Commonwealth v. Matthew Rocha.

Opinion

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

21-P-957

COMMONWEALTH

vs.

MATTHEW ROCHA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Matthew Rocha, argues that a Superior Court

judge improperly admitted at a probation violation hearing a

recording of a 911 call. The defendant contends that the caller

related statements of the victim that were inadmissible double

hearsay. He also contends that the caller's statement that the

victim was "constantly getting beat up by her boyfriend," as

well as an exhibit documenting the recent dismissal of domestic

violence charges against the defendant in Rhode Island, were

improper bad act evidence. Because the judge did not abuse her

discretion in concluding that the 911 call was substantially

reliable and the evidence was admissible, we affirm.

Background. As of February 28, 2021, the defendant was on

probation on a Superior Court conviction for kidnapping, subject

to conditions including that he obey all laws. After a notice of probation violation issued alleging that he had been charged

with assault and battery on a family or household member and

assault on a family or household member, a final probation

violation hearing was held in the Bristol County Superior Court.

At the hearing, the victim testified that on February 28,

2021, she and the defendant had a nonviolent verbal argument.

The victim testified that she was upset, went outside to her

truck, and, from her truck, telephoned a friend in North

Carolina to "vent[]." Immediately after that call the friend

called 911 to report that the victim had been assaulted. The

victim denied telling the 911 caller that the victim had any

injuries or that the defendant had assaulted her, but she

acknowledged that soon after she hung up with the friend the

police arrived. Shown a photograph taken of her that night, the

victim explained that her face was extremely puffy from crying

and that she had probably bitten her own lip from being upset.

When the Commonwealth offered the recording of the 911

call, the defendant objected on grounds that the caller was not

a percipient witness to the assault and that the call contained

hearsay. The judge admitted the recording, noting that the

victim had already testified that she had telephoned the friend

who made the 911 call; the judge stated that she would determine

from the contents of the call whether any hearsay was

substantially reliable. The victim then identified the voice of

2 the 911 caller as that of her friend. In the 911 call, the

caller identified herself, said she was calling from North

Carolina, and stated that she just got off the phone with the

victim, "who is constantly getting beat up by her boyfriend."

The caller gave the victim's name, address, and telephone

number, and informed police that the victim was sitting in a

cranberry-colored truck in the driveway of that address. The

caller also told the dispatcher that the victim had disclosed

that her boyfriend, whose name was "Matt," had "choked her and

messed up her face," and that the victim "has marks on her face

right now." The caller said that the victim's boyfriend was on

some kind of probation, and that the victim had recently

"dropped the charges" against him in Rhode Island "for the same

thing."

Fall River Police Officer Samuel Chace responded to the

address reported by the 911 caller and found the victim locked

in a red pickup truck. The victim was "startled," "evasive,"

and "nervous," kept looking at the window of her apartment, and

said something about consequences from her boyfriend, so the

officer brought her a short distance away to speak to her. The

victim looked like she had been crying and had a bruised lower

lip, redness around her neckline, blood around the crown of her

nose, and watery eyes. The victim declined medical treatment

and denied that a physical altercation had occurred. The victim

3 did tell Officer Chace that a charge against the defendant in

Rhode Island had been "dropped."1

Officer Chace then telephoned the 911 caller, who said that

she was in fear for the victim's safety and that the victim and

defendant had been in a physical altercation a few minutes

earlier. After Officer Chace spoke to the 911 caller, officers

knocked on the apartment door. The defendant opened the door;

he was naked, had no visible injuries, and seemed confused. The

apartment was "a mess," with food burning on the stove.

The judge concluded that the Commonwealth had shown by a

preponderance of the evidence that the defendant had violated

his probation by committing assault and battery on a family or

household member. On the kidnapping conviction, the judge

revoked the defendant's probation and sentenced him to two years

in State prison.

