ANNOYING PHONE CALLS, G.L. c. 269, §14A

Commonwealth v. Richards, 426 Mass. 689 (1998)

G.L. c. 269 §14, the charge for making annoying or harassing phone calls, does not apply to annoying facsimile transmissions sent over telephone lines where the defendant sent several harassing facsimiles to a radio station. The case was properly dismissed without an evidentiary hearing.


Commonwealth v. Wotan, 422 Mass. 740 (1996)

Under this statute, which makes it a misdemeanor to telephone someone repeatedly solely to harass, annoy or molest, there must be evidence of three or more calls to satisfy the "repeatedly" portion of the statute and the complaint must list the repeated calls. This case was dismissed since the defendant was charged by complaint with conduct amounting to two annoying telephone calls even though the evidence at trial introduced as prior bad acts demonstrated that there were numerous calls throughout a two year period.

ASSAULT/BATTERY, G.L. c. 265, §§13A, 15, 15A, 15B, 18, 18A, 18C, 24, 29

Commonwealth v. Lefebvre, 60 Mass. App. Ct. 912 (2004)

After a night of drinking, the defendant and her friend, the codefendant, threw the victim over the fence of an overpass into a concrete flood chute that had thirty-foot-high sloping concrete walls. The defendants were charged with assault and battery by means of a dangerous weapon, to wit the concrete chute. In affirming the convictions, the Court held that the Commonwealth was not required to prove that the defendants intended to use the chute as a dangerous weapon. Rather, the Commonwealth was required to prove that the manner in which the defendants used the chute was capable of causing serious bodily harm.


Commonwealth v. Turner, 59 Mass. App. Ct. 825 (2003)

When the defendant was stopped and frisked, the police found a folding knife with a three and a quarter inch serrated blade in the defendant's back pocket. The knife did not have a locking device on it. The defendant was convicted of possessing a dangerous weapon while arrested on a warrant. The Court reversed the defendant's conviction. In doing so, the Court rejected the Commonwealth's argument that the statute describes a possessory crime and if a weapon is not dangerous per se, then the statute forbids carrying objects that could be used as dangerous weapons. Where the knife remained folded in the defendant's pocket the entire time, the Court held that it was not used as a dangerous weapon.


Commonwealth v. Chambers, 57 Mass. App. Ct. 47, f.a.r.d., 439 Mass. 1106 (2003)

The defendant was convicted of four counts of assault dangerous weapon, among other crimes, after "in a jealous rage" he drove his car into a car that held his ex-girlfriend, her new boyfriend, and two others. The jury returned a general verdict after hearing instructions for both "attempted" battery and "threatened" battery. The defendant claimed that there was insufficient evidence of a threatened battery. A threatened battery requires a finding that the target was aware of the threat. The Court held that where the testimony revealed that only the defendant's ex-girlfriend and her new boyfriend were aware that the defendant's car was deliberately aimed at them, the trial judge should have allowed the defendant's required finding motion as to the other two counts of ADW.


Commonwealth v. McIntosh, 56 Mass. App. Ct. 827 (2002), f.a.r.d., 438 Mass. 1109 (2003)

The defendant was convicted of ABDW under a theory of recklessness after breaking a 3 ft. by 3 ft. windowpane with his fists causing injuries to two people on the opposite side of the glass. The Court held that "the windowpane as propelled" qualified as a dangerous weapon under the statute.



Commonwealth v. Rumkin, 55 Mass. App. Ct. 635 (2002)

The defendant was convicted of assault and battery with a dangerous weapon, among other crimes. The Commonwealth moved to amend the complaint at trial to add "shod foot" to the dangerous weapon charge. The Court held that counsel was not ineffective for not objecting to the amendment where the elements of ABDW do not include the type of weapon used.


Commonwealth v. Lord, 55 Mass. App. Ct. 265, f.a.r.d., Mass. 437 Mass. 1108 (2002)

On an issue of first impression, the Appeals Court held that the chemical spray mace is per se a dangerous weapon because it is "designed for the sole purpose of bodily assault or defense and was constructed to inflict serious bodily harm." The Court noted that even if the victim did not actually suffer serious bodily harm mace is "nonetheless inherently dangerous because of its capacity to inflict serious harm."


Commonwealth v. Tevlin, 433 Mass. 305 (2001)

The defendant was convicted of armed robbery. The defendant used his sneakers as a "dangerous weapon" where he, twenty years old, five feet eleven inches, and one hundred and seventy pounds "stomped real hard" on a seventy-four year old woman's abdomen while she was lying on cement pavement. The Commonwealth was not required to show that the defendant intended to use the sneakers as a weapon.

commonwealth v. Connolly, 49 Mass. App. Ct. 424 (2000)

The defendant was convicted of both assault and battery (A&B) and assault and battery with a dangerous weapon, shod foot (ABDW). On the ABDW charge, the trial judge erred when she failed to give the defendant’s requested instruction for assault and battery because it deprived the jury of the option of convicting for the lesser included offense. Additionally, the judge failed to instruct the jury that convictions for both charges (A&B; ABDW) must be based on separate acts. Without this instruction, the jury could have wrongly concluded that they could convict on both charges (A&B; ABDW) based on the occurrence of one single act.


