Commonwealth v. Ogarro

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18-P-719 Appeals Court

COMMONWEALTH vs. KERRY OGARRO.

No. 18-P-719.

Middlesex. May 1, 2019. - July 24, 2019.

Present: Sullivan, Massing, & Lemire, JJ.

Due Process of Law, Probation revocation. Practice, Criminal,
Revocation of probation, Presumptions and burden of proof,
Findings by judge, Hearsay. Evidence, Hearsay. Defense of
Property.

Indictments found and returned in the Superior Court
Department on January 28, 2010.

A proceeding for revocation of probation was heard by
Laurence D. Pierce, J.

Max Bauer for the defendant.
Jessica Langsam, Assistant District Attorney, for the
Commonwealth.

MASSING, J. A Superior Court judge found that the

defendant, Kerry Ogarro, violated the terms of his probation by

committing a new crime, assaulting a family or household member.

The defendant claimed that his actions were in defense of

property -- the victim had stolen his cell phone, and he was
2

just trying to get it back -- and that the statements attributed

to the victim by the testifying police officer were unreliable

hearsay. While we agree with the defendant that the judge was

required to find by a preponderance of the evidence that the

Commonwealth had disproved defense of property in order to find

that the defendant had committed the alleged crime, we disagree

that such a finding must be explicit. Concluding that the

evidence amply disproved the defense of property claim, that the

judge implicitly rejected the defense, and that the judge did

not abuse his discretion by accepting the victim's out-of-court

statements, we affirm.

Background. In December 2011, after a jury trial in the

Superior Court, the defendant was convicted of assault and

battery by means of a dangerous weapon (a knife), for which he

received a State prison sentence of from five to seven years,

and assault and battery, for which he received a consecutive

three-year term of probation. A panel of this court affirmed

the convictions in an unpublished memorandum and order issued

pursuant to our rule 1:28. See Commonwealth v. Ogarro, 83 Mass.

App. Ct. 1113 (2013). The defendant was subsequently found in

violation of probation,1 and the judge imposed a two and one-half

1 The defendant violated an order that he have no contact
with the victim, a condition of probation that was imposed at
sentencing and made effective immediately, notwithstanding his
incarceration.
3

year house of correction sentence on the assault and battery

conviction, one year to be served and the balance suspended

until December 2024. The defendant appealed from the extension

of probation, which a second panel of this court affirmed. See

Commonwealth v. Ogarro, 85 Mass. App. Ct. 1110 (2014).

The defendant began serving the probationary portion of his

second sentence on or about May 3, 2017. The first condition of

his probation was to "obey all local, state, and federal laws

and all court orders." On August 1, 2017, a notice of violation

issued alleging that he had violated that condition based on new

criminal charges of assault on a family or household member and

disorderly conduct. The final probation violation hearing was

held over the course of two days in January 2018. Lynn Police

Officer Craig Fountain was the principal witness.

Fountain testified that he and his partner, in response to

a radio call, drove their marked cruiser to the area of Union

and Silsbee Streets in downtown Lynn in the early afternoon of

July 29, 2017. Several people on the street "frantically" waved

them down and directed them toward a location on Broad Street,

where they found the defendant on top of a screaming woman,

straddling her and holding her wrists to the ground. The

officers instructed him to get away from the woman, and he

obeyed.
4

The woman, upset and crying, told the officers that she and

the defendant had met at a bus stop so the defendant could

"return some of her stuff to her." When she told the defendant

"that she did not want to be in a relationship [with] him no

more," he "became enraged and assaulted her several times." She

tried to run away, but the defendant caught her, threw her to

the ground, and got on top of her. Fountain observed scrapes on

the woman's knees, and she "complained of knee pain." She told

the officers that she and the defendant had been dating for

three months. The defendant told the officers that the woman

had stolen his cell phone.

Defense counsel argued that the judge should discredit the

statements attributed to the victim as unreliable hearsay, and

that the defendant used reasonable force in defense of property:

he was holding the woman down "in the process of trying to

retrieve his phone." Accordingly, he argued, the Commonwealth

had the burden not only to prove that the defendant committed an

assault, but "also to prove that he didn't act with reasonable

force to retain his property." The prosecutor argued that the

defendant's single self-serving statement that the victim took

his cell phone was not sufficient to raise the issue of defense

of property, but even if it were, his use of force was not

reasonable: "the defendant, or a reasonable person in the

defendant's shoes, did not need to run down this individual,
5

grab her, throw her down forcefully and hold her down" to get

his cell phone back.

The judge found, "based on trustworthy and reliable

evidence," that the Commonwealth had shown by a preponderance of

the evidence that the defendant assaulted the victim.2 The judge

found that the victim, who had been dating the defendant, "no

longer wanted to be in a relationship with the defendant, [and]

that the defendant became enraged, that she fled down Silsbee

Street to Broad Street, that the defendant caught her at that

location, [and] threw her to the ground." The judge found

Fountain's personal observations to be corroborative of the

victim's hearsay statements, "demonstrat[ing] trustworthiness,

reliability." Finding that the defendant had violated the terms

of probation, the judge imposed the remaining eighteen months of

the suspended sentence.

