Commonwealth v. Hartfield
| Decision Date | 09 June 2016 |
| Docket Number | SJC–11948. |
| Citation | 474 Mass. 474,51 N.E.3d 465 |
| Parties | COMMONWEALTH v. Nkrumah N. HARTFIELD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Kathleen J. Hill, Boston, for the probationer.
Helle Sachse, Assistant District Attorney (Lynn S. Feigenbaum, Assistant District Attorney, with her) for the Commonwealth.
Crispin Birnbaum, Special Assistant Attorney General, & Nina L. Pomponio for Commissioner of Probation, amicus curiae, submitted a brief.
Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
, C.J.
The primary issue on appeal is whether a judge's decision in a probation violation hearing to admit in evidence hearsay statements of an alleged victim regarding a new criminal offense bars the probationer from calling the alleged victim to testify. We conclude that it does not. Because the judge erred in concluding that it was inherently inconsistent to allow the alleged victim to be called to testify by the probationer after her hearsay statements were admitted in evidence when offered by the probation department, and because the error was constitutional in nature and not harmless beyond a reasonable doubt, we vacate the finding of a violation of probation and the order revoking probation, and remand for a new hearing.
Background. We recite the facts based on the testimony and documentary evidence from the probation violation hearing held in the Dorchester Division of the Boston Municipal Court Department on July 2, 2013. During the probation department's presentation of evidence, the judge heard testimony from the assistant chief probation officer and a Boston police detective, Ediberto Figueroa, who investigated the case.1 Over the probationer's objection, the judge also admitted in evidence the alleged victim's testimony before the grand jury, two serology reports, and a deoxyribonucleic acid (DNA) report from the Boston police crime laboratory. The reports were admitted through the testimony of Detective Figueroa; no criminalist testified.
The probationer had been placed on probation supervision after pleading guilty to one count of possession of a class D substance with intent to distribute on March 29, 2011. He was sentenced to two and one-half years in a house of correction, which was suspended, and he was placed on probation until March 28, 2013. The conditions of probation required the probationer not to commit any crime and to pay all fees ordered by the court. On March 25, 2013, the probationer was found in violation of the terms of his probation for failure to pay $540 in fees, and his probation was extended until May 24, 2013, to allow him time to pay these fees.2
On April 3, 2013, a notice of probation violation issued alleging that the probationer violated the conditions of his probation by having committed three criminal offenses (aggravated rape, assault and battery, and threatening to commit a crime), and by failing to pay the balance of $540 in fees. The new offense allegedly occurred in the early morning of August 12, 2012, when the alleged victim, a seventeen year old girl who was the daughter of the probationer's girl friend, reported to police that she had been sexually assaulted by the probationer.
According to the alleged victim, she was sleeping in her bedroom in the apartment she shared with her mother and three siblings when a man entered her bedroom, threw a sweatshirt over her head, and threatened to stab her and her siblings if she screamed. The assailant then walked her out of her bedroom to the bathroom. There, he took off her shorts and underwear while she was standing and, after she got on the floor, lifted up her shirt and took off her bra. He then kissed her breasts and vaginally raped her. When she tried to push him off, he became upset, punched her several times, and said that he was about to stab her; she reported feeling a knife at her waist. He then got up and ran the water in the sink. She put on her underwear, and the assailant ordered her to get in the bathtub and stay in the bathroom. He then turned off the light, closed the door, and left. Even though the sweatshirt on her head had obstructed her vision, she told the police that she believed the probationer was the assailant.
The alleged victim was taken to a hospital and examined by a sexual assault nurse examiner who collected the underwear she was wearing during and after the assault and swabbed various places on her body, including her vaginal area, to preserve any trace evidence. The police later went to the alleged victim's home and collected several pieces of evidence, including the shorts the alleged victim had worn at the time of the assault, which were found on top of the bathroom sink and were wet.
The alleged victim's mother told the police that the probationer could not possibly have been the assailant because she had stayed with the probationer at his house that night, and “he was under [her] all night.” The mother also stated that she would have noticed if he had left because she is a light sleeper. She informed the police that she is the only person with a set of keys to the apartment. She added that the alleged victim was known to lie.
The probationer, after waiving his Miranda rights, told the police that he did not rape the alleged victim and that he was at his home with her mother that evening. He also said that he had not gotten along with the alleged victim since he found some embarrassing photographs on her cellular telephone and confronted her with the photographs. The probationer also consented to a buccal swab to provide a sample of his DNA to the police.
The mother also told the police about the cellular telephone incident and the alleged victim's antagonism toward the probationer. The alleged victim described the cellular telephone incident in her grand jury testimony and said that, when the probationer returned the telephone, “[h]e wanted me to do whatever he said.” She testified in the grand jury that the probationer had been in a relationship with her mother for eight or nine years, and she had not liked the probationer since she met him. She moved with her mother and her siblings to the apartment in Dorchester in October, 2011, but moved out in March, 2012, because she and her mother were not getting along due to the probationer. She returned home in July, 2012, but her mother had established a rule that the probationer and her daughter could not be in the apartment at the same time. The daughter's return home disrupted her mother's plans to go back to work, because the probationer was going to watch the mother's other children but could not do so because of the aforementioned rule.
On March 21, 2013, the police received a laboratory report that the probationer was included as a possible source of DNA recovered from semen stains found on the shorts retrieved from the bathroom and the underwear the alleged victim had worn when examined at the hospital. The likelihood that another African–American was the source of the DNA on the shorts was one in 490 quintillion; the likelihood of another African–American being the source of the DNA on the underwear was one in 720 quadrillion.3 ,4 However, preliminary testing for semen from two vaginal swabs, one genital swab, and one perianal swab taken from the alleged victim at the hospital were all negative.
After the probation department rested, the probationer sought to call the alleged victim as a witness; the probationer had summonsed her for the hearing, and the Commonwealth had transported her to the court house to avoid the possibility that a capias would issue. The judge initially allowed her to testify over the objection of the probation department but, after allowing some initial questions regarding her difficult relationship with the probationer, the judge reconsidered his decision sua sponte and did not allow her to testify further. The judge explained his decision by stating:
“I do feel it's inconsistent to ... allow the Commonwealth to not call [the alleged victim], but then have the defendant call her when it seems that one of the overriding principles is that ... she shouldn't have to go through recounting this event several times.”
At a subsequent hearing on July 23, 2013, the judge found by a preponderance of the evidence that the probationer violated his probation by committing a new offense, noting that “the testimony of Detective Figueroa and the DNA evidence ... is the most compelling evidence.”5 The judge then imposed the suspended sentence.6
The Appeals Court affirmed the revocation order in an unpublished memorandum and order issued pursuant to its rule 1:28, and we granted the defendant's application for further appellate review.
Discussion. The probationer argues that by terminating his examination of the alleged victim, the hearing judge violated his due process right to present a defense. He further argues that the admission of the alleged victim's grand jury testimony and the serology and DNA reports from the Boston police crime laboratory violated his due process right to confront adverse witnesses.
A probation violation proceeding is not the equivalent of a criminal trial, and thus a probationer is not accorded “the full panoply of constitutional protections applicable at a criminal trial.” Commonwealth v. Durling, 407 Mass. 108, 112, 551 N.E.2d 1193 (1990)
. In Durling, supra at 113–114, 551 N.E.2d 1193, this court adopted the minimum requirements of due process applicable to probation violation proceedings established by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). To conform with due process principles, a probationer must be provided:
“(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...
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