Commonwealth v. Bukin

• Decision Date: 14 March 2014
• Docket Number: SJC–11306.
• Citation: 467 Mass. 516,6 N.E.3d 515
• Parties: COMMONWEALTH v. Joseph L. BUKIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 516

6 N.E.3d 515

COMMONWEALTH

v.Joseph L. BUKIN.

SJC–11306.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 7, 2013.

Decided March 14, 2014.

Recognized as Preempted

District Court Probation Violation Proceedings Rule 6(b).

Jane Larmon White, Committee for Public Counsel Services, for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

While the defendant was serving a period of probation for unrelated convictions, probable cause was found to believe that he had violated the conditions of his probation by allegedly committing new criminal offenses. At the defendant's subsequent probation revocation hearing, the sole evidence against the defendant was hearsay testimony presented by two police officers indicating that he had committed certain sex offenses against two relatives. Relying upon hearsay evidence that he determined to be substantially reliable and trustworthy, and finding that good cause thus existed for proceeding without a witness having personal knowledge of the evidence presented, a District Court judge concluded that the defendant had violated the conditions of his probation, revoked his probation, and ordered him incarcerated. The defendant appealed, arguing that the hearing did not comport with due process.

More specifically, the defendant claims, first, that the hearsay testimony on which the judge solely relied was not substantially reliable and trustworthy and, consequently, that such evidence was insufficient to permit a finding that the defendant had violated the conditions of his probation. Second, because the judge made no separate finding as to good cause for proceeding without a witness with personal knowledge of the evidence presented, as Rule 6(b) of the District Court Rules for Probation Violation Proceedings, at 94 (LexisNexis 2012–2013) (rule 6[b]), on its face requires, the defendant maintains that he was denied due process on this basis as well. Finally, he asserts that, insofar as the district attorney's office is within the executive branch of government while the probation department is within the judicial branch, an employee of the district attorney's office impermissibly interfered with the probation officer's conduct of the hearing, in violation of art. 30 of the Massachusetts Declaration of Rights. Concluding that the defendant was accorded due process and clarifying that rule 6(b) is not to be construed as requiring more than is constitutionally mandated, we affirm the order revoking the defendant's probation.

1. Background. We recite the facts as presented at the surrender hearing, reserving some facts for later discussion. Officer Jacob Poulin of the Abington police department testified that he took a report on December 5, 2011, from twenty-three year old Amir ¹ and a close friend of his family, Kimberly McDonald. McDonald told Poulin that she brought Amir, who had been diagnosed as having Asperger's syndrome, to the police station at his mother's request because she was unavailable to do so. Poulin described Amir as being “a bit reserved” but able to tell him “in full detail” about an incident involving the defendant that had occurred the previous day at Amir's father's house.²

According to Poulin, Amir recounted that on December 4, 2011, he was at his father's apartment with the defendant and Amir's then seven year old half-sister, Alana. The defendant “was making some strange sexual comments,” describing in detail a pornographic film scene, and commenting a number of times on the size of Amir's penis, which he had seen while Amir was sleeping the previous night.

Amir also described to Poulin what he called a “lap dance,” when the defendant rubbed his buttocks on Amir's knee until Amir pushed him away. Alana then went over to the defendant and mimicked the “lap dance.” The defendant told Alana, “No, no, go do that to your brother.” She responded, “No, no, I can't do that, he's my brother.” Amir told his mother about the incident later that day.

After speaking with Amir and McDonald, Poulin and Officer Susan Manning of the Abington police department met with Alana, her mother, and Amir's father. ³ Alana told Manning that while she was alone in the apartment with the defendant and her brother, the defendant began to “hump” Amir, who tried to push the defendant away. Alana told Manning that the defendant had both exposed his naked buttocks to her and had described in detail part of a pornographic film he had seen.

On December 6, 2011, a criminal complaint issued against the defendant. ⁴ On the same day, probable cause was found to believe that the defendant had violated the conditions of his probation based on the newly alleged crimes. A probation revocation hearing and a probable cause hearing on the new charges were both scheduled for January 5, 2012. When the probation matter was called, neither the civilian witnesses ⁵ nor the police officers appeared, despite having been summonsed by the probation officer. Over the defendant's objection, the judge granted the probation department's request for a continuance until January 10, 2012.

