonwealth to prove,
among other things, that the defendant was notified that his
license had been suspended or revoked"). We agree, and
consequently the finding of a violation for committing the new
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offense of unlicensed operation of a motor vehicle must be
reversed.4
Turning to the forgery or misuse of the New Jersey driver's
license, see G. L. c. 90, § 24B, we conclude that, despite the
Commonwealth's unfortunate failure to introduce the New Jersey
driver's license, there was sufficient evidence to support the
judge's findings.
Trooper Bardier testified that, during his search of the
defendant's rental car, he found a New Jersey driver's license
on the passenger's seat. The trooper further testified that he
was able to get a good look at the defendant during the traffic
stop, that he believed the photograph on the New Jersey driver's
license was a photograph of the defendant, and that the New
Jersey driver's license listed a different name. The owner of
the rental car testified that he cleaned the car between
renters, and that he certainly would have cleaned the
passenger's seat on which the license was found before renting
the car to the defendant. The judge credited the trooper's
testimony, finding it "convincing." This evidence is sufficient
to support the judge's finding by a preponderance of the
4 In light of this, we need not reach the defendant's
alternative argument that the CJIS system is insufficiently
reliable, without more, to support a finding that one's license
is suspended.
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evidence that the defendant forged or misused a license to
operate motor vehicles in violation of G. L. c. 90, § 24B.
Conclusion. We affirm the finding that the defendant
forged or misused the New Jersey driver's license and reverse
the finding related to the unlicensed operation of a motor
vehicle. Because "it is not for us to speculate what action the
judge would have taken had [s]he found that the defendant
violated probation only by" forging or misusing the driver's
license rather than by committing both crimes, Commonwealth v.
King, 96 Mass. App. Ct. 703, 712 (2019), we vacate that aspect
of the order revoking probation and committing the defendant to
serve the balance of his suspended sentence and remand the case
to allow the judge to consider the appropriate disposition for
the defendant's violation.
So ordered.