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SJC-11948

               COMMONWEALTH   vs.   NKRUMAH N. HARTFIELD.



            Suffolk.    February 9, 2016. - June 9, 2016.

  Present:     Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                             & Hines, JJ.



Due Process of Law, Probation revocation. Practice, Criminal,
     Revocation of probation, Hearsay, Confrontation of
     witnesses, Findings by judge. Witness, Victim. Evidence,
     Hearsay.



     Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on December 7, 2009.

     A proceeding for revocation of probation was heard by
Jonathan R. Tynes, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Kathleen J. Hill for the probationer.
     Helle Sachse, Assistant District Attorney (Lynn S.
Feigenbaum, Assistant District Attorney, with her) for the
Commonwealth.
     Crispin Birnbaum, Special Assistant Attorney General,
& Nina L. Pomponio for Commissioner of Probation, amicus curiae,
submitted a brief.
                                                                      2


     GANTS, C.J.     The primary issue on appeal is whether a

judge's decision in a probation violation hearing to admit in

evidence hearsay statements of an alleged victim regarding a new

criminal offense bars the probationer from calling the alleged

victim to testify.    We conclude that it does not.   Because the

judge erred in concluding that it was inherently inconsistent to

allow the alleged victim to be called to testify by the

probationer after her hearsay statements were admitted in

evidence when offered by the probation department, and because

the error was constitutional in nature and not harmless beyond a

reasonable doubt, we vacate the finding of a violation of

probation and the order revoking probation, and remand for a new

hearing.

     Background.     We recite the facts based on the testimony and

documentary evidence from the probation violation hearing held

in the Dorchester Division of the Boston Municipal Court

Department on July 2, 2013.     During the probation department's

presentation of evidence, the judge heard testimony from the

assistant chief probation officer and a Boston police detective,

Ediberto Figueroa, who investigated the case.1    Over the

probationer's objection, the judge also admitted in evidence the


     1
       An assistant district attorney assisted the probation
officer who was prosecuting the alleged violation by presenting
evidence and making a closing argument.
                                                                    3


alleged victim's testimony before the grand jury, two serology

reports, and a deoxyribonucleic acid (DNA) report from the

Boston police crime laboratory.    The reports were admitted

through the testimony of Detective Figueroa; no criminalist

testified.

     The probationer had been placed on probation supervision

after pleading guilty to one count of possession of a class D

substance with intent to distribute on March 29, 2011.     He was

sentenced to two and one-half years in a house of correction,

which was suspended, and he was placed on probation until March

28, 2013.    The conditions of probation required the probationer

not to commit any crime and to pay all fees ordered by the

court.   On March 25, 2013, the probationer was found in

violation of the terms of his probation for failure to pay $540

in fees, and his probation was extended until May 24, 2013, to

allow him time to pay these fees.2

     On April 3, 2013, a notice of probation violation issued

alleging that the probationer violated the conditions of his

probation by having committed three criminal offenses


     2
       At the time he was found in violation, he had been
assessed fees totaling approximately $1,950, including a $90
victim/witness fee, a $150 indigent counsel fee, a $150 drug
analysis fee, and a $65 per month probation service fee. The
probationer does not challenge on appeal the extension of his
probation term based on his failure to pay these fees. The
alleged violation of probation at issue in this appeal occurred
during the original probationary period.
                                                                    4


(aggravated rape, assault and battery, and threatening to commit

a crime), and by failing to pay the balance of $540 in fees.

The new offense allegedly occurred in the early morning of

August 12, 2012, when the alleged victim, a seventeen year old

girl who was the daughter of the probationer's girl friend,

reported to police that she had been sexually assaulted by the

probationer.