Discussion. 1. Hearsay. The defendant argues that the

judge improperly relied upon the recording of the 911 call in

which the caller relayed the victim's statements. He contends

that the 911 caller lacked personal knowledge of the events she

reported to the dispatcher, and that her statements contained

"double hearsay" inadmissible under any hearsay exception. The

1 About three weeks earlier in a Rhode Island court, domestic violence charges against the defendant had been dismissed by the prosecution.

4 defendant further argues that the caller's statements were not

sufficiently reliable, and without them there was an inadequate

basis for the judge to find that he violated his probation.

In probation violation proceedings, the Commonwealth bears

the burden of proving by a preponderance of the evidence that

the probationer violated the terms and conditions of probation.

See Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct. 44, 47

(2018). 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). 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. Hartfield, 474 Mass. 474, 484 (2016). See

Commonwealth v. Costa, 490 Mass. 118, 125 (2022). We review the

judge's assessment of the reliability of that evidence for an

abuse of discretion. See Ogarro, supra.

5 a. Caller's report to 911 dispatcher. The judge did not

abuse her discretion in concluding that certain statements in

the 911 call were substantially reliable. Specifically, the

judge found substantially reliable the following statements:

that the caller was calling from North Carolina; that the victim

lived at a certain address; that the victim and the caller had

spoken on the telephone until about a minute before the 911

call; that the victim was very upset and was crying so much that

she had trouble speaking; that the victim was hiding in her

truck in the driveway; and that the victim had said that she and

her boyfriend, Matthew, had been involved in a physical

altercation and he had choked her and "messed up" her face.2

The judge did not abuse her discretion in concluding that

the caller's statements in the 911 call were substantially

reliable. The victim authenticated the voice of the 911 caller

as that of her friend. The judge found that the 911 caller made

the statements based on the caller's personal knowledge of her

conversation with the victim, which was close in time to the

assault and battery; the judge also found that the 911 caller

was a disinterested party. The caller's statements were

corroborated by the victim's testimony that she had telephoned

2 The 911 caller reported that she heard the victim's boyfriend "threatening to kill her," but the judge did not find that statement substantially reliable because the caller had never met the defendant and could not identify his voice.

6 the 911 caller that night and was very upset and "venting."

They were also corroborated by Officer Chace's observations of

the victim, just as the 911 caller had described, parked in a

red pickup truck outside her apartment with visible injuries,

and by evidence that domestic violence charges against the

defendant in Rhode Island had recently been dismissed. Officer

Chace's telephone call to the 911 caller further corroborated

the caller's statements to the dispatcher.

"In assessing whether the hearsay evidence is reliable, a

hearing judge may consider . . . whether the evidence is based

on personal knowledge or direct observation" (emphasis added).

Hartfield, 474 Mass. at 484. Although the 911 caller was in

North Carolina and the defendant and the victim were in

Massachusetts, the 911 caller's statements met this requirement.

From the amount of factual detail supplied by the 911 caller,

the judge could find that the caller had learned the information

from the victim. Where the victim herself testified,

authenticated the 911 caller's voice, and corroborated many of

the 911 caller's statements, the judge could conclude that the

statements in the 911 call were substantially reliable. Simply

because the 911 caller was not a percipient eyewitness to the

assault and battery did not mean that her statements in the 911

call about what the victim had said were not based on her

personal knowledge. Contrast Commonwealth v. Grant G., 96 Mass.

7 App. Ct. 721, 726 (2019) (Department of Children and Families

case worker's statement that juvenile "ha[d] been AWOL from the

program several times" not based on case worker's personal

knowledge or corroborated by other evidence); Commonwealth v.

Hamilton, 95 Mass. App. Ct. 782, 788-789 (2019) (multilevel

hearsay not substantially reliable where hearsay statements were

internally inconsistent and declarant had no direct personal

knowledge).

