NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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
22

- P

- 42
COMMONWEALTH

vs .
DARRYLE D. M C CLURE
. MEMORANDUM AND ORDER PURSUANT TO RULE 23.0 The defendant appeals from a n order of a judge of the
District Court revoking his probation . He asserts that the judge abused his discretion when he relied on a police report containing hearsay statements to conclude that t he defendant violated his probation by committing new offenses. He also argues that the evidence did not support the judge ' s finding
that he also violated the conditions of his probation by fail ing to complete a class in anger management and by not report ing to probation as required. We affirm. Background
. On November 13 , 201 7 , the defendant pleaded guilty to various offen ses in Taunton District Court and received a committed sentence as well as probation

. 1 While he

1 More specifically , the defendant received eleven concurrent sentences of two years , with six months to be served and the balance suspended for three years with probation.2

was on probation , the defendant was charged with two offenses , assault and battery and strangulation , stemming from a violent altercation with his girlfriend at the Fairfield Marriott Hotel in Walpole on May 21 , 2020. T he defendant was alleged to be in
violation of h is probation by virtue of the new charges , failing to successfully complete an anger mana gement program , and failing to report to his probation officer within forty

- eight
hours after he was accidentally released from jail

. The defendant ' s p robation officer , Jennifer Anderson , was the only witness who testified at the defendant ' s violation
hea ring

. She testified about the defendant ' s conditions of probation and the alleged violations as follows . With regard to
the condition that the defendant complete a course on anger management , Anderson relayed that the defendant had completed
three out of twelve classes. With respect to the allegation that the defendant failed to report to probation , Anderson explained that the defendant was accidentally released from prison and that once she learned of the situation , she spoke with him and instructed him to report to the Taunton D istrict

C ourt , which the defendant failed to do. As regards the
condition that t he defendant not commit any new offenses , Anderson introduced (1) a police report detailing the events underlying the new charges written by Officer William Mitchell of the Walpole p olice d epartment ; (2) a report setting forth the3

coordinates from the defe ndant ' s GPS monitor on the date of the alleged new offense; (3) booking information from the Fairfield Marriott Hotel indicating that the defendant had reserved a room
for three days , including the date of the new offense; and (4) video footage depicting t he defendant hitting the victim provided by the hotel
. The defendant offered no evidence at the hearing . He argued , among other things , that the hearsay statements
contained within Mitchell ' s report were not sufficiently reliable to support a finding of a probation violation and that the defendant could not be identified as the person depicted in
the video. Defense counsel also informed the judge that the defendant had been found not guilty of the new offense s . The judge found that the defendant had violated the
conditions of his probation by committing new crimes , by failing to complete an anger management program , and by failing to report to his probation officer after his release from jail

. The judge acknowledged in his writ ten and verbal findings that
his decision was based on hearsay evidence that he found to be substantially reliable.
Discussion

. " A defendant on probation is subject to a
number of conditions , the breach of any one of which constitutes
a violation of his probation. " Commonwealth v. Durling , 407
Mass. 108 , 111 (1990). " A determination whether a violation of4

probation has occurred lies within the discret ion of the hearing judge

. " Commonwealth v. Bukin , 467 Mass. 516 , 519

- 520 ( 2014).

P robation revocation hearings are not subject to the strict
rules of evidence , Durling , supra at 114 , and h earsay evidence
is admissible if it is substantially reliable. See Commonwealth

v. Hartfield , 474 Mass. 474 , 484 (2016) (setting forth the appropriate factors to consider in determining whether hearsay is reliable)

. We begin with the defendant ' s claim that the judge relied

on unreliable hearsay in finding that he violated his probation by committing new crimes . C ontrary to the defendant ' s
assertion , the hearsay statements attributed to Mitchell , as set forth in his police report , were based on his personal knowledge
and direct observations , which were " recorded close in time to the events in question

. " T he statements were " factually
detailed and internally consistent ," and information was provided by disinterested witnesses " in circumstances that would support the veracity of the source

. " 2 The judge further observed
that Anderson identified the defendant in the video.

2 The judge found:

" [the police report] is based either on personal knowledge or direct observation. What I mean by that is that the police officer is observing the alleged victim in the case and making observations of her and her demeaner and what she app ears like and injuries that she appeared to have , while also listening to her account of what she says5

These circumstances c ouple d with the description of the
victim ' s demeanor and her partial statement as reported by
Mitchell , which was corroborated by the video , the statement of
the hotel ' s front office manager , and to some degree by the GPS
data leads us to conclude " that the proffered evidence was imbued with sufficient indicia of reliability to warrant a
denial of the defendant ' s limited right to cross

- examination. " Durling , 407 Mass. at 120. 3
Because we hav e determined that the evidence supported the judge ' s finding that the defendant had violated his probation by committing new crimes , we need not address the judge ' s findings that the defendant had violated his probation also by failing to complete an anger management program and by failing to report to his probation officer after he was accidentally released from prison. We nonetheless conclude that the evidence supported
both violations. Anderson ' s testimony provided a sufficient basis on which the judge could conclude by a preponderance of
the evidence that , despite the pandemic and his incarceration ,

happened. Those observations were recorded close in time to the events in question. They are provided by a disinterested witness. They are provided in circumstances that would support the veracity of the source. It is factually detailed and internally consistent. "

3 Although Mitchell ' s police report contained hearsay within hearsay , the judge did not abuse his discretion by relying on this " totem pole " hearsay because he first made a determination that the hearsay contained sufficient indicia of reliability.6

the defendant failed to complete a course in an anger management
program . The judge was not required to accept the defendant ' s
claim that circumstance s be yond his control (pandemic and incarceration) prevented him from fulfilling this obligation. Similarly , the judge was war ranted in concluding by a preponderance of the evidence that Anderson had informed the defendant that he was required to report to cou rt (probation) upon his accidental release from jail as his probation officer
instructed , and that the defendant failed to do so.

Order revoking probation affirmed

. By the Court ( Vuono , Henry & Grant , JJ. 4 ) ,

Clerk

Entered: May 1, 2023.

4 The panelists are listed in order of seniority.