Commonwealth v. Darryle D. McClure. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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-42
COMMONWEALTH
vs.
DARRYLE D. MCCLURE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order of a judge of the
District Court revoking his probation. He asserts that the
judge abused his discretion when he relied on a police report
containing hearsay statements to conclude that the defendant
violated his probation by committing new offenses. He also
argues that the evidence did not support the judge's finding
that he also violated the conditions of his probation by failing
to complete a class in anger management and by not reporting to
probation as required. We affirm.
Background. On November 13, 2017, the defendant pleaded
guilty to various offenses in Taunton District Court and
received a committed sentence as well as probation.1 While he
1 More specifically, the defendant received eleven concurrent
sentences of two years, with six months to be served and the
balance suspended for three years with probation.
was on probation, the defendant was charged with two offenses,
assault and battery and strangulation, stemming from a violent
altercation with his girlfriend at the Fairfield Marriott Hotel
in Walpole on May 21, 2020. The defendant was alleged to be in
violation of his probation by virtue of the new charges, failing
to successfully complete an anger management program, and
failing to report to his probation officer within forty-eight
hours after he was accidentally released from jail.
The defendant's probation officer, Jennifer Anderson, was
the only witness who testified at the defendant's violation
hearing. She testified about the defendant's conditions of
probation and the alleged violations as follows. With regard to
the condition that the defendant complete a course on anger
management, Anderson relayed that the defendant had completed
three out of twelve classes. With respect to the allegation
that the defendant failed to report to probation, Anderson
explained that the defendant was accidentally released from
prison and that once she learned of the situation, she spoke
with him and instructed him to report to the Taunton District
Court, which the defendant failed to do. As regards the
condition that the defendant not commit any new offenses,
Anderson introduced (1) a police report detailing the events
underlying the new charges written by Officer William Mitchell
of the Walpole police department; (2) a report setting forth the
2
coordinates from the defendant's GPS monitor on the date of the
alleged new offense; (3) booking information from the Fairfield
Marriott Hotel indicating that the defendant had reserved a room
for three days, including the date of the new offense; and
(4) video footage depicting the defendant hitting the victim
provided by the hotel.
The defendant offered no evidence at the hearing. He
argued, among other things, that the hearsay statements
contained within Mitchell's report were not sufficiently
reliable to support a finding of a probation violation and that
the defendant could not be identified as the person depicted in
the video. Defense counsel also informed the judge that the
defendant had been found not guilty of the new offenses.
The judge found that the defendant had violated the
conditions of his probation by committing new crimes, by failing
to complete an anger management program, and by failing to
report to his probation officer after his release from jail.
The judge acknowledged in his written and verbal findings that
his decision was based on hearsay evidence that he found to be
substantially reliable.
Discussion. "A defendant on probation is subject to a
number of conditions, the breach of any one of which constitutes
a violation of his probation." Commonwealth v. Durling, 407
Mass. 108, 111 (1990). "A determination whether a violation of
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probation has occurred lies within the discretion of the hearing
judge." Commonwealth v. Bukin, 467 Mass. 516, 519-520 (2014).
Probation revocation hearings are not subject to the strict
rules of evidence, Durling, supra at 114, and hearsay evidence
is admissible if it is substantially reliable. See Commonwealth
v. Hartfield, 474 Mass. 474, 484 (2016) (setting forth the
appropriate factors to consider in determining whether hearsay
is reliable).
We begin with the defendant's claim that the judge relied
on unreliable hearsay in finding that he violated his probation
by committing new crimes. Contrary to the defendant's
assertion, the hearsay statements attributed to Mitchell, as set
forth in his police report, were based on his personal knowledge
and direct observations, which were "recorded close in time to
the events in question." The statements were "factually
detailed and internally consistent," and information was
provided by disinterested witnesses "in circumstances that would
support the veracity of the source."2 The judge further observed
that Anderson identified the defendant in the video.
2 The judge found:
"[the police report] is based either on personal knowledge
or direct observation. What I mean by that is that the
police officer is observing the alleged victim in the case
and making observations of her and her demeaner and what
she appears like and injuries that she appeared to have,
while also listening to her account of what she says
4
These circumstances coupled with the description of the
victim's demeanor and her partial statement as reported by
Mitchell, which was corroborated by the video, the statement of
the hotel's front office manager, and to some degree by the GPS
data leads us to conclude "that the proffered evidence was
imbued with sufficient indicia of reliability to warrant a
denial of the defendant's limited right to cross-examination."
Durling, 407 Mass. at 120.3
Because we have determined that the evidence supported the
judge's finding that the defendant had violated his probation by
committing new crimes, we need not address the judge's findings
that the defendant had violated his probation also by failing to
complete an anger management program and by failing to report to
his probation officer after he was accidentally released from
prison. We nonetheless conclude that the evidence supported
both violations. Anderson's testimony provided a sufficient
basis on which the judge could conclude by a preponderance of
the evidence that, despite the pandemic and his incarceration,
happened. Those observations were recorded close in time
to the events in question. They are provided by a
disinterested witness. They are provided in circumstances
that would support the veracity of the source. It is
factually detailed and internally consistent."
3 Although Mitchell's police report contained hearsay within
hearsay, the judge did not abuse his discretion by relying on
this "totem pole" hearsay because he first made a determination
that the hearsay contained sufficient indicia of reliability.
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the defendant failed to complete a course in an anger management
program. The judge was not required to accept the defendant's
claim that circumstances beyond his control (pandemic and
incarceration) prevented him from fulfilling this obligation.
Similarly, the judge was warranted in concluding by a
preponderance of the evidence that Anderson had informed the
defendant that he was required to report to court (probation)
upon his accidental release from jail as his probation officer
instructed, and that the defendant failed to do so.
Order revoking probation
affirmed.
By the Court (Vuono, Henry &
Grant, JJ.4),
Clerk
Entered: May 1, 2023.
4 The panelists are listed in order of seniority.
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