In Commonwealth v. Polito, a Massachusetts appellate court considered the case of a defendant found in violation of his probation. The case arose on an afternoon in August 2009, when a police officer responded to a report of domestic battery and assault. The officer saw that the victim was shaking and crying and her nose was flat and swollen. The victim told the officer that the defendant had gotten angry and beaten her with an object, broken a broom, hit her with it, and thrown a mug at her face. The mug broke her nose. The officer arrested the defendant, and on his way out he yelled that the incident was the victim’s fault. The victim suffered a broken nose and finger.
The defendant was indicted on two sets of indictments, and he pled guilty. With regard to the first set of indictments, the defendant was sentenced to 2 1/2 years in a house of corrections on three counts of assault and battery with a dangerous weapon, and one witness intimidation count. A portion of the sentence was to be served, with the balance suspended for 10 years with supervised probation. Two conditions of the probation were to undergo mental health evaluation and treatment and to have no contact with the victim. He also received 10 years of concurrent probation with the same conditions for criminal harassment and violating an abuse prevention order.
The defendant also pled guilty on the second set of indictments. For two counts of assault and battery on a public employee and disruption of court proceedings, he was sentenced to 10 years straight probation under the same conditions as the probation for the first set of indictments.
The defendant violated the condition of no contact with the victim and violated the abuse prevention order in 2011. At the hearing, a police officer testified that the victim had told her she had an abuse prevention order against the defendant. The victim showed the officer that she had received a birthday card from the defendant, which included writing that was not the defendant’s plus the defendant’s signature. The victim told the officer that the defendant asked others to write for him and sign messages because he had limited writing abilities. The officer got a warrant for the defendant’s arrest.
The judge found the defendant violated his probation. At another hearing, the defendant’s probation officer told the judge of the defendant’s mental health problems and that a court clinician had evaluated the defendant but found him competent. The judge imposed the suspended sentences. After that, a district court judge acquitted the defendant of a new charge that was the basis of his probation violation, and he filed a motion for reconsideration on the probation violation finding. This was denied.
The defendant argued on appeal that the judge should have reconsidered the finding of a violation and the punishment, based on the 33-page mental health evaluation that wasn’t known about at the time of sentencing and the acquittal. At trial, it was established that the victim only saw the card after her friend got it from the mailbox and brought it to the police station. The defendant argued that the officer’s testimony was hearsay and unreliable, and therefore no probation violation should have been found.
The appellate court disagreed. It explained there was enough evidence for the judge to conclude a violation had occurred.
The appellate court also found that the mental health report was not new evidence. Instead, the report was available at the time of the probation surrender proceedings, and its contents simply added to the defendant’s own testimony of going to mental health counseling and taking medication for emotional issues. The appellate court found that the defendant had not pointed to a part of the report that would have made a difference in the judge’s sentences, and it affirmed the order denying his motion for reconsideration.
If you are charged with assault or a probation violation, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.
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