Com. v. Joubert, 94-P-1439

• Decision Date: 13 April 1995
• Docket Number: No. 94-P-1439,94-P-1439
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Kevin L. JOUBERT.

Page 1238

647 N.E.2d 1238

38 Mass.App.Ct. 943

COMMONWEALTH v. Kevin L. JOUBERT.

No. 94-P-1439.

Appeals Court of Massachusetts.

April 13, 1995.

Geoffrey E. Spofford, Worcester, for defendant.

William E. Loughlin, Asst. Dist. Atty., for Com.

RESCRIPT.

When the defendant admitted to sufficient facts to warrant findings of guilty on three complaints charging him with indecent assault and battery upon his four year old daughter, a District Court judge imposed concurrent two and one-half year sentences on the charges and then suspended the sentences for three years with probation. About nine months later, the defendant received a notice of surrender advising him that he had violated the conditions of his probation. After a hearing on allegations of an unlawful touching of a second daughter and an indecent assault and battery upon his wife's friend, the judge revoked the defendant's probation and imposed the previously suspended concurrent sentences. Although there was sufficient evidence to revoke the defendant's probation on the basis of the indecent assault and battery upon the adult, it appears from the judge's written decision that the revocation was also based upon the child's hearsay statement that her father had touched her vagina. Concluding that there is nothing in the record to show that the hearsay was substantially reliable, we reverse the order revoking the defendant's probation and remand the matter.

1. The indecent assault and battery. There are two arguments in respect to this claimed violation. First, the defendant argues that, as he received only four days' notice of this accusation, which the Commonwealth was allowed to make by amendment of the original complaint, his request for a continuance should have been granted. The morning of the scheduled revocation hearing, defense counsel asked for a continuance so that he could have an opportunity to interview the witness on this matter and to conduct any investigation deemed necessary. The judge advised defense counsel that, as the hearing would not start until the afternoon, the interviews could be conducted that morning. When the case was reached for hearing, defense counsel acknowledged that he had interviewed the witness and renewed his motion for a continuance on grounds relating solely to the unlawful touching of the child. We see no abuse of discretion in the refusal to grant a continuance in respect to the instant claimed violation. See Commonwealth v. Habarek, 402 Mass. 105, 108, 520 N.E.2d 1303 (1988); Commonwealth v. Scott, 19 Mass.App.Ct. 983, 985, 475 N.E.2d 78 (1985); Commonwealth v. Pyne, 35 Mass.App.Ct. 36, 39-40, 616 N.E.2d 470 (1993).

The defendant also argues that the revocation of his probation on the basis of uncharged criminal conduct offends art. 13 of the Declaration of Rights of the Massachusetts Constitution as well as concepts of due process. Although the wife's friend did not seek criminal complaints on account of the indecent assaults, she testified at the revocation hearing how the defendant, several times since being on probation and most recently in just the past month, had reached under her blouse and skirt to grab her breasts and buttocks. She did not report these incidents to anyone as she feared the loss of the wife's friendship. This testimony shows a clear violation by the defendant of G.L. c. 265, § 13H. It was one of the eight conditions of the defendant's probation that he "obey local, state or federal laws or court order." Section 8:02 of the Standards for Supervision for Probation Offices (1989) requires a probation officer to "initiate surrender proceedings" upon belief that an "offender has failed to comply with court-ordered conditions of probation." The right of the probation department to proceed with proof of the grounds for the surrender does not constitute a trespass upon powers reserved by art. 30 to another branch of government. See Commonwealth v. Tate, 34 Mass.App.Ct. 446, 447-448, 612 N.E.2d 686 (1993). The defendant's due process argument fares no better. See Commonwealth v. Olsen, 405 Mass. 491, 493-494, 541 N.E.2d 1003 (1989), quoting from Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972), and Commonwealth v. Vincente, 405 Mass. 278, 280, 540 N.E.2d 669 (1989).

2. The unlawful touching. In revoking the defendant's probation on the basis of this claimed violation, the judge found that the "defendant hurt his daughter by touching her private parts." This finding rests exclusively on the child's hearsay statement ("Daddy touched my peepee") to her aunt, the defendant's sister-in-law, made in response to the aunt's inquiries to her about the manner in which she was walking and whether the defendant had touched her. Although the judge relied on the hearsay, he did not make "any express determination that there was good cause for denying the defendant the right to confront a witness with personal knowledge. Nor did the judge make any determination whether the proffered hearsay was reliable." Commonwealth v. Durling, 407 Mass. 108, 115, 551 N.E.2d 1193 (1990). See also Commonwealth v. Delaney, 36 Mass.App.Ct. 930, 932, 629 N.E.2d 1007 (1994).

As there is nothing in the record to show the circumstances of the touching or when it occurred, there was no basis upon which the judge could have concluded that the statement was a reliable spontaneous utterance. Compare Commonwealth v. Fuller, 399 Mass. 678, 682-683 & n. 8, 506 N.E.2d 852 (1987); Commonwealth v. Brown, 413 Mass. 693, 695-696, 602 N.E.2d 575 (1992); Commonwealth v. Crawford, 417 Mass. 358, 361-363, 629 N.E.2d 1332 (1994); Commonwealth v. Alvarado, 36 Mass.App.Ct. 604, 606, 634 N.E.2d 132 (1994). Nor may the statement permissibly be admitted in evidence under G.L. c. 233, § 81, as inserted by St.1990, c. 339. The judge made none of the requisite findings upon which that statute conditions the admissibility, in any criminal proceeding, of out-of-court statements "of a child under the age of ten describing an act of sexual conduct performed on or with the child...." See Commonwealth v. Colin C., 419 Mass. 54, 61-66, 643 N.E.2d 19 (1994).

Notwithstanding the inadmissibility of the statement under "standard evidentiary rules," Commonwealth v. Durling, 407 Mass. at 118, 551 N.E.2d 1193, the hearsay could provide the basis for the revocation if shown to be substantially reliable. Ibid. The Commonwealth argues that reliability can be found in the fact that the child offered the information and did not simply adopt the substance of a question...