Commonwealth v. Ortiz, 47 Mass. App. Ct. 777, f.a.r.d., 430 Mass. 1110 (1999)

The trial judge properly instructed the jury that assault and battery is a lesser included offense of rape where evidence supported a finding that assault and battery was part of the ongoing felony of rape. Additionally, it was error to instruct the jury that indecent assault and battery is a lesser included offense of rape where the jury could find that a rape had occurred but the evidence did not support a finding that something less had occurred. The victim testified that anal penetration occurred and the defendant denied anal rape of the victim.


Commonwealth v. Garofalo, 46 Mass. App. Ct. 191 (1999)

When instructing the jury on the intent element of assault and battery by means of a dangerous weapon, the jury should be instructed that the defendant intended to touch the victim with the dangerous weapon; the jury need not be instructed that the defendant intended to use the object as a dangerous weapon. See Commonwealth v. Connolly, 49 Mass. App. Ct. 424 (2000) (same).


Commonwealth v. Roman, 43 Mass. App. Ct. 733 (1997), aff’d, 427 Mass. 1006 (1998)

The Commonwealth can prove circumstantially that the defendant intentionally assaulted and battered his victim. Exposing eighteen month old child/victim to an unknown scalding agent while the child was alone in defendant's custody is sufficient in proving assault and battery with a dangerous weapon


Commonwealth v. Sexton, 425 Mass. 146 (1997)

Concrete pavement is a dangerous weapon when it is used as a means of inflicting serious harm. The defendant was convicted on a joint venture theory of assault and battery by means of a dangerous weapon where defendant's brother repeatedly banged victim's head against concrete pavement while defendant kicked victim.


Commonwealth v. Musgrave, 38 Mass. App. Ct. 519 (1995), aff'd, 421 Mass. 610 (1996)

Under second theory of the crime of Assault, G.L. c. 265 §15B, "immediate threatened battery" requires proof of an intent to cause fear or apprehension on the part of the defendant (i.e. police must document well an assault by means of a dangerous weapon under this theory when conducting an investigation re: evidence to prove defendant's intent).

BATTERED WOMAN SYNDROME

Commonwealth v. Conaghan, 433 Mass. 105 (2000)

The Court vacated the order denying the defendant's motion for a competency examination, filed four years after her plea of guilty to manslaughter. The Court held that the defendant's motion could not be decided absent the defendant's examination by an expert in Battered Woman Syndrome. This case contains a very detailed and critical dissent of the Court's ruling.

Commonwealth v. Pike, 431 Mass. 212 (2000)

This case contains a good description of Battered Woman Syndrome. The Court upheld the judge’s denial of the defendant’s motion for a new trial where the judge made detailed findings that the defendant’s testimony at the motion hearing was not credible.

Commonwealth v. Crawford, 429 Mass. 60 (1999)

Where the voluntariness of the defendant's statement was a live issue at a motion to suppress and at trial, the defendant is allowed to present an expert on Battered Woman Syndrome and that she was suffering from the effects of alcohol and drug use when she gave statement to the police.

commonwealth v. Roche, 44 Mass. App. Ct. 372 (1998)

Expert testimony concerning the profile of a typical "abusive male" is inadmissible to show Battered Woman Syndrome at a trial of indictments that the defendant assaulted his former girlfriend on two occasions.


Commonwealth v. Goetzendanner, 42 Mass. App. Ct. 637, f.a.r.d., 425 Mass. 1105 (1997)

Expert testimony concerning Battered Woman Syndrome is admissible to explain behavioral or emotional characteristics common to most victims of battering and to show that an individual victim or victim/witness has exhibited similar characteristics.

CONSTITUTIONAL ISSUES

Commonwealth v. Thompson, 45 Mass. App. Ct. 523, f.a.r.d., 428 Mass. 1108 (1998)

In dicta, the Court suggested that the "no contact" provision of a restraining order is unprotected by the First Amendment as free speech because an abuser has no right to place a victim of abuse in apprehension of harm.


Commonwealth v. Laskowski, 40 Mass. App. Ct. 480, f.a.r.d., 423 Mass. 1101 (1996)

Improper to raise right to familial association claim in a criminal proceeding for a violation of a 209A. The proper avenue of relief was to file a motion for modification under G.L. c. 209A, § 3.

DEFENSES

Commonwealth v. McKay, 67 Mass. App. Ct. 396 (2006)

The defendant was entitled to a mistake or accident defense instruction where he alleged that he accidentally called the 209A complainant and left a message on her machine thinking he had called another woman with the same first name. If the jury believed the defendant’s version of events, the defendant could not be held liable for violations over which he lacked control.