    According to the alleged victim, she was sleeping in her

bedroom in the apartment she shared with her mother and three

siblings when a man entered her bedroom, threw a sweatshirt over

her head, and threatened to stab her and her siblings if she

screamed.   The assailant then walked her out of her bedroom to

the bathroom.   There, he took off her shorts and underwear while

she was standing and, after she got on the floor, lifted up her

shirt and took off her bra.   He then kissed her breasts and

vaginally raped her.   When she tried to push him off, he became

upset, punched her several times, and said that he was about to

stab her; she reported feeling a knife at her waist.    He then

got up and ran the water in the sink.   She put on her underwear,

and the assailant ordered her to get in the bathtub and stay in

the bathroom.   He then turned off the light, closed the door,

and left.   Even though the sweatshirt on her head had obstructed

her vision, she told the police that she believed the

probationer was the assailant.
                                                                    5


    The alleged victim was taken to a hospital and examined by

a sexual assault nurse examiner who collected the underwear she

was wearing during and after the assault and swabbed various

places on her body, including her vaginal area, to preserve any

trace evidence.   The police later went to the alleged victim's

home and collected several pieces of evidence, including the

shorts the alleged victim had worn at the time of the assault,

which were found on top of the bathroom sink and were wet.

    The alleged victim's mother told the police that the

probationer could not possibly have been the assailant because

she had stayed with the probationer at his house that night, and

"he was under [her] all night."   The mother also stated that she

would have noticed if he had left because she is a light

sleeper.   She informed the police that she is the only person

with a set of keys to the apartment.   She added that the alleged

victim was known to lie.

    The probationer, after waiving his Miranda rights, told the

police that he did not rape the alleged victim and that he was

at his home with her mother that evening.   He also said that he

had not gotten along with the alleged victim since he found some

embarrassing photographs on her cellular telephone and

confronted her with the photographs.   The probationer also

consented to a buccal swab to provide a sample of his DNA to the

police.
                                                                     6


     The mother also told the police about the cellular

telephone incident and the alleged victim's antagonism toward

the probationer.   The alleged victim described the cellular

telephone incident in her grand jury testimony and said that,

when the probationer returned the telephone, "[h]e wanted me to

do whatever he said."     She testified in the grand jury that the

probationer had been in a relationship with her mother for eight

or nine years, and she had not liked the probationer since she

met him.   She moved with her mother and her siblings to the

apartment in Dorchester in October, 2011, but moved out in

March, 2012, because she and her mother were not getting along

due to the probationer.     She returned home in July, 2012, but

her mother had established a rule that the probationer and her

daughter could not be in the apartment at the same time.     The

daughter's return home disrupted her mother's plans to go back

to work, because the probationer was going to watch the mother's

other children but could not do so because of the aforementioned

rule.

     On March 21, 2013, the police received a laboratory report

that the probationer was included as a possible source of DNA

recovered from semen stains found on the shorts retrieved from

the bathroom and the underwear the alleged victim had worn when

examined at the hospital.    The likelihood that another African-

American was the source of the DNA on the shorts was one in 490
                                                                    7


quintillion; the likelihood of another African-American being

the source of the DNA on the underwear was one in 720

quadrillion.3,4   However, preliminary testing for semen from two

vaginal swabs, one genital swab, and one perianal swab taken

from the alleged victim at the hospital were all negative.

     After the probation department rested, the probationer

sought to call the alleged victim as a witness; the probationer

had summonsed her for the hearing, and the Commonwealth had

transported her to the court house to avoid the possibility that

a capias would issue.    The judge initially allowed her to

testify over the objection of the probation department but,

after allowing some initial questions regarding her difficult

relationship with the probationer, the judge reconsidered his

decision sua sponte and did not allow her to testify further.

The judge explained his decision by stating:

     3
       After learning the results of these laboratory tests, the
police filed an application for a criminal complaint charging
the probationer with aggravated rape, assault and battery, and
threatening to commit a crime. The probationer was later
indicted on two counts of rape, in violation of G. L. c. 265,
§ 22 (b); assault and battery by means of a dangerous weapon, in
violation of G. L. c. 265, § 15A (b); assault and battery, in
violation of G. L. c. 265, § 13A (a); indecent assault and
battery, in violation of G. L. c. 265, § 13H; and intimidation
of a witness, in violation of G. L. c. 268, § 13B. He was found
not guilty on all counts after a jury trial.
     4
       It appears that Boston police Detective Ediberto Figueroa
erroneously testified that the likelihood of an African-American
being the source of the deoxyribonucleic acid (DNA) on the
underwear was one in 8.9 billion. The probationer is African-
American.
                                                                     8


     "I do feel it's inconsistent to . . . allow the
     Commonwealth to not call [the alleged victim], but then
     have the defendant call her when it seems that one of the
     overriding principles is that . . . she shouldn't have to
     go through recounting this event several times."

