Commonwealth v. Timmothy R. Martins.

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

24-P-1195

COMMONWEALTH

vs.

TIMMOTHY R. MARTINS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2024, a District Court judge found the probationer in

violation of the terms of his probation and sentenced him to

eighteen months in the house of correction, twelve months to

serve, the balance suspended for two years. On appeal, the

probationer argues that the judge (1) abused his discretion when

he allowed the complaining witness to testify about inadmissible

prior bad acts of the probationer, and (2) erred in finding the

complaining witness credible.1 We affirm.

Background. On November 23, 2021, the probationer pleaded

guilty to assault by means of a dangerous weapon in violation of

1Appellate counsel submitted the probationer's arguments
pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209
(1981).
G. L. c. 265, § 15B (b), and was placed on probation until

November 22, 2023. On October 14, 2023, the probationer was

arrested, we infer for battering the complaining witness.2 On

January 5 and 11, 2024, a judge held a probation violation

hearing. He heard testimony from the probation officer, the

complaining witness, and the responding police officer. We

summarize the testimony as follows.

At about 12:25 A.M. on October 14, 2023, Officer Keith

Almeida responded to a call concerning a disturbance. When he

arrived, he saw two women: the complaining witness, who was

crying, and her friend, K.O., sitting next to her. The

complaining witness's eye was swollen. K.O. told Officer

Almeida that the complaining witness and the probationer were

dropping K.O. off at her home when the probationer and the

complaining witness got into a verbal altercation that "got

physical."

The complaining witness testified that she had been driving

the probationer around earlier in the evening. At some point,

the probationer "jumped out of [her] car and was walking around

where he would go get drugs" because that is "what he does."

Later, she and K.O. picked him up; K.O. was in the passenger

seat and the probationer was in the back seat. After dropping

2 The new criminal complaint and the notice of probation
violation in this case are not in the record on appeal.

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K.O. off at her home, the complaining witness asked the

probationer to hand up her dog that was in the backseat and

asked the probationer to get in the front seat. She explained

she did not want the probationer in the backseat because "in the

past he's hit [her]" and she was concerned for her safety. The

probationer refused to give her the dog or get in the front

seat, so she reached into the backseat to grab the dog. As she

was grabbing the dog, she felt herself being held down by the

probationer as he "pound[ed]" her face. She testified that the

probationer struck her at least four times before K.O. was able

to remove her from the car. The complaining witness and K.O.

then ran to the "first open door" they could find until the

police found them hiding in a hallway. The complaining witness

later sought medical treatment and was treated for a blood clot

and bruising.

The judge found the probationer in violation of the terms

of his probation and sentenced him to eighteen months

incarceration in the house of correction, twelve months

committed. The probationer timely appealed.

Discussion. An order revoking probation is reviewed for an

abuse of discretion. See Commonwealth v. Bukin, 467 Mass. 516,

519-520 (2014). The Commonwealth must prove a violation of

probation by a preponderance of the evidence. See Commonwealth

v. Hill, 52 Mass. App. Ct. 147, 154 (2001). Because the

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probationer did not object to the complaining witness's

statements during his hearing, to the extent that we discern an

abuse of discretion or other error, we review for a substantial

risk of a miscarriage of justice. See Commonwealth v. Randolph,

438 Mass. 290, 297 (2002).

1. Prior bad acts. The probationer argues that the judge

abused his discretion in admitting (1) the complaining witness's

testimony elicited on direct examination that she did not want

the probationer in the back seat of her car because he had

previously hit her and (2) her testimony elicited on cross-

examination that the probationer had previously sought out

drugs, because this was inadmissible evidence of prior bad acts.3

We disagree.

Although "standard evidentiary rules do not apply to

probation revocation hearings," a finding of a probation

violation must be based on reliable evidence. Commonwealth v.

