Commonwealth v. Irvin Williams.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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

23-P-1141

COMMONWEALTH

vs.

IRVIN WILLIAMS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Irvin Williams, was sentenced in the

Superior Court to a term of incarceration for probation

violations. He appeals on two grounds -- first, that the no-

contact order he violated was ambiguous, and second, that the

judge improperly credited the victim's affidavit and not her

oral testimony. We affirm.

Background. In September 2021, the victim called the

Boston Police Department to report a domestic violence incident

involving the defendant, who was on probation at the time. The

victim told the responding officer that two weeks earlier the

defendant, her ex-boyfriend, assaulted her. She reported that

the defendant pushed her onto the bed, choked her, and covered
her mouth. She told the officer that the defendant left the

apartment because his car had been towed, but then came back,

and -- when she refused to open the door -- kicked it open and

entered the apartment.

The responding officer testified that he saw that the

apartment's door frame was broken. He testified that the victim

repeatedly mentioned having "low self-esteem" and described her

as "kind of . . . fidgety" while speaking with him. He did not

report any physical signs of injury.

After being advised by the officer of the process for doing

so, the victim sought and was granted a restraining order under

G. L. c. 209A. In her affidavit, she wrote that the defendant

threatened to kill her while she was in the shower; told her

that "he can tell [her] parents never hit [her]"; and pushed her

on the bed and suffocated her "while grabbing [her] left upper

arm[, giving her a] bruise." The victim also averred that she

"kicked [the defendant] out[,] he then left[,] noticed his car

got towed [and] knocked on [her] door," and, when she refused to

open the door, "he kicked [her] door open. The landlord then

text[ed her] and said the domestic violence needs to stop." She

claimed that "[f]or the past year [the defendant] has mentally,

verbally[,] and physically harmed [her]." The victim wrote that

she was "trying to move on with [her] life" with college, work,

and her recovery, and the defendant "won't leave [her] alone."

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The defendant was subsequently charged with assault and

battery on a family or household member, breaking and entering

to commit a misdemeanor, and strangulation or suffocation. The

probation department issued a probation violation notice.1

The victim testified at the initial probation surrender

hearing and recanted the assault allegations. She testified

that she lied about the incident to get the defendant in trouble

and hurt him emotionally.

In releasing the defendant at the end of the hearing, the

judge ordered that he wear a GPS monitor, stay away from the

victim's property, and have no contact with the victim. Because

it was late on a Friday afternoon and the defendant could not be

fitted with a GPS monitor, the judge ordered the defendant to

return to court on Monday to be fitted. The defendant was to

wear the monitor "until this probation violation issue is

resolved." After setting the date for the final probation

surrender hearing, the judge told the defendant "[i]n the

meantime, you're to have no contact, absolutely no contact,

either directly or indirectly, with the [victim] in this case."

On Monday, when he returned to get the GPS bracelet, the

defendant signed the judge's written order of conditions of

1 Allegations that the defendant failed to complete the
mental health evaluation and missed an office visit are not
before us as the defendant was found not to be in violation for
these reasons.

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pretrial release, which included the condition that he "have no

contact, direct or indirect," with the victim.

The final probation surrender hearing took place over four

days in front of a different judge. In addition to testimony

from the responding officer (outlined above), the Commonwealth

entered a copy of the victim's affidavit and the restraining

order without objection from the defendant.

The victim again testified for the defendant, maintaining

that she "made the report out of anger because [she] was upset,

and [she] was just being spiteful" and it was not true. When

asked why she had lied, the victim answered that she did not

know and she "just did it out of anger" because the relationship

had ended.

The victim's testimony also conflicted with her affidavit

about having her landlord's phone number, the cause of the

broken door, and the defendant's car.

After this testimony, the Commonwealth began investigating

the victim for perjury. The investigating State police trooper

testified as a rebuttal witness for the Commonwealth. Her

testimony corroborated the victim's affidavit in at least two

respects. Tow receipts admitted in evidence corroborated the

victim's affidavit that the defendant's car was towed from a

location near her house on the night of the assault.

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In finding the defendant had violated the terms of his

probation by committing the assault and battery, the judge

credited the Commonwealth's evidence, including the responding

officer's testimony, the victim's affidavit, the tow receipts,

and the State trooper's testimony. The judge did not credit the

victim's live testimony.

The State trooper's post-hearing investigation also

revealed calls between the victim and the defendant during

months after the hearing judge issued the no-contact order. The

probation department amended the notice of probation violation

to include violations for violating the no-contact order (and

failing to report to probation). After another evidentiary

hearing, the judge found that the defendant also violated his

probation by having contact with the victim after the no-contact

order was in place. The defendant moved for reconsideration.

Denying the motion, the judge found that (1) the victim's

affidavit was made from personal knowledge; (2) it was made

close in time because it was less than three weeks after the

alleged incident; (3) it included specific details from the

alleged incident and her personal life that the victim "would

not have set forth . . . unless they were true"; (4) the details

provided in the victim's police report and the affidavit were

internally consistent; and (5) the police testimony was

"entirely credible," and, with the tow receipts, corroborated

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"key aspects" of the affidavit. See Commonwealth v. Hartfield,

474 Mass. 474, 484 (2016). The judge then weighed the

reliability of the victim's testimony, finding that "much of

[it] was patently false" and it was "not internally consistent,"

and found the motivation behind her testimony was "consistent

with a last ditch effort to rekindle her relationship with the

defendant."