     At a subsequent hearing on July 23, 2013, the judge found

by a preponderance of the evidence that the probationer violated

his probation by committing a new offense, noting that "the

testimony of Detective Figueroa and the DNA evidence . . . is

the most compelling evidence."5   The judge then imposed the

suspended sentence.6

     The Appeals Court affirmed the revocation order in an

unpublished memorandum and order issued pursuant to its rule

1:28, and we granted the defendant’s application for further

appellate review.

     Discussion.    The probationer argues that by terminating his

examination of the alleged victim, the hearing judge violated

his due process right to present a defense.   He further argues

that the admission of the alleged victim's grand jury testimony

and the serology and DNA reports from the Boston police crime

     5
       The judge did not make written findings. Nor did the
judge make oral findings on the record beyond those described.
     6
       The judge, however, stayed imposition of the sentence at
the request of the probationer, recognizing that the probationer
would be held in custody until his trial on the charges stemming
from the alleged sexual assault and that, if the sentence were
not stayed, the probationer might not receive credit for the
time served if he were convicted of those charges. The stay
appears to have been lifted the day after the probationer's
acquittal on those charges.
                                                                   9


laboratory violated his due process right to confront adverse

witnesses.

    A probation violation proceeding is not the equivalent of a

criminal trial, and thus a probationer is not accorded "the full

panoply of constitutional protections applicable at a criminal

trial."   Commonwealth v. Durling, 407 Mass. 108, 112 (1990).    In

Durling, supra at 113-114, this court adopted the minimum

requirements of due process applicable to probation violation

proceedings established by the United States Supreme Court in

Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).   To conform with

due process principles, a probationer must be provided:

    "(a) written notice of the claimed violations of [probation
    or] parole; (b) disclosure to the [probationer or] parolee
    of the evidence against him; (c) opportunity to be heard in
    person and to present witnesses and documentary evidence;
    (d) the right to confront and cross-examine adverse
    witnesses (unless the hearing officer specifically finds
    good cause for not allowing confrontation); (e) a 'neutral
    and detached' hearing body such as a traditional parole
    board, members of which need not be judicial officers or
    lawyers; and (f) a written statement by the factfinders as
    to the evidence relied on and reasons for revoking
    [probation or] parole."

Durling, supra at 113, quoting Gagnon, supra.

    It is important to distinguish between the due process

rights raised by the probationer's claims.   "[T]he right to

confront adverse witnesses and the right to present a defense

are distinct due process rights separately guaranteed to

probationers" and should not be conflated.   Commonwealth v.
                                                                     10


Kelsey, 464 Mass. 315, 327 n.12 (2013).    The probationer's claim

that the hearing judge terminated his examination of the alleged

victim during the defense case implicates the right to present a

defense.   Id.   The probationer's claim that hearsay evidence was

wrongfully admitted against him during the probation

department's case-in-chief implicates his right to confront and

cross-examine adverse witnesses.    See Commonwealth v. Negron,

441 Mass. 685, 690-691 (2004).     These claims must be analyzed

separately.

    1.     Right to present a defense.   In Kelsey, 464 Mass. at

319-320, we examined for the first time the due process right to

present a defense in a probation violation proceeding.    In that

case, a probationer was alleged to have violated his probation

by selling cocaine to a confidential informant.     Id. at 315.

The confidential informant was "a participant in the alleged

offense, the only nongovernment witness to the offense, and the

only percipient witness to the entire alleged transaction."        Id.

at 316.

