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
24-P-1221
COMMONWEALTH
vs.
KEVIN M. O'BRIEN. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order revoking his probation
and imposing a sentence. We affirm. The facts need not be
repeated in detail as the parties are familiar with them, but
those that are relevant will be included in our discussion.
Background. On August 17, 2022, the defendant pleaded
guilty to two counts of larceny of construction tools, G. L.
c. 266, § 27; one count of breaking and entering a vehicle in
the daytime with intent to commit a felony, G. L. c. 266, § 18;
and one count of larceny of a motor vehicle, G. L. c. 266,
§ 28 (a). He was sentenced to serve two years in the house of
1 Also known as Kevin Obrien. correction, with eighty-four days deemed served. The remaining
time was suspended and the defendant was placed on probation.
Among the conditions of probation were that the defendant
remain drug free and submit to drug screenings. The conditions
also required that he report to his probation officer as he or
she required, and that he obey all local, State, and Federal
laws.
About a month later, on September 21, 2022, the defendant
told his probation officer that if he were drug tested, he would
test positive for amphetamines, methamphetamines, fentanyl, and
cocaine. A little more than a week after that, on September 30,
2022, a drug test was performed and, indeed, he tested positive
for each of these drugs. A notice of probation violation and
hearing issued, but the defendant fled, missing his October,
2022, hearing. His whereabouts were unknown until he was
arrested in the early morning hours of February 6, 2024, and
charged with breaking and entering in the nighttime with intent
to commit a felony.
On February 27, 2024, a full probation violation hearing
was held. After the hearing, the judge revoked the defendant's
probation, finding that he had committed new offenses, failed to
comply with the requirement that he remain drug free, and failed
to comply with other provisions of the order of probation
because he fled and his whereabouts were unknown between his
2 drug test in 2022 and his arrest in 2024. The judge imposed the
sentence of two years in the house of correction.
Discussion. On appeal, the defendant's primary argument is
that the police report describing the new crime, which was
hearsay and contained nested hearsay, was not sufficiently
reliable and should not have been admitted at the probation
hearing nor relied on by the judge.
Unlike a criminal trial, a finding of a probation violation
must be proven only by a preponderance of the evidence.
Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). Although the
Confrontation Clause does not apply, due process requires that,
where the Commonwealth seeks to rely on hearsay in order to
demonstrate a probation violation, it may be admitted and relied
upon for revocation of probation if it "bears substantial
indicia of reliability and is substantially trustworthy."
Commonwealth v. Durling, 407 Mass. 108, 118 (1990).
Here, the police report itself is based on firsthand
observations by the two police officers involved, one of whom
wrote the report. Its level of detail and its inclusion of
names, phone numbers, and addresses of the witnesses it quotes
and describes are sufficient such that we see no abuse of
discretion in the judge's conclusion that the first level of
hearsay in the police report is substantially reliable.
3 The report contains a first piece of nested hearsay. It
states that the officers received a radio call to investigate
and remove a person at an address in the Dorchester neighborhood
of Boston. According to the radio call, the 911 caller (first
witness) stated that there was a male on the property waving at
the first witness's door camera. The male was described as a
white male, possibly in his twenties, wearing a light-colored
jacket.
The officers describe meeting with the first witness when
they arrived at the property. He is identified by name and the
report includes his address, phone number, and date of birth.
The report states that the officers were shown the recording
from the first witness's door camera and describes it as showing
"what appeared to be a white male wearing a varsity-style
jacket, and a baseball hat."
At this point, the report contains more nested hearsay,
including statements by the first witness and the second
witness, described as the third-floor tenant of the building.
The report says that the first witness stated that the male seen
in the video walked toward the back of the house, which only led
to a back door of the building.
The report states that officers made entry into the
building and found "a male matching the image of the male shown
in the video recording sitting on the back porch of the [third]
4 floor." The male, subsequently identified as the defendant,
stated that he knew the tenant of the apartment.
While escorting the defendant down the back stairs of the
residence, the report goes on, the officers were approached by
the third-floor tenant, who is identified by name, and whose
address, phone number, and date of birth are also included in
the report. The tenant stated that he had seen the defendant
briefly enter his apartment through the closed but unlocked
apartment door while holding a plastic bag and a flashlight,
before leaving through the same door. The second witness stated
that he did not know the defendant.
The report states that the officers then saw a white
plastic bag on the third floor back porch containing a
flashlight and several pairs of plastic gloves.
The nested hearsay of the two witnesses is also
substantially reliable. The hearsay statements were given to
police officers, who obtained the witnesses' names, addresses,
and phone numbers. In addition, the first witness's statements
were corroborated by the fact that the defendant was found on
the third-floor porch of the building. The second witness's
statements about the defendant entering his apartment with a
flashlight and plastic bag were corroborated by the observation
and seizure of a plastic bag with a flashlight, as well as
5 plastic gloves, in it from the very porch where the defendant
was initially seen by the police.
This suffices to support our conclusion that the judge did
not abuse his discretion in concluding that the hearsay in the
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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
24-P-1221
COMMONWEALTH
vs.
KEVIN M. O'BRIEN. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order revoking his probation
and imposing a sentence. We affirm. The facts need not be
repeated in detail as the parties are familiar with them, but
those that are relevant will be included in our discussion.
Background. On August 17, 2022, the defendant pleaded
guilty to two counts of larceny of construction tools, G. L.
c. 266, § 27; one count of breaking and entering a vehicle in
the daytime with intent to commit a felony, G. L. c. 266, § 18;
and one count of larceny of a motor vehicle, G. L. c. 266,
§ 28 (a). He was sentenced to serve two years in the house of
1 Also known as Kevin Obrien. correction, with eighty-four days deemed served. The remaining
time was suspended and the defendant was placed on probation.
