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Commonwealth v. Juvenile M.

Appeals Court of Massachusetts, Suffolk

July 27, 2017

COMMONWEALTH
v.
MARCUS M., a juvenile.

          Heard: June 6, 2017.

         Complaints received and sworn to in the Suffolk County Division of the Juvenile Court Department on December 19, 2014.

         A proceeding for revocation of probation was had before Peter M. Coyne, J.

          Alison R. Bancroft for the juvenile.

          Julianne Campbell, Assistant District Attorney, for the Commonwealth.

          Present: Green, Hanlon, & Kinder, JJ.

          HANLON, J.

         After a probation violation hearing, a judge in the Juvenile Court found that the juvenile had violated the terms of his probation because he was charged three times with subsequent offenses allegedly committed while he was on probation. The judge committed the juvenile to the Department of Youth Services (DYS) until his eighteenth birthday. The juvenile now appeals, arguing that the only evidence offered on two of the three offenses was his court activity record information (CARI) record indicating that new complaints had issued. While we agree with the judge that the evidence supported a finding of violation regarding one offense on one complaint, for which there was other evidence, judicial notice of the CARI records, without more, was insufficient to support finding the other two violations.

         Background.

         The juvenile was placed on probation and his case continued without a finding, on May 8, 2015, after he admitted to facts sufficient to support findings of delinquency on charges of malicious destruction of property and vandalizing property. Ten days later, a probation officer issued a notice of probation violation after the juvenile was arrested for possession of a firearm, possession of ammunition, carrying a rifle or shotgun on a public way, and assault by means of a dangerous weapon. The probation case was continued a number of times and, on February 10, 2016, a second notice of probation violation was served on the juvenile as a result of other new charges, this time, affray and disturbing of public assembly. On March 11, 2016, a third notice of probation violation issued, alleging a "violation of the criminal law, namely, larceny."

         At the probation violation hearing in June, 2016, a Boston police sergeant testified that he had responded to a call regarding a dispute among neighbors on Blue Hill Avenue in Boston. When he arrived, an individual told the sergeant that "someone had a firearm and threatened [that individual]." The sergeant and other officers spoke to all of the parties present and then left the area; they were called back a short time later. On his return, the sergeant saw a large group of young males on the street run into a nearby house. He followed them and, eventually, seized the defendant. Nearby was a backpack and, in the backpack, were two loaded firearms. At the end of the probation violation hearing, the judge, explicitly crediting the sergeant's testimony, found that the juvenile had violated the terms of his probation "by committing a new offense, namely . . . the possession of firearm charge."

         Counsel for the juvenile then inquired about the status of the other pending probation violations and, after some discussion, the judge added, "And as to the affray and the disturbing of public assembly, I find that by a preponderance of the evidence that he's in violation for that based upon the CARI record. And as to the larceny, I find by a preponderance of the evidence that he violated as to that as well. So it's limited -- the violations are limited to the three new offenses." Defense counsel objected, pointing out that, "at the hearing, there was no evidence submitted whatsoever on those two particular charges. The Probation Department didn't even seek to admit the police report." The judge noted the objection and stated that he was "taking judicial notice of the CARI." As noted supra, the judge then committed the juvenile to DYS until his eighteenth birthday.

         Discussion.

         Initially, the juvenile argued that there was insufficient evidence to find any violation of probation. However, he now concedes that that argument "has been rendered moot by [his] subsequent plea of delinquency" to a reduced charge of possession of a firearm without a firearm identification card, in violation of G. L. c. 269, § 10(h).[1] We agree. See Commonwealthv.Joyner, 467 Mass. 176, 190 (2014), quoting from Commonwealthv.Maggio, 414 Mass. 193, 198 (1993) ("Because it rests on a finding of guilt beyond a reasonable doubt, however, '[a] criminal conviction . . . adequately protects the probationer's right to due process, and may serve as the basis for a summary [finding of a ...


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