Com. v. Wilcox

• Citation: 446 Mass. 61,841 N.E.2d 1240
• Parties: COMMONWEALTH v. Richard WILCOX.
• Decision Date: 09 February 2006
• Court: United States State Supreme Judicial Court of Massachusetts

841 N.E.2d 1240

446 Mass. 61

COMMONWEALTH v. Richard WILCOX.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued December 8, 2005.

Decided February 9, 2006.

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Thomas J. Iovieno, Boston, for the defendant.

Michael J. Markoff, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & CORDY, JJ.

COWIN, J.

We consider whether the right of confrontation as explicated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (Crawford), applies to probation revocation hearings.¹ We decide that the Crawford case is inapplicable and that the standard articulated in Commonwealth v. Durling, 407 Mass. 108, 117-118, 551 N.E.2d 1193 (1990), controls our resolution of this case.

Facts. In July, 2001, the defendant was convicted in the Wrentham Division of the District Court Department of four counts of making annoying or indecent telephone calls, G.L. c. 269, § 14A,² and two counts of accosting a person of the opposite sex, G.L. c. 272, § 53.³ The charges arose from the defendant's random dialing of telephone numbers. When he reached young girls, he lured them into indecent conversation and asked them, among other things, to make pictures and videotape for him, presumably of themselves. The defendant was placed on probation for four three-month terms and two six-months terms, all to be served consecutively.⁴ In addition to other conditions imposed, the defendant was ordered to have no "unsupervised contact with anyone under the age of 16," except his family. Court supervision was to continue until May 14, 2004.

Just after midnight on July 19, 2002, Officer Clayton Carter of the Pawtucket, Rhode Island, police department responded to a report of a suspicious man in a white sports car. His interviews with those involved revealed the following. The previous day, "the car" appeared to be following a young girl home from summer school. The girl was identified in the report as "K." Later that day, the man with the white car again leered at "K" inside a convenience store the girl was visiting with two friends, minors whom police identified as "J" and "B." The man followed "K" and her companions "home."⁵ The children provided a detailed description of the man to the police officer.

Between 10 P.M. and midnight that evening, two women, one of whom was apparently the mother of some or all of the children, observed the "same vehicle," "circulating the neighborhood" while the women were sitting on "the front steps." The women described the vehicle as a white Mitsubishi Eclipse automobile bearing Massachusetts registration number 9929S. One of the women stated she told the driver, "Stop driving by here, you have been doing it all night." The man answered, "I'm looking for a friend, I'm sorry[,] I did not mean anything by it." The same woman reported that she informed the operator she would contact the police and the driver said, "I'm sorry, I'm sorry," and drove away.

Another Pawtucket police officer, Lance Trafford, traced the car to a Massachusetts company. A representative of the company confirmed ownership of the car and reported that it was being used by the defendant, who was an employee. The officer then contacted the defendant, who agreed to an interview.

During the interview, the defendant made damaging admissions. He recalled the children with whom the detective was concerned. He related that he "saw the girls when they left" apparently referring to the store, "looked at them" and "drove by them," but "didn't see what road" they took, and after losing track of them, "just drove around and around the block." Later, he appeared to admit to having followed the girls briefly after "checking them out." He said that was the first occasion on which he saw the girls. He also admitted that he had been chased away by a woman late that night. He assured the officer that he did not "intend to go near them again or be around there [again]."

The probation officer issued a notice of probation violation, in part for the defendant's "[u]nsupervised contact" with children under sixteen years of age.⁶ A probation revocation hearing was held at the Wrentham District Court. The probation officer and Officer Trafford testified. Officer Trafford did not have personal knowledge of the ages of the girls or the events of July 18, and he relied on Officer Carter's police report for portions of his testimony. Neither "K," her companions, the two women, or Officer Carter testified. Relying in part on the hearsay statements in the police report, the judge found that the defendant had been in "contact" with persons under sixteen years of age, revoked probation, and imposed the suspended sentences.

The defendant sought a stay of execution of the sentences from a single justice of the Appeals Court. The single justice denied the stay, finding there was "a substantial basis for the revocation of probation." The defendant appealed from the revocation to the Appeals Court, which affirmed. See Commonwealth v. Wilcox, 63 Mass.App.Ct. 131, 823 N.E.2d 808 (2005). This court granted the defendant's application for further appellate review limited to the question whether Crawford v. Washington, supra, applies in probation violation hearings.