Among the conditions of probation were that the defendant
remain drug free and submit to drug screenings. The conditions
also required that he report to his probation officer as he or
she required, and that he obey all local, State, and Federal
laws.
About a month later, on September 21, 2022, the defendant
told his probation officer that if he were drug tested, he would
test positive for amphetamines, methamphetamines, fentanyl, and
cocaine. A little more than a week after that, on September 30,
2022, a drug test was performed and, indeed, he tested positive
for each of these drugs. A notice of probation violation and
hearing issued, but the defendant fled, missing his October,
2022, hearing. His whereabouts were unknown until he was
arrested in the early morning hours of February 6, 2024, and
charged with breaking and entering in the nighttime with intent
to commit a felony.
On February 27, 2024, a full probation violation hearing
was held. After the hearing, the judge revoked the defendant's
probation, finding that he had committed new offenses, failed to
comply with the requirement that he remain drug free, and failed
to comply with other provisions of the order of probation
because he fled and his whereabouts were unknown between his
2 drug test in 2022 and his arrest in 2024. The judge imposed the
sentence of two years in the house of correction.
Discussion. On appeal, the defendant's primary argument is
that the police report describing the new crime, which was
hearsay and contained nested hearsay, was not sufficiently
reliable and should not have been admitted at the probation
hearing nor relied on by the judge.
Unlike a criminal trial, a finding of a probation violation
must be proven only by a preponderance of the evidence.
Commonwealth v. Bukin, 467 Mass. 516, 520 (2014). Although the
Confrontation Clause does not apply, due process requires that,
where the Commonwealth seeks to rely on hearsay in order to
demonstrate a probation violation, it may be admitted and relied
upon for revocation of probation if it "bears substantial
indicia of reliability and is substantially trustworthy."
Commonwealth v. Durling, 407 Mass. 108, 118 (1990).
Here, the police report itself is based on firsthand
observations by the two police officers involved, one of whom
wrote the report. Its level of detail and its inclusion of
names, phone numbers, and addresses of the witnesses it quotes
and describes are sufficient such that we see no abuse of
discretion in the judge's conclusion that the first level of
hearsay in the police report is substantially reliable.
3 The report contains a first piece of nested hearsay. It
states that the officers received a radio call to investigate
and remove a person at an address in the Dorchester neighborhood
of Boston. According to the radio call, the 911 caller (first
witness) stated that there was a male on the property waving at
the first witness's door camera. The male was described as a
white male, possibly in his twenties, wearing a light-colored
jacket.
The officers describe meeting with the first witness when
they arrived at the property. He is identified by name and the
report includes his address, phone number, and date of birth.
The report states that the officers were shown the recording
from the first witness's door camera and describes it as showing
"what appeared to be a white male wearing a varsity-style
jacket, and a baseball hat."
At this point, the report contains more nested hearsay,
including statements by the first witness and the second
witness, described as the third-floor tenant of the building.
The report says that the first witness stated that the male seen
in the video walked toward the back of the house, which only led
to a back door of the building.
The report states that officers made entry into the
building and found "a male matching the image of the male shown
in the video recording sitting on the back porch of the [third]
4 floor." The male, subsequently identified as the defendant,
stated that he knew the tenant of the apartment.
While escorting the defendant down the back stairs of the
residence, the report goes on, the officers were approached by
the third-floor tenant, who is identified by name, and whose
address, phone number, and date of birth are also included in
the report. The tenant stated that he had seen the defendant
briefly enter his apartment through the closed but unlocked
apartment door while holding a plastic bag and a flashlight,
before leaving through the same door. The second witness stated
that he did not know the defendant.
The report states that the officers then saw a white
plastic bag on the third floor back porch containing a
flashlight and several pairs of plastic gloves.
The nested hearsay of the two witnesses is also
substantially reliable. The hearsay statements were given to
police officers, who obtained the witnesses' names, addresses,
and phone numbers. In addition, the first witness's statements
were corroborated by the fact that the defendant was found on
the third-floor porch of the building. The second witness's
statements about the defendant entering his apartment with a
flashlight and plastic bag were corroborated by the observation
and seizure of a plastic bag with a flashlight, as well as
5 plastic gloves, in it from the very porch where the defendant
was initially seen by the police.
This suffices to support our conclusion that the judge did
not abuse his discretion in concluding that the hearsay in the
police report was substantially reliable. The defendant's
arguments that additional evidence was necessary to demonstrate
reliability -- including, for example, a description by the
second witness of the color of the plastic bag, or some
statement by the police in the report not only that the
defendant matched the image they had seen, but that he was
wearing a varsity jacket -- are without merit.
In terms of the seven factors that the Supreme Judicial
Court has said a judge may consider in making the assessment
about reliability, 2 we agree with both the judge and the
Commonwealth that all point in the direction of reliability.
2 "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."
Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016).
6 Our conclusion may obviate the need to address the
defendant's other arguments. On the merits, however, they are
easily disposed of.
While conceding that the defendant tested positive for
drugs during the period in which he was on probation, the
defendant argues that there is no evidence that he continues to
take drugs. Of course, that is not the question. The question
is whether he violated his probation. And the evidence is
uncontested that during the time he was on probation, in
violation of a condition of that probation, he used illegal
drugs. The judge's findings that the defendant violated
probation (a) by committing a new crime, (b) by using illegal
drugs during the probation period, and (c) by disappearing after
failing to appear at his October, 2022, probation violation
7 hearing, were adequately substantiated.
The order finding violation of probation, revoking
probation, and imposing a sentence is affirmed.
So ordered.
By the Court (Rubin, D'Angelo & Toone, JJ. 3),
Clerk
Entered: May 6, 2026.
3 The panelists are listed in order of seniority.