Commonwealth v. Osbourne, 21-P-54

CourtAppeals Court of Massachusetts
Decision Date13 June 2022
Docket Number21-P-54



No. 21-P-54

Appeals Court of Massachusetts

June 13, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).


In 2013, the defendant pleaded guilty to armed assault with intent to murder, assault and battery by means of a dangerous weapon causing serious bodily injury (A&BDW-SBI), and carrying a firearm without a license. His sentence included two years of probation on the A&BDW-SBI conviction to follow his prison sentence on the armed assault with intent to murder conviction. In November of 2018, while the defendant was serving his probation, he was indicted for new charges involving an attack on his sister. The Commonwealth also moved to revoke his probation based on the new charges. Following an evidentiary hearing, a Superior Court judge found that the defendant had violated his probation, revoked that probation, and sentenced


the defendant to a prison term of two years to two years and one day. The defendant subsequently filed a motion for release from unlawful restraint, which was denied. The defendant has appealed both the denial of that motion and the revocation of his probation, and the appeals were consolidated. We affirm.

The defendant accurately points out that the Commonwealth's sole witness who testified at the probation revocation hearing lacked personal knowledge of the incidents underlying the 2018 indictments.[2] Instead, the Commonwealth relied on documentary evidence to prove the new violations, including grand jury minutes, police reports that summarized eyewitness statements and police observations, and a recording of a 911 call. The case law has long established that a judge may rely on hearsay statements in a probation revocation hearing without violating the defendant's due process rights so long as the evidence presents "substantial indicia of reliability." See Commonwealth v. Purling, 407 Mass. 108, 118 (1990) .

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