Commonwealth v. Henderson

Brown, J.

(dissenting). The defendant maintains on appeal that his probation revocation was not supported by reliable hearsay. I agree, and I therefore dissent. It is well established that when hearsay evidence is found reliable, it may be offered as evidence in a probation revocation proceeding. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990). The evidence must “bear[] substantial indicia of reliability and [be] substantially trustworthy.” Ibid. See Commonwealth v. Negron, 441 Mass. 685, 691 (2004).

In my view, it was error for the judge to rely solely on the police report and the victim’s affidavit to revoke the defendant’s probation. “Unsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation.” Commonwealth v. Durling, supra. At the hearing, the judge had only the testimony of the probation officer, the victim’s affidavit, the police report, and a notarized letter from the victim requesting that the defendant’s probation not be revoked. The judge found the defendant in violation of his probation, based on the police report and the victim’s affidavit. Both of those exhibits lacked sufficient and carefully tailored details to warrant a finding of assault and battery by means of a dangerous weapon, a shod foot. The only causal connection that the defendant used his foot was the victim’s unsubstantiated assertion that she received stitches to her foot. Throughout the proceeding, the Commonwealth never connects or mentions the defendant’s foot being used as a dangerous weapon. Compare Commonwealth v. Nunez, 446 Mass. 54, 59 (2006).

Additionally, all parties concede that the victim’s affidavit, standing alone, is vague and thus unreliable. Compare Commonwealth v. Patton, 458 Mass. 119, 134 (2010). Even coupled with the police report, as the judge did here, the evidence is still insufficient. In Commonwealth v. King, 71 Mass. App. Ct. 737, 741 (2008), we reversed a probation revocation as the evidence presented was “[a] narrative [police] report merely relating] *681what the alleged victim told the officers.” See Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, 906 (2003) (reversal of probation revocation where evidence was merely officer’s repetition of complainant’s account and his personal observation of damage to vehicle). See also Commonwealth v. Emmanuel E., 52 Mass. App. Ct. 451, 454 (2001).

Here, the police report only includes one sentence regarding Officer Williams’s personal observation of the victim’s bruises, the victim being transported to the hospital and being advised of her G. L. c. 209A rights, and the defendant’s absence from the scene. The three additional statements merely recounted the victim’s version of the incident. In sum, the police report in and of itself is insufficient.

Furthermore, the police report and the victim’s affidavit do not align. Without the victim’s appearance at the hearing, it is impossible to understand the sequence of events. Even if the judge had relied on the probation officer’s testimony — the uncorroborated hearsay evidence — his testimony would not have provided any competent additional insight. See Commonwealth v. Podoprigora, 48 Mass. App. Ct. 136, 139 (1999). It is not enough to conclude that because there is some indication that a criminal act occurred, a probationer has violated probation. The crime charged must be reflected in the evidence relied upon. In this case, the judge’s factual findings do not provide a sufficient basis for revoking the defendant’s probation, see Commonwealth v. Casanova, 65 Mass. App. Ct. 750, 756 (2006), and I would reverse the order revoking probation.