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18-P-459 Appeals Court
COMMONWEALTH vs. GRANT G., a juvenile. 1
No. 18-P-459.
Suffolk. March 27, 2019. - December 17, 2019.
Present: Rubin, Milkey, & McDonough, JJ.
Practice, Criminal, Juvenile delinquency proceeding, Revocation
of probation, Hearsay. Due Process of Law, Probation
revocation. Evidence, Juvenile delinquency,
Hearsay. Department of Children & Families. Department of
Youth Services. Juvenile Court, Delinquent child.
Complaints received and sworn to in the Suffolk County
Division of the Juvenile Court Department on October 6 and 14,
2014.
A proceeding for revocation of probation was heard by Peter
M. Coyne, J.
Benjamin L. Falkner for the juvenile.
Houston Armstrong, Assistant District Attorney, for the
Commonwealth.
1 A pseudonym.
2
MCDONOUGH, J. The juvenile appeals from a judge's order
revoking his probation, arguing that the judge erroneously based
his decision exclusively on unreliable hearsay testimony from a
Department of Children and Families (DCF) case worker. We agree
and reverse.
Background. We recite the facts based on the testimony and
documentary evidence from the probation violation hearing. On
August 17, 2016, the juvenile pleaded delinquent to kidnapping
and armed robbery in the Juvenile Court. On the same day, in a
separate case, the juvenile also pleaded delinquent to larceny
of a credit card and credit card fraud over $250. On all four
charges, the judge sentenced the juvenile to remain in the
custody of the Department of Youth Services (DYS) until his
eighteenth birthday, but suspended the sentence and placed the
juvenile on probation until his eighteenth birthday. The
conditions of the probation included, among other things,
obeying a curfew as set by "DCF placement" and "comply[ing] with
all DCF services and all placements."
On June 19, 2017, a probation violation notice (violation
notice) issued alleging that the juvenile violated his probation
by committing a new criminal offense, receiving a stolen motor
vehicle. 2 The probation department thereafter amended the
2 At the juvenile's probation revocation hearing, the judge
explicitly stated that he was "not considering the allegation
3
violation notice, alleging that the juvenile violated two
additional probation conditions: complying with and
successfully completing his residential placement program at
Journey Home (program). Specifically, the violation notice
alleged that the juvenile was "AWOL" from the program on various
specified dates. 3
At the October 2, 2017, probation revocation hearing, the
Commonwealth presented the testimony of one witness, the
juvenile's DCF case worker. 4 The case worker testified that he
met with the program director, who told him that the juvenile
"ha[d] broken all the rules and . . . wasn't cooperating with
DCF and . . . ha[d] been AWOL from the program several times."
The case worker testified that he understood "AWOL" to mean "the
child is not at the program and his whereabouts are. . . .
unknown or he. . . . hasn't called the program to report where
he is." Specifically, the case worker testified that the
program director told him that the juvenile was given a "day
based upon a new arrest" in determining whether the juvenile
violated his probation.
3 The violation notice stated that the juvenile "failed to
attend or successfully complete" the program because he was
"AWOL from [the program] 8/2/17-8/4/17, 7/25/17-7/30/17," and
"[f]ailed to comply with [the program on] various dates from
4/15/17-8/9/17."
4 Although the revocation hearing occurred on October 2,
2017, the judge continued the disposition of the case until
October 23, 2017, at the probation officer's request.
4
pass" that permitted the juvenile to visit his uncle "just for a
day and . . . return to the program the same day," but the
juvenile "didn't return to . . . the program . . . for several
days." The case worker further testified that the juvenile was
not attending school consistently, had "unauthorized contact
with his mother," and "had a substance abuse issue at the
program." Based on those purported violations of the program
rules, the case worker testified that it was decided to remove
the juvenile from the program and to "close out [his] bed."
Nevertheless, on cross-examination, the case worker
conceded that he never read the program rules or regulations and
did not know how the program defined "AWOL." He also conceded
that he did not know the dates that the juvenile was "AWOL," or
that on certain occasions program staff had apparently allowed
the juvenile to stay with his uncle overnight after speaking
with the juvenile and determining, with DCF's consent, that the
juvenile was safe and would return the following day. 5 The case
5 On cross-examination, the case worker testified as
follows:
Q.: "[A]re you aware of any instances where [the juvenile]
was allowed to go home on the day pass and at that moment,
a decision was made to allow him to stay overnight on the
day pass? Are you aware of incidents like that?"
A.: "Ah, I -- I don’t think that ever happened."
Q.: "You don’t think that ever happened?"
5
worker also admitted that he was not assigned to the juvenile's
case when the alleged violations occurred, and that his
testimony was based exclusively on his conversations with the
program director and notes in the juvenile's DCF case file.
A.: "No."
. . . .
