Com. v. Maggio

• Decision Date: 19 January 1993
• Citation: 414 Mass. 193,605 N.E.2d 1247
• Parties: COMMONWEALTH v. Anthony MAGGIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1247

605 N.E.2d 1247

414 Mass. 193

COMMONWEALTH v. Anthony MAGGIO.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Nov. 2, 1992.

Decided Jan. 19, 1993.

Yvonne P. Toyloy, Committee for Public Counsel Services, for defendant.

David R. Marks, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

We transferred this case from the Appeals Court on our own motion to determine whether proceedings in a District Court which terminated the defendant's probationary status complied with the standards of due process applicable to probation revocation hearings. We conclude that they did not. Accordingly, we vacate the guilty findings that were entered and the sentences imposed on the defendant.

The following are the pertinent facts. On November 27, 1990, in the Cambridge Division of the District Court Department, the defendant, in accordance with the procedure established in Commonwealth v. Duquette, 386 Mass. 834, 845-847, 438 N.E.2d 334 (1982), agreed in writing to the disposition of three charges ¹ (larceny of a motor vehicle, breaking and entering, and possession of burglarious tools) by admitting to sufficient facts to warrant a finding of guilty on each charge. The cases were continued to November 27, 1992, without a finding, and the defendant was placed under the supervision of a probation officer on terms which, among others, required that he "obey local, state and federal laws and court orders." The terms, including the last one, were essentially the terms imposed on all defendants who are placed on probation. The agreements signed by the defendant also provided that, if he failed to meet any conditions of the continuance, guilty findings could be entered on each charge, and he would be sentenced to serve a total of ninety days in the house of correction.

On April 18, 1991, the defendant was arraigned in the Cambridge District Court on charges of armed assault with intent to murder and assault and battery by means of a dangerous weapon. On that same day, the defendant was served with a "Request for Summons Form," which advised him that he was in noncompliance with the terms of his probation because of a "New Offense Attempted Murder." Thereafter, the district attorney entered a nolle prosequi in the District Court on the assault complaints and obtained grand jury indictments in the Superior Court for Middlesex County for the same offenses. On May 14, 1991, the defendant was arraigned on the indictments in the Superior Court.

On May 22, 1991, a hearing was held in the Cambridge District Court in reference to terminating the continuance granted the defendant, and seeking to have guilty findings entered on the charges that had been continued and the prescribed sentences imposed. At the hearing, a probation officer testified that the defendant had been "arraigned in Middlesex Superior Court on May 14th ... for armed assault and assault and battery with a dangerous weapon ... [and] I have ... the bill confirming that." The probation officer testified that she did not know what evidence had been presented to the grand jury to support the indictments, that she had not seen the grand jury minutes, and that she was not otherwise aware of what had transpired before the grand jury. The probation officer furnished the judge with a copy of an indictment which she described as "what the [assistant district attorney] handling the case gave me this morning." ² No other witness testified at the hearing, and no other evidence was presented.

On the basis of the probation officer's testimony and the copy of one indictment, and over the express objections of defense counsel, the judge entered guilty findings on the three charges which had been continued without finding and ordered the house of correction sentences into effect. The defendant appealed, and a single justice of the Appeals Court granted a stay of execution of the sentences pending resolution of the appeal.

The proceedings in the District Court were handled as a probation revocation hearing, and the Commonwealth and the defendant have presented the appeal on the basis that the standards applicable to probation revocation govern the case. We see no reason not to deal with the case under these standards. The dispositive question is whether the defendant was accorded the due process protections necessary to a final probation revocation proceeding.

In Commonwealth v. Durling, 407 Mass. 108, 113, 551 N.E.2d 1193 (1990), we outlined the Federal due process principles established by the United States Supreme Court 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), for a final probation revocation hearing as follows: "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 at 489, 92 S.Ct. at 2604.' Gagnon v. Scarpelli, supra [411 U.S. 778] at 786, 93 S.Ct. [1756] at 1761-62 ."

We went on to discuss in Durling the type of evidence that would be sufficient to satisfy these requirements, and, ultimately, to warrant a finding that a defendant had violated his probation. We indicated that a defendant's probation could be revoked based solely on hearsay evidence of his violation of probation, as long as the hearsay evidence bore substantial indicia of reliability. Id. 407 Mass. at 121-122, 551 N.E.2d 1193. Further, we stated that the evidence presented at the final revocation hearing must be such as to allow the judge to "make a principled decision," id. at 118 n. 6, 551 N.E.2d 1193, and "to determine, as a factual matter, that the defendant indeed violated the law." Id. at 112, 551 N.E.2d 1193. In the Durling case, for example, the evidence consisted of two police reports by officers from different police departments which related primary facts, not conclusions or opinions, in considerable detail. Id. at 120-121, 551 N.E.2d 1193. We found the reports substantially reliable and sufficiently detailed both to dispense with the defendant's right to confront and to cross-examine the police officers and to warrant a finding that the defendant had violated his probation. Id. at 121-122, 551 N.E.2d 1193.

As noted, the proceedings here involved a final probation revocation hearing to which the Morrissey- Gagnon due process requirements apply. We think the proceedings were deficient in at least four respects under those requirements as explained in the Durling case.

First, a probationer facing a final probation revocation hearing must be made aware of the evidence against him. Unlike defendants who are present at probable cause hearings or trials and actually hear the evidence against them, this defendant was not present with the grand jury...