Durling, 407 Mass. 108, 117 (1990). Generally, "[s]pecific acts

of bad conduct . . . cannot be used for the purpose of

3 The probationer also challenges the admissibility as a
prior bad act of the complaining witness's testimony that she
was "in fear of the fact that [the probationer] called me the
next day wanting me to feed him, wanting me to clothe him,
wanting me to put a roof over his head." We reject this claim
because the statement did not refer to a prior "bad act." Cf.
Mass. G. Evid. § 404(b)(1) (2025) ("Evidence of a crime, wrong,
or other act" inadmissible to prove character or demonstrate
criminal propensity).

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establishing the [probationer]'s bad character or propensity to

commit the crime charged." Commonwealth v. Souza, 492 Mass.

615, 620 (2023). However, such evidence may be admissible if it

is relevant and offered for a nonpropensity purpose. See

Commonwealth v. Moran, 101 Mass. App. Ct. 745, 748 (2022). "To

be sufficiently probative the evidence must be connected with

the facts of the case [and] not be too remote in time" (citation

omitted). Commonwealth v. Butler, 445 Mass. 568, 574 (2005).

"The judge must also find that the probative value of the

evidence in question 'is [not] outweighed by a risk of undue

prejudice to the defendant'" (citation omitted). Id. The judge

has broad discretion to make admissibility determinations.

Moran, supra at 750.

In the context of a domestic violence allegation, a

probationer's prior acts of domestic violence are often relevant

"to depict the existence of a hostile relationship between the

[probationer] and [the complainant]" (citation omitted).

Commonwealth v. Oberle, 476 Mass. 539, 550-552 (2017). This

theory of relevance is clearest where the complainant initially

accuses the probationer of assault and then recants. See, e.g.,

Butler, 445 Mass. at 576 (evidence of hostile relationship

relevant to assess victim's credibility where she recants

accusation of domestic violence). Here, the complaining witness

testified at the probation violation hearing and maintained that

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the probationer assaulted her. But in this case "the existence

of a hostile relationship" was still relevant, because the

probationer asserted that the complaining witness was the first

aggressor and that he punched her in self-defense. See

Commonwealth v. Adjutant, 443 Mass. 649, 663-664 (2005). Thus,

the complaining witness's allegation of prior domestic violence

–- "in the past he's hit me" –- was relevant to that issue.

Accordingly, it was not error to consider this testimony.

The complaining witness's testimony that she assumed the

probationer jumped out of the car to look for drugs stands on

somewhat different footing. Defense counsel elicited it on

cross-examination to establish the complaining witness's bias

and impeach her credibility. To that end, defense counsel also

played a voicemail message in which the complaining witness

called the probationer a "fucking crackhead," demonstrating her

animosity toward him. Because the defense elicited this

testimony, the defense cannot claim error in its admission, so

long as the choice to elicit it was reasonable. See

Commonwealth v. Jordan, 50 Mass. App. Ct. 369, 370-371 (2000).

Therefore, the question is whether this was a reasonable

tactical decision. Given the centrality of the complaining

witness's credibility to the Commonwealth's case, defense

counsel's decision to pursue this line of cross-examination was

reasonable. Alternatively, even if this was not a reasonable

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tactical decision, because of the strength of the evidence,

including the fact that the probationer conceded that he punched

the complaining witness, it did not create a substantial risk of

a miscarriage of justice. See Commonwealth v. Williams, 102

Mass. App. Ct. 626, 631 (2023).

2. Witness credibility. The probationer argues that the

complaining witness's credibility was "tenuous" and the judge

should not have considered her testimony in determining whether

a preponderance of the evidence established that the probationer

had violated his probation by being charged with a new crime.

Generally, though, "we do not disturb the judge's credibility

determinations as fact finder" in a probation revocation

hearing. Commonwealth v. Nunez, 446 Mass. 54, 59 (2006). See

Bukin, 467 Mass. at 521 ("It is the exclusive province of the

hearing judge to assess the weight of the evidence"). We

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discern no abuse of discretion in the judge's evaluation of the

complaining witness's credibility.

Order revoking probation and
imposing sentence affirmed.

By the Court (Hand, Grant &
Wood, JJ.4),

Clerk

Entered: May 29, 2025.

4 The panelists are listed in order of seniority.

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