Commonwealth v. Kelsey

• Citation: 464 Mass. 315,982 N.E.2d 1134
• Decision Date: 08 February 2013
• Docket Number: SJC–11087.
• Parties: COMMONWEALTH v. Darryl J. KELSEY.
• Court: United States State Supreme Judicial Court of Massachusetts

464 Mass. 315

982 N.E.2d 1134

COMMONWEALTH

v.Darryl J. KELSEY.

SJC–11087.

Supreme Judicial Court of Massachusetts, Essex.

Argued Oct. 1, 2012.

Decided Feb. 8, 2013.

Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant.

Kenneth Bresler, Special Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

While serving a period of probation for unrelated convictions, the defendant allegedly sold “crack” cocaine to a confidential police informant. Prior to his probation revocation hearing, he moved for disclosure of the informant's identity. A District Court judge denied the motion on the ground that such disclosure is not required in the context of a probation revocation proceeding. The judge then found that the defendant had violated the terms of his probation and revoked the defendant's probation. The defendant timely appealed, and we transferred the case here on our own motion.

The question to be decided is whether a defendant facing probation revocation due to an alleged new criminal offense is entitled to disclosure of the identity of an informant who was a participant in the alleged offense, the only nongovernment witness to the offense, and the only percipient witness to the entire alleged transaction. We conclude that, in such circumstances, disclosure may be appropriate, and that the judge erred in denying the defendant's motion on the ground that disclosure is never required in probation revocation proceedings. Accordingly, we vacate the order and remand for further proceedings.¹

1. Background. We recite the events of December 22, 2009, based on testimony at the probation revocation hearing by Detective Sean Brady of the Marblehead police department. On that day, a confidential informant agreed to make a drug purchase from the defendant, who was on probation for two unrelated sets of convictions. Brady searched the informant, leaving him with one hundred dollars in cash and his cellular telephone. The informant telephoned the defendant to arrange the transaction and then drove alone in Brady's personal automobile to a multi-unit building in Marblehead. Brady, who knew the defendant, followed with another officer in a different vehicle. When they arrived at the building, Brady observed the alleged transaction from a location approximatelythirty feet from the building's rear door. He saw the defendant leave the building through the rear door and sit in the automobile with the informant. The informant drove approximately forty feet, into the building's parking lot.² Less than a minute later, the defendant left the automobile and returned to the building.

Brady followed the informant back to the Marblehead police department. The informant had two plastic “baggies,” each containing a white “rock,” and he did not have the one hundred dollars in cash. He told Brady that he had purchased the baggies from the defendant. Based on his training and experience, Brady believed the substance in the baggies to be “crack” cocaine. ³

The defendant was not immediately arrested. On the day after the alleged transaction, Brady prepared a report describing the incident. The report does not indicate the time of day when the alleged transaction occurred. On the same day, a complaint issued charging the defendant with two drug offenses and with conspiracy to commit drug offenses. Brady also requested and received a warrant for the defendant's arrest. During the next few weeks, Brady conducted surveillance of the defendant with the Lynn police department but did not execute the warrant. Approximately two weeks after the alleged transaction, on January 5, 2010, the defendant was arrested and taken into custody when he reported to the District Court for a scheduled meeting with his probation officer. Based on the charges against him, and on his failure to pay certain fees, he was served with a notice of probation violation.

The defendant filed a motion in his criminal case seeking disclosure of the informant's identity, as well as a motion for a court-ordered summons of telephone records from his cellular service provider. On February 16, 2010, a District Court judge held a brief hearing on the defendant's criminal and probation matters. The Commonwealth agreed to the defendant's motion for disclosure, and the judge allowed it. The judge also allowed the motion for summons of the defendant's telephone records, ordering their production on or before March 4, 2010.

On March 9, 2010, the criminal matter was scheduled for a probable cause hearing to be followed by a probation revocation hearing. Before a different District Court judge, the prosecutor indicated that the Commonwealth did not wish to disclose the identity of the confidential informant and moved to dismiss the case. The judge allowed the motion with the defendant's consent. The probation officer wished to proceed with the revocation hearing, but the judge granted the defendant's request for a continuance, because the telephone records summonsed had not been provided.