On January 12, the same judge heard testimony from the probation officer as well as from Poulin and Manning, who testified to the facts described above. After the parties rested, the judge heard closing arguments. The following day, he ruled that the defendant was in violation of the conditions of his probation by virtue of having committed an indecent assault and battery on a person over the age of fourteen.⁶ The judge found that, although all of the evidence before him was hearsay,⁷ the stories of Amir and Alana corroborated one another in three significant respects, and the hearsay thus bore sufficient indicia of reliability. The judge revoked the defendant's probation, sentencing him to two years in the house of correction, six months to be served and the balance suspended for a two-year period.⁸

2. Discussion. a. Hearsay testimony. A determination whether a violation of probation has occurred lies within the discretion of the hearing judge. Commonwealth v. Durling, 407 Mass. 108, 111–112, 551 N.E.2d 1193 (1990). The Commonwealth must prove a violation of probation by a preponderance of the evidence. Commonwealth v. Nunez, 446 Mass. 54, 59, 841 N.E.2d 1250 (2006). Although a probationer is entitled to the due process rights established in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), he need not receive the “full panoply of constitutional protections applicable at a criminal trial.” Durling, supra at 112–113, 551 N.E.2d 1193. 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.” Id. at 118, 551 N.E.2d 1193. See Commonwealth v. Patton, 458 Mass. 119, 132–133, 934 N.E.2d 236 (2010), citing Durling, supra at 121, 551 N.E.2d 1193 (discussing five factors suggesting reliability); Commonwealth v. Delaney, 36 Mass.App.Ct. 930, 932 & n. 4, 629 N.E.2d 1007 (1994) (where only hearsay presented, proper focus of inquiry is reliability of hearsay).

The defendant contends that the judge erred in determining that the hearsay testimony against him bore sufficient indicia of reliability. He asserts that the testimony of Amir, who has Asperger's syndrome, was inherently unreliable due to social cognitionand communication impairments, and that it was natural for Alana to echo Amir's story to the police in order to protect her family.

The hearing judge's assessment of reliability was supported by the record. Poulin testified that Amir volunteered all of the information regarding the incident, did not struggle to answer questions, and understood that his allegations could result in criminal charges against the defendant. Although the defendant asserts that Amir's Asperger's syndrome made him an unreliable witness, he does not contest Amir's ability to make accurate observations or to offer a truthful report to a police officer.

The judge also correctly employed the five factors discussed in Patton, supra at 132–133, 934 N.E.2d 236, for assessing the reliability of hearsay evidence. He emphasized that, although the interviews of Amir and Alana had been conducted separately, three elements of their accounts to police independently corroborated one another.⁹ Amir and Alana both discussed the incident while it was fresh in their minds, and used very different words, including slang expressions, to describe the defendant's conduct; there is no indication that Alana merely repeated Amir's recitation of what had occurred.

It is the exclusive province of the hearing judge to assess the weight of the evidence. Commonwealth v. Janovich, 55 Mass.App.Ct. 42, 50, 769 N.E.2d 286 (2002). We discern no abuse of discretion in the judge's determination that a probation violation had occurred.

b. Rule 6(b). In promulgating the District Court Rules for Probation Violation Proceedings, effective as of January 3, 2000, the District Court sought “to codify the provisions of applicable case law.” Commonwealth v. Cates, 57 Mass.App.Ct. 759, 762, 786 N.E.2d 411 (2003), quoting commentary to Rule 1 of the District Court Rules for Probation Violation Proceedings, supra at 80. Rule 6(b) addresses those situations where hearsay evidence alone is submitted to prove a violation of probation based on a probationer's alleged commission of new crimes. In order to rely on such evidence in those circumstances, the rule provides that the judge must find both that the hearsay evidence is “substantially trustworthy and demonstrably reliable” and that “the probation officer has good cause for proceeding without a witness with personal knowledge of the evidence...