MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Emmanuel F. Cruz, pleaded guilty to assault and battery on a family or household member, the mother of his daughter, and was sentenced to a term of probation. While still on probation, he was charged with a new offense against the mother -- assault and battery on a pregnant victim. The probation department issued a notice of probation violation, and after a hearing, a Boston Municipal Court judge found that the defendant violated the terms of his probation both by committing the second offense against the mother and by failing to comply with the condition of his probation that prohibited contact with the mother and their daughter. We affirm.
The defendant was charged with the second assault and battery offense against the mother after the police responded to a report of domestic violence at her apartment. At the probation violation hearing, the testimony of responding Boston Police Officer Kyle Holmes and video footage from his body camera tended to show that the mother had been attacked and that the assailant had fled. Additionally, Holmes testified, and the video corroborated, that before leaving for the hospital in an ambulance, the mother named the defendant as the assailant. She further described the assailant as her daughters father and said that she had a no-contact order against him. The defendant argues that the judge erred in relying on these out-of-court statements by the mother.
“A judge may rely on hearsay evidence at a probation violation hearing where the evidence has substantial indicia of reliability.” Commonwealth v. Ogarro, 95 Mass. App. Ct. 662, 668 (2019). “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). “We review the judges assessment of the reliability of evidence for abuse of discretion.” Ogarro, supra.
Nearly all the factors for assessing hearsay supported the judges conclusion that the mothers statements identifying the defendant as the assailant on the night of the attack were reliable. As the defendant acknowledges, the statements were based on personal knowledge and made close in time to the incident. Her identification of the defendant was also factually detailed and unambiguous. She provided the defendants first and last names as well as other characteristics unique to him, including the no-contact order against him and his status as her daughters father, which were both corroborated by evidence in the record. Moreover, the statements were made under circumstances that support their veracity. The mother was reporting a crime to a police officer, see Commonwealth v. Nunez, 446 Mass. 54, 59 (2006),
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and the video showed that she was still under the stress of the attack and resulting injuries. See Commonwealth v. Santiago, 437 Mass. 620, 623 (2002). See also Commonwealth v. Patton, 458 Mass. 119, 134 (2010) (“A videotape possesses ‘certain special characteristics,’ including ․ the [declarants] demeanor ․, adding to its reliability”). Even if the judge erroneously found that the mother was a “disinterested witness,” any misapplication of this factor did not outweigh the other factors. “There is no requirement that hearsay satisfy all the above criteria to be trustworthy and reliable.” Patton, supra at 133. The judge did not abuse his discretion in finding the mothers statements substantially reliable.
The defendant argues that the statements were unreliable because, shortly after the incident, the mother told the defendants probation officer and the Suffolk County district attorneys office that her initial identification of the defendant on the night of the attack was mistaken. Specifically, she realized later that she had “been dealing with Emmanuel Rodriguez not Cruz” and she meant to “have this assigned to Rodriguez.”
The mothers recantation, however, went to the weight of the evidence, not the admissibility of her initial identification, and “[i]t was a matter for the judge to decide how much weight to give the evidence of recantation.” Patton, 458 Mass. at 131. We infer that the judge gave the recantation evidence little or no weight, and we discern no error in this regard. Unlike the mothers initial identification, her recantation lacked important indicia of reliability. It was not made under the stress of the attack but days later after ample time for conscious reflection and possible fabrication. See Santiago, 437 Mass. at 626-627. Indeed, other statements concurrent with her recantation -- that she needed the defendants “help [with] his daughter” and that his daughter “really misse[d] him” -- suggested fabrication. See Commonwealth v. Janovich, 55 Mass. App. Ct. 42, 43, 50 (2002). Although some evidence suggested that the assailant drove a vehicle with Georgia license plates and that Rodriguez, not Cruz, had been associated with a Georgia address at some unspecified time, that evidence did not directly contradict the initial identification or corroborate the recantation. Based on all the evidence, the judge was permitted to accept the initial identification and reject the recantation. See id. at 50.
The mothers hearsay statements identifying the defendant as her attacker, along with the personal observations of the testifying officers and their body camera footage,
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were plainly sufficient to permit the judge to find by a preponderance of the evidence that the defendant had violated the terms of his probation both by committing an assault and battery on the mother and -- at the very least -- by failing to stay away from her. Unlike in Commonwealth v. Lane, 27 Mass. App. Ct. 527, 528-529 (1989), on which the defendant relies, here the Commonwealth did not need to prove beyond a reasonable doubt that the defendant (and not Rodriguez) committed the alleged conduct.
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Order revoking probation and imposing sentence affirmed.
FOOTNOTES
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. Even though the mother chose to exercise her Fifth Amendment privilege not to testify at the hearing, possible prosecution for making a false report of a crime still bolstered the reliability of her statements. The defendant did not cite, and we were unable to find, any published decision stating otherwise.
3
. Holmess partner, Officer Max McGuire, also testified, and video footage from McGuires body camera was also admitted in evidence.
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. Because we conclude that the judge properly relied on the mothers hearsay statements to find the defendant in violation of his probation, we need not address whether the neighbors testimony, including her in-court identification of the defendant, could have also established a probation violation.