Commonwealth v. Costa

• Decision Date: 08 April 2021
• Docket Number: No. 20-P-74,20-P-74
• Citation: 167 N.E.3d 1221,99 Mass.App.Ct. 435
• Parties: COMMONWEALTH v. Concetto COSTA.
• Court: Appeals Court of Massachusetts

99 Mass.App.Ct. 435

167 N.E.3d 1221

COMMONWEALTH

v.Concetto COSTA.

No. 20-P-74

Appeals Court of Massachusetts, Essex.

Argued November 5, 2020.

Decided April 8, 2021.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Kathryn E. Leary, Assistant District Attorney, for the Commonwealth.

Present: Henry, Sacks, & Englander, JJ.

SACKS, J.

The defendant's probation was revoked after a Superior Court judge found that he had violated his probation by committing rape and other new offenses against his then-girlfriend, Jen (a pseudonym). On appeal, the defendant contends that (1) Jen's hearsay statements were not substantially reliable and were therefore inadmissible at the violation hearing, (2) an order barring him from calling Jen as a witness at that hearing violated his due process right to present a defense, and (3) the hearing judge's exclusion of testimony by which the defendant sought to undermine the credibility of Jen's allegations also violated his right to present a defense. We are unpersuaded by these contentions and therefore affirm.

Background. We recite the background facts, reserving numerous details for our discussion of the issues presented. The defendant pleaded guilty in 2008 to four counts of rape of a child and one count of indecent assault and battery on a child under the age of fourteen for conduct occurring in 1988 through 1993 when he was in his late teens and early twenties. He was sentenced to concurrent seven-to-ten-year prison terms on three of the rape counts, followed by concurrent ten-year probationary terms on the remaining counts. He began serving his probation in 2014.

The defendant began dating Jen in May 2018; they became engaged, and they moved into an apartment together in October 2018. At that point, the relationship deteriorated and, according to Jen, began to include "violence, threats of violence, [and] forced sexual activity." On February 11, 2019, Jen reported the defendant's actions to Sergeant James Leavitt of the Salisbury Police Department. She told him that she had "recently been thinking about how to end the relationship and get away from [the defendant]," but she feared that, due to his possessive nature, he would retaliate violently. Sergeant Leavitt described Jen's demeanor as "very upset, crying for most of the time [they] met, scared." He helped her obtain a G. L. c. 209A restraining order against the defendant.

The defendant was subsequently charged by complaint with multiple counts of rape, kidnapping, threats, and assault and battery on a household member. Jen then testified before a grand jury, and the defendant was indicted.¹

A notice issued charging the defendant with violating his probation by committing these new offenses. Before the violation hearing, he moved to exclude Jen's hearsay statements from evidence, arguing that they were unreliable and that he had a due process right to challenge her credibility by calling her as a witness. In support of the motion, he submitted reports of interviews that his private investigator had conducted with Jen's ex-husband and an ex-boyfriend, as well as with the defendant's and Jen's neighbors. The reports, broadly speaking, characterized Jen as aggressive, loud, and untrustworthy. Counsel also submitted several of his own affidavits containing additional information aimed at casting doubt on Jen's credibility. A motion judge denied the defendant's motion to exclude Jen's hearsay statements and allowed the Commonwealth's² motion to preclude the defendant from calling Jen as a witness.

At the violation hearing, Jen's statements were introduced through the transcript of her grand jury testimony, her c. 209A affidavit, and the testimony of Sergeant Leavitt. The defendant called Jen's ex-husband and an ex-boyfriend to testify to Jen's character for untruthfulness and her pattern of conduct in prior relationships. The hearing judge sustained objections to much of their testimony, concluding that it constituted inadmissible opinion evidence and was irrelevant to whether the defendant had committed the new offenses.

At the close of the proceeding, the hearing judge found the defendant in violation and subsequently sentenced him, on the remaining 2008 rape conviction, to a term of from five years to five years and one day in State prison. On the 2008 indecent assault and battery conviction, the hearing judge ordered him placed on probation for ten years, essentially concurrent with and continuing after the prison sentence. The defendant appealed.

