Commonwealth v. Williams

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21-P-844 Appeals Court

COMMONWEALTH vs. KYRONNE D. WILLIAMS.

No. 21-P-844.

Bristol. January 5, 2023. - May 23, 2023.

Present: Meade, Rubin, & Blake, JJ.

Practice, Criminal, Revocation of probation, Nolle prosequi,
Assistance of counsel. Motor Vehicle, License to operate.
Registrar of Motor Vehicles, Revocation of license to
operate. License. Forgery.

Complaint received and sworn to in the Taunton Division of
the District Court Department on August 21, 2020.

A proceeding for revocation of probation was heard by
Maureen H. McManus, J.

Jenny L. Margeson for the defendant.
Stacey L. Gauthier, Assistant District Attorney, for the
Commonwealth.

RUBIN, J. The defendant appeals from an order of a judge

of the District Court (1) finding that he violated his probation

by committing new offenses and (2) revoking his probation. The

defendant argues primarily that this was improper because
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criminal complaints charging him with these new offenses were

disposed of by nolle prosequi prior to his final probation

violation hearing. We disagree, and affirm.

Background. On October 14, 2020, the defendant pleaded

guilty to larceny over $1,200. See G. L. c. 266, § 30 (1). The

defendant was sentenced to one year in the house of correction

with fifty-six days to be served and the balance suspended for

one year, until October 13, 2021. As a general condition of his

probation, the defendant was required to obey all local, State,

and Federal laws.

On December 3, 2020, the defendant was driving a rental car

on Route 91 south when he was stopped by Trooper Robert Bardier.

The trooper had noticed that one of the defendant's front

headlights was out. The trooper approached and asked for the

defendant's identification. The defendant provided the trooper

with a North Carolina driver's license.

The trooper entered the information from the license into

the Criminal Justice Information Services (CJIS) database, which

showed that the license was suspended. After further

investigation, the trooper discovered that the defendant "had

active warrants out of Rhode Island, . . . as well as a[n]

active warrant out of New Bedford court."

The trooper arrested the defendant. He arranged for the

vehicle to be towed, and conducted a motor vehicle inventory
3

search in anticipation of its towing. During this search, the

trooper found a New Jersey driver's license that, he testified,

had what he believed to be the defendant's picture on it, but

with a different name.

The trooper entered the information from the New Jersey

driver's license into the CJIS database, and the query returned

no results. The trooper asked the defendant about the New

Jersey driver's license, and the defendant stated that he did

not know whose picture was on the license but that he would

never provide a "fake ID" to an officer.

The following day, a criminal complaint issued from the

District Court, charging the defendant with unlicensed operation

of a motor vehicle, see G. L. c. 90, § 10, and "falsely

mak[ing], steal[ing], alter[ing], forg[ing], or

counterfeit[ing], or procur[ing] or assist[ing] another to

falsely make, steal, alter, forge or counterfeit . . . a license

to operate motor vehicles," see G. L. c. 90, § 24B.1

The probation department subsequently issued a notice of

violation.2 On December 21, 2020, a judge found, after a

1 The latter charge was based on his possession of the New
Jersey driver's license. Neither party suggests that the
statute does not reach licenses to operate motor vehicles issued
by other States.

2 Although the notice of violation was not included in the
record appendix, the probation violation finding and disposition
4

nonevidentiary hearing, probable cause that the defendant had

violated his probation and ordered that the defendant be held in

custody pending a final violation hearing. Three days later, on

December 24, 2020, all the charges stemming from the defendant's

traffic stop were nol prossed by the Commonwealth.

The final probation violation hearing took place a little

over a month later. The probation officer called Trooper

Bardier, who testified regarding the traffic stop. The

Commonwealth assisted the probation officer with the questioning

of the trooper. In response to a question from the Commonwealth

about whether he concluded that it was the defendant in the

photograph on the New Jersey driver's license, the trooper

testified, "I believe that it was [the defendant], yes." The

trooper was questioned about the New Jersey driver's license on

cross-examination and asked by defense counsel whether he had

found any evidence that the defendant had relied on the alias

found on the New Jersey driver's license, "Elliott Itol," in the

past. The trooper responded that he had not. After this

testimony, the probation officer rested.

The defendant called Joshua Borden, who owned the

defendant's rental car. Borden testified that he was in the

business of renting cars, and that his cars were predominantly

form indicates that the term of probation that the defendant
violated was a prohibition on "Violat[ing] CRIMINAL LAW(s)."
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rented by young Black men, of whom, we infer based on the

transcript, the defendant is one. On cross-examination, Borden

testified that the cars were regularly cleaned between renters

and that the person who had rented the car prior to the

defendant was a man named Tray Green.

Following Borden's testimony, the judge noted that the

"defendant at this point is resting with regard to the

evidence." The judge then asked to "hear from either the

Commonwealth or Probation as to what Probation believes they

have established . . . and what they believe they've proven."