On April 1, 2010, the defendant's probation revocation hearing was held before a third District Court judge. Immediately prior to the hearing, the judge conducted a brief nonevidentiary hearing as to the defendant's second motion for disclosure of the informant's identity, which had been filed two days earlier under the probation docket numbers. The defendant argued that the original and identical motion for disclosure had previously been allowed and was understood to apply to both the criminal case and the probation matter predicated on the same alleged conduct. He further contended that disclosure of an informant's identity is required where the informant is an active participant in, and percipient witness to, the alleged offense, and that nondisclosure would violate his due process right to call witnesses and to investigate the case against him.⁴

The probation officer stated that the Commonwealth should never have agreed to such disclosure in the first place, and that, in any event, the probation department was prepared to proceed without the testimony of the informant. Regarding the absence of the informant as an “admitted[ ]” weakness in the probation department's case and as a self-sufficient “sanction” for nondisclosure, the judge denied the defendant's motion. He stated, “I've never allowed this sort of motion on probation cases ... I've never had this in [seventeen] years on the bench ... disclosure of a confidential informant on a probation surrender.” When the defendant asked the judge to clarify whether he was entitled to disclosure, the judge replied, “No.... Not for the probation surrender.”

Brady and the probation officer testified at the revocation hearing. As to the overdue fees, the probation officer testified that the defendant was required only to pay the balance owed by the end of his probationary period, as long as he was paying a monthly probation fee or performing at least two days of community service each month. She conceded that the defendant “was trying to catch up” with his community service and was making “contributions” toward his fees. The judge found that the defendant had violated the terms of his probation by committing a new offense and by failing to pay fees owed. He ordered the defendant's two suspended sentences, one for nine months and one for six months, be imposed, to run concurrently.

2. Standard of review. The defendant argues that the judge's refusal to order disclosure of the informant's identity denied him his due process right to present evidence in his defense at a probation revocation hearing. See Commonwealth v. Durling, 407 Mass. 108, 113, 551 N.E.2d 1193 (1990), quoting Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In the trial context, we review preserved constitutional claims to determine whether the error, if any, was “harmless beyond a reasonable doubt.” Commonwealth v. Bacigalupo, 455 Mass. 485, 495, 918 N.E.2d 51 (2009), citing Commonwealth v. Vinnie, 428 Mass. 161, 163, 698 N.E.2d 896 (1998). Courts in the Commonwealth have assumed, without so holding, that the same standard applies to probation revocation hearings. See Commonwealth v. Harrison, 429 Mass. 866, 868 & n. 4, 712 N.E.2d 74 (1999); Commonwealth v. MacDonald, 53 Mass.App.Ct. 156, 160, 757 N.E.2d 744 (2001); Commonwealth v. Morse, 50 Mass.App.Ct. 582, 591–592, 740 N.E.2d 998 (2000). While probationers facing revocation proceedings enjoy fewer and more flexible due process rights than criminal defendants, Commonwealth v. Durling, supra, and cases cited, the constitutional rights they do hold are appropriately guarded with equal vigilance. Therefore, we review under the familiar standard for preserved constitutional claims. See Commonwealth v. Bacigalupo, supra.

3. Discussion. a. Due process. Revocation of probation constitutes a deprivation of liberty cognizable under the due process clause of the Fourteenth Amendment to the United States Constitution. See Commonwealth v. Durling, supra at 112, 551 N.E.2d 1193, citing Gagnon v. Scarpelli, supra at 782, 93 S.Ct. 1756 While a probationer “need not be provided with the full panoply of constitutional protections applicable at a criminal trial ... [t]he due process clause ... requires that the Commonwealth provide probationers with certain protections at surrender hearings.” Commonwealth v. Durling, supra at 113, 551 N.E.2d 1193, citing Gagnon v. Scarpelli, supra.⁵ These protections include:

“(a) written notice of the claimed violations of [probationor] 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 cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and...