Heard Date February 9, 2016.
received and sworn to in the Dorchester Division of the
Boston Municipal Court Department on December 7, 2009. A
proceeding for revocation of probation was heard by Jonathan
R. Tynes, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Kathleen J. Hill for the probationer.
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,
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.
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. 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.
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.
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.
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.
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.
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.
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
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. ...