Discussion. 1. Substantial reliability of hearsay. Hearsay evidence that is substantially reliable may serve as the basis for finding a probation violation, and a determination of substantial reliability obviates what would otherwise be the defendant's due process right to confront the witnesses against him. See Commonwealth v. Durling, 407 Mass. 108, 113, 117-118, 551 N.E.2d 1193 (1990). See also Commonwealth v. Negron, 441 Mass. 685, 691, 808 N.E.2d 294 (2004). Here, the defendant argues that the motion judge erred in determining that Jen's hearsay was substantially reliable.

a. Hartfield factors. To evaluate whether the hearsay was substantially reliable, we turn to the factors listed in Commonwealth v. Hartfield, 474 Mass. 474, 51 N.E.3d 465 (2016).³ These include:

"(1) whether the evidence is based on personal knowledge or direct observation; (2) whether the evidence, if based on direct observation, was recorded close in time to the events in question; (3) the level of factual detail; (4) whether the statements are internally consistent; (5) whether the evidence is corroborated by information from other sources; (6) whether the declarant was disinterested when the statements were made; and (7) whether the statements were made under circumstances that support their veracity."

Id. at 484, 51 N.E.3d 465. Not all of these criteria must be satisfied. See Commonwealth v. Patton, 458 Mass. 119, 133, 934 N.E.2d 236 (2010) ; Commonwealth v. Grant G., 96 Mass. App. Ct. 721, 725, 139 N.E.3d 351 (2019).

Here, Jen's statements about the defendant's conduct were based on her personal knowledge. They were factually detailed and internally consistent,⁴ with one exception discussed infra.

They were corroborated to a limited extent by physical evidence.⁵ They were made in circumstances supporting their veracity.⁶ These factors indicate that the hearsay was substantially reliable.

b. Defendant's challenges to declarant's credibility. The defendant argued that other items of evidence before the motion judge created "serious reason to question [Jen's] credibility." We discuss those items in turn.

First, the defendant cited his private investigator's reports of interviews with four neighbors who lived in the same apartment building as the defendant and Jen. Three neighbors described overhearing Jen yelling at and berating the defendant, sometimes profanely. The fourth neighbor "only heard laughing and giggling" from their apartment, "never ... any yelling or screaming, or any suggestion of fighting." None of the neighbors reported hearing or seeing any signs of physical fighting or other physical abuse.

This evidence, if believed, would show that the neighbors were unaware of the forced sexual and other acts that Jen alleged against the defendant. But it would not show that the defendant, in the confines of the apartment, did not commit those acts. Indeed, the defendant conceded at oral argument that nothing said by the neighbors directly contradicted Jen's statements about what the defendant had done to her.⁷ This evidence therefore does not call into question the substantial reliability of Jen's hearsay statements.

Second, the defendant cited his investigator's reports of interviews with Jen's ex-husband and an ex-boyfriend. The ex-husband described Jen, with whom he had a child born in 2004, as mentally unstable, mean, and sometimes vicious. He related various past incidents that, in his view, showed Jen's dishonesty.⁸ The ex-boyfriend described Jen's personality in similar terms; he added that she was controlling and jealous, frequently accusing him of being interested in other women. He, too, related numerous past incidents in which, he said, Jen had been dishonest.⁹

Again, however, the defendant conceded at oral argument that nothing said by the ex-husband or the ex-boyfriend directly contradicted any of Jen's hearsay statements about what the defendant had done to her. Her alleged dishonesty in two prior relationships was not sufficient to show that she had a character for untrustworthiness, rendering her descriptions of the defendant's acts not substantially reliable under the Hartfield factors. We shall return to the character evidence point infra when discussing the limits placed on the ex-husband's and the ex-boyfriend's testimony at the violation hearing.

Third, defense counsel's affidavits asserted that on February 3 and 4, 2019, while Jen and the defendant still lived together, Jen gave the defendant a cake for his birthday, spoke to the defendant's mother about the plans for Jen's and the defendant's wedding the coming summer, and had a photograph taken in which Jen kissed the defendant's cheek. Assuming the truth of these assertions,¹⁰ the events occurred one week before February 11, 2019, the date Jen first went to Sergeant Leavitt with her allegations against the defendant.¹¹ A victim of domestic violence and sexual abuse may feel considerable ambivalence about leaving her abuser and may have great difficulty giving up hope that the relationship will improve. That Jen may have harbored such a hope does not make her allegations so unreliable that they could not support a finding of a probation violation.

Fourth, the defendant cited evidence that, after Jen made her allegations against the defendant and obtained the c. 209A order, she wanted to obtain the return of a valuable engagement ring that he had previously given her, and that she gave back to him when sh...