Commonwealth v. Dana R. Santos.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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-887

COMMONWEALTH

vs.

DANA R. SANTOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In April of 2021, the defendant pleaded guilty to operating

a motor vehicle while under the influence of intoxicating liquor

(OUI) and was placed on probation for one year. The defendant

also pleaded guilty to failing to stop for police and was

ordered to pay a $100 fine. Two additional charges, one for

negligent operation of a motor vehicle and the other for leaving

the scene of an accident, were continued without a finding.1

Arising out of a January 2022 alleged attack on his

girlfriend, the defendant was charged, and eventually indicted,

for multiple offenses. The Commonwealth issued to the defendant

a notice of probation violation based on the new charges. The

1 A charge of reckless operation of a motor vehicle was dismissed
at the request of the Commonwealth.
notice of violation also alleged that he was in arrears in

paying probation fees. After an evidentiary hearing, a District

Court judge found the defendant in violation of his probation

and imposed a two and one-half year jail sentence for the OUI

conviction, a two-year jail sentence for the negligent operation

conviction, and a two and one-half year jail sentence for the

leaving the scene conviction (all sentences to be served

concurrently). On the defendant's appeal, we affirm the

revocation of the defendant's probation but vacate the sentences

and remand for resentencing.

Background. At the revocation hearing, the Commonwealth

presented evidence of the following. The defendant's

girlfriend, with whom he shared a child who was not then in the

parents' custody, lived in an apartment building. A woman from

the adjacent apartment who did not know the girlfriend placed a

911 call to report an ongoing altercation between her neighbor

and an unidentified male. A recording of the 911 call was

admitted in evidence and we have listened to it. According to

the 911 caller, the argument had begun inside the girlfriend's

apartment some two hours earlier, but at that moment had erupted

into violence with the two "in the hallway right in front of my

door." The 911 caller exclaimed that the man was "beating the

fuck out of her right now," with the woman "screaming 'help

me.'" Her concern for the girlfriend's safety and her own fear

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of the male are palpable on the call. At one point, the 911

caller reported that the defendant had a gun. During the 911

call, the caller's daughter could be heard telling her mother

that the man had a gun. The Commonwealth admitted the grand

jury minutes. During her grand jury testimony, the 911 caller

stated that she heard the woman scream that her attacker "has a

gun."

The police responded. After they knocked on the door, they

heard "scuffling," but by the time the girlfriend answered, she

was alone. She initially told the police that no one else had

been in the apartment. After a police officer told her that

they had heard a male in the apartment as they were approaching

it, she told them that the male was someone other than the

defendant. Meanwhile, however, the police found the defendant

after following a blood trail down to the basement that was

accessible from a back stairway. Confronted with this

information, the girlfriend told the police that she had lied

because she was working to regain custody of the child she

shared with the defendant and feared the altercation would

inhibit her progress. She told police that after showing up

intoxicated at her apartment at five o'clock in the morning, the

defendant verbally and physically attacked her, including by

grabbing her around the neck. The fact that the girlfriend's

neck was red and exhibited several scratches or other marks was

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confirmed by multiple sources, including photographs admitted in

evidence. The girlfriend told police that the defendant had

threatened her with a gun, and she admitted that she had stabbed

the defendant with a knife.

When the police found the defendant, he had lacerations on

his face and arm, and he was bleeding profusely. The police did

not find a gun in the basement, but they located one –- with

blood on it -– inside a laundry hamper that would have been on

the defendant's pathway to the basement. The girlfriend

identified the gun as the one with which the defendant had

threatened her.

Discussion. 1. Sufficiency of the evidence. At the

probation revocation hearing, the Commonwealth did not call any

witnesses, but instead relied on documentary evidence. This

included a recording of the 911 call related to the altercation

between the defendant and his girlfriend; the police reports

regarding that incident (which included the observations made by

the responding officers at the scene and the statements made to

them by the 911 caller, the girlfriend, and the defendant);

grand jury minutes related to that incident (which included

testimony from the 911 caller and of the responding police

officers); the girlfriend's application for a protective order;

photographs; various probation records; and the defendant's

court activity record information (CARI). The defendant called

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five witnesses, including two of the responding officers, the

defendant's sister, an investigator, and a medical expert.

The defendant conceded that there was an altercation

between him and the girlfriend in January 2022, but he asserted

that the girlfriend was the aggressor and that he acted in self-

defense. Because it was uncontested that the girlfriend had

stabbed him, the Commonwealth bore the burden of proving by a

preponderance of the evidence that the defendant had not acted

in self-defense. Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,

666-667 (2019). The defendant principally argues that the proof

the Commonwealth offered of the probation violations amounted to

hearsay that lacked sufficient indicia of reliability. It long

has been established that hearsay is admissible so long as that

evidence is deemed sufficiently reliable. See Commonwealth v.

Hartfield, 474 Mass. 474, 484 (2016).

While recognizing that police reports and grand jury

testimony can be accepted as reliable hearsay in the probation

revocation context in some circumstances, the defendant asserts

that there were particular reasons not to accept them here. For

example, he asserts that the girlfriend had a motive to lie to

the police -- both to justify her stabbing him and to protect

her efforts to regain custody of their child -- and that it is

uncontested that she had lied to the police when they first

spoke with her. With respect to the firearm-related charges,

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the defendant maintains that there was insufficient proof based

on reliable hearsay that the gun found in the girlfriend's

apartment was his or that he used it during the attack.

Passing over whether the defendant adequately preserved all

of his claims about unreliability, we conclude that the order of

revocation must be affirmed because the judge did not err in

finding sufficient reliable hearsay to support a finding that

the defendant violated his probation.2 As an initial matter, it

is clear that the judge understood he could rely on any out-of-

court statements on which the Commonwealth was relying only if

the statements were accompanied by sufficient indicia of

reliability in accordance with the factors recognized by the

cases. See Hartfield, 474 Mass. at 484 (listing such factors).

