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18-P-459                                               Appeals Court

              COMMONWEALTH    vs.   GRANT G., a juvenile. 1


                              No. 18-P-459.

          Suffolk.       March 27, 2019. - December 17, 2019.

              Present:    Rubin, Milkey, & McDonough, JJ.


Practice, Criminal, Juvenile delinquency proceeding, Revocation
     of probation, Hearsay. Due Process of Law, Probation
     revocation. Evidence, Juvenile delinquency,
     Hearsay. Department of Children & Families. Department of
     Youth Services. Juvenile Court, Delinquent child.



     Complaints received and sworn to in the Suffolk County
Division of the Juvenile Court Department on October 6 and 14,
2014.

     A proceeding for revocation of probation was heard by Peter
M. Coyne, J.


     Benjamin L. Falkner for the juvenile.
     Houston Armstrong, Assistant District Attorney, for the
Commonwealth.




     1   A pseudonym.
                                                                      2


     MCDONOUGH, J.    The juvenile appeals from a judge's order

revoking his probation, arguing that the judge erroneously based

his decision exclusively on unreliable hearsay testimony from a

Department of Children and Families (DCF) case worker.    We agree

and reverse.

     Background.     We recite the facts based on the testimony and

documentary evidence from the probation violation hearing.     On

August 17, 2016, the juvenile pleaded delinquent to kidnapping

and armed robbery in the Juvenile Court.    On the same day, in a

separate case, the juvenile also pleaded delinquent to larceny

of a credit card and credit card fraud over $250.    On all four

charges, the judge sentenced the juvenile to remain in the

custody of the Department of Youth Services (DYS) until his

eighteenth birthday, but suspended the sentence and placed the

juvenile on probation until his eighteenth birthday.    The

conditions of the probation included, among other things,

obeying a curfew as set by "DCF placement" and "comply[ing] with

all DCF services and all placements."

     On June 19, 2017, a probation violation notice (violation

notice) issued alleging that the juvenile violated his probation

by committing a new criminal offense, receiving a stolen motor

vehicle. 2   The probation department thereafter amended the


     2 At the juvenile's probation revocation hearing, the judge
explicitly stated that he was "not considering the allegation
                                                                    3


violation notice, alleging that the juvenile violated two

additional probation conditions:    complying with and

successfully completing his residential placement program at

Journey Home (program).   Specifically, the violation notice

alleged that the juvenile was "AWOL" from the program on various

specified dates. 3

     At the October 2, 2017, probation revocation hearing, the

Commonwealth presented the testimony of one witness, the

juvenile's DCF case worker. 4   The case worker testified that he

met with the program director, who told him that the juvenile

"ha[d] broken all the rules and . . . wasn't cooperating with

DCF and . . . ha[d] been AWOL from the program several times."

The case worker testified that he understood "AWOL" to mean "the

child is not at the program and his whereabouts are. . . .

unknown or he. . . . hasn't called the program to report where

he is."   Specifically, the case worker testified that the

program director told him that the juvenile was given a "day



based upon a new arrest" in determining whether the juvenile
violated his probation.

     3 The violation notice stated that the juvenile "failed to
attend or successfully complete" the program because he was
"AWOL from [the program] 8/2/17-8/4/17, 7/25/17-7/30/17," and
"[f]ailed to comply with [the program on] various dates from
4/15/17-8/9/17."

     4 Although the revocation hearing occurred on October 2,
2017, the judge continued the disposition of the case until
October 23, 2017, at the probation officer's request.
                                                                      4


pass" that permitted the juvenile to visit his uncle "just for a

day and . . . return to the program the same day," but the

juvenile "didn't return to . . . the program . . . for several

days."     The case worker further testified that the juvenile was

not attending school consistently, had "unauthorized contact

with his mother," and "had a substance abuse issue at the

program."    Based on those purported violations of the program

rules, the case worker testified that it was decided to remove

the juvenile from the program and to "close out [his] bed."

     Nevertheless, on cross-examination, the case worker

conceded that he never read the program rules or regulations and

did not know how the program defined "AWOL."    He also conceded

that he did not know the dates that the juvenile was "AWOL," or

that on certain occasions program staff had apparently allowed

the juvenile to stay with his uncle overnight after speaking

with the juvenile and determining, with DCF's consent, that the

juvenile was safe and would return the following day. 5    The case


     5 On cross-examination, the case worker testified as
follows:

     Q.: "[A]re you aware of any instances where [the juvenile]
     was allowed to go home on the day pass and at that moment,
     a decision was made to allow him to stay overnight on the
     day pass? Are you aware of incidents like that?"

     A.:    "Ah, I -- I don’t think that ever happened."

     Q.:    "You don’t think that ever happened?"
                                                                     5


worker also admitted that he was not assigned to the juvenile's

case when the alleged violations occurred, and that his

testimony was based exclusively on his conversations with the

program director and notes in the juvenile's DCF case file.




     A.:   "No."

     . . . .

