By the Court (Agnes, Sullivan & Blake, JJ.), Clerk
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Drew Nicholas appeals from an order of a judge of the District Court revoking his probation. He contends that the judge's decision was based on unreliable hearsay. We affirm.
In the underlying case, Nicholas pleaded to sufficient facts on charges of breaking and entering and larceny, and the case was continued without a finding for a period of one year. He was arrested approximately six months after the plea on a charge of armed robbery, and a notice of probation violation issued.
"A determination whether a violation of probation has occurred lies within the discretion of the hearing judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014). It is well established that "[a]lthough a probationer is entitled to the due process rights established in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), he need not receive the 'full panoply of constitutional protections applicable at a criminal trial.' Commonwealth v. Durling, 407 Mass. 108, 112-113 (1990)." Id. at 520. "Accordingly, 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.' [Commonwealth v. Durling, supra] at 118." Ibid. See Commonwealth v. Patton, 458 Mass. 119, 132-133 (2010).
At the probation violation hearing two police officers testified that one of the men who participated in the robbery identified Nicholas by name as a coparticipant who posed as the seller in a drug transaction. This man also identified a Registry of Motor Vehicles photograph of Nicholas, stating that he was one of the three men who had robbed the victim. The victim testified and described the robbery in detail. His account of the robbery corroborated the statements made to the police. The victim told the police that he thought it was odd that the seller walked away casually after the two masked men committed the robbery. Although the victim was unable to identify the defendant, the victim described the seller as five feet, seven inches tall and "skinny" or "thin." Nicholas's Board of Probation record listed him as five feet, six inches, and the judge assessed his weight thus: "[h]e's lucky if he's 175." The defendant's girl friend testified that the defendant had been heavier prior to the hearing, but (notably) also testified that all three participants knew one another.
The robbery occurred at night. The robbers wore bandanas and hoodies, and the area was poorly lit.
The coparticipant's hearsay identification bore sufficient indicia of reliability and was substantially trustworthy. As the judge found, the identification was part and parcel of a confession. The confession was based on personal knowledge and first-hand observation, and was detailed. See Commonwealth v. Patton, supra at 132-134 (indicia of trustworthiness and reliability include, among others, factual detail, personal knowledge, and that statement was made in circumstances that supported declarant's credibility). The other essential details of the robbery were corroborated by the victim, thus lending further weight to the reliability of the coparticipant's testimony. See Commonwealth v. Durling, supra at 121 (corroboration constitutes indicia of trustworthiness and reliability); Commonwealth v. Patton, supra at 134 (same).
Order revoking probation affirmed.
By the Court (Agnes, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 5, 2016.