Commonwealth v. O’Kane, 53 Mass. App. Ct. 466 (2001), f.a.r.d., 436 Mass. 1102 (2002)

The defendant was not entitled to a necessity defense instruction where he claimed that he slapped his girlfriend in order to awaken her from an alleged drug overdose. The court concluded that slapping the victim was not an effective way to ease the danger the victim faced. As a result, the instruction was not warranted where no reasonable doubt existed that the defendant acted out of necessity. Also, there was evidence at trial that the defendant wrote the victim a letter from jail asking her testify that the defendant was only trying to help her when he slapped her.


Commonwealth v. Lopez, 433 Mass. 722 (2001)

The Court declined to adopt a mistake of fact defense in all rape cases where the facts of this case did not support such a defense. In doing so, the Court stated that "[a]ny perception (reasonable, honest, or otherwise) of the defendant as to the victim's consent is . . . not relevant to a rape prosecution." The Court, however, did not rule out future consideration of the appropriateness of such a defense in a case where the defendant's claim of reasonable mistake of fact is arguably supported by the evidence.

EVIDENTIARY ISSUES

Evidence of Extramarital Affair

Commonwealth v. Squailia, 429 Mass. 101 (1999)

In murder case, judge properly excluded evidence of the victim's extramarital affair because it was not probative or relevant.

Commonwealth v. Magraw, 426 Mass. 589 (1998)

Evidence of the defendant's extramarital affair was not probative or relevant and should have been excluded.

Evidence of Hostile Relationship

Commonwealth v. Eugene, 438 Mass. 343 (2003)

In a murder trial, the trial judge properly admitted a ten day abuse prevention order that the victim had obtained against the defendant five months prior to her death as evidence of the parties hostile relationship. The judge's limiting instructions, which included telling the jury that the victim obtained the order ex parte, did not renew the order, and subsequently recanted the underlying facts used to obtain the order, adequately dispelled any indication that the defendant had committed "some grave misconduct" against the victim resulting in the order's issuance. The Court also noted that the duration of an order, here only ten days, does not affect its relevance.

Commonwealth v. Stroyny, 435 Mass. 635 (2002)

In a murder case, an officer testified that he had stopped the defendant based on information that the defendant had been near the victim’s house and had telephoned her. This testimony was improperly admitted to show the relationship between the parties. The Court found that the testimony did not shed light on the victim’s state of mind where the victim’s restraining order was vacated the day before the defendant was stopped. The error, however, was harmless where defense counsel cross examined the officer and made clear that the defendant was not doing anything illegal, thus removing any potential taint.


Commonwealth v. Rosenthal, 432 Mass. 124 (2000)

Evidence that the defendant had given the victim, his wife, two black eyes in the years preceding her murder "became relevant as a part of a continuum of hostile behavior" due to the uniqueness of the injury and the similarity between the victim’s prior injuries and those inflicted at the time of death.


Commonwealth v. Lodge, 431 Mass. 461 (2000)

At a murder trial, the victim’s statements to a friend that the defendant had locked her out of their apartment and asked how to get a protective order were improperly admitted because, although the statements showed the deterioration of the relationship and the victim’s state of mind, there was no evidence presented that the defendant was aware of the victim’s state of mind. This error, however, was not prejudicial because the evidence against the defendant was strong.


Commonwealth v. Murphy, 426 Mass. 395 (1998)

At a murder trial, there was no reversible error where the judge allowed the testimony of the victim's sister regarding the hostile relationship between the victim-wife and the defendant-husband. Even if the statement was improper, the evidence was cumulative and not prejudicial. The judge also held that a single repetition of a detail by a witness that the defendant said he was going to cut up the victim was not overly prejudicial.

Commonwealth v. Magraw, 426 Mass. 589 (1998)

A rifle belonging to the defendant, found on the victim's bed, was properly admitted to show the discord between the defendant and the victim and to rebut the defendant's claim that they were happy together.

Commonwealth v. Arce, 426 Mass. 601 (1998)

Testimony of witness regarding acts of violence by the defendant towards the victim, which the witness personally observed, was admissible to show the defendant's motive to kill.

Commonwealth v. Cormier, 427 Mass. 446 (1998)

Evidence of several indictments against the defendant in which the defendant on prior occasions, physically attacked the victim-wife, threatened her and expressed to a third party his desire to kill her, was properly admitted. The evidence was directly relevant in establishing the defendant's possible motive and intent in killing his wife, which was especially important because the defendant claimed self-defense and the judge gave a limiting instruction.

