MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2020, the defendant was charged in the District Court with various offenses, including illegal possession of a class B substance. The following year, he pleaded to sufficient facts with respect to that offense. He was placed on probation, and the case was continued without a finding until June 15, 2022. On June 10, 2022, the probation department sent the defendant a notice of violation of probation, based on an incident that had occurred on March 11, 2022. Specifically, the defendant allegedly operated a motor vehicle while his license was suspended, failed to obey a stop sign, and failed to stop for police. Following a hearing, a judge found the defendant in violation of his probation, but -- on the recommendation of the probation officer -- terminated probation and dismissed the case. On the defendants appeal of the finding of a probation violation, we affirm.
Background. To establish the probation violations, the Commonwealth relied principally on a detailed police report written by Springfield police officer John Parrott. The defendant does not challenge the reliability of the police report insofar as it documented that the driver of the vehicle in question ran the stop sign and failed to stop for the police. He does, however, challenge the reliability of the evidence that he was that driver. Prior to the parole violation hearing, the defendant moved to exclude as unreliable hearsay those portions of the police report that identified him as the driver. We turn next to summarizing what the police report said.
On March 11, 2022, Officer Parrott observed a Nissan Altima (Nissan) speeding. Parrott began following the Nissan in his marked cruiser. A registry of motor vehicle (RMV) check by Parrott established that the Nissan had recently failed inspection. Accordingly, Parrott activated the lights and siren on his cruiser, thereby signalling the driver of the Nissan to pull over. Despite this, the driver continued to drive away, and at one point, failed to stop at a stop sign. When the car eventually stopped, two rear seat passengers exited in haste. Officer Parrott ran to the car with his gun drawn and observed the driver to be a Hispanic male, approximately “22-27” years old, with short black hair and a full beard. Parrott ordered the driver out of the vehicle, but instead the driver accelerated quickly and fled the scene.
Interviewing the two passengers, Parrott learned that they had hired the driver of the Nissan through a service named “413 Hood Uber” that used Facebook to solicit customers. One of the passengers, who had left her pocketbook in the car, retrieved a photograph of the driver from the Facebook page through which she had arranged the ride. The passenger sent the Facebook photo by e-mail to Parrott, who concluded that the photo “matched very well to the male [he had seen] in the driver seat.”
Parrott obtained the name of the registered owner of the Nissan by running its license plate number through the RMV records. Although his efforts to reach the Nissans owner failed, he learned from the West Springfield Police Department that the owner had reported the car stolen March 9, 2022, and that the owners brother -- the defendant -- was the suspect. Parrot obtained the most recent photograph of the defendant from RMV records “and was able to positively match this photo to the [Facebook] photo that [the passenger had] emailed [him] along with the description of the male that [he] had.” Parrott also learned that the defendants license was suspended at the time.
Concluding that the evidence contained in the police report was sufficiently reliable and detailed, the judge denied the defendants motion to exclude portions of it, and he found that the defendant had violated his probation by committing the referenced motor vehicle violations.
Discussion. Probation can be revoked based on hearsay evidence. See Commonwealth v. Durling, 407 Mass. 108, 118 (1990). However, where, as here, “hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial.” Id. The Supreme Judicial Court has identified a number of factors to be considered in determining whether hearsay evidence proffered by the Commonwealth in a probation revocation hearing is sufficiently reliable:
“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). Based on those factors, the identification evidence contained in the police report readily qualified. The eyewitness accounts were detailed, provided close in time to the incident, were from a trained police officer and two disinterested civilian witnesses identified to the police, and “were made under circumstances that support[ed] their veracity.”
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Id. The accounts of the two civilians were internally consistent and corroborated each other, and they were consistent with, and partially corroborated by, what Officer Parrot himself had observed. Notably, the police did not show the Facebook photograph to the passengers; one of them provided it to the police. In light of the fact that the photograph came from the social media site that the passenger had just used to arrange for the ride, there was no apparent reason to doubt the reliability of her identification of the man shown in the photograph as the driver. Parrott independently concluded that the person shown in the Facebook photo was the driver he saw, and he observed that the defendants most recent RMV photograph matched the Facebook photograph, as well as his observations of the driver. The defendants identity as the driver also was corroborated by the fact that he was the brother of the cars registered owner who had reported the car stolen, as well as the suspect in its theft.
Notwithstanding such strong indicia of reliability, the defendant suggests that the Commonwealth was required to utilize the pretrial identification procedures recognized in Commonwealth v. Crayton, 470 Mass. 228, 233-245 (2014), and its progeny. Putting aside whether those requirements are implicated to the same extent in the probation violation context, we discern no violation of them here. The passengers identification of the person shown in the Facebook photograph as the driver was made without any suggestion by the police and under circumstances that well supported its reliability. Nor do we think that Officer Parrotts obtaining the defendants RMV photograph and comparing it to the Facebook photograph and his own recollection of what he personally observed was unnecessarily suggestive. Stated otherwise, there was “good reason” for Parrott to use the procedures he did. See Commonwealth v. Amaral, 81 Mass. App. Ct. 143, 148 (2012). To the extent that the defendant offers additional reasons why he contends the reliability of the identification procedures used here should be questioned, we are unpersuaded.
In sum, the defendant is unable to demonstrate that the judge abused his discretion in denying the motion to exclude the identification evidence contained in the police report. That evidence provided an ample basis to support the judges finding that the defendant had violated his probation.
Order finding probation violation and terminating probation affirmed.
FOOTNOTES
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. Although the statements were not made under oath, providing a false report to police officers is a crime. See G. L. c. 269, § 13A. For this reason, reports of crimes given by identified individuals are afforded some degree of reliability. See, e.g., Commonwealth v. Costa, 448 Mass. 510, 515-516 (2007). In addition, the witness who provided the Facebook photograph to Parrott was a victim seeking the return of her pocketbook, and she thus had an incentive to provide the police accurate information.