The judge also did not abuse her discretion in concluding

that the 911 caller was a disinterested witness. Despite the

fact that the caller had been friends with the victim for twenty

years, she did not know the defendant and there was no evidence

presented that she had a bias against him. Contrast

Commonwealth v. Wilson, 47 Mass. App. Ct. 924, 925-926 (1999)

(hearsay insufficiently reliable, where declarant had motive to

retaliate against defendant). Further, the caller called 911

against the wishes of the victim, and as a result their

friendship ended.

b. Victim's statements to 911 caller. The judge also

concluded that the victim's statements to the 911 caller on the

phone that evening were substantially reliable because they

qualified as excited utterances, noting that "[the victim] being

upset in the moment that she makes those phone calls provides

inherent reliability as to their trustworthiness in

8 circumstances where she was still under the stress of the event

that had occurred." The defendant contests that finding.

"A statement meets the test for admissibility as an excited

utterance if (1) there is an occurrence or event sufficiently

startling to render inoperative the normal reflective thought

processes of the observer, and (2) if the declarant's statement

was a spontaneous reaction to the occurrence or event and not

the result of reflective thought" (quotations omitted).

Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017). See Mass.

G. Evid. § 803(2) (2022).

The 911 caller described the victim as very upset during

their call, that she was crying so hard she had trouble

speaking. The victim herself testified that she was "extremely

upset" and "venting" when she spoke to the 911 caller. The

judge did not abuse her discretion in concluding that the

victim's statements related by the caller in the 911 call were

substantially reliable, as required for admissibility at a

probation violation hearing. See Ogarro, 95 Mass. App. Ct. at

668-669. See also Commonwealth v. Napolitano, 42 Mass. App. Ct.

549, 557 (1997) (jury could credit excited utterance over trial

testimony of victim recanting accusation; "Excited utterance

hearsay has been judicially viewed as of such substantial

trustworthiness that it may justifiably carry more

9 weight . . . than a . . . statement offered [subsequently] in

the relative calm of the courtroom" [quotation omitted]).

2. Prior bad acts. The defendant argues that the

admission of the 911 caller's statement that the victim was

"constantly getting beat up by her boyfriend," and the case

summary for the dismissed Rhode Island charges, were improper

bad acts evidence. The defendant did not object to the

admission of this evidence below, so we review for a substantial

risk of a miscarriage of justice. See Commonwealth v.

Pickering, 479 Mass. 589, 596 (2018).

"Generally, evidence of a defendant's prior misconduct may

not be admitted to show bad character or propensity to commit

the crime charged." Commonwealth v. Montez, 450 Mass. 736, 744

(2008). "However, such evidence may be admissible, if relevant,

to show a common scheme or course of conduct, a pattern of

operation, absence of accident or mistake, intent, or motive."

Commonwealth v. Moran, 101 Mass. App. Ct. 745, 748 (2022),

quoting Commonwealth v. Barrett, 418 Mass. 788, 793-794 (1994).

The judge has broad discretion to make admissibility

determinations. Moran, supra at 750.

Admission of the 911 caller's statements and the Rhode

Island case summary did not create a substantial risk of a

miscarriage of justice. That evidence was admissible to

corroborate the 911 caller's statement that the victim had said

10 that the defendant's Rhode Island charges had recently been

dismissed, about which the victim also testified. Further, that

evidence was relevant on the issue of the victim's credibility.

See Commonwealth v. Butler, 445 Mass. 568, 576 (2005) (fact

finder entitled to consider evidence of hostile relationship

between defendant and victim to adequately assess victim's

credibility).

Conclusion. The judge did not abuse her discretion in

relying at the probation violation hearing on the substantially

reliable hearsay statements contained in the recording of the

911 call, and no substantial risk of a miscarriage of justice

arose from admission of evidence of the dismissal of the

defendant's Rhode Island charges.

April 1, 2021 order revoking probation affirmed.

May 25, 2021 order denying motion for reconsideration affirmed.

By the Court (Ditkoff, Singh & Grant, JJ.3),

Clerk

Entered: February 15, 2023.

3 The panelists are listed in order of seniority.