Commonwealth v. Seabrooks, 425 Mass. 507 (1997)

In a case of first degree murder by reason of deliberate premeditation and extreme cruelty or atrocity for the killing of his former female companion and their child, hearsay evidence that sixteen months before the victim's murder, the victim told a friend that the defendant caused several bruises on her body and evidence that the victim subsequently retracted that statement while under oath during a criminal trial -- both were inadmissible to show the "hostile relationship" between the victim and defendant and the statements did not fall within the narrowly construed state-of-mind exception to the hearsay rule.

Commonwealth v. Cyr, 425 Mass. 89 (1997)

Deceased's expressions of fear of the defendant are generally not relevant to or probative of the defendant's motive. Admission of statements by two witnesses about the victim's hearsay statements concerning her fear of the defendant/estranged boyfriend and his prior misconduct "undermined" the defense by inviting the jurors to base their decisions on the degree of defendant's culpability (the only issue in the case) on inadmissible hearsay.

Commonwealth v. Rodriguez, 425 Mass. 361 (1997)

Murder victim's mother's testimony that the victim, minutes before her death and in the presence of the defendant, complained of her life with the defendant, reported that he had previously tried to choke her to death, and indicated her intention to end the relationship was admissible. The evidence was relevant to show evidence of a violent relationship and the statement that the victim intended to end the relationship was "probative of the defendant's state of mind just prior to the killing."


Commonwealth v. Jenner, 426 Mass. 163 (1997)

At the defendant's trial for murder of his estranged wife, evidence that in the months preceding the victim's death, victim told two persons that she feared the defendant would kill her was inadmissible; however, the defendant was not sufficiently prejudiced by the admission of the statements because there was ample, properly admitted independent evidence of the nature of their relationship and the evidence had no bearing on the principal defense of lack of criminal responsibility.

Evidence of Victim’s Fear

Commonwealth v. Bianchi, 435 Mass. 316 (2001)

The defendant was convicted of murdering the victim. At trial, the Commonwealth entered several of the victim’s statements that she was afraid the defendant was going to kill her. On appeal, the Commonwealth conceded, and the Court agreed, that the victim’s statements were improperly admitted. Where the statements were cumulative of other properly admitted evidence from which the jury could infer that the victim was afraid of the defendant, evidence of the defendant’s guilt was strong, and the statements were not inconsistent with the defendant’s defense strategy, no prejudicial error resulted.

Fresh Complaint NOW KNOWN AS "FIRST COMPLAINT"

Commonwealth v. King, 445 Mass. 217 (2005)

The doctrine previously known as "fresh complaint" has been changed significantly by this ruling and is now called "first complaint." In sexual assault cases, the Commonwealth is now limited to calling only one complaint witness who, "[w]here feasible" is "the first person told of the assault." The complaint need not be prompt in order to be admissible. The first complaint witness may testify to what the victim said when disclosing the sexual assault and the circumstances surrounding that first complaint. In limited circumstances, a judge has the discretion to permit the testimony of a complaint witness other than the very first person told of the assault. The prosecution must justify the substitution in a motion in limine.

Prior Bad Acts - Victim or Defendant

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

Reversing Commonwealth v. Butler, 62 Mass. App. Ct. 836 (2005), the SJC, in an assault and battery case where the victim recanted, concluded that evidence of defendant’s prior beatings of the victim and prior restraining orders were properly admitted as probative evidence because it was relevant to demonstrate the hostile nature of the relationship between the victim and the defendant and to explain the victim’s recantation.

Commonwealth v. Harris, 443 Mass. 714 (2005)

Aggravated rape case reversed where the judge excluded evidence of the complainant’s prior conviction of common nightwalking based on the rape-shield statute and where the prosecutor improperly exploited the exclusion of that evidence in closing argument. The court held that a judge has discretion to allow impeachment of a sexual assault complainant by prior convictions of sexual offenses, but that in exercising that discretion, the purposes of the rape-shield statute should be considered.

Commonwealth v. Moquette, 53 Mass. App. Ct. 615 (2002), reversed on other grounds,

439 Mass. 697 (2003)

No error where the judge admitted evidence of a prior altercation that took place between the victim and the defendant 7 months earlier and was the basis for the victim obtaining a restraining order. The prior altercation was properly admitted to show intent, motive, state of mind, and the victim’s fear and accompanied by appropriate limiting instructions.



Commonwealth v. Rosenthal, 432 Mass. 124 (2000)

In a murder case, the trial judge properly admitted evidence that the defendant had given his wife, the victim, two black eyes in the years preceding her death. The evidence was probative of the defendant’s state of mind and his hostile relationship with the victim. The evidence was also relevant to the defendant’s claim of lack of criminal responsibility and not too remote.

Commonwealth v. Crimmons, 46 Mass. App. Ct. 489 (1999)

Evidence of prior acts of violence admissible where it was limited to show a pattern of conduct by defendant.

Commonwealth v. O.C. Houston, III, 46 Mass. App. Ct. 378 (1999), aff’d, 430 Mass. 616 (2000)

In rape case, judge properly excluded evidence of victim's prior prostitution-related convictions because they were not relevant to bias, motive, credibility or consent.