The judge subsequently denied a second motion to

reconsider.

Discussion. "The Commonwealth must prove a violation of

probation by a preponderance of the evidence." Commonwealth v.

Bukin, 467 Mass. 516, 520 (2014). We review an order revoking

probation for abuse of discretion to determine "whether the

record discloses sufficient reliable evidence to warrant the

findings by the judge that [the defendant] had violated the

specified conditions of his probation." Commonwealth v. Morse,

50 Mass. App. Ct. 582, 594 (2000). Accord Commonwealth v.

Jarrett, 491 Mass. 437, 440 (2023).

1. Violation of the no-contact order. Due process

"requires that a person be given a reasonable opportunity to

know what the [probation] order prohibited, so that he might act

accordingly." Commonwealth v. Ruiz, 453 Mass. 474, 478 (2009),

quoting Commonwealth v. Delaney, 425 Mass. 587, 592 (1997),

cert. denied, 522 U.S. 1058 (1998). "[A] condition of probation

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must provide 'reasonable guidance' as to the conduct prohibited

so that people of 'common intelligence' will understand its

meaning." Ruiz, supra at 479, quoting Commonwealth v. Kendrick,

446 Mass. 72, 75 (2006).

Probation conditions "need not provide the fullest warning

imaginable." Kendrick, 446 Mass. at 75. "A judge's inquiry

whether a defendant has received the required 'fair notice' is

not 'confined to the four corners of the probation order';

rather, the order's meaning may be illuminated by the judge's

statements and other events that are part of the notification

process." Ruiz, 453 Mass. at 479-480, quoting United States v.

Gallo, 20 F.3d 7, 12-13 (1st Cir. 1994).

The no-contact order provided fair notice to the defendant.

First, at the initial probation surrender hearing the judge

repeatedly told the defendant not to have any contact with the

victim. Second, even if the context of these oral instructions

created ambiguity, it was resolved by the written no-contact and

stay away orders, which the defendant signed after the weekend

and before the violative contact. The defendant specifically

agreed that he would "have no contact, direct or indirect," with

the victim. This signed agreement provided "fair warning of

conduct that may result in revocation of probation." Kendrick,

446 Mass. at 75. We discern no abuse of discretion.

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2. Reliance on the affidavit. At a probation violation

hearing, a judge may rely on hearsay evidence that has

"substantial indicia of reliability." Commonwealth v. Ogarro,

95 Mass. App. Ct. 662, 668 (2019). When 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." Hartfield, 474 Mass. at

485. In determining whether hearsay is substantially reliable,

the 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."

Commonwealth v. Costa, 490 Mass. 118, 124 (2022), quoting

Hartfield, supra at 484.

"When hearsay evidence is reliable, . . . then it can be

the basis of a revocation." Commonwealth v. Durling, 407 Mass.

108, 118 (1990). "We review a judge's determination that

hearsay is substantially reliable, like other evidentiary

decisions, under an abuse of discretion standard." Commonwealth

v. Rainey, 491 Mass. 632, 648 (2023).

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The judge carefully applied the Hartfield factors and made

detailed findings in favor of the affidavit's substantial

reliability, assessing the affidavit in light of other evidence

presented at the hearing. "There is no requirement that hearsay

satisfy all the above criteria to be trustworthy and reliable."

Commonwealth v. Patton, 458 Mass. 119, 133 (2010). See Costa,

490 Mass. at 125 n.4 (although inconsistency between declarant's

statements goes to credibility, "it does not directly undermine

the reliability of the complainant's allegations . . .").

The judge considered evidence and inferences from testimony

that corroborated the victim's affidavit: the responding

officer's "entirely credible" testimony about the initial

complaint, his personal observations of the victim's demeanor,

and the condition of the apartment door; the tow receipt from

the day of the alleged incident; and the landlord's statements

to the State trooper. This evidence was weighed against the

victim's oral testimony. The judge outlined why he did not

credit her, and drew inferences from the victim's ongoing

communication with the defendant to find that she had "continued

interest in the defendant," which provided "motive for her

recantation."

"The defendant offered testimony that contradicted the

probation officer's case, but 'the hearing judge . . . is

responsible for determining the weight and credibility of the

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evidence.'" Commonwealth v. Foster, 77 Mass. App. Ct. 444, 451

(2010), quoting Brown, petitioner, 395 Mass. 1006, 1007 (1985).

We see nothing in the case law suggesting that where -- in the

context of a probation revocation hearing -- witnesses seek to

recant earlier statements to police, a judge is precluded from

relying on the earlier statements if they otherwise present

substantial indicia of reliability. See, e.g., Patton, 458

Mass. at 131, 134-136 (no error in judge finding probation

violation based on hearsay statements alleged victim made to

investigators, even in face of evidence that witness

subsequently recanted). There was "substantially reliable

evidence for the judge to conclude, by a preponderance of the

evidence, that the probationer 'more likely than not violated

the conditions of his probation.'" Jarrett, 491 Mass. at 445,

quoting Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013). "It

was a matter for the judge to decide how much weight to give the

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evidence of recantation." Patton, supra at 131. There was no

abuse of discretion.

Order revoking probation and
imposing sentence affirmed.

Orders denying motions for
reconsideration affirmed.

By the Court (Meade,
Hershfang & Toone, JJ.2),

Clerk

Entered: December 10, 2024.

2 The panelists are listed in order of seniority.

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