Commonwealth v. Williams

Decision Date23 May 2023
Docket Number21-P-844
PartiesCOMMONWEALTH v. KYRONNE D. WILLIAMS.
CourtAppeals Court of Massachusetts

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COMMONWEALTH
v.
KYRONNE D. WILLIAMS.

No. 21-P-844

Appeals Court of Massachusetts, Bristol

May 23, 2023


Heard: January 5, 2023.

Complaint received and sworn to in the Taunton Division of the District Court Department on August 21, 2020. A proceeding for revocation of probation was heard by Maureen H. McManus, J.

Jenny L. Margeson for the defendant.

Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

Present: Meade, Rubin, & Blake, JJ.

RUBIN, J.

The defendant appeals from an order of a judge of the District Court (1) finding that he violated his probation by committing new offenses and (2) revoking his probation. The defendant argues primarily that this was improper because

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criminal complaints charging him with these new offenses were disposed of by nolle prosequi prior to his final probation violation hearing. We disagree, and affirm.

Background.

On October 14, 2020, the defendant pleaded guilty to larceny over $1,200. See G. L. c. 266, § 30 (1). The defendant was sentenced to one year in the house of correction with fifty-six days to be served and the balance suspended for one year, until October 13, 2021. As a general condition of his probation, the defendant was required to obey all local, State, and Federal laws. On December 3, 2020, the defendant was driving a rental car on Route 91 south when he was stopped by Trooper Robert Bardier. The trooper had noticed that one of the defendant's front headlights was out. The trooper approached and asked for the defendant's identification. The defendant provided the trooper with a North Carolina driver's license.

The trooper entered the information from the license into the Criminal Justice Information Services (CJIS) database, which showed that the license was suspended. After further investigation, the trooper discovered that the defendant "had active warrants out of Rhode Island, . . . as well as a[n] active warrant out of New Bedford court."

The trooper arrested the defendant. He arranged for the vehicle to be towed, and conducted a motor vehicle inventory

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search in anticipation of its towing. During this search, the trooper found a New Jersey driver's license that, he testified, had what he believed to be the defendant's picture on it, but with a different name. The trooper entered the information from the New Jersey driver's license into the CJIS database, and the query returned no results. The trooper asked the defendant about the New Jersey driver's license, and the defendant stated that he did not know whose picture was on the license but that he would never provide a "fake ID" to an officer.

The following day, a criminal complaint issued from the District Court, charging the defendant with unlicensed operation of a motor vehicle, see G. L. c. 90, § 10, and "falsely mak[ing], steal[ing], alter[ing], forg[ing], or counterfeit[ing], or procur[ing] or assist[ing] another to falsely make, steal, alter, forge or counterfeit . . . a license to operate motor vehicles," see G. L. c. 90, § 24B.[1]

The probation department subsequently issued a notice of violation.[2] On December 21, 2020, a judge found, after a

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nonevidentiary hearing, probable cause that the defendant had violated his probation and ordered that the defendant be held in custody pending a final violation hearing. Three days later, on December 24, 2020, all the charges stemming from the defendant's traffic stop were nol prossed by the Commonwealth.

The final probation violation hearing took place a little over a month later. The probation officer called Trooper Bardier, who testified regarding the traffic stop. The Commonwealth assisted the probation officer with the questioning of the trooper. In response to a question from the Commonwealth about whether he concluded that it was the defendant in the photograph on the New Jersey driver's license, the trooper testified, "I believe that it was [the defendant], yes." The trooper was questioned about the New Jersey driver's license on cross-examination and asked by defense counsel whether he had found any evidence that the defendant had relied on the alias found on the New Jersey driver's license, "Elliott Itol," in the past. The trooper responded that he had not. After this testimony, the probation officer rested.

The defendant called Joshua Borden, who owned the defendant's rental car. Borden testified that he was in the business of renting cars, and that his cars were predominantly

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rented by young Black men, of whom, we infer based on the transcript, the defendant is one. On cross-examination, Borden testified that the cars were regularly cleaned between renters and that the person who had rented the car prior to the defendant was a man named Tray Green.

Following Borden's testimony, the judge noted that the "defendant at this point is resting with regard to the evidence." The judge then asked to "hear from either the Commonwealth or Probation as to what Probation believes they have established . . . and what they believe they've proven." The probation officer proceeded to argue his case. During this argument, the probation officer proffered to the judge that he had looked "up Mr. Itol in New Jersey RMV. There was only one Elliot Itol in New Jersey." The probation officer, despite having rested, proceeded to enter the picture he had found of Elliot Itol into the record, arguing that "the person in that image could not be further from what the trooper identified as the picture in the ID that was found in [the defendant's] car, Your Honor. The trooper identified an African-American in the picture, so much looking like [the defendant]. As you can see, Judge, that is not what the picture looks like." Defense counsel did not object to the motion to enter the picture in evidence. The picture shows a white man.

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Defense counsel made his closing argument. The judge then concluded that "having had the opportunity to hear the testimony of the trooper who testified in this case, as well as the witness produced by the defendant, Mr. Borden, I credit the testimony of the trooper. I find his testimony was convincing and as a result I do find by a preponderance of the evidence that [the defendant] did, in fact, violate the terms and conditions of his probation with regard to the charges of having committed new offenses or having been charged with new offenses of unlicensed operation and forgery or misuse of" a license to operate motor vehicles.

Discussion.

1. The effect of the nolle prosequi.

The defendant's first argument on appeal is that the nolle prosequi of his underlying criminal charges should have terminated the probation violation proceedings. Although neither the dismissal of an underlying complaint due to a failure to prosecute, see Commonwealth v. Mejias, 44 Mass.App.Ct. 948, 949 (1998), nor even a defendant's acquittal prior to probation...

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