Commonwealth v. Munafo, 45 Mass. App. Ct. 597, f.a.r.d., 428 Mass. 1110 (1998)

Evidence of the defendant's prior sexual behavior with the victim was relevant and admissible to help the jury understand the dispute between the victim and defendant which resulted in the crimes charged: violation of a restraining order and assault and battery. Moreover, the jury found the defendant not guilty of assault and battery, which indicates their lack of prejudice in weighing the evidence of the defendant's prior sexual behavior.

Prior Consistent Statements

Commonwealth v. Foreman, 52 Mass. App. Ct. 510 (2001)

Where a victim obtained a restraining order after the defendant attacked her, the restraining order and affidavit were inadmissible as prior consistent statements to rebut an allegation of recent contrivance. In order to be admissible, the prior statements would have had to predate any motive to fabricate. In this case, the defendant rejected the pregnant victim before the attack and before she obtained the restraining order. The error was prejudicial where the restraining order and affidavit were the only exhibits admitted at trial, the court order carried significant weight, the Commonwealth heavily emphasized that the statements were made under oath, and there were no limiting instructions given.

Prior Inconsistent Statements

Commonwealth v. Johnson, 49 Mass. App. Ct. 273, f.a.r.d., 432 Mass. 1105 (2000)

An affidavit for a restraining order could not be admitted as a prior inconsistent statement where the affiant testified that she did not remember writing the affidavit because there was no inconsistency between the witness’ present failure of memory and her past existence of memory. The affidavit was properly admitted to impeach the witness. Any error was harmless in light of the judge’s instructions and the evidence presented against the defendant.



Commonwealth v. Ortiz, 39 Mass. App. Ct. 70 (1990), f.a.r.d., 421 Mass. 103 (1995)

If a police officer neglects to include "important details" of an incident in his police report but testifies to those details at trial, the trial judge must, upon the defendant's request, instruct the jury that it may use prior inconsistent statements in determining the witness's credibility. The Court reasoned that an omission from the earlier statement is inconsistent with a later statement of fact when it would have been natural to include the fact in the final statement.

Prior Restraining Orders

Commonwealth v. Johnson, 49 Mass. App. Ct. 273, f.a.r.d., 432 Mass. 1105 (2000)

An affidavit for a restraining order was improperly admitted as substantive evidence where the affiant testified that she did not remember applying for the order or composing the affidavit. The affidavit was properly admitted to impeach the witness. Any error was harmless in light of the judge’s instructions and the evidence presented against the defendant.



Commonwealth v. Alphas, 430 Mass. 8 (1999)

At trial for alleged stalking, judge correctly excluded evidence of victim’s prior applications for protective orders, which had been denied by other courts because they were irrelevant.

Spontaneous Utterances

Commonwealth v. Galicia, 447 Mass. 737 (2006)

Applying the U.S. Supreme Court decision in Davis, the SJC found that statements made by a victim to a 911 dispatcher were admissible as spontaneous utterances because they were made under circumstances objectively indicating that the primary purpose was to enable police to meet an ongoing emergency—the assault was actually happening during the call. On the other hand, statements made by the victim to the officer at the scene did not constitute spontaneous utterances because the assault had ended and the scene was secure.



Davis v. Washington & Hammon v. Indiana

126 S.Ct. 2266 (2006)

Applying Crawford v. Washington, the Court held that the 911 call in Davis did not produce "testimonial" statements as contemplated by Crawford and could properly be admitted as a spontaneous utterance. In Davis, the victim called 911 to report that she was being beaten by her former boyfriend and that he had just fled the house. She also provided the operator with the abuser’s name, birth date, and a few details about the assault. The Court reasoned that a 911 call is primarily to assist police with an ongoing emergency and thus generally not considered testimonial. Whereas in Hammon the Court held that a victim’s affidavit from an interview with police following a domestic dispute was considered testimonial because its primary purpose was to establish past facts potentially relevant in a later criminal prosecution.



Commonwealth v. Gonsalves, 445 Mass. 1 (2005)

In light of Crawford v. Washington, the Massachusetts Supreme Judicial Court set forth a framework for determining the admissibility of hearsay in criminal trials. Any hearsay statement that is considered either "testimonial per se" or "testimonial in fact" will be excluded. A statement is testimonial per se if it is "a statement made in response to questioning by law enforcement agents (for example: prior testimony at a preliminary hearing, before a grand jury, or at a former trial; or statements made during a "police interrogation"). The SJC broadly defined "police interrogation" as all law enforcement questioning whether it is by police, prosecutors, or others acting directly on their behalf related to the investigation or prosecution of a crime. This includes preliminary fact gathering and even initial assessment of whether a crime has taken place. Expressly excluded from this category are: (1) statements made in response to questioning by law enforcement to secure a volatile scene; and (2) statements made to determine the need for or provide medical care. A statement is considered "testimonial in fact" if "a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting a crime. Even statements expressly excluded as testimonial per se will still need to be analyzed to determine whether it is "testimonial in fact." The ruling in this case will have a profound effect on prosecuting domestic violence cases because victim statements previously admissible as spontaneous utterances may now be excluded under the Gonsalves analysis. See e.g., Commonwealth v. Foley, 445 Mass. 1001 (2005); Commonwealth v. Rodriguez, 445 Mass. 1003 (2005); Commonwealth v. Williams, 65 Mass. App. Ct. 9 (2005) (statement made by crying, shaken victim to police officer in response to the officer’s question, "what happened and why did [the victim] call 911?" considered testimonial per se and thus inadmissible).