Discussion. 1. Asserting defense of property in probation

violation proceedings. The defendant asserts that because he

raised defense of property as justification for his assault of

the victim, the Commonwealth had the burden to disprove the

defense. He further claims that the judge was obligated to

2 The notice of probation violation alleged that the
defendant had committed the crime of "Aslt on Family/Household
Member." The relevant statute, G. L. c. 265, § 13M, provides
punishment for "[w]hoever commits an assault or assault and
battery on a family or household member" (emphasis added).
6

address the defense of property claim explicitly in his

findings. We agree that when a defendant adequately raises a

claim of defense of property in the context of probation

violation proceedings, due process requires that the

Commonwealth disprove the defense by a preponderance of the

evidence. Due process does not require explicit findings,

however, where the judge's findings and the record are

sufficient to show that the violation decision rests on

permissible grounds.

"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. Hartfield, 474 Mass. 474, 479

(2016), quoting Commonwealth v. Durling, 407 Mass. 108, 112

(1990). Because the revocation of probation results in a

deprivation of liberty, the due process clause requires that the

Commonwealth provide probationers with certain procedural

protections, including the right to be heard, the right to

present a defense, and the right to a written statement by the

judge setting forth the reasons for revoking probation and the

evidence relied upon. See Hartfield, supra; Commonwealth v.

Kelsey, 464 Mass. 315, 319-322 (2013); Durling, supra at 112-

113. The "central concern in determining the scope of a

probationer's due process rights" is the probationer's and the
7

Commonwealth's shared interest "in a 'reliable, accurate

evaluation of whether the probationer indeed violated the

conditions of his probation.'" Kelsey, supra at 321, quoting

Durling, supra at 116. "[T]he requirements of the due process

clause have, at their base, the goal of providing an accurate

determination whether revocation is proper." Durling, supra.

"Due process entitles a probationer 'to an opportunity to

show not only that he did not violate the conditions [of

probation], but also that there was a justifiable excuse for any

violation or that revocation is not the appropriate

disposition.'" Commonwealth v. Bynoe, 85 Mass. App. Ct. 13, 18

(2014), quoting Black v. Romano, 471 U.S. 606, 612 (1985). The

basic due process principles applicable in probation violation

proceedings dictate that a probationer has the right to assert

self-defense or defense of property, where relevant, as

justification for an alleged probation violation. See Thompson

v. Riveland, 109 Wis. 2d 580, 586 (1982) ("A claim of self-

defense is available to all persons in society whether on

probation or not"). A claim of self-defense or defense of

property is a claim that the probationer's conduct was, in fact,

lawful. See Commonwealth v. Williams, 481 Mass. 799, 805

(2019), quoting Commonwealth v. Rodriguez, 370 Mass. 684, 688

(1976) ("we have long recognized that self-defense negates the

element of 'unlawfulness'"). See also Williams, supra at 806
8

(in context of G. L. c. 278A motion for postconviction forensic

testing, assertion of self-defense is claim of "factual

innocence").3

The concept of defense of property "relates to the right to

use limited force to defend personal property from theft."

Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 248 n.2 (1999).

A person "may defend or regain his momentarily interrupted

possession by the use of reasonable force, short of wounding or

the employment of a dangerous weapon." Commonwealth v. Donahue,

148 Mass. 529, 531 (1889). If the victim had just stolen the

defendant's cell phone, and he used reasonable force to get it

back, he would not have been guilty of a crime and would not

have violated the terms of his probation.

In a criminal case, where the defendant raises a colorable

claim of self-defense or defense of property, the Commonwealth

must prove beyond a reasonable doubt that the defendant did not

legitimately act in self-defense or in defense of property. See

Rodriguez, 370 Mass. at 688; Haddock, 46 Mass. App. Ct. at 248

3 We limit our discussion to self-defense and defense of
property, which "provide[] a justification, so that action which
society otherwise seeks to prevent becomes permissible under the
circumstances." People v. Allegri, 109 Ill. 2d 309, 315 (1985).
Our reasoning does not extend, for example, to a defense based
on the absence of criminal responsibility, which "does not turn
unacceptable behavior into permissible conduct, but only excuses
the individual from criminal punishment for having violated a
penal statute." Id. at 315.
9

("Where there is credible evidence to raise these defenses, the

burden is on the Commonwealth to prove beyond a reasonable doubt

that the defendant acted with force that was excessive in kind

or degree"). But in probation violation proceedings, "[t]he

finding of a violation is not by a jury but by a judge, and is

based only on a preponderance of the evidence, not proof beyond

a reasonable doubt." Commonwealth v. Wilcox, 446 Mass. 61, 65

(2006). See Commonwealth v. Holmgren, 421 Mass. 224, 226

(1995). Accordingly, when a colorable claim of self-defense or

defense of property is raised to contest an alleged probation

violation, the Commonwealth need only show by a preponderance of

the evidence that the probationer did not legitimately exercise

the defense. The burden of proof properly rests with the

Commonwealth, as a finding that the defendant violated probation

may result in a deprivation of liberty. See State v. Sligh, 115

Conn. App. 197, 203-204 (2009) (although not conclusively

resolving issue, suggesting that burden of proof should not be

on probationer).