Q.: "So your testimony, sir, today is that you don’t think
that there were any incidents in which [the juvenile] was
allowed by -- a decision was made that allowed [the
juvenile] to stay overnight. That was your testimony, -- "
A.: "Yes."
Q.: " -- is that correct?"
A.: "Yes."
Q.: "Yes. So, in fact, on May 27 according to the Journey
Home by their written record, the Journey Home received a
call from a -- the supervisor contacted DCF; DCF stated
that since [the juvenile] usually does this every Saturday,
that it made no sense to contact the police and file a
missing person if the staff was able to talk to [the
juvenile] and know that [he] was safe and will be picked up
on Sunday night at 10:00 p.m., isn’t that correct?"
A.: "Is that the only incident?"
Q.: "Sir, the question is, 'Are you now aware of incidents
in which [the juvenile] was allowed to stay overnight by
both DCF -- '"
A.: "Well, I just learn[ed] it now."
Q.: " -- and Journey Home staff?”
A.: "I just learn it now."
6
The judge ultimately found that the juvenile violated the
conditions of his probation by "fail[ing] to comply with . . .
and . . . being AWOL from the program," and revoked his
probation, committing him DYS custody until his eighteenth
birthday. The judge stated that "[p]robation ha[d] met its
burden" based on "the witness [being] credible in his testimony
about the [juvenile's] compliance with the [program] . . . and
base[d] further upon [the witness's] statements of . . . what he
was informed by the program director that the [juvenile] had
been AWOL from the program and non-compliant in the program."
According to the probation violation finding and disposition
form, the judge found that the case worker's hearsay testimony
was substantially reliable because it was "provided by a
disinterested witness," "provided under circumstances that
support the veracity of the source," "factually detailed," and
"internally consistent." 6
Discussion. The Commonwealth must prove any "violation of
probation by a preponderance of the evidence." Commonwealth
v. Bukin, 467 Mass. 516, 520 (2014). The determination that a
probation violation occurred "lies within the discretion of the
hearing judge," id., who must assess the weight of the evidence
against the probationer. Id. at 521. Accordingly, we review an
6 The judge did not explain his reasoning for these
findings.
7
order revoking probation for an abuse of discretion. Id. at
519-520. We determine "whether the record discloses sufficient
reliable evidence to warrant the findings by the judge that [the
probationer] had violated the specified conditions of his
probation." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594
(2000).
A probation revocation hearing does not involve the "the
full panoply of constitutional protections applicable at a
criminal trial" (quotation omitted). Bukin, 467 Mass. at 520.
Consequently, "while [u]nsubstantiated and unreliable hearsay
cannot, consistent with due process, be the entire basis of a
probation revocation, [w]hen hearsay evidence is reliable
. . . , then it can be the basis of a revocation" (quotation
omitted). Id. A judge may rely on hearsay evidence "in a
probation violation hearing where it has substantial indicia of
reliability." Commonwealth v. Hartfield, 474 Mass. 474, 484
(2016). When evaluating the reliability of hearsay evidence, 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."
8
Id. A hearsay statement does not need to "satisfy all [of
those] criteria to be trustworthy and reliable." Commonwealth
v. Patton, 458 Mass. 119, 132-133 (2010). Nevertheless, a judge
who "relies on hearsay evidence in finding a violation of
probation . . . should set forth in writing or on the record why
[the judge] found the hearsay evidence to be
reliable." 7 Hartfield, supra at 485. "[W]hen hearsay is offered
as the only evidence of the alleged violation, the indicia of
reliability must be substantial" (citation
omitted). Commonwealth v. Foster, 77 Mass. App. Ct. 444, 449-
450 (2010).
Here, the juvenile contends that the judge improperly
considered unreliable hearsay testimony from the case worker in
finding that he violated his probation conditions, specifically
in regards to the allegation that he was "AWOL" from the
7Per Standing Order 1-17 (VII) (b) of the Juvenile Court
Standing Orders (effective September 25, 2017), addressing
violation of probation proceedings, hearsay evidence may be
legally sufficient to establish a violation of probation only if
the hearsay is found to be "substantially reliable." "Where
hearsay evidence has substantial indicia of reliability, there
is good cause to rely upon it as evidence at a probation
violation hearing even though, as is generally true of hearsay,
the declarant will not be on the witness stand and subject to
cross-examination regarding the hearsay statements." Hartfield,
474 Mass. at 482. Here, as we explain infra, the hearsay
evidence presented lacks the requisite "substantial indicia of
reliability." Id.
9
program. 8 The juvenile asserts that those hearsay statements
were unreliable because they were too generalized, not based on
the case worker's personal knowledge, and not corroborated by
other evidence.
