Commonwealth v. Costa
| Decision Date | 01 July 2022 |
| Docket Number | SJC-13157 |
| Parties | COMMONWEALTH v. CONCETTO COSTA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Heard: December 6, 2021.
Indictments found and returned in the Superior Court Department on March 22, 2006. A proceeding for revocation of probation was heard by Kathe M. Tuttman, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Patrick Levin, Committee for Public Counsel Services, for the defendant. Kathryn L. Janssen, Assistant District Attorney for the Commonwealth.
Maura Healey, Attorney General, & Gabriel Thornton, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.
Anthony D. Gulluni, District Attorney, & Katherine E. McMahon, Assistant District Attorney, for district attorney for the Hampden district & another, amici curiae, submitted a brief.
David E. Sullivan & Andrea Harrington, District Attorneys, & Jennifer K. Zalnasky & Thomas H. Townsend, Assistant District Attorneys, for district attorney for the northwestern district & another, amici curiae, submitted a brief.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
The probationer in this case had his probation revoked on the basis of hearsay statements by his former fiancee alleging, among other things, that the probationer had raped her repeatedly over a period of approximately four months when they were living together. The probationer argues that the proceedings at the probation violation hearing did not comport with due process of law under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights because his accuser did not appear at the hearing to testify and to be cross-examined.
A probationer's request for live testimony at a probation violation hearing implicates two due process rights: (1) the right to confront adverse witnesses, and (2) the right to present a defense. See Commonwealth v. Hartfield, 474 Mass. 474, 479 (2016). The probationer argues that both of these rights were violated at his probation violation hearing. We do not agree that, in this case, the absence of the complainant, the probationer's former fiancee, violated the probationer's right to confront adverse witnesses, but we do agree that the inability to question her violated his right to present a defense. Accordingly, the decision on the asserted violation of probation must be vacated and set aside, and a new hearing must be conducted, at which the probationer may call the complainant as a witness in his defense.[1]
We recite the facts based on the evidence introduced at the evidentiary hearing and the final probation violation hearing, reserving certain details for later discussion.
In 2008, the probationer pleaded guilty to four counts of rape and abuse of a child, G. L. c. 265, § 23, and one count of indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B. In 2014, after completing a sentence of incarceration on three of the four convictions of rape, the probationer began a term of ten years of probation on the remaining convictions. One of the conditions of that probation required the probationer to obey local, State, and Federal laws.
On February 11, 2019, the complainant went to the Salisbury police station and met with Sergeant James Leavitt. She told Leavitt that she had begun dating the probationer in May of 2018. Soon thereafter, they became engaged. They moved into an apartment together where they lived from October of 2018 to February of 2019. The complainant told Leavitt that, after she moved in with the probationer, their relationship had become rife with violence and intimidation. Leavitt assisted the complainant with an application for an abuse prevention order under G. L. c. 209A (209A order); in an attached affidavit, the complainant averred that the probationer had "forced himself on [her] sexually" and had threatened to kill her if she left him. Leavitt spoke by telephone with a judge of the trial court department, who issued an emergency 209A order. Leavitt also made an appointment to meet again with the complainant the following day.
On February 12, 2019, the 209A order was extended for a period of one year. Later that day, the complainant returned to the Salisbury police station to provide Leavitt with a more detailed description of how her relationship with the probationer had changed shortly after they moved in together. She discussed, in detail, how the probationer physically forced her to engage in sexual activity. These alleged incidents occurred numerous times each week, beginning in mid-October of 2018 and continuing through the end of January 2019. In addition, the complainant told Leavitt that, on several occasions, the probationer had threatened to stab her and kill her. She also said that the probationer would prevent her from leaving the apartment; he did so by grabbing her arms, yelling threats at her, and, in some instances, throwing her to the floor. Based on the complainant's statements, a criminal complaint issued charging the probationer with multiple counts of rape, kidnapping, assault and battery on a household member, and making threats. After the probationer was arrested, the Commonwealth moved that he be held without bail pending trial, pursuant to G. L. c. 276, § 58A; following a hearing on the Commonwealth's motion, the probationer was found to be dangerous and was ordered detained.
In March of 2019, the complainant testified before a grand jury. During her testimony, she explained how her relationship with the probationer had changed after they moved into their shared apartment. She testified that the probationer became jealous and would accuse her of infidelity. She described incidents of forced oral, vaginal, and anal sex. She also explained that the probationer sometimes would prevent her from leaving the apartment by forcibly holding her, blocking her exit from the apartment, and threatening to kill her. The grand jury returned indictments charging the probationer with rape, assault and battery by means of a dangerous weapon, assault and battery on a family or household member, kidnapping, intimidation of a witness, and threatening to commit a crime.
As a result of these indictments, a notice of probation violation issued. The complainant told the assistant district attorney that she emotionally could not handle testifying at a probation violation hearing. Accordingly, in lieu of calling the complainant to testify, the assistant district attorney sought to admit the complainant's statements to Leavitt at the Salisbury police station, her affidavit attached to her application for a 209A order, and her testimony before the grand jury. Invoking his due process right to confront the witnesses against him, the probationer sought to preclude the Commonwealth from introducing these statements as unreliable hearsay. The Commonwealth opposed the motion, and itself sought to preclude the probationer from calling the complainant to testify.
At an evidentiary hearing on the Commonwealth's and the probationer's motions in June of 2019 (motion hearing), the Commonwealth submitted exhibits including a transcript of the complainant's grand jury testimony; the complainant's application for the 209A order, with the attached affidavit; and a Salisbury police department report that included Leavitt's proffered testimony as to what the complainant told him on February 11 and 12 of 2019. The probationer's exhibits included six reports by a private investigator who had interviewed four of the probationer's and the complainant's neighbors, a former husband of the complainant, and a former boyfriend. The probationer also introduced material related to a 209A order that the same former husband had obtained against the complainant. Neither party called any witnesses to testify. After reviewing the documentary evidence and considering the parties' arguments, a Superior Court judge denied the probationer's motion to exclude the complainant's hearsay statements and allowed the Commonwealth's motion to preclude the probationer from calling the complainant to testify.
In late September of 2019, a different judge presided over the final probation violation hearing. In an attempt to impeach the complainant's credibility, the probationer called a former husband and a former boyfriend of the complainant to describe statements they had made to the private investigator that were contained in the investigator's reports. The hearing judge sustained many of the Commonwealth's objections to the introduction of testimony about the complainant's prior conduct, as described in the reports, because the judge concluded that the proffered testimony was opinion evidence and evidence of prior bad acts and, accordingly, was not relevant to any issue before the court. The hearing judge allowed the probationer to elicit some testimony from the former husband about his disputes with the complainant concerning custody of their daughter, but only to the extent that such statements bore on a potential motive to fabricate allegations about the probationer; any statements as to her prior bad acts or mental state were excluded. The probationer also asked the hearing judge to reconsider the rulings which had been made by the judge who presided over the evidentiary hearing; the motion was denied.
The hearing judge then found that the probationer had violated the terms of his probation by committing new crimes, revoked his probation, and sentenced him to five years of incarceration on the fourth count of rape for which he initially had been sentenced to ten years of probation. The probationer appealed, arguing that...
To continue reading
Request your trial