Commonwealth v. Thissell

457 Mass. 191

928 N.E.2d 932

COMMONWEALTHv.John A. THISSELL.

SJC-10575.

Supreme Judicial Court of Massachusetts Essex.

Argued March 2, 2010.

Decided July 1, 2010.

Ronald DeRosa, Assistant District Attorney, for the Commonwealth.

Elena M. Rosnov, Danvers, (Nicole Reilly, Salisbury, with her), for the defendant.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

We must determine whether records garnered from a global positioning system (GPS) device,¹ used to monitor the movements of the defendant, John A. Thissell, were sufficiently reliable in this case to serve as the basis for the revocation of his probation in accordance with our decision in Commonwealth v. Durling, 407 Mass. 108, 551 N.E.2d 1193 (1990), and its progeny. We conclude that they were and affirm the revocation of probation.

1. Background. In July of 2004, Thissell pleaded guilty to several offenses ² arising out of assaults on his wife, receiving sentences of both incarceration and probation. The sentencing judge also imposed a number of conditions of probation, including a directive that he abide by a restraining order and “stay away” from the victim of the assault.

On October 21, 2005, Thissell was served with notice that he had violated his probation by having contact with his wife while incarcerated. After finding that Thissell had violated the conditions of this initial probation, the judge imposed the balance of a sentence that had been suspended on one of the offenses, and added electronic monitoring, accomplished by GPS, to the terms of his probation on another.

On February 8, 2007, the judge held a hearing on Thissell's request to modify the terms of his probation. At the conclusion of the hearing, the judge ordered that Thissell continue with GPS monitoring for twenty-four hours each day without a curfew, but with “exclusion zones,” into which he was not permitted to travel. (The exclusion zones surrounded the marital home and his wife's place of employment.) Thissell was also ordered to stay 2,000 feet away from these locations.

On September 10, 2007, Thissell was served with a notice that he had again violated the terms of his probation, the principal basis of which was his failure to comply with a September 7 directive from the GPS monitoring staff that he refrain from submerging in water the transmitter component of the GPS monitoring device ³ (September 7 violation). He was subsequently served with a notice of violation on September 14 (September 14 violation), the basis of which was Thissell's entering of the exclusion zones, and his failure to abide by the order to stay 2,000 feet away from them.

The sole witness at the probation revocation hearing that followed (held with regard to both violations) was the chief probation officer. Acknowledging that he was “not an expert,” the witness testified about the GPS monitoring system and how it transmits a signal up to a satellite and then down to a monitoring center, pinpointing a probationer's location. He also explained that there is a disruption of the signal if the transmitter that is worn on the probationer's leg is submerged in water.

He further testified that on September 7, a member of the GPS monitoring staff contacted Thissell, using the mobile telephone that accompanies the GPS device, and told him that the monitoring center was losing his signal. Thissell explained that he was at the beach and intended to go swimming. At that point, he was told by the staff member that submerging the equipment would ruin it and that he should not enter the water. Thissell had been warned to refrain from doing so on a prior occasion.⁴ Shortly thereafter, the transmitting device stopped functioning and the monitoring center lost contact with him.

During his testimony, the chief probation officer offered in evidence GPS records documenting the submersion of the GPS device on September 7. Those records included a map tracing Thissell's path on a beach to the Atlantic Ocean and an accompanying activity report with time-logged notations. The activity report contained an entry at 1:59:59 p.m.⁵ on September 7 that the transmitter was “out of range.” Immediately below this entry there is the following notation: “[S]poke to client ..., he stated that he was at the beach and keeps going in and out of the water. [C]lient was told that he cannot submerge the bracel[e]t. [A]t this point the client began swearing and yelling about his conditions of probation.” Immediately following that notation is an entry at 3:06:49 p.m. that the transmitter was still out of range, and following that entry, a note entered at 3:43:41 p.m. stating: “It appears that [transmitter] is no longer working properly due to being submerged in salt water.” The activity report further notes that a probation officer was notified and a bench warrant for Thissell was issued on the same date. ⁶

The witness then testified about the September 14 violation and explained that reports from the GPS monitoring center showed that Thissell had entered the exclusion zones around the marital home and his wife's place of employment, on two occasions on September 14, 2007. When the witness offered the GPS records in evidence, defense counsel objected on hearsay grounds, contending that the records did not qualify for admission under any recognized hearsay exception and were therefore not reliable in the absence of cross-examination.⁷ The judge overruled the objection and admitted the GPS records in evidence. Those records included maps of each of the two exclusion zones and an activity report, noting the times and locations at which Thissell entered and departed from those zones.