Moreover, the allocation of the burden of proof to the

Commonwealth, rather than the defendant, will affect the

probation violation determination "only in a narrow class of

cases where the evidence is in equipoise," Medina v. California,

505 U.S. 437, 449 (1992), that is, where the evidence of self-

defense or defense of property is equally as strong as the
10

evidence that the probationer did not properly avail himself of

the defense. See Commonwealth v. Chatman, 466 Mass. 327, 336

n.7 (2013) (discussing significance of allocating burden of

proof by a preponderance of evidence). In this narrow class of

cases, we err on the side of liberty.

2. Explicit finding unnecessary. "Due process requires a

judge to issue a written statement supporting a probation

revocation to help 'insure accurate factfinding with respect to

any alleged violation and provide[] an adequate basis for review

to determine if the decision rests on permissible grounds

supported by the evidence'" (emphasis omitted). Commonwealth v.

Bain, 93 Mass. App. Ct. 724, 726 (2018), quoting Black v.

Romano, 471 U.S. at 613-614. This aspect of due process,

however, "is not an inflexible or invariably mandatory

requirement." Commonwealth v. Morse, 50 Mass. App. Ct. 582, 593

(2000).4 The judge's statement is sufficient if it provides the

probationer with the reasons for the decision, adequate for the

probationer to obtain a meaningful review. See Bain, supra at

726-727; Morse, supra at 592-594.

4 For example, "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,"
Hartfield, 474 Mass. at 484 n.8, as was the case here. See Fay
v. Commonwealth, 379 Mass. 498, 504-505 (1980).
11

The judge's statement of reasons here was consistent with

the flexible requirements of due process applicable in probation

violation proceedings. The judge specifically credited the

victim's statements that the defendant became enraged because

she wanted to break up with him, chased her down, and threw her

to the ground. The victim's version was corroborated by the

officer's eyewitness testimony that the defendant was straddling

the victim and holding her down while she was screaming, and

that the victim's knees were scraped. Just before the judge

announced his findings, the parties presented argument on the

defense of property claim, which the defendant spun entirely

from a single hearsay statement he made to the officer. "[T]his

was a simple, straightforward case, and the entirety of the

short transcript (aside from [the defendant's single self-

serving hearsay statement]) is th[e] inculpatory evidence."

Morse, 50 Mass. App. Ct. at 593. Although the judge did not

explicitly mention the defendant's defense of property claim,

his findings make it clear that he found no justification for

the defendant's action. See Commonwealth v. Nunez, 446 Mass.

54, 59 (2006) ("Although the judge did not explicitly state that

he found the hearsay reliable, that conclusion is implicit in

the fact that he made findings based on the hearsay evidence").

The defense of property claim was reed thin, and the evidence

amply negated it.
12

3. Reliance on hearsay. The judge did not abuse his

discretion in relying on the out-of-court statements that the

victim made to the testifying police officer. A judge may rely

on hearsay evidence at a probation violation hearing where the

evidence has substantial indicia of reliability. See, e.g.,

Hartfield, 474 Mass. at 482; Commonwealth v. Patton, 458 Mass.

119, 132 (2010); Durling, 407 Mass. at 118; Commonwealth v.

Henderson, 82 Mass. App. Ct. 674, 676 (2012). "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." Hartfield, supra at 484.

"[W]here 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." Id. at 485. We review the judge's assessment of the

reliability of evidence for abuse of discretion. See

Commonwealth v. Bukin, 467 Mass. 516, 521 (2014).
13

Here the judge properly set forth his conclusion that the

statements attributed to the victim were corroborated by the

responding officer's personal observations, "demonstrat[ing]

trustworthiness, reliability." Although the victim was an

interested party, all of the other factors demonstrating

reliability were present. Her statements were based on her

personal participation in the incident and made to the officer

immediately thereafter. She gave a detailed, internally

consistent account of the events, without time for reflection or

fabrication. Indeed, the judge might have accepted the victim's

statements on the alternate ground that they qualified as

excited utterances, an exception to the rule against hearsay.

See Commonwealth v. Santiago, 437 Mass. 620, 624-626 (2002);

Mass. G. Evid. § 803 (2) (2019). "Evidence which would be

admissible under standard evidentiary rules is presumptively

reliable." Durling, 407 Mass. at 118. See § 6(B) of the

Guidelines for Probation Violation Proceedings in the Superior

Court, Mass. Rules of Court, at 1049 (Thomson Reuters 2019)

("Hearsay evidence shall be admissible at a Violation Hearing as

permitted under Sections 802 through 804 of the Massachusetts

Guide to Evidence, or when determined by the judge to be

substantially reliable"). The judge did not abuse his

discretion in relying on the officer's account of the victim's

statements.
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Conclusion. The order entered on January 26, 2018,

revoking probation and imposing sentence, is affirmed.

So ordered.