Crawford v. Washington, 541 U.S. 36 (2004)

In this case, the United States Supreme Court radically altered the analytical framework for the admissibility of hearsay in criminal cases. "Testimonial" statements of unavailable declarants that are the product of "interrogation" are inadmissible at criminal trials unless the defendant had been afforded an opportunity to cross-examine the declarant. The impact of the ruling in this case has been interpreted in Commonwealth v. Gonsalves, 445 Mass. 1 (2005).



Commonwealth v. Kelsall, 60 Mass. App. Ct. 902 (2003)

The defendant was convicted of assault and battery and intimidation of a witness. The victim testified at trial that the defendant had not hit her, that she was drinking, and although she called the police she did not remember saying that the defendant had hit her. The Commonwealth presented the 911 tape of the victim saying the defendant had hit her, the victim’s spontaneous statements to the officers, and a description of the victim’s demeanor. The Court held that the pursuant to Commonwealth v. Moquette, 439 Mass. 697 (2003), the victim's spontaneous utterance, alone, was sufficient to convict the defendant, despite the victim’s later disavowal that he had hit her. See also Commonwealth v. Leavey, 60 Mass. App. Ct. 249 (2004).



Commonwealth v. Moquette, 439 Mass. 697 (2003)

On further appellate review the Supreme Judicial Court reversed the Appeals Court's decision in Commonwealth v. Moquette, 53 Mass. App. Ct. 615 (2002) and affirmed the defendant's convictions. The SJC held that "[a] spontaneous utterance is sufficient, by itself, to support a conviction." The SJC reasoned that "the mere existence" of contrary evidence to the spontaneous utterance "does not operate to add an additional requirement of corroboration in order for the spontaneous utterance to constitute evidence sufficient for conviction." It was for the jury to decide what weight to give both the spontaneous utterance and the later recantation.



Commonwealth v. Kartell, 58 Mass. App. Ct. 428, f.a.r.d., 440 Mass. 1102 (2003)

The defendant shot and killed his estranged wife’s lover in front of her. After the shooting, the defendant's wife said that the defendant "usually ha[d] [his gun] on his leg in a holster . . .[b]ut this time, he had it in his pocket and it was loaded." The statement was properly admitted as an excited utterance because it was a product of the exciting event, i.e., the murder. The normally inadmissible habit evidence included with the statement was also properly admitted because it was not offered to show conformity with habit, but as evidence of the defendant’s intent when he departed from his usual practice of wearing the gun in a leg holster.



Commonwealth v. Dunn, 56 Mass. App. Ct. 89 (2002)

The trial judge improperly admitted the victim's statements to a police officer and a third party as spontaneous utterances where the victim reported the abuse as part of a preconceived safety plan.



Commonwealth v. Ivy, 55 Mass. App. Ct. 851, f.a.r.d., 438 Mass. 1102 (2002)

The defendant’s confrontation rights were not violated when the Court properly admitted a victim’s out of court identification, substantively, through her spontaneous utterance. Where a spontaneous utterance has "indicia of reliability" the defendant’s right to confrontation is not violated by the statement’s admission, even where the declarant does not testify against him. Moreover, the Commonwealth was not required to prove that the victim was unavailable to testify. In this case, the Commonwealth presented independent evidence that corroborated the victim's statement.



Commonwealth v. Santiago, 437 Mass. 620 (2002)

The defendant’s girlfriend’s statement to the police upon witnessing the defendant’s arrest was properly admitted as a spontaneous utterance where the girlfriend made the statement in response to an exciting event, i.e., the defendant’s arrest, and the girlfriend's statement was a spontaneous reaction to that event. In order to qualify as a spontaneous utterance, the statement need not have been made in response to the underlying event, i.e., the rape of the girlfriend’s daughter. Rather, the relationship between the events should be such that the occurrence of the exciting event elicits a "nonreflective exclamation" regarding the underlying event.