     Q.: "So your testimony, sir, today is    that you don’t think
     that there were any incidents in which   [the juvenile] was
     allowed by -- a decision was made that   allowed [the
     juvenile] to stay overnight. That was    your testimony, -- "

     A.:   "Yes."

     Q.:   " -- is that correct?"

     A.:   "Yes."

     Q.: "Yes. So, in fact, on May 27 according to the Journey
     Home by their written record, the Journey Home received a
     call from a -- the supervisor contacted DCF; DCF stated
     that since [the juvenile] usually does this every Saturday,
     that it made no sense to contact the police and file a
     missing person if the staff was able to talk to [the
     juvenile] and know that [he] was safe and will be picked up
     on Sunday night at 10:00 p.m., isn’t that correct?"

     A.:   "Is that the only incident?"

     Q.: "Sir, the question is, 'Are you now aware of incidents
     in which [the juvenile] was allowed to stay overnight by
     both DCF -- '"

     A.:   "Well, I just learn[ed] it now."

     Q.:   " -- and Journey Home staff?”

     A.:   "I just learn it now."
                                                                        6


     The judge ultimately found that the juvenile violated the

conditions of his probation by "fail[ing] to comply with . . .

and . . . being AWOL from the program," and revoked his

probation, committing him DYS custody until his eighteenth

birthday.   The judge stated that "[p]robation ha[d] met its

burden" based on "the witness [being] credible in his testimony

about the [juvenile's] compliance with the [program] . . . and

base[d] further upon [the witness's] statements of . . . what he

was informed by the program director that the [juvenile] had

been AWOL from the program and non-compliant in the program."

According to the probation violation finding and disposition

form, the judge found that the case worker's hearsay testimony

was substantially reliable because it was "provided by a

disinterested witness," "provided under circumstances that

support the veracity of the source," "factually detailed," and

"internally consistent." 6

     Discussion.   The Commonwealth must prove any "violation of

probation by a preponderance of the evidence."       Commonwealth

v. Bukin, 467 Mass. 516, 520 (2014).       The determination that a

probation violation occurred "lies within the discretion of the

hearing judge," id., who must assess the weight of the evidence

against the probationer.     Id. at 521.    Accordingly, we review an


     6 The judge did not explain his reasoning for these
findings.
                                                                    7


order revoking probation for an abuse of discretion.     Id. at

519-520.    We determine "whether the record discloses sufficient

reliable evidence to warrant the findings by the judge that [the

probationer] had violated the specified conditions of his

probation."     Commonwealth v. Morse, 50 Mass. App. Ct. 582, 594

(2000).

     A probation revocation hearing does not involve the "the

full panoply of constitutional protections applicable at a

criminal trial" (quotation omitted).     Bukin, 467 Mass. at 520.

Consequently, "while [u]nsubstantiated and unreliable hearsay

cannot, consistent with due process, be the entire basis of a

probation revocation, [w]hen hearsay evidence is reliable

. . . , then it can be the basis of a revocation" (quotation

omitted).    Id.   A judge may rely on hearsay evidence "in a

probation violation hearing where it has substantial indicia of

reliability."      Commonwealth v. Hartfield, 474 Mass. 474, 484

(2016).    When evaluating the reliability of hearsay evidence, a

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."
                                                                       8


Id.   A hearsay statement does not need to "satisfy all [of

those] criteria to be trustworthy and reliable."      Commonwealth

v. Patton, 458 Mass. 119, 132-133 (2010).      Nevertheless, a judge

who "relies on hearsay evidence in finding a violation of

probation . . . should set forth in writing or on the record why

[the judge] found the hearsay evidence to be

reliable." 7    Hartfield, supra at 485.   "[W]hen hearsay is offered

as the only evidence of the alleged violation, the indicia of

reliability must be substantial" (citation

omitted).      Commonwealth v. Foster, 77 Mass. App. Ct. 444, 449-

450 (2010).

      Here, the juvenile contends that the judge improperly

considered unreliable hearsay testimony from the case worker in

finding that he violated his probation conditions, specifically

in regards to the allegation that he was "AWOL" from the




      7Per Standing Order 1-17 (VII) (b) of the Juvenile Court
Standing Orders (effective September 25, 2017), addressing
violation of probation proceedings, hearsay evidence may be
legally sufficient to establish a violation of probation only if
the hearsay is found to be "substantially reliable." "Where
hearsay evidence has substantial indicia of reliability, there
is good cause to rely upon it as evidence at a probation
violation hearing even though, as is generally true of hearsay,
the declarant will not be on the witness stand and subject to
cross-examination regarding the hearsay statements." Hartfield,
474 Mass. at 482. Here, as we explain infra, the hearsay
evidence presented lacks the requisite "substantial indicia of
reliability." Id.
                                                                    9


program. 8   The juvenile asserts that those hearsay statements

were unreliable because they were too generalized, not based on

the case worker's personal knowledge, and not corroborated by

other evidence.

