Commonwealth v. Breon L. Stroup. ( 2023 )

NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-168
COMMONWEALTH
vs.
BREON L. STROUP.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Breon L. Stroup, appeals from a District
Court order revoking his probation based in part on evidence
that he committed five new offenses, including unarmed burglary
and possession of cocaine with intent to distribute. His
principal claim is that the hearing judge erred by considering
unreliable hearsay evidence during the revocation hearing,
including statements from the burglary victim and the State
trooper who arrested Stroup for possessing cocaine. Because
Stroup later pleaded guilty to the possession charge, see Fall
River Dist. Ct. Dock. # 1932CR001561 (MassCourts), we need not
address his claim that the judge erred in considering the State
trooper's arrest report. See Commonwealth v. Milot, 462 Mass.
197, 201–202 (2012) ("subsequent pleas of guilty to the offenses
that formed the basis of the judge's factual finding of a
violation of probation render[] moot the claim that the hearsay
was unreliable"). Accordingly, we examine only whether the
consideration of the burglary victim's hearsay statements and
other evidence related to the burglary violated Stroup's due
process rights. Seeing no violation, we affirm the order
revoking probation.
Background. In April 2019, while Stroup was on probation
based on previous drug and assault charges, Dartmouth police
obtained a warrant for his arrest in connection with a break-in
at a local motel. Separately, the following week, State police
arrested Stroup on drug charges. Two complaints issued -- one
for burglary and other charges stemming from the break-in,1 and
another for possession of a class B substance with intent to
distribute and a related conspiracy charge. Based on these new
charges, Stroup was issued a notice of probation violation and
of a hearing. The notice also alleged two technical violations:
failure to pay probation supervision fees and failure to attend
a visit with his probation officer.
During the hearing, the probation department called
Dartmouth police Officer Mark Vachon to testify about the motel
1 The charges arising from the burglary were later dismissed for
lack of prosecution. See New Bedford Dist. Ct. # 1933CR001722
(MassCourts). Nevertheless, "the fact that the charges against
the defendant . . . were later dismissed for failure to
prosecute is immaterial to the validity of the revocation."
Commonwealth v. Mejias, 44 Mass. App. Ct. 948, 949 (1998).
2
break-in. We summarize that testimony. Vachon and a colleague
were dispatched to the motel early in the morning of April 3,
2019, and learned from the motel owner of a reported break-in in
room 145. The room was rented to one Angelica Estrela, who was
not present when the officers arrived. Vachon inspected the
room and found the front window broken and the door ajar. The
officers recovered a cellphone from the ground in front of the
broken window.
Vachon watched a surveillance video recording of that
night, provided to him by the motel owner but no longer
available by the time of the hearing. The video showed three
men in a dark sedan enter the motel parking lot at approximately
3:30 A.M. and approach the door to Estrela's room three times
over the course of about an hour. On the third occasion, the
men ran from the room carrying several objects, including what
appeared to be some clothing and a box, and then drove away.
Though Vachon could not identify the men, he could discern from
the black-and-white video that one of them was wearing light-
colored clothing.
Vachon further testified that, when Estrela arrived back at
the motel, she reported to the officers that her belongings,
including her clothes and $10,000 in cash, were missing from her
room. The officers showed her the video, and she positively
identified two of the men as Stroup and his friend, Isaiah
3
Toure. She told the officers that she had met Stroup that day
and had allowed him into her room earlier that night while she
was packing her belongings. She recognized Stroup's and Toure's
clothing in the video as matching what they had worn earlier
that day. In the video, she could see Stroup carrying her
clothes away from her room. She also showed Vachon a recent
video from Stroup's Snapchat social media account in which
Stroup wore clothing that, in Vachon's opinion, appeared similar
to the light-colored clothes worn by one of the men in the
surveillance video. Estrela confirmed the identities of the two
men based on registry of motor vehicles (RMV) photos the
officers showed her, and she identified the cellphone as
Stroup's, based on a picture of his child appearing on the
phone's lock screen.
In addition to Vachon's live testimony, the probation
department introduced, over Stroup's hearsay objections,
Vachon's police report, Estrela's written statement, and the
State police arrest report detailing the events that led to
Stroup's drug charges. The judge found that Stroup violated the
terms of his probation by committing the crimes alleged in the
complaints as well as the technical violations. The judge
revoked Stroup's probation and sentenced him to serve the
balance of his two-and-one-half year house of correction
sentence for the assault charge.
4
Discussion. On appeal, Stroup primarily challenges the
judge's consideration of Estrela's statements, both to Vachon
and in writing, identifying Stroup as the burglary suspect. He
argues that the statements were unreliable hearsay and,
accordingly, that the judge's consideration of them to find that
Stroup committed the burglary violated his due process rights,
including his right to confront adverse witnesses. We are not
persuaded.
