Com. v. Tate, 92-P-691

• Decision Date: 01 July 1993
• Docket Number: No. 92-P-691,92-P-691
• Citation: 34 Mass.App.Ct. 446,612 N.E.2d 686
• Parties: COMMONWEALTH v. Roy L. TATE, Jr.
• Court: Appeals Court of Massachusetts

Page 686

612 N.E.2d 686

34 Mass.App.Ct. 446

COMMONWEALTH v. Roy L. TATE, Jr.

No. 92-P-691.

Appeals Court of Massachusetts Suffolk.

Argued Dec. 17, 1992.

Decided May 5, 1993.

Further Appellate Review Denied July 1, 1993.

Nancy A. Dolberg, Boston, for defendant.

Roger L. Michel, Jr., Asst. Dist. Atty., for Com.

Before KASS, JACOBS and GREENBERG, JJ.

KASS, Justice.

When the defendant Roy L. Tate, Jr., was released from State prison on probation, ¹ it was a condition of his probation that he have no contact of any kind with Joyce Harris or any member of her family. Tate had been serving concurrent sentences for, among other offenses, the aggravated rape of Harris and, on the same occasion, perpetrating upon her an assault and battery with intent to kill (he had stabbed her in the chest, puncturing one of her lungs). For violation of the "absolutely no contact" condition, a judge of the Superior Court ordered the revocation of Tate's probation. From that order Tate has appealed. There are three claims of error.

1. Constitutionality of an assistant district attorney's participation at the surrender hearing. The defendant makes the inventive, but ultimately insubstantial, argument that the role played by an assistant district attorney at the probation revocation hearing (she examined and cross-examined witnesses) trespassed upon the separation of governmental powers prescribed by art. 30 of the Declaration of Rights of the Massachusetts Constitution. ² Probation functions are within the judicial branch, Massachusetts Probation Assn., v. Commissioner of Admn., 370 Mass. 651, 657, 352 N.E.2d 684 (1976), and the office of district attorney is considered as within the executive branch, Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 721, 412 N.E.2d 331 (1980).

That separateness does not, however, lead to the conclusion that a district attorney's office may not assist the probation service in presenting evidence in support of a position that the probation service has decided upon. The compartments are not watertight: "[A]bsolute division of the three general types of functions is neither possible nor always desirable," Opinion of the Justices, 365 Mass. 639, 641, 309 N.E.2d 476 (1974); and there is a difference between assisting and intruding. If the coordinated activity of branches of government is voluntary and the activity of one branch does not intrude into the internal function of another, the strictures of art. 30 are not violated. Clerk of the Superior Court for the County of Middlesex v. Treasurer & Recr. Genl., 386 Mass. 517, 525, 437 N.E.2d 158 (1982). Here the probation officer expressly asked the court's permission to "yield" the questioning of witnesses to the assistant district attorney. When it came to stating the position of the probation service, the probation officer spoke. He made the opening statement and the closing argument at the revocation hearings.

At revocation hearings witnesses are examined and cross-examined. Evidence of a nontestimonial nature may be received. Although such proceedings are not subject to the strict evidentiary discipline of a trial, see Commonwealth v. Durling, 407 Mass. 108, 114, 551 N.E.2d 1193 (1990), they proceed along judicially drawn lines and are subject to judicial review. Id. at 113, 551 N.E.2d 1193. Commonwealth v. Maggio, 414 Mass. 193, 196-199, 605 N.E.2d 1247 (1993). In following those lines, probation officers are only aided, not interfered with, when district attorneys, upon invitation, conduct examinations of witnesses and present evidence. Cf. Commonwealth v. Favulli, 352 Mass. 95, 101, 224 N.E.2d 422 (1967). There are some tasks, and these are among them, for which lawyers are, indeed, particularly trained. What disposition was to be made of Tate's case was left, in the first instance, with the probation officer and, ultimately, the judge. Contrast, e.g., Commonwealth v. Gordon, 410 Mass. 498, 499-501, 574 N.E.2d 974 (1991), in which a judge usurped executive power by accepting a plea of second-degree murder, over the objection of the district attorney, to an indictment for first-degree murder.

2. Whether the defendant violated the terms of his probation. Upon his release from prison, Tate entered a halfway house on Dimock Street in the Dorchester section of Boston. While there he achieved 150 consecutive days of sobriety. He began to be active in a neighborhood church and made progress in a job training program. As to the positive conditions of his probation, Tate was doing more than ordinarily well.

As to the negative condition, to have no contact of any kind with the victim [Harris] or any member of her family, Tate enjoyed less success. On March 27, 1991, five months after leaving prison, Tate approached Joyce Harris. She was then a bus driver, and the encounter--Tate insisted it was accidental--took place at the Dudley Street T ³ station. Tate walked up to Harris and said, "Hello." She turned away and Tate then walked away, but he returned and asked to speak to Harris. She again refused to speak with Tate and told him to leave her alone, whereupon he again walked away. Although a light contact, it was enough to cause Harris to call Tate's probation officer and the victim witness advocate at the district attorney's office. Harris, as she was to testify at the revocation hearing, was deeply frightened.

Two days later, while walking with her children on Rockland Street, which is about a ten-minute walk from where Tate lived on Dimock Street, Harris noticed Tate looking at her from "the top of the street" while she was "towards the bottom." Harris reported the encounter, such as it was, to the probation officer and the victim witness advocate.

For each encounter there were innocent explanations: accident, coincidence, nonhostile intent, a desire to make amends, or a desire to look at the son whom he had fathered by Harris. The judge was not required, however, to accept any of the exculpatory reasons offered by the defendant. The question is whether the record discloses evidence sufficient to warrant the finding by the judge that Tate had violated the no-contact condition of his probation. See Commonwealth v. Durling, 407 Mass. at 112, 551 N.E.2d 1193; Commonwealth v. Maggio, 414 Mass. at 198, 605 N.E.2d 1247. The defense on appeal concedes, properly, that the Dudley Street station encounter was a violation of probation because the defendant twice spoke to the woman with whom he was to avoid all contact. The defense attacks as erroneous, however, the finding of a second contact, reasoning that the judge might have come to a different ultimate finding and a...