COMMONWEALTH vs. EMMANUEL E., a juvenile.

JACOBS, J. After being charged with breaking and entering in the daytime, the juvenile's probation [Note 1] was revoked by a judge of the Boston Juvenile Court, and he was ordered committed to the Department of Youth Services. He appeals, claiming that his due process rights were violated because the Commonwealth

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failed, during his revocation hearing, to provide any witnesses with firsthand knowledge that he committed a Crime [Note 2].

The only witness at the October, 1999, hearing was a Boston police officer who testified, largely from "notes [Note 3]" and over repeated hearsay objections, as follows. On July 30, 1999, he responded to a 1:30 P.m. radio call of a breaking and entering in progress at 73 Clarkson Street, Boston, a multi-dwelling building. He was told by Maria C., a resident of that building, that "she saw two suspects enter the premises through the front door." While they were in the hallway area, she asked them what they were doing and they stated that they were looking for her son. About ten minutes later, she observed the same persons leaving the premises through the side basement door. She identified the juvenile and another male from among a group of ten to twelve people who had gathered outside as the persons who had "broken" into her apartment. Her son stated that a certain folding knife was missing from his room. Based on his conversations with them, the officer concluded that Maria C. and her son did not want the juvenile in their apartment. The juvenile was then taken into police custody. Later, while the officer was at the police station, he received a telephone call from a woman who identified herself as a neighbor of Maria C. and stated that she had observed two black males, one named Emmanuel (the juvenile), leave 73 Clarkson Street through the basement door. The neighbor's statement, standing alone, adds

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nothing save corroboration of Maria C.'s allegation that the juvenile was in the building and left through the basement door. It does not contribute to establishing that the juvenile committed a crime.

The juvenile's lawyer argued to the judge that the Commonwealth had not demonstrated good cause for preventing the juvenile from confronting the witnesses referred to by the officer. The judge, without responding to that argument or making any statement of findings or reasons, summarily found the defendant to be in violation of his probation.

Although revocation of probation may be based upon a violation of criminal law, "there is no prerequisite that the probationer be convicted. . . ." Rubera v. Commonwealth, 371 Mass. 177 , 180-181 (1976). At the time of the revocation hearing, the juvenile was charged with, but not convicted of, breaking and entering in the daytime, and the Commonwealth, therefore, was obliged to produce evidence that would permit the judge to determine by a preponderance of the evidence that the juvenile had violated a condition of his probation by violating a criminal law. Commonwealth v. Holmgren, 421 Mass. 224 , 226 (1995). Compare Commonwealth v. Maggio, 414 Mass. 193 , 198 (1993) (violation of condition of probation must be found "at least to a reasonable degree of certainty"). "The mere filing of criminal charges against a probationer is not enough to show a violation of probation . . . because it does not give the probationer a realistic chance to confront his accusers and meet the evidence against him." Commonwealth v. Calvo, 41 Mass. App. Ct. 903 , 904 (1996).

While "a probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial," he is entitled, at surrender hearings, to certain due process protections. Commonwealth v. Durling, 407 Mass. 108 , 112 (1990). Among the minimum requirements of due process is the right to confront and cross-examine adverse witnesses absent a specific finding of good cause for not allowing confrontation. Id. at 113.

It is recognized, however, that the requirements of due process are flexible and "depend on the circumstances of each case and an analysis of the various interests at stake." Id. at 114. The

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recognized and competing interests of the probationer and the Commonwealth [Note 4] "cross at one point: both have an interest in a reliable, accurate evaluation of whether the probationer indeed violated the conditions of his probation." Id. at 116.

A specific judicial finding of good cause for not allowing a probationer to confront adverse witnesses is unnecessary if there is "a showing that the proffered evidence bears substantial indicia of reliability and is substantially trustworthy. . . ." Id. at 118. While hearsay that is not admissible under standard evidentiary rules may be utilized at probation revocation hearings, "[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation." Ibid. See Commonwealth v. Podoprigora, 48 Mass. App. Ct. 136 , 137 (1999).

Here, the hearsay testimony of the police officer did not fall under any established exception to the hearsay rule and was offered as the only evidence of the alleged criminal conduct of the juvenile. That testimony was fatally devoid of factual detail or corroborating personal observations of the officer sufficient to render it reliable or to establish by a preponderance of evidence that the juvenile committed the charged crime. Contrast Commonwealth v. Durling, supra at 121-122. Compare Commonwealth v. Mejias, 44 Mass. App. Ct. 948 , 949 (1998); Commonwealth v. Wilson, 47 Mass. App. Ct. 924 , 925 (1999). Nor is it buttressed by corresponding or consistent hearsay testimony of another witness at the revocation hearing. Compare Commonwealth v. Durling, supra at 120-121; Commonwealth v. Hill, ante 147, 152-153 (2001). The officer's conclusory belief that Maria C. and her son did not want the juvenile in their apartment is without probative effect absent his testifying to the primary facts supporting his conclusions. Although his testimony

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attributing accusatory statements to two persons provides a marginal increase in the reliability of that testimony, its cumulative effect nevertheless falls far short of establishing by a preponderance of the evidence that the juvenile had committed any crime. Even had there been evidence establishing the reliability of the officer's hearsay testimony, there was no evidence of a "breaking" and scant evidence of the juvenile's intent. Absent substantially reliable evidence of criminality, there was no "good cause" to deny the juvenile his right to confront and cross-examine the witnesses against him.

We appreciate that trial judges often are overburdened and that a probationer's due process rights are not inflexible. We suggest, however, that the interests of justice would best be served in revocation proceedings based entirely on hearsay evidence of criminal conduct if the judge placed on record a brief reasoned assessment of the reliability of the hearsay evidence and an express finding of good cause for the Commonwealth not presenting a witness with personal knowledge of a probation violation [Note 5]. Beyond that, the hearsay evidence must be sufficient to prove by a preponderance of the evidence that the probationer committed the charged crime.

The orders revoking the juvenile's probation and committing him to the custody of the Department of Youth Services are vacated.

So ordered.