"Even though standard evidentiary rules do not apply to
probation revocation hearings," due process still requires that
a finding of a probation violation be based on reliable
evidence. Commonwealth v. Durling, 407 Mass. 108, 117-118
(1990). To determine whether proffered evidence is sufficiently
reliable, a hearing judge may consider:
"(1) whether the evidence is based on personal knowledge or
direct observation; (2) whether the evidence, if based on
direct observation, was recorded close in time to the
events in question; (3) the level of factual detail; (4)
whether the statements are internally consistent; (5)
whether the evidence is corroborated by information from
other sources; (6) whether the declarant was disinterested
when the statements were made; and (7) whether the
statements were made under circumstances that support their
veracity."
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016). A hearsay
statement need not satisfy all of these criteria to be
considered "trustworthy and reliable" evidence sufficient to
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support a finding of a probation violation. Commonwealth v.
Patton, 458 Mass. 119, 133 (2010).
Due process also guarantees a probationer "the right to
confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation)" (quotation omitted). Durling, 407 Mass. at 113.
But "a showing that the proffered [hearsay] evidence bears
substantial indicia of reliability and is substantially
trustworthy is a showing of good cause obviating the need for
confrontation." Id. at 118.
Here, Estrela's statements were based on her personal
knowledge and direct observation of Stroup's appearance and the
clothes he wore that day. Her oral and written statements were
made close in time to the events in question, were factually
detailed, and were consistent with each other. They were in
part corroborated by Vachon's testimony that a burglary had
occurred in Estrela's room and that he witnessed Estrela
identifying Stroup and Toure in the surveillance video and the
RMV photos.2 Although Stroup complains that he had no
2 The statements were also confirmed in Vachon's police report.
Because that report stated essentially the same facts as
Vachon's testimony, the judge had no need to rely on the report
for any of his findings. Nevertheless, the report bore many
indicia of reliability: it was based on Vachon's direct
observations, was written on the same day as the events it
reported, was factually detailed and consistent with his live
testimony, and was submitted to support an application for an
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opportunity to see the surveillance video, he cites no authority
suggesting that the video itself had to be offered in evidence
in order to corroborate Estrela's statements. Nor does Stroup
challenge either the authenticity of the video or the
reliability of Vachon's testimony about his direct observation
of its contents.3
Finally, Estrela made her statements under circumstances
indicating their veracity, in that it is a crime to make a false
report of a crime to a police officer. See Commonwealth v.
Nunez, 446 Mass. 54, 59 (2006); Commonwealth v. Negron, 441
Mass. 685, 691 (2004). In addition, Estrela sought to
corroborate her identification of Stroup by showing Vachon the
Snapchat video of the man she said was Stroup. Vachon then
confirmed that the man in that video wore light-colored clothing
similar to that worn by the suspect in the surveillance video.
Based upon the foregoing, the judge did not err in
determining that Estrela's statements as a whole were
arrest warrant. The report was thus substantially reliable.
See Hartfield, 474 Mass. at 484. Moreover, Vachon was available
to be cross-examined about it.
3 We do not understand Stroup to be arguing that anything
depicted in that video was itself hearsay, so as to require that
it be evaluated for reliability. Nothing in the video, at least
as Vachon described its contents, made any "statement," as that
word is defined for hearsay purposes. See Mass. G. Evid.
§ 801 (a) (2022) ("'Statement' means a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended
it as an assertion").
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substantially reliable. Her ability to accurately perceive and
truthfully report what she perceived was sufficiently
established. The judge could thus treat her identification of
Stroup in the surveillance video, and of Stroup's phone,4 as
substantially reliable. As numerous cases demonstrate, there is
no requirement that each one of a declarant's statements be
individually corroborated before it may be treated as reliable.
See, e.g., Patton, 458 Mass. at 133; Nunez, 446 Mass. at 59;
Commonwealth v. Henderson, 82 Mass. App. Ct. 674, 679 (2012);
Commonwealth v. Cates, 57 Mass. App. Ct. 759, 763 (2003).
Corroboration is merely one of the criteria for reliability, and
not all of those criteria need be satisfied. See Patton, 458
Mass. at 133.
In sum, the judge's finding of a probation violation based
largely on Estrela's statements did not violate Stroup's due
process rights. Also, as noted at the outset, whether the
hearsay report of the drug offenses was substantially reliable
is moot, under Milot, 462 Mass. at 201–202; the finding of a
probation violation based on the possession charge was proper.
We therefore need not consider Stroup's claim that the judge
4 Although the record included no affirmative explanation of how
Estrela, having met Stroup for the first time that day, was able
to identify Stroup's child from the phone's lock screen, we do
not view this gap as fatal, given the other circumstances
showing the reliability of her statements.
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would not have been warranted in revoking probation based only
on Stroup's technical violations.
Order revoking probation and
imposing sentence affirmed.
By the Court (Massing,
Sacks & Walsh, JJ.5),
Clerk
Entered: February 21, 2023.
5 The panelists are listed in order of seniority.
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