Commonwealth v. Hill, Jr., P-1645

• Decision Date: 04 June 2001
• Docket Number: P-1645
• Citation: 751 N.E.2d 446,52 Mass. App. Ct. 147
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. FLOYD A. HILL, JR. 99-Appeals Court
• Court: Appeals Court of Massachusetts

751 N.E.2d 446 (Mass.App.Ct. 2001)

COMMONWEALTH vs. FLOYD A. HILL, JR.

99-P-1645 Appeals Court

June 4, 2001

July 26, 2001

County: Berkshire.

Present: Duffly, Cypher, & Mason, JJ.

Practice, Criminal, Probation, Revocation of probation. Due Process of Law, Probation revocation. Evidence, Hearsay. Identification.

Indictments found and returned in the Superior Court Department on May 19, 1995.

A proceeding for revocation of probation was heard by Daniel A. Ford, J.

Catherine K. Byrne for the defendant.

Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.

MASON, J.

Floyd Hill appeals from an order revoking his probation and committing him to a house of correction on the ground that he violated his probation by breaking into a home in West Stockbridge and raping a sixteen year old victim, Jane.¹ Hill contends that the revocation order was entered in violation of his due process right to confront the witnesses against him and was based on insufficient evidence. We affirm the order.

Background. In March, 1996, Hill pleaded guilty in Superior Court to indictments charging rape, assault with intent to commit rape, and assault with a dangerous weapon. Hill was sentenced to five to seven years incarceration on the first two charges, and to two and one-half years incarceration on the third charge, with all the sentences to run concurrently. The court, however, suspended each of the sentences and placed Hill on probation until March, 1998. Hill signed a form that listed the terms of his probation, including the condition that he obey local, State and Federal laws and court orders.²

In December, 1997, while Hill was still on probation, he was indicted for aggravated rape, assault with a dangerous weapon, and breaking and entering in the daytime with intent to commit a felony, placing a person in fear. Each of these indictments charged that on Friday, November 7, 1997, Hill had broken into Jane's home and had raped her at knifepoint. Shortly thereafter, Hill was given a "Notice of Surrender and Hearing(s) for Alleged Violation(s) of Probation." The notice referred to the indictments.

The facts. The Commonwealth's evidence at the revocation hearing showed the following facts. Jane was born in 1981, and resided with her parents in West Stockbridge. On the morning of Friday, November 7, 1996, Jane was at home recovering from an illness. She awoke at about 9:52 A.M. and went downstairs to the kitchen to make herself breakfast. Shortly after Jane entered the kitchen, an intruder, whom Jane described as being about six feet tall, wearing a grey long-sleeved shirt and dark brown work gloves, and sounding as though he was forty to fifty years old, grabbed her from behind with one hand and held a knife in front of her with the other. The intruder told Jane in a deep, gruff voice that he would kill her if she did not do what he wanted.

The intruder placed a soft blue bag over Jane's head, and then forced her to walk into the living room, lie down on her back on a rug on the floor, and remove the shorts she was wearing. He then proceeded to rape her for about five or ten minutes. Immediately before the intruder began the rape, Jane asked him to wear a condom "if he was going to do this," and the intruder responded, "all right," but Jane could not determine whether he had complied.

After he was finished, the intruder told Jane to roll over on her stomach and count to one hundred before opening her eyes or lifting her head. He then removed the bag from Jane's head and fled through the kitchen and out the back door of the house. After the intruder had left, Jane looked up and saw that the clock on the video recording device in her living room showed 10:34 A.M. She also noticed that the knife used by the intruder lay on the floor next to her. After getting up and ensuring that the doors and windows of the house were locked, Jane called her mother and reported that she had been attacked.

Jane's father was the first to arrive at the house in response to Jane's call and, after speaking briefly to Jane, he called the police. About two minutes later, Chief Michael Kirchner of the West Stockbridge police department, and then Chief Wilcox of the Stockbridge police department, arrived at the home. Chief Kirchner promptly requested additional assistance from the State police, including a helicopter and a canine unit. In the meantime, Jane was taken by her mother to Fairview Hospital in Great Barrington.