Commonwealth v. Joyner, 55 Mass. App. Ct. 412, f.a.r.d., 438 Mass. 1103 (2002)

The victim’s statement, made immediately after he was beaten severely, was admissible as a spontaneous utterance regardless of the fact that the victim did not appear to testify at trial. The Court noted that motive to lie goes to the weight, not the admissibility of a statement. As such, the fact that the victim had a lengthy criminal record and outstanding warrants for his arrest was not a factor for the judge to consider in determining whether his statements were admissible as spontaneous utterances.



Commonwealth v. Newell, 55 Mass. App. Ct. 119, f.a.r.d., 437 Mass. 1108 (2002)

Where the victim of an armed robbery intentionally withheld information from both his boss and a police officer immediately following a crime, his statements were improperly admitted as spontaneous utterances. The victim intentionally withheld the fact that he had consumed beer with his assailant prior to the armed robbery. As a result, these statements lacked sufficient indicia of reliability to be considered reliable under the spontaneous utterance exception to the hearsay rule.



Commonwealth v. Davis, 54 Mass. App. Ct. 756, f.a.r.d., 437 Mass. 1106 (2002)

The victim’s statement on cross examination that she had already calmed down by the time the police arrived to talk to her did not preclude the trial judge from properly admitting her statements under the spontaneous utterance exception. There was ample testimony from other percipient witnesses, including the police officers, regarding the victim’s excited state at the time she made the statements.



Commonwealth v. Pierowski, 54 Mass. App. Ct. 707 (2002)

The trial judge improperly admitted the victim’s non-verbal statement, i.e., the nod of her head, as a spontaneous utterance. Even though the victim was crying and shaking at the time, the Court held that the statement was not made under the sway of the exciting event where the victim’s head nod was elicited by the officer’s direct and persistent questioning, forty five minutes after the questioning had begun, and the officer was having difficulty communicating with the victim because her primary language was Polish.



Commonwealth v. Carter, 54 Mass. App. Ct. 629, f.a.r.d., 437 Mass. 1107 (2002)

The trial judge properly admitted the victim’s statement, that her son awakened her, demanded his rent money be returned, then demanded her ATM card, apparently to buy drugs, and struggled with her, even though the victim was not crying or hysterical at the time, but rather was cautious and guarded. The Court acknowledged that the question was close, however, found that the judge was within his discretion to find that the victim was "fearful and nervous and still under the influence of the frightening behavior of her son", thus the foundational requirements for admitting the statement were met.



Commonwealth v. King, 436 Mass. 252 (2002)

Statements made directly after an assault and battery were admissible at trial under the spontaneous utterance exception, notwithstanding the victim’s later recantation of those same statements. The judge had broad discretion to determine whether the circumstances surrounding the making of the statements met the foundational requirements for admissibility. The victim’s recantation went to the weight of the evidence, not its admissibility.



Commonwealth v. Tevlin, 433 Mass. 305 (2001)

The victim's statement, which was made thirty minutes after the robbery, was properly admitted as a spontaneous utterance where the victim was elderly, clearly terrified, and there was no evidence that the victim had been influenced by other factors.



Commonwealth v. Tracy, 50 Mass. App. Ct. 435 (2000), f.a.r.d., 433 Mass. 1102 (2001)

At a trial for armed assault with intent to murder and other related crimes, the judge correctly admitted a statement of the defendant's mother as an exited utterance. The mother made the statement to the police forty-eight minutes after the police released the defendant to the mother's custody. The Court described the underlying exciting event not as the crimes that ultimately took place, but the time at which the mother learned that the defendant had a gun and was intending to return to the place at which he had previously been involved in a fight.



Commonwealth v. Mahar, 430 Mass. 643 (2000)

At a trial for armed home invasion and armed assault with intent to rob, the statement of a non-testifying victim was properly admitted as a spontaneous utterance; however, inconsistent statements made by the victim subsequent to the spontaneous utterance should also have been admitted to impeach the victim’s credibility. The exclusion of the subsequent inconsistent statements did not prejudice the defendant, however, where evidence of the defendant’s guilt was strong.



Commonwealth v. Hardy, 47 Mass. App. Ct. 679, f.a.r.d., 430 Mass. 1110 (1999)

A victim's statements to police three hours after the victim was assaulted, battered and robbed, were not excited utterances because the victim was not still under the sway of the event. Although there was testimony that the elderly victim was "sobbing, consistent with someone who was in pain," there were no other signs that the victim was otherwise under the influence of the exciting event. The erroneous admission of the victim's statements required reversal because the defendant did not have an opportunity to cross examine the victim who died from unrelated causes four days after the robbery.



Commonwealth v. Thomas, 429 Mass. 146 (1999)

Murder witness statement to other witness that he wanted to leave the crime scene because a friend had just been shot was an excited utterance because it happened on the heels of the murder and the witness saw the murder. In addition, it helped to explain the underlying event.