The probation officer proceeded to argue his case. During

this argument, the probation officer proffered to the judge that

he had looked "up Mr. Itol in New Jersey RMV. There was only

one Elliot Itol in New Jersey." The probation officer, despite

having rested, proceeded to enter the picture he had found of

Elliot Itol into the record, arguing that "the person in that

image could not be further from what the trooper identified as

the picture in the ID that was found in [the defendant's] car,

Your Honor. The trooper identified an African-American in the

picture, so much looking like [the defendant]. As you can see,

Judge, that is not what the picture looks like." Defense

counsel did not object to the motion to enter the picture in

evidence. The picture shows a white man.
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Defense counsel made his closing argument. The judge then

concluded that "having had the opportunity to hear the testimony

of the trooper who testified in this case, as well as the

witness produced by the defendant, Mr. Borden, I credit the

testimony of the trooper. I find his testimony was convincing

and as a result I do find by a preponderance of the evidence

that [the defendant] did, in fact, violate the terms and

conditions of his probation with regard to the charges of having

committed new offenses or having been charged with new offenses

of unlicensed operation and forgery or misuse of" a license to

operate motor vehicles.

Discussion. 1. The effect of the nolle prosequi. The

defendant's first argument on appeal is that the nolle prosequi

of his underlying criminal charges should have terminated the

probation violation proceedings. Although neither the dismissal

of an underlying complaint due to a failure to prosecute, see

Commonwealth v. Mejias, 44 Mass. App. Ct. 948, 949 (1998), nor

even a defendant's acquittal prior to probation violation

proceedings, see Commonwealth v. Holmgren, 421 Mass. 224, 225

(1995), require the termination of violation proceedings, the

defendant argues that a nolle prosequi of the underlying

complaint should. We disagree.

The focus of a probation violation hearing where the

violation alleged is the commission of a new offense is the
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defendant's conduct, not a criminal complaint based on that

conduct. As the Supreme Judicial Court has reiterated,

revocation after a probation violation hearing may be based on

"[a]ny conduct by a person on probation which constitutes a

violation of any of the conditions of his probation."

Commonwealth v. Durling, 407 Mass. 108, 112 (1990), quoting

Rubera v. Commonwealth, 371 Mass. 177, 180-181 (1976). A

criminal charge is irrelevant to the validity of the

proceedings. Where a complaint criminally charging a defendant

for conduct that also underlies his or her notice of a probation

violation is nol prossed, the conduct remains a valid basis for

a probation violation proceeding.

The defendant relies on Commonwealth v. Miranda, 415 Mass.

1, 5 (1993), to argue that a nolle prosequi terminates probation

violation proceedings. But Miranda did not involve probation

violation proceedings. In Miranda, the Supreme Judicial Court

held that the Commonwealth could not on the day of trial

reinstate a portion of an indictment it had nol prossed three

months before. See id. at 5-6. Miranda has nothing to do with

the relationship between a nol prossed criminal complaint and an
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ongoing parallel probation violation proceeding based on the

same underlying conduct.3

2. Late introduction of evidence. The defendant's second

argument on appeal is that the probation officer's introduction

of evidence during his closing argument was error. Recognizing

that there was no objection by counsel below, he argues that it

was error that created a substantial risk of a miscarriage of

justice.

The defendant relies on several cases, including

Commonwealth v. Beaudry, to argue that "[a] prosecutor may not

use 'closing argument to argue or suggest facts not previously

introduced in evidence.'" Beaudry, 445 Mass. 577, 580 (2005),

quoting Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert.

denied, 446 U.S. 955 (1980). But Beaudry, supra, and the other

cases cited by the defendant, take place in the context of

criminal trials. Probation revocation hearings are different,

and "[d]ue process is not so rigid as to" ignore that

difference. Durling, 407 Mass. at 113, quoting Gagnon v.

Scarpelli, 411 U.S. 778, 788 (1973). "[I]nformality,

3 At oral argument, the defendant raised, for the first
time, the argument that the notice of probation violation
received by the defendant stated that the violation was based on
the defendant's charges, rather than his conduct. The notice
was not included in the record appendix. Because this argument
was not briefed, we consider it waived. See Commonwealth v.
Brillante, 399 Mass. 152, 155 n.6 (1987).
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flexibility, and economy" need not "always be sacrificed"

(citation omitted), and, indeed, the Supreme Judicial Court has

identified that the "[t]wo overriding principles" regarding

probation violation proceedings are that they "must be flexible

in nature . . . and that all reliable evidence should be

considered." Durling, supra at 113-114.