Thissell did not testify at the revocation hearing, deferring to his counsel, who conceded that Thissell had entered the exclusion zone around the victim's place of employment when he was driving through a busy intersection on his way to the supermarket.⁸

The judge found “by a fair preponderance of the evidence” that Thissell had violated the “global positioning system requirements” of his probation on “diverse dates” based on “hearsay records [that he found to be] substantially trustworthy and demonstrably reliable.” Thissell appealed from the revocation of his probation. The Appeals Court affirmed the judge's decision, holding that the GPS records were not hearsay,⁹Commonwealth v. Thissell, 74 Mass.App.Ct. 773, 776-777, 910 N.E.2d 943 (2009), and thus admissible, or alternatively, that they were admissible as business records.¹⁰ Id. at 777-778, 910 N.E.2d 943. We granted his application for further appellate review.

2. Discussion. It is well established that a probation revocation proceeding is not a criminal prosecution, requiring “the full panoply of constitutional protections applicable at a criminal trial.” Commonwealth v. Durling, 407 Mass. 108, 112, 551 N.E.2d 1193 (1990). However, because revocation may subject a probationer to the deprivation of his liberty, certain requirements of due process apply to such proceedings. ¹¹ Id. at 112-113, 551 N.E.2d 1193, citing Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Once these requirements are satisfied, the procedure employing them is entitled to the benefit of the flexibility allowed by the nature of due process. See Commonwealth v. Durling, supra at 113-114, 551 N.E.2d 1193. See also Morrissey v. Brewer, supra at 489, 92 S.Ct. 2593 (emphasizing that revocation proceeding entails “narrow inquiry ... flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial”).

Our preeminent concern with respect to the evidence presented and considered at revocation proceedings is its reliability. See Commonwealth v. Durling, supra at 117-118, 551 N.E.2d 1193. If the evidence is admissible under standard evidentiary rules, it is presumptively reliable. Id. at 118, 551 N.E.2d 1193. If it is not admissible under such rules, a judge must “independently” evaluate its reliability. Id. While “[u]nsubstantiated and unreliable hearsay cannot ... be the entire basis of a probation revocation,” evidence that bears “substantial indicia of reliability” and is “substantially trustworthy” can be. Id. With respect to a defendant's right to cross-examine witnesses whose evidence is admitted through third parties, we have explained that where such evidence is found by the judge to be substantially trustworthy and reliable there is sufficient good cause to dispense with a defendant's opportunity to confront them. See Commonwealth v. Negron, 441 Mass. 685, 691, 808 N.E.2d 294 (2004), quoting Commonwealth v. Maggio, 414 Mass. 193, 197, 605 N.E.2d 1247 (1993).

In this case, the bases of the revocation were the GPS time and location records, the statements of Thissell and the GPS staff members monitoring his location contained within them, and the testimony of the chief probation officer. The records consisted of three computer-generated maps, superimposed with a representation of Thissell's location at the times and on the dates indicated,¹² and activity reports documenting both Thissell's location at various times and other significant communications between the GPS staff and Thissell or between the GPS staff and probation officers. We need not determine whether these records are properly characterized, in whole or in part, as nonhearsay evidence or whether they qualify as a recognized exception to the rule against hearsay evidence to conclude that they were sufficiently reliable to serve as the basis of the defendant's revocation consistent with the requirements of due process. ¹³ They are factually detailed ¹⁴ and made close in time to the events in question by persons reporting to the probation department and responsible for monitoring and communicating with the defendant. To the extent they rely on GPS...