     We agree, and conclude that the testimony from the case

worker lacked the "indicia of reliability" required to support

finding that the juvenile violated his probation.    Hartfield,

474 Mass. at 484.    See Bukin, 467 Mass. at 521-522.

Significantly, the case worker's testimony lacked the requisite

factual detail.    Although the case worker testified that the

juvenile "ha[d] been AWOL from the program several times," he

did not know any of the dates the juvenile was absent from the

program without permission.    See Commonwealth v. Ivers, 56 Mass.

App. Ct. 444, 448 (2002) (hearsay not factually detailed where

probation officer's testimony "speaks to no detail as to terms

of probation, dates, and events that describe a failure . . . to

report as required").    On cross-examination, the case worker

conceded that he had not read the program regulations and did

not know how those regulations defined "AWOL."    The case worker

also admitted that he was not aware whether the juvenile had

been allowed to stay overnight on a day pass, including during




     8 The juvenile also made this argument as to the testimony
alleging that he was not consistently attending school and had a
substance abuse issue while at the program.
                                                                    10


the dates listed on the violation notice.    The case worker

further conceded that in the past, program staff, in

consultation with DCF, had apparently allowed the juvenile to

stay with his uncle overnight; a circumstance which, if true on

the dates in question, could undercut the allegation that the

juvenile was absent without permission from the program.    The

hearsay and general nature of the "AWOL" testimony deprived the

defendant of the opportunity to explore this key issue on cross-

examination.

     Moreover, the case worker had no direct or indirect

knowledge of any of the details or circumstances of the

juvenile's absence from the program.    As the case worker was not

assigned to the juvenile's case until six weeks before the

probation revocation hearing, he was not working with the

juvenile when the alleged violations occurred.    The case worker

also did not read the program reports related to the alleged

"AWOL" violation. 9   Instead, the case worker admitted that he


     9 The judge did not allow in evidence the program incident
reports, covering seventeen separate dates, that were submitted
by the probation officer. After reviewing the incident reports,
the judge acknowledged that some of the reports were unsigned
and some were signed by different people, but that no one from
the program would be testifying. The judge, explicitly
acknowledging the lack of reliability of the incident reports,
stated, "I'd be reluctant to give [the incident reports] the
same level or credibility as . . . a police report because they
don't identify who is necessarily writing them, . . . and, based
on that, . . . I'd be unwilling to admit them without somebody
from the program coming."
                                                                     11


based his testimony exclusively on information he learned

through his "few conversations" with the program director.     The

case worker failed to testify, however, that the information

imparted to him from the program director was based on the

latter's personal knowledge.   Thus, there was a risk that the

nontestifying program director was the recipient of reports from

other nontestifying program staff concerning the details of the

juvenile's alleged noncompliance with the program rules.    Where

neither the program director's reported statements nor the case

worker's testimony fell into a hearsay exception, the case

worker's testimony constituted inadmissible hearsay within

hearsay.   See Commonwealth v. DePina, 476 Mass. 614, 623 (2017)

("Totem pole hearsay is admissible only if each of the multiple

hearsay statements falls within an exception to the hearsay

rule"); Mass. G. Evid. § 805 (2019) ("Hearsay within hearsay is

not excluded by the rule against hearsay if each part of the

combined statements conforms with an exception to the rule in

accordance with the common law, a statute, or a rule of court").

See also Brantley v. Hampden Div. of the Probate & Family Court

Dep't, 457 Mass. 172, 185-186 (2010) (documents "comprised of

abbreviated oral summaries of voluminous records made by persons

who may have no firsthand experience with the case" were

unreliable and judges' consideration of such documents violates

litigants' due process rights).
                                                                   12


     Additionally, because the Commonwealth elected not to

subpoena the program director, or any other knowledgeable

program staff, there was no "information from other sources"

corroborating the case worker's hearsay testimony. 10    Hartfield,

474 Mass. at 484.

     Conclusion.    Because the DCF case worker's hearsay

testimony -- the only evidence of the alleged probation

violations -- lacked the requisite substantial indicia of

reliability, the judge abused his discretion in finding that the

juvenile violated the conditions of his probation.      Accordingly,

the order revoking probation and imposing sentence is reversed.

                                     So ordered.




     10At the October 2 hearing, the judge offered to subpoena
the program director. The probation officer, however,
represented that the program director "had been available the
last several court dates," and that she had informed the
juvenile's attorney that the program director "would not being
coming to court" "because [the juvenile] was no longer at the
. . . program." It is noteworthy that both the juvenile's
attorney and the probation officer were aware that the program
director would not attend the October 2 hearing. Also, the
probation officer did not respond to the judge's offer to issue
a summons to secure the program director's attendance, despite
the judge warning the probation officer, "Probation is the
moving party. If you want [the program director] here . . .
I'll order a summons for him." Nevertheless, the probation
officer asserted that the juvenile's attorney wanted to move
forward with the proceeding that day and that the DCF case
worker would be called to testify that the juvenile was "in
violation of cooperating with DCF and cooperating with his DCF
placement."