    The probationer sought and was denied disclosure of the

identity of the confidential informant for the purpose of

defending against the alleged violation.     Id. at 317-318.   The

probationer argued that the denial of disclosure violated his

due process right to present a defense by denying him the

opportunity to call the informant as a witness.     Id. at 318,
                                                                    11


319.    We declared that "a probationer must be given a meaningful

opportunity to present a defense," id. at 321, which, "[i]n some

cases, . . . will require disclosure to the probationer of

information crucial to his ability to prepare a defense."     Id.

at 322.    We further concluded that the right to present a

defense in a probation violation proceeding "is parallel to, but

not coextensive with, the right to present a defense at trial,"

id., and that the scope of that right "depends on the totality

of the circumstances in each case" (citation omitted).     Id.

"Where a probationer alleges a violation of the right to present

a defense," we held, "the judge must consider whether a ruling

in the probationer's favor will sufficiently advance the

'reliable, accurate evaluation of whether the probationer indeed

violated the conditions of his probation,' . . . so as to

outweigh the Commonwealth's 'significant interests in

informality, flexibility, and economy'" (citations omitted).

Id.

       Because the judge in that case denied disclosure of the

confidential informant's identity on the mistaken premise that

such disclosure is never warranted in probation revocation

proceedings, we remanded the matter to the District Court to

permit the judge to determine, based on relevant case-specific

factors, "whether, in the totality of the circumstances,
                                                                    12


disclosure was necessary to effectuate the defendant's right to

present a defense."   Id. at 327.

    In Kelsey, 464 Mass. at 323, the probationer's right to

present a defense clashed with "the Government's privilege to

withhold from disclosure the identity of persons who furnish

information of violations of law to officers charged with

enforcement of that law," Roviaro v. United States, 353 U.S. 53,

59 (1957), known as "the informer's privilege."   Id.   Here, the

probationer's constitutional right to present a defense did not

clash with any privilege.

    Where this constitutional right does not conflict with any

privilege, the totality of the circumstances test must be

structured and applied to ensure that adequate weight is given

to the protection of the constitutional right and to the

importance of making a "reliable, accurate evaluation of whether

the probationer indeed violated the conditions of his

probation."   Kelsey, 464 Mass. at 322, quoting Durling, 407

Mass. at 116.   We conclude that this is best accomplished by

recognizing that a probationer has a presumptive due process

right to call witnesses in his or her defense, but that the

presumption may be overcome by countervailing interests,

generally that the proposed testimony is unnecessary to a fair

adjudication of the alleged violation or unduly burdensome to

the witness or the resources of the court.   In determining
                                                                  13


whether the countervailing interests overcome the presumption

after considering the totality of the circumstances, a judge

should consider, at a minimum, the following factors:     (1)

whether the proposed testimony of the witness might be

significant in determining whether it is more likely than not

that the probationer violated the conditions of probation, see

Kelsey, supra; (2) whether, based on the proffer of the

witness's testimony, the witness would provide evidence that

adds to or differs from previously admitted evidence rather than

be cumulative of that evidence, cf. Commonwealth v. Carroll, 439

Mass. 547, 552-553 (2003); and (3) whether, based on an

individualized assessment of the witness, there is an

unacceptable risk that the witness's physical, psychological, or

emotional health would be significantly jeopardized if the

witness were required to testify in court at the probation

hearing, cf. Commonwealth v. Housewright, 470 Mass. 665, 671

(2015).   As to the third factor, we recognize the risk that an

alleged sexual assault victim might suffer trauma from having to

testify at a probation violation hearing.   See Durling, 407

Mass. at 117 n.4; Commonwealth v. Hill, 52 Mass. App. Ct. 147,

153 (2001).   But we reject a general rule that would prevent a

probationer from ever calling such an alleged victim to testify

in his or her defense.   The assessment whether testifying will

adversely affect the physical, psychological, or emotional
                                                                   14


health of an alleged sexual assault victim must be

individualized and evidence-based.   See Durling, supra at 114

("the requirements of due process depend on the circumstances of

each case and an analysis of the various interests at stake").

