Com. v. Durling

• Decision Date: 26 March 1990
• Citation: 551 N.E.2d 1193,407 Mass. 108
• Parties: COMMONWEALTH v. Ralph M. DURLING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1193

551 N.E.2d 1193

407 Mass. 108

COMMONWEALTH v. Ralph M. DURLING.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Jan. 10, 1990.

Decided March 26, 1990.

Anthony M. Traini, Randolph, for defendant.

James F. Lang, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

NOLAN, Justice.

Ralph M. Durling (defendant) appeals from an order of a District Court judge revoking the defendant's probation and committing him to a house of correction. The defendant contends that the procedure utilized at the revocation hearing failed to comport with the minimum requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. We affirm.

The defendant's story begins on September 16, 1986, when he was arrested in Stoughton. The defendant was arraigned the following day on charges of operating a motor vehicle while under the influence of alcohol (OUI) and leaving the scene of an accident after causing property damage. Before the trial date on those charges, the defendant again was arrested for combining alcohol consumption and operating a motor vehicle. On October 27, 1986, the defendant was arraigned on charges of, among other things, OUI and leaving the scene of an accident after causing personal injury.

On June 30, 1987, a District Court judge consolidated the defendant's cases. Findings of guilty were entered against the defendant on the four charges above mentioned. On each charge, the defendant was sentenced to two years in the house of correction with all the sentences to run concurrently. The court, however, suspended all but the first ninety days of the sentences. The defendant was placed on probation until June 29, 1989. The defendant signed a form which listed the conditions of his probation and these included the condition that the defendant obey local, State and Federal laws and court orders. ¹

In May of 1988, while he was still on probation, the defendant was given a "Notice of Surrender and Hearing(s) For Alleged Violation(s) of Probation." According to the Commonwealth, the defendant was arrested on April 8, 1988, and again on May 12, 1988. Both times he was charged with operating a motor vehicle while under the influence of alcohol, among other violations. A probation revocation hearing was held on October 5, 1988. At that hearing, the defendant's probation officer read to the court the two police reports relating to the arrests of April 8 and May 12. Counsel for the defendant attempted to cross-examine the probation officer, but abandoned his effort when he established that the probation officer had no personal knowledge of the events recounted in the two police reports. The judge, on the strength of the probation officer's testimony, determined that the defendant had violated the conditions of his probation by violating State laws. The judge revoked the defendant's probation, and ordered that the defendant be committed to the house of correction for nine months, with the balance of the sentence (one year) to remain suspended. The judge stayed execution of the sentence, giving the defendant an opportunity to appeal. Rather than filing a notice of appeal, the defendant sought extraordinary relief from a single justice of this court pursuant to G.L. c. 211, § 3. The single justice denied relief on the ground that the defendant could appeal from the revocation order and thus had an adequate remedy available to him. In denying relief, the single justice commented that absent a finding of "good cause to deny the defendant his right to confront and cross-examine the arresting officer[,] [c]ross-examination of the probation officer was not adequate to meet due process requirements." The single justice added that the District Court judge might wish to reconsider his ruling. Accordingly, the defendant filed a motion to reconsider the revocation ruling in the District Court. The District Court judge denied the motion to reconsider but stayed execution of the defendant's sentence until the legal issues were resolved on appeal. The defendant then appealed from the order revoking probation and the denial of the motion to reconsider. We transferred the appeal to this court on our own motion.

The practice of placing defendants on probation can be traced to early Massachusetts common law. See Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 817 n. 2, 482 N.E.2d 511 (1985). Today, both probation and the suspension of sentences are governed by statute. See G.L. c. 279, §§ 1-2 (power to suspend sentences and place defendants on probation); G.L. c. 276, § 87 (power of District Courts to place defendants on probation). Probation, whether "straight" or coupled with a suspended sentence, is a legal disposition which allows a criminal offender to remain in the community subject to certain conditions and under the supervision of the court. See Diana, What Is Probation, 51 J.Crim.L. & Criminology 189 (1960) (discussing various aspects of probation, including rehabilitative, administrative, punitive, and legal aspects).

A defendant on probation is subject to a number of conditions, the breach of any one of which constitutes a violation of his probation. When a violation is alleged, the probation officer "surrenders" the defendant to the court, subjecting the defendant to possible revocation of his probation. At the revocation hearing, the judge must determine, as a factual matter, whether the defendant has violated the conditions of his probation. If the judge determines that the defendant is in violation, he can either revoke the probation and sentence the defendant or, if appropriate, modify the terms of his probation. How best to deal with the probationer is within the judge's discretion. McHoul v. Commonwealth, 365 Mass. 465, 469-470, 312 N.E.2d 539 (1974). Commonwealth v. McGovern, 183 Mass. 238, 240-241, 66 N.E. 805 (1903).

"Any conduct by a person on probation which constitutes a violation of any of the conditions of his probation may form the basis for the revocation of that probation. Such conduct may involve the violation of criminal laws, but there is no prerequisite that the probationer be convicted thereof to permit the violation to be used as the basis for the revocation." Rubera v. Commonwealth, 371 Mass. 177, 180-181, 355 N.E.2d 800 (1976). In this case, the Commonwealth alleges that the defendant violated the conditions of his probation by twice violating State laws. The defendant has not been convicted of the crimes alleged. The District Court judge, therefore, had to determine, as a factual matter, that the defendant indeed violated the law. The issue is whether the District Court judge, in making that determination, could constitutionally rely upon the evidence presented by the Commonwealth.

Revocation hearings are not part of a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973). Thus, a probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial. Id. The revocation of probation does, however, result in a deprivation of liberty within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution. Id. The due process clause, therefore, requires that the Commonwealth provide probationers with certain protections at surrender hearings. Id. ²

In Gagnon, supra, the Supreme Court relied heavily on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court determined that due process principles applied to parole revocation hearings. Morrissey and Gagnon establish that the minimum requirements of due process include " '(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.' Morrissey v. Brewer, supra [408 U.S.] at 489 ." Gagnon v. Scarpelli, supra 411 U.S. at 786, 93 S.Ct. at 1761.

Due process, by its nature, is a flexible concept. The requirements of due process in a particular case are determined by reference to the definition and weight of the competing interests involved in that case. Lotto v. Commonwealth, 369 Mass. 775, 780, 343 N.E.2d 855 (1976). "[D]ue process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed." Gagnon v. Scarpelli, supra 411 U.S. at 788, 93 S.Ct. at 1762. It is in keeping with these fundamental properties of due process that the Morrissey Court, and by extension the Gagnon Court, emphasized that it did not intend to "write a code of procedure." Morrissey v. Brewer, supra 408 U.S. at 488, 92 S.Ct. at 2603. Our cases have recognized the flexibility of the Morrissey-Gagnon guidelines. See, e.g., Commonwealth v. Odoardi, 397 Mass. 28, 34, 489 N.E.2d 674 (1986) (within judge's discretion to curtail cross-examination when probationer's subsequent conviction is a matter of record); Fay v. Commonwealth, 379 Mass. 498, 504-505, 399 N.E.2d 11 (1980) (judge's oral recitation of reasons for revocation, when transcribed, satisfies requirement of written statement by fact finder); Stefanik v. State Board of Parole, 372 Mass. 726, 363 N.E.2d 1099 (1977) (no requirement of a preliminary hearing where defendant already received probable cause hearing and had been bound over to grand jury). We adhere to the principle that the requirements of due...