Discussion. Probation is a creature of statute, see G.L. c. 276, §§ 87, 87A; G.L. c. 279, §§ 1-3, with deep roots in the Commonwealth. See Buckley v. Quincy Div. of the Dist. Court Dep't, 395 Mass. 815, 817-818 n. 2, 482 N.E.2d 511 (1985) (tracing history to Boston shoemaker who in 1841 began supplying to drunkards "bail and rudimentary counseling"). The purpose of probation rather than immediate execution of a term of imprisonment "in large part is to enable the [convicted] person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer."⁷ Mariano v. Judge of Dist. Ct. of Cent. Berkshire, 243 Mass. 90, 93, 137 N.E. 369 (1922).

A probationer has only a conditional liberty interest. See Commonwealth v. Olsen, 405 Mass. 491, 493, 541 N.E.2d 1003 (1989); G.L. c. 279, § 3. He or she must comply with "such conditions" as the sentencing judge "deems proper," G.L. c. 276, § 87, regularly report to a probation officer or otherwise submit to court supervision, see Commonwealth v. Taylor, 428 Mass. 623, 626, 704 N.E.2d 170 (1999), and pay a monthly "probation fee," G.L. c. 276, § 87A. A breach of a condition of probation constitutes a violation. Rubera v. Commonwealth, 371 Mass. 177, 180-181, 355 N.E.2d 800 (1976). If the probation officer receives information tending to show that the probationer has breached, the officer may "surrender" the probationer to the court. Commonwealth v. Durling, supra at 111, 551 N.E.2d 1193. Inherent in a court's power to grant probation is the power to revoke it. Jake J. v. Commonwealth, 433 Mass. 70, 77-78, 740 N.E.2d 188 (2000). The judge determines whether a violation in fact occurred and, in the court's discretion, whether the probationer's conduct warrants imposition of the original suspended sentence, see Commonwealth v. Holmgren, 421 Mass. 224, 226, 228, 656 N.E.2d 577 (1995); Commonwealth v. McGovern, 183 Mass. 238, 240-241, 66 N.E. 805 (1903), or in the case of straight probation, imposition of a sentence.⁸

The probation revocation proceeding is not a new criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Commonwealth v. Olsen, supra. The Commonwealth has already met its burden of proving beyond a reasonable doubt the person's guilt on the underlying crime. Commonwealth v. Holmgren, supra at 225-226, 656 N.E.2d 577. The probationer escaped total loss of liberty only as a result of the trial judge's exercise of discretion. Commonwealth v. Durling, 407 Mass. 108, 115, 551 N.E.2d 1193 (1990).

It follows that, at a revocation proceeding, "a probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial." Id. at 112, 551 N.E.2d 1193. The finding of a violation is not by a jury but by a judge, and is based only on a preponderance of the evidence, not proof beyond a reasonable doubt. See Commonwealth v. Holmgren, supra at 226, 656 N.E.2d 577; Commonwealth v. McGovern, supra at 240, 66 N.E. 805 (it is "question of fact for the court ... to determine ... whether the [defendant] had violated" probation). The probationer lacks an absolute right to make a closing argument. Commonwealth v. Marvin, 417 Mass. 291, 295, 629 N.E.2d 1317 (1994). Jeopardy does not attach at a probation revocation hearing, Krochta v. Commonwealth, 429 Mass. 711, 713-714, 711 N.E.2d 142 (1999), and a violation may be found even if the defendant has been acquitted of the same conduct after a criminal trial, Commonwealth v. Holmgren, supra at 226-228, 656 N.E.2d 577. Decisions mandating suppression of evidence also do not apply, "where the police who unlawfully obtained the evidence neither knew nor had reason to know of the probationary status of the person whose property was seized." Commonwealth v. Olsen, supra at 491, 541 N.E.2d 1003.

In recognition that the probationer does have some liberty interest at stake in a revocation hearing, due process rights enshrined in the Fourteenth Amendment to the United States Constitution provide to the probationer: written notice of the claimed violation of probation, disclosure of the evidence against him or her, the opportunity to be heard in person and present witnesses and evidence, confrontation and cross-examination of adverse witnesses (unless the hearing officer specifically finds that there is good cause for not allowing confrontation or the hearsay evidence is reliable), a "neutral and detached" hearing body, and a written statement of the evidence relied on and the reasons for revoking probation. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33...