    Here, the judge determined that, because he admitted

hearsay evidence regarding what the alleged victim reported to

Detective Figueroa and what she said under oath in the grand

jury proceeding, the probationer had no right to call her to

testify.   This reasoning reflects the error of conflating the

probationer's right to confront and cross-examine adverse

witnesses with the probationer's right to present a defense.

See Kelsey, 464 Mass. at 327 n.12.   Where hearsay evidence has

substantial indicia of reliability, there is good cause to admit

it in 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.   See Commonwealth v. Patton, 458 Mass. 119,

132 (2010); Negron, 441 Mass. at 690-691.   The probation

department may meet its burden of proof to establish a violation

solely through the admission of hearsay with substantial indicia

of reliability.   See Patton, supra; Durling, 407 Mass. at 118.

But the admission of this evidence does not mean that the

probationer is absolutely barred from calling as a witness the

declarant whose hearsay was admitted.   The judge may consider
                                                                  15


the admission of the hearsay evidence in determining in the

totality of circumstances whether the witness's testimony would

be merely cumulative.   However, the testimony would not be

cumulative where the probationer seeks to elicit from the

witness additional information that would support the inference

that the probationer did not commit the violation or would

demonstrate that the hearsay evidence suggesting that he did

commit the violation is unworthy of belief.

    A judge's decision after considering the totality of

circumstances to allow a probationer to call a witness in his or

her defense does not mean that the judge no longer controls the

scope of that testimony.   Where a probationer's examination of a

witness strays into issues that are irrelevant to the

determination of whether the probationer violated the conditions

of probation, cumulative of other evidence, or unduly harassing

to the witness, the judge, consistent with due process, may

restrict the scope of such testimony.   See Commonwealth v.

Odoardi, 397 Mass. 28, 34 (1986).   Cf. Mass. G. Evid. § 611(a)

(2016).

    Here, the record does not reveal that the hearing judge

made an individualized assessment of the totality of the

circumstances before cutting off the alleged victim's testimony.

Nor did the judge rest the decision to terminate her testimony

on a finding that the testimony was irrelevant, cumulative, or
                                                                  16


harassing.   Rather, as earlier noted, the judge made the error

of conflating the right to present a defense with the right to

confront and cross-examine witnesses, and determined that, where

there is good cause to admit an alleged victim's hearsay, the

probationer may not call the witness to the stand to challenge

the veracity and accuracy of the hearsay account.

    Because the judge's error affects the probationer's

constitutional right to present a defense and was preserved at

the hearing, we review to determine whether the error was

"harmless beyond a reasonable doubt."   Kelsey, 464 Mass. at 319,

quoting Commonwealth v. Bacigalupo, 455 Mass. 485, 495 (2009).

We conclude that it was not.   See Kelsey, supra at 327-328.    It

is not plain from the totality of the circumstances here that

countervailing interests overcome the probationer's presumptive

right to call the alleged victim as a witness.   The results of

the DNA tests provided powerful corroborating evidence of the

probationer's commission of the sexual assault, but there were

still strong reasons to question the credibility of the alleged

victim:   the implausibility that the assailant could have

covered her eyes with a sweatshirt throughout the sexual assault

where she reported that he took off her underwear, shorts, and

bra, and held a knife to her waist; her mother's corroboration

of the probationer's alibi; the strong antagonism between the

alleged victim and the probationer; and the absence of any
                                                                  17


evidence of semen on the vaginal and genital swabs taken from

the alleged victim despite her report that he had penetrated her

with his penis and the presence of semen on the underwear she

claimed she put on immediately after the sexual assault.

Pragmatically, to prevail at the revocation hearing given the

evidence already admitted, the probationer needed to establish

that it was more likely than not that the alleged victim

fabricated the alleged rape and attempted falsely to implicate

the probationer by planting his DNA on her underwear and shorts.

His best chance to do so was through the alleged victim's

testimony.   Where revocation would result in the imposition of a

previously suspended two and one-half year house of correction

sentence, we cannot say that it is plain that the countervailing

interests in barring her testimony so outweighed the

probationer's presumptive right to call the alleged victim in

his defense that the error in failing to apply the proper

analysis was harmless beyond a reasonable doubt.   We therefore

vacate the finding of a violation of probation and the order

revoking probation, and we remand for a new hearing.