Thereafter, Chief Kirchner and several State police officers conducted a search of the area by foot, car and helicopter. They also interviewed numerous persons in the area, including persons who were working on railroad tracks running behind the victim's residence, and also those working on the roof of a house across the tracks, as well as several neighbors living in nearby homes. No one reported having observed any suspicious persons in the area. Nor could the police officers find a blue bag or other item that might have been used in the attack.

At about noon, however, Sergeant Neal Raymond of the State police canine unit arrived at the victim's home with his tracking dog. After picking up a scent at the rear door to the house, the dog followed the scent out to a local roadway, Route 102, and then up to Hill's house, which was only about 575 feet away from the victim's house. The dog paused only briefly to obtain a drink of water at a stream and then, upon arriving at Hill's house, went initially to the front door, then to a mailbox in front of the house, and then back to the front door. When the dog reached the front door the second time, the dog indicated that the scent trail had ended.

Sergeant Raymond caused a search of the indicated scent track to be conducted by a separate canine evidence recovery team, but nothing was found. Raymond then reported back to Chief Kirchner who, together with another State police officer, went to Hill's home and spoke to him. Hill said that he was alone in the house and had been sleeping on the floor in his living room until about 10:30 A.M., when he awoke and watched the second half of a television program. Hill further stated that, at about 11:15 A.M., he had gone outside to check his mailbox, but had immediately returned and not left his house again. Kirchner asked Hill if he and the other officer could look around and, when Hill responded affirmatively, they did so, looking for a blue bag or a shirt of the type the victim had described. Although they were not able to find any such item, they did collect several pieces of clothing, as well as various other items.

Kirchner then requested that Hill accompany him and the other police officer to the police station for a further interview, and Hill agreed to do so. During the interview, Kirchner stated to Hill that he would be asking him for a voice sample. Hill became visibly agitated and stated that he was "one hundred percent sure" that the police would not find any fingerprints or physical evidence at the victim's home, but that he was worried about the "voice thing." He also stated the following at the end of the interview: "We got the dog coming to my house. We got no fingerprints. You got no physical evidence. But I'm worried about the voice thing that we're going to do."

The next day, Saturday, November 8, West Stockbridge police officer Karl Cooper took Hill to the police station to provide the voice sample that Kirchner had requested. Hill repeated to Cooper his concern about the procedure but agreed to comply. Hill subsequently stated to Cooper that the person who had gone into the victim's home the previous day had "come in through the rear." Hill also stated that the intruder had "grabbed the [victim] from behind and held their hand over her mouth."

After securing Hill's voice sample, the police collected five other samples from different middle-aged men. Kirchner played each of these samples for Jane on the evening of Monday, November 10. Jane told Chief Kirchner at that time that Hill's voice was "very, very close to the voice of the person who attacked me."

Three days later, on Thursday, November 13, Kirchner learned from probation officer Michael Koperniak that Koperniak had called Hill's house on the morning of November 7 at about 10:15 A.M., but had not received any answer and had left a message for Hill on his answering service. Kirchner asked Cooper to investigate the matter and the next day, Friday, November 14, Cooper and another police officer went back to Hill's house and spoke to Hill about the matter. Hill told Cooper at that time that he had two telephones, one in the downstairs dining room and one upstairs, that both of the telephones worked, and that he had not received any telephone calls on the morning of November 7. Subsequently, however, Kirchner himself went to Hill's house and, after receiving Hill's permission, recorded each of the telephone messages that were still retained on Hill's answering service. The messages included one from Koperniak, and indicated that it had been received at 10:16 A.M. on November 7.

On Wednesday, November 19, Kirchner returned to Hill's house with several other police officers and, after receiving Hill's permission, conducted a further search of the...