We agree, and conclude that the testimony from the case
worker lacked the "indicia of reliability" required to support
finding that the juvenile violated his probation. Hartfield,
474 Mass. at 484. See Bukin, 467 Mass. at 521-522.
Significantly, the case worker's testimony lacked the requisite
factual detail. Although the case worker testified that the
juvenile "ha[d] been AWOL from the program several times," he
did not know any of the dates the juvenile was absent from the
program without permission. See Commonwealth v. Ivers, 56 Mass.
App. Ct. 444, 448 (2002) (hearsay not factually detailed where
probation officer's testimony "speaks to no detail as to terms
of probation, dates, and events that describe a failure . . . to
report as required"). On cross-examination, the case worker
conceded that he had not read the program regulations and did
not know how those regulations defined "AWOL." The case worker
also admitted that he was not aware whether the juvenile had
been allowed to stay overnight on a day pass, including during
8 The juvenile also made this argument as to the testimony
alleging that he was not consistently attending school and had a
substance abuse issue while at the program.
10
the dates listed on the violation notice. The case worker
further conceded that in the past, program staff, in
consultation with DCF, had apparently allowed the juvenile to
stay with his uncle overnight; a circumstance which, if true on
the dates in question, could undercut the allegation that the
juvenile was absent without permission from the program. The
hearsay and general nature of the "AWOL" testimony deprived the
defendant of the opportunity to explore this key issue on cross-
examination.
Moreover, the case worker had no direct or indirect
knowledge of any of the details or circumstances of the
juvenile's absence from the program. As the case worker was not
assigned to the juvenile's case until six weeks before the
probation revocation hearing, he was not working with the
juvenile when the alleged violations occurred. The case worker
also did not read the program reports related to the alleged
"AWOL" violation. 9 Instead, the case worker admitted that he
9 The judge did not allow in evidence the program incident
reports, covering seventeen separate dates, that were submitted
by the probation officer. After reviewing the incident reports,
the judge acknowledged that some of the reports were unsigned
and some were signed by different people, but that no one from
the program would be testifying. The judge, explicitly
acknowledging the lack of reliability of the incident reports,
stated, "I'd be reluctant to give [the incident reports] the
same level or credibility as . . . a police report because they
don't identify who is necessarily writing them, . . . and, based
on that, . . . I'd be unwilling to admit them without somebody
from the program coming."
11
based his testimony exclusively on information he learned
through his "few conversations" with the program director. The
case worker failed to testify, however, that the information
imparted to him from the program director was based on the
latter's personal knowledge. Thus, there was a risk that the
nontestifying program director was the recipient of reports from
other nontestifying program staff concerning the details of the
juvenile's alleged noncompliance with the program rules. Where
neither the program director's reported statements nor the case
worker's testimony fell into a hearsay exception, the case
worker's testimony constituted inadmissible hearsay within
hearsay. See Commonwealth v. DePina, 476 Mass. 614, 623 (2017)
("Totem pole hearsay is admissible only if each of the multiple
hearsay statements falls within an exception to the hearsay
rule"); Mass. G. Evid. § 805 (2019) ("Hearsay within hearsay is
not excluded by the rule against hearsay if each part of the
combined statements conforms with an exception to the rule in
accordance with the common law, a statute, or a rule of court").
See also Brantley v. Hampden Div. of the Probate & Family Court
Dep't, 457 Mass. 172, 185-186 (2010) (documents "comprised of
abbreviated oral summaries of voluminous records made by persons
who may have no firsthand experience with the case" were
unreliable and judges' consideration of such documents violates
litigants' due process rights).
12
Additionally, because the Commonwealth elected not to
subpoena the program director, or any other knowledgeable
program staff, there was no "information from other sources"
corroborating the case worker's hearsay testimony. 10 Hartfield,
474 Mass. at 484.
Conclusion. Because the DCF case worker's hearsay
testimony -- the only evidence of the alleged probation
violations -- lacked the requisite substantial indicia of
reliability, the judge abused his discretion in finding that the
juvenile violated the conditions of his probation. Accordingly,
the order revoking probation and imposing sentence is reversed.
So ordered.
10At the October 2 hearing, the judge offered to subpoena
the program director. The probation officer, however,
represented that the program director "had been available the
last several court dates," and that she had informed the
juvenile's attorney that the program director "would not being
coming to court" "because [the juvenile] was no longer at the
. . . program." It is noteworthy that both the juvenile's
attorney and the probation officer were aware that the program
director would not attend the October 2 hearing. Also, the
probation officer did not respond to the judge's offer to issue
a summons to secure the program director's attendance, despite
the judge warning the probation officer, "Probation is the
moving party. If you want [the program director] here . . .
I'll order a summons for him." Nevertheless, the probation
officer asserted that the juvenile's attorney wanted to move
forward with the proceeding that day and that the DCF case
worker would be called to testify that the juvenile was "in
violation of cooperating with DCF and cooperating with his DCF
placement."