Specifically, either by checking off the pertinent boxes on the

court form or by making handwritten notes, the judge noted that

the relevant hearsay was "based on personal knowledge and/or

direct observation," "involve[d] observations recorded close in

time to the events in question," "was provided under

circumstances that support the veracity of the source," was

2 The defendant additionally argues that the judge improperly
relied on bad act evidence, because the judge referenced the
defendant's CARI on the list of evidence on which he relied. No
objection to the admission of the CARI was lodged, and, in any
event, the defendant's criminal record was relevant to one of
the new charges he faced, which was for a subsequent offense.

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"factually detailed" and "internally consistent," and was

"substantially trustworthy and demonstrably reliable." We

discern no error in these observations.

As a second matter, at the center of the Commonwealth's

case was the 911 call in which the caller dramatically relayed

the ongoing attack going on directly outside her door. That

evidence was independently admissible as an excited utterance.

See Commonwealth v. Napolitano, 42 Mass. App. Ct. 549, 557

(1997). Moreover, there was, in any event, little reason to

doubt the reliability of what the caller -– who had no ties to

the girlfriend -- was reporting in real time. Specifically,

where the 911 caller states that the defendant was "beating the

fuck out of her right now," with the woman "screaming 'help

me.'" We also note that the girlfriend's screaming for help

during the attack and her relaying at that time that the

defendant had a gun would constitute independently admissible

excited utterances, and that the defendant has not pointed to

any reasons to question the reliability of such statements.

Finally, with respect to the gun, there was evidence both

that the caller heard the girlfriend scream that the defendant

had a gun and that she was told by her own daughter about the

gun during the course of the call.3 Moreover, the claims

3 We are unpersuaded by the defendant's suggestion that the fact
that the 911 caller's daughter can be heard telling the caller

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regarding the gun were corroborated when the police found a

gun -- which had what apparently was the defendant's blood on

it -- stashed along the path that the defendant used to flee the

scene. Other physical evidence also cut against the defendant's

allegations of self-defense, such as the scratches and other

marks around the girlfriend's neck.4

To be sure, it was uncontested that the girlfriend changed

her account to police, and that she had reasons to want to paint

the defendant as the aggressor.5 In the end, however, we need

not decide whether every statement she made to the police during

their questioning of her had sufficient indicia of reliability

to be accepted as reliable hearsay. The excited utterances that

the girlfriend made while the incident was unfolding, the 911

call, the 911 caller's grand jury testimony, and the physical

about the gun during the 911 call demonstrates the unreliability
of the caller's grand jury testimony that she herself heard the
woman scream that he had a gun. Both could be true.

4 We recognize that the defendant called a medical expert who
testified that someone who had been strangled would likely
exhibit more bruising than shown in the photographs. The judge
was not required to credit such testimony.

5 The evidence of potential bias was not as strong as it might
first appear. As the Commonwealth notes in its brief, if the
girlfriend's behavior had been driven by her fear of her child
not being returned to her custody, she unlikely would have
called attention to the altercation. Moreover, her fear of not
regaining custody of her child also provided a plausible reason
why she initially would have lied to the police about the
incident.

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evidence found at the scene, provided sufficient bases for the

judge to conclude by a preponderance of the evidence that the

defendant's assault on the girlfriend was not justified by self-

defense and that he violated firearm laws, and therefore was in

violation of the terms of his probation.6

2. Sentencing. It is axiomatic that "[t]he revocation of

probation is not punishment for commission of any subsequent

crime charged, but rather is a remedial sanction arising from

the sentence imposed for the earlier offense." Commonwealth v.

Holmgren, 421 Mass. 224, 227 n.1 (1995). In urging the judge to

impose the harshest sentences he could, the prosecutor hardly

mentioned the motor vehicle convictions for which the defendant

was being sentenced. Instead, the prosecutor pointed to the

seriousness of the offenses that were the subject of the 2022

indictments. Thus, for example, the prosecutor argued that the

6 In its notice of violation, the Commonwealth stated that the
defendant was in arrears in paying probation fees. In his
findings, the judge found that the defendant was indeed in
arrears. Although the evidence supporting this was sufficient
to support that finding, we agree with the defendant that "[i]t
is clear from the transcript that the [probation revocation]
hearing was focused on the 2022 domestic [abuse] charges, not
the alleged arrears, therefore it is highly likely that the [the
judge] would have reached a different disposition if he had he
not . . . found that [the defendant] committed the 2022
charges." We additionally note that in its closing argument,
the Commonwealth did not mention the arrearage even once, and
that the judge ultimately waived all probation fees. We do not
rely on the existence of the arrearage as an independent ground
supporting the revocation of probation.

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defendant's attack on his girlfriend showed that his "criminal

behavior is ratcheted up, because now we have an allegation of

violence with this in here." Where the judge then, without

explanation, imposed the maximum sentences he could, we lack

confidence that the judge sentenced the defendant without

attention to improper considerations. A remand for resentencing

is therefore in order. See Commonwealth v. Suarez, 95 Mass.

App. Ct. 562, 577 (2019) ("In cases where there is reason to

think a sentencing judge may have considered uncharged conduct

for an improper purpose, the courts have not hesitated to order

resentencing").

Conclusion. We affirm the revocation of the defendant's

probation but vacate the sentences and remand for resentencing

in accordance with the terms of this memorandum and order.

So ordered.

By the Court (Wolohojian,
Milkey & D'Angelo, JJ.7),

Assistant Clerk

Entered: January 25, 2024.

7 The panelists are listed in order of seniority.

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