    2.   Right to confront adverse witnesses.   The probationer

also argues that his due process right to confront adverse

witnesses was violated by the admission of two serology reports

and a DNA report from the Boston police crime laboratory and by

the admission of the alleged victim's grand jury testimony.
                                                                    18


     We have already noted that hearsay evidence is admissible

in a probation violation hearing where it has substantial

indicia of reliability.    In assessing whether the hearsay

evidence is 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.    See Patton, 458 Mass. at 132-133;

Rule 7(b) of District/Municipal Courts Rules for Probation

Violation Proceedings, Mass. Ann. Laws Court Rules, at 97

(LexisNexis 2015-2016).7

     Here, the two serology reports and the DNA report from the

Boston police crime laboratory were not certified, and the

probation department sought to introduce them through Detective

Figueroa, who was not their author.    The alleged victim's grand

jury testimony also was offered through the testimony of

Detective Figueroa.   The probationer objected to their admission

     7
       The District and Municipal Courts Rules for Probation
Violation Proceedings were amended in 2015, with amended Rule 7
replacing superseded Rule 6.
                                                                   19


in evidence.   The judge admitted the hearsay evidence, and in

finding that the probationer violated the conditions of

probation, the judge noted his reliance on the testimony of

Detective Figueroa -- which contained many hearsay statements

from various individuals the detective interviewed -- and the

DNA report, but the judge made no written findings regarding the

reliability of the hearsay evidence on which he relied.

Consequently, apart from the DNA report, we cannot determine

which hearsay evidence the judge relied upon in finding a

violation of probation, or whether the judge found that evidence

to have substantial indicia of reliability.

     Due process requires that a judge issue a written statement

regarding the evidence relied upon and the reasons for revoking

probation.   Durling, 407 Mass. at 113, quoting Gagnon, 411 U.S.

at 786.8   In addition, when probation was revoked in this case,

the rules governing probation violation proceedings in the

District Court required judges, "[w]here the sole evidence

submitted to prove a violation of probation is hearsay," to make

written findings that the hearsay evidence "is substantially


     8
       We have declared that a judge satisfies this due process
requirement where the findings are made orally on the record and
the probationer obtains a transcript of the findings. See
Commonwealth v. Durling, 407 Mass. 108, 113 (1990), citing Fay
v. Commonwealth, 379 Mass. 498, 504-505 (1980) (judge's oral
statement on record, when transcribed, satisfied requirement of
written record).
                                                                   20


trustworthy and demonstrably reliable."   Rule 6(b) of the

District Court Rules for Probation Violation Proceedings, Mass.

Ann. Laws Court Rules, at 94 (LexisNexis 2011-2012).   But those

rules were adopted only by the District Court, not the Boston

Municipal Court, where the probation revocation proceeding in

this case was adjudicated.9

     Even if not required by court rule, we conclude that, where

a judge relies on hearsay evidence in finding a violation of

probation, the judge should set forth in writing or on the

record why the judge found the hearsay evidence to be reliable.

See Commonwealth v. Nunez, 446 Mass. 54, 59 & n.6 (2006) (where

judge admits hearsay evidence in probation revocation hearing,

"[i]t is advisable" that judge's finding regarding reliability

of that evidence "be stated on the record").   Accordingly, on

remand, if the judge were again to rely on hearsay evidence in

finding a violation of probation, the judge should make

findings, either in writing or orally on the record, why the

judge found the relevant hearsay evidence to be reliable.

     Conclusion.   The finding that the probationer violated the

conditions of his probation and the order revoking probation are



     9
       The rules as amended in 2015 contain a similar requirement
and were adopted by both the District Court and the Boston
Municipal Court. Rules 1, 7(b) of the District/Municipal Courts
Rules for Probation Violation Proceedings, Mass. Ann. Laws Court
Rules, at 75, 97 (LexisNexis 2015-2016).
                                                            21


vacated, and the case is remanded for further proceedings

consistent with this opinion.

                                   So ordered.
