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Commonwealth v. Cates4/10/2003
Plymouth.
April 12, 2002
Practice, Criminal , Revocation of probation, Confrontation of witnesses, Hearsay. Evidence, Videotape, Hearsay.
In the spring of 2000, while on probation for driving with a revoked license and other motor vehicle offenses, the defendant was charged with statutory rape and indecent assault and battery of a child over fourteen. After a hearing, a District Court judge found the defendant in violation of probation on the basis of the new charges. The judge revoked the defendant's probation and imposed the underlying sentence. On appeal from the District Court order, the defendant claims there was no showing of good cause for not calling the alleged victim to testify at the hearing; that even if there was good cause, the hearsay on which the finding of a violation was based "lacked substantial indicia of reliability"; and that neither the proceedings nor the judge's findings met the standards set out in rule 6(b) of the District Court Rules for Probation Violation Proceedings (West 2000) (Rules).
The evidence. The Commonwealth's primary witness at the probation revocation hearing was Michelle Hughes, a Hanson police officer (officer) who interviewed the victim on May 17, 2000, a month after the alleged assault, and again six weeks later. In addition, the prosecutor introduced in evidence and played a fourteen-minute videotape of a SAIN (sexual assault intervention network) interview of the victim conducted by a member of the district attorney's staff on May 22. (The SAIN interview was not under oath.) In the videotaped interview the victim, Jane (a pseudonym), gave the following account.
On April 18, 2000, Jane went to visit the defendant's daughter at the trailer the daughter shared with her father. When Jane arrived, the daughter was at work, but the defendant was home. After watching television for an hour or so, Jane went to sleep in her clothes on her friend's bed at 8:00 or 8:30 P.M. After a while, perhaps forty-five minutes or an hour, the defendant entered the room wearing a red bathrobe. He knelt on the bed and pulled down Jane's jeans and underwear. Jane was lying on her side facing toward the wall and away from the defendant. The defendant put his penis into her vagina and moved his body "back and forth." "He like -- He just came from the back." "He was breathing heavy." Jane pretended that she was asleep.
The defendant was arrested the day after the SAIN interview. He acknowledged that Jane had been at his home on the evening in question. He said that she received a telephone call and that he had gone into the room where she was sleeping and had shaken her but was unable to wake her up. He also admitted that in the past he had often kissed Jane on the cheek and had played "grab ass" with Jane and his daughter.
The judge's findings. At the conclusion of the hearing, the judge summarily revoked the defendant's probation from the bench. A year later, on order of this court pursuant to this appeal, the judge issued the "Court[']s Reasons for Revoking Defendant's Probation." See rules 6(b) and 7(c). See also Commonwealth v. Ivers, 56 Mass. App. Ct. 444, 444-445 (2002). In his decision, the judge determined that " ased on the credible evidence presented during the course of the hearing ... on a preponderance of the evidence [I find] that the defendant has violated the terms and conditions of his probation." In particular, he found the SAIN videotape to be "demonstrably reliable evidence.. . that... is substantially trustworthy... [because Jane] understood that she had to be truthful and to indicate to the interviewer if something was not accurate and she said yes which indicates to this Court her
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