Nonetheless, a probation violation proceeding is not a

free-for-all. See Rule 6(c) of the District/Municipal Court

Rules for Probation Violation Proceedings (2015) ("After the

presentation of evidence, both parties or their counsel shall be

permitted to make a closing statement"). Even acknowledging the

flexible nature of probation violation hearings, it would at the

least have been the better practice for the Commonwealth to have

entered this evidence prior to the close of the evidentiary

portion of the hearing. We will assume without deciding that it

was error to allow it in evidence during closing argument.

Nonetheless, the defendant does not contest the reliability of

the evidence, nor does he explain how he was prejudiced by the

late timing of its introduction, arguing only that its very

consideration harmed him. On this record, therefore, even

assuming that there was an error, we see no substantial risk of

a miscarriage of justice from the timing of the late admission

of the evidence.
10

Relatedly, the defendant raises a claim of ineffective

assistance of counsel. Under the well-known Saferian standard,

we ask whether there has been "serious incompetency,

inefficiency, or inattention of counsel -- behavior of counsel

falling measurably below that which might be expected from an

ordinary fallible lawyer -- and, if that is found, then,

typically, whether it has likely deprived the defendant of an

otherwise available, substantial ground of defence."

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). As the

Supreme Judicial Court has explained, however, where a defendant

raises an unpreserved claim of error as well as a claim that the

failure to preserve the claim amounted to ineffective assistance

of counsel, and the court finds any error did not create a

substantial risk of a miscarriage of justice, the two claims are

virtually coextensive. "[W]hen a defendant alleges that his

failure to preserve an issue for appeal stems from ineffective

assistance of counsel, as this defendant has, we do not evaluate

the ineffectiveness claim separately. If we determine that an

error has been committed, we ask whether it gives rise to a

substantial risk of a miscarriage of justice -- ineffectiveness

is presumed if the attorney's omission created a substantial

risk, and disregarded if it did not." Commonwealth v. Randolph,

438 Mass. 290, 296 (2002). Consequently, the defendant's

ineffective assistance of counsel claim founders on the same
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shoals as his unpreserved claim of error. See Commonwealth v.

Curtis, 417 Mass. 619, 624 n.4 (1994) (if counsel's omission

does not present substantial risk of miscarriage of justice,

there is no basis for ineffective assistance of counsel claim).

3. Sufficiency of the evidence. The defendant's final

argument on appeal is that there was insufficient evidence to

find that he had committed the underlying charges. Where the

defendant raises a claim that the evidence was insufficient to

prove the defendant's violation of his probation by a

preponderance of the evidence, we examine the record to

determine whether it "discloses sufficient reliable evidence to

warrant the findings by the judge." Commonwealth v. Morse, 50

Mass. App. Ct. 582, 594 (2000).

The Commonwealth has conceded insufficiency as to

unlicensed operation, on the basis that there was insufficient

evidence to prove that the defendant had notice that his license

had been suspended. See Commonwealth v. Parenteau, 460 Mass. 1,

5 (2011) ("A charge of operation of a motor vehicle with a

suspended or revoked license requires the Commonwealth to prove,

among other things, that the defendant was notified that his

license had been suspended or revoked"). We agree, and

consequently the finding of a violation for committing the new
12

offense of unlicensed operation of a motor vehicle must be

reversed.4

Turning to the forgery or misuse of the New Jersey driver's

license, see G. L. c. 90, § 24B, we conclude that, despite the

Commonwealth's unfortunate failure to introduce the New Jersey

driver's license, there was sufficient evidence to support the

judge's findings.

Trooper Bardier testified that, during his search of the

defendant's rental car, he found a New Jersey driver's license

on the passenger's seat. The trooper further testified that he

was able to get a good look at the defendant during the traffic

stop, that he believed the photograph on the New Jersey driver's

license was a photograph of the defendant, and that the New

Jersey driver's license listed a different name. The owner of

the rental car testified that he cleaned the car between

renters, and that he certainly would have cleaned the

passenger's seat on which the license was found before renting

the car to the defendant. The judge credited the trooper's

testimony, finding it "convincing." This evidence is sufficient

to support the judge's finding by a preponderance of the

4 In light of this, we need not reach the defendant's
alternative argument that the CJIS system is insufficiently
reliable, without more, to support a finding that one's license
is suspended.
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evidence that the defendant forged or misused a license to

operate motor vehicles in violation of G. L. c. 90, § 24B.

Conclusion. We affirm the finding that the defendant

forged or misused the New Jersey driver's license and reverse

the finding related to the unlicensed operation of a motor

vehicle. Because "it is not for us to speculate what action the

judge would have taken had [s]he found that the defendant

violated probation only by" forging or misusing the driver's

license rather than by committing both crimes, Commonwealth v.

King, 96 Mass. App. Ct. 703, 712 (2019), we vacate that aspect

of the order revoking probation and committing the defendant to

serve the balance of his suspended sentence and remand the case

to allow the judge to consider the appropriate disposition for

the defendant's violation.

So ordered.