Commonwealth v. Brown, 46 Mass. App. Ct. 279, rev’d on other grounds,

47 Mass. App. Ct. 616 (1999)

An authenticated police audiotape of six "911" calls from the victim's neighbor, made contemporaneously with the incident admissible as a spontaneous utterance. The actual caller need not be brought into court to testify nor does the Commonwealth have to show that the caller was unavailable to testify.



Commonwealth v. Whelton, 428 Mass. 24 (1998)

Daughter's statement that she just witnessed father abusing mother and father had history of abusing mother were both admissible as excited utterances because statements were made to police only a few minutes after receiving daughter's 911 call and daughter was nervous, worried for mother's safety and on the verge of tears when she made statements. Both statements characterized and/or explained events. Statement from Mother-victim that she was abused was not admissible because there is no evidence that Mother-victim was excited at time she made statements.





Commonwealth v. Arce, 426 Mass. 601 (1998)

Third party statement by witness 1 made to witness 2 that the defendant killed the victim was an admissible excited utterance to prove the assailant's identity. The statement had the indicia of reliability because witness 1 was frightened and came running toward witness 2 when he made the statement moments after the crime.



Commonwealth v. DiMonte, 427 Mass. 233 (1998)

Even though a writing could be a spontaneous exclamation, a facsimile sent by the victim at least eight and one-half hours after being attacked was inadmissible because it lacked the indicia of reliability and evidenced premeditation. Statements of the injured victim in hospital records made ten hours after the assault were not spontaneous utterances.



Commonwealth v. Napolitano, 42 Mass. App. Ct. 549 (1997), f.a.r.d., 425 Mass. 1104 (1997)

Victim's statements made to two independent witnesses that her boyfriend tried to drown her and bashed her head on a rock were admissible. The statements had indicia of reliability because the witnesses saw the event and spoke to the victim, who was crying and shuddering immediately after the incident. Further, the admission of the excited utterances did not violate the defendant's right to confrontation, even though the victim testified at trial for the defense and denied any assault, because the excited utterances were reliable.



Commonwealth v. Rockett, 41 Mass. App. Ct. 5 (1996), f.a.r.d., 423 Mass. 1107 (1996)

A statement made by an unknown third party who called out the defendant's first name, "David", as the defendant was fleeing from the crime scene was admissible as a spontaneous exclamation to show the identity of the defendant.



Commonwealth v. Kirk, 39 Mass. App. Ct. 225 (1995)

Victim's statement that "my boyfriend just beat me up" was an admissible spontaneous utterance to show that the crime occurred but not to show the identity of the defendant. The statement was reliable because the witness testified that victim was crying, upset, disheveled and blurted out the statement. However, the Commonwealth did not show that the victim was unavailable to testify, so her affidavit supporting a subsequent 209A order admitted at trial to identify the "boyfriend" mentioned in the excited utterance as the defendant, was inadmissible hearsay. Admitting such hearsay violated the defendant's right to confrontation.

State of Mind

Commonwealth v. Rosenthal, 432 Mass. 124 (2000)

Evidence of the defendant’s prior violent behavior towards his wife, the victim, was admissible because it was relevant to the defendant’s state of mind to rebut his claim that he lacked criminal responsibility when he committed the murder.





Commonwealth v. Magraw, 426 Mass. 589 (1998)

At a murder trial where the defendant was charged with killing his wife, evidence of the victim's state of mind that contradicted the defendant's contention that he and his wife got along well and she agreed to meet him alone in her house where she was later murdered was admissible. However, evidence of the victim's concern that something would happen to her and would be made to look like an accident was not probative and was prejudicial to the defendant's case. Moreover, the defendant's statements made to the victim that he wanted to reconcile and she refused were improperly admitted to show the defendant's state of mind because there was no other evidence that the defendant attempted to reconcile.



Commonwealth v. Arce, 426 Mass. 601 (1998)

At a murder trial, evidence of the defendant's hostile relationship with his wife was relevant and admissible to show the defendant's motive to kill her but not as evidence of the defendant's state of mind. However, any error in the incorrect admission of the victim's statement, that the defendant hit her once, was insubstantial in light of the strong evidence of the defendant's hostile treatment of the victim and other properly admitted evidence. Also, the judge improperly admitted hearsay evidence of the victim's fear of the defendant; however, the error was not prejudicial because the victim's fear was unavoidably inferable from the rest of the evidence.



Commonwealth v. Bush, 427 Mass. 26 (1998)

Conversations between the defendant and his girlfriend, which furnished a reason for the defendant to harbor anger towards his victims, anticipate a confrontation with them and arm himself with two handguns, were properly admitted to show the impact of the conversations on the defendant's state of mind.



Commonwealth v. DiMonte, 427 Mass. 233 (1998)

The defendant’s admission that he was jealous of his wife made six weeks before he assaulted her was admissible to show course of conduct between husband and wife and to show the defendant's motive and state of mind.



Commonwealth v. Cruz, 424 Mass. 207 (1997)

Testimony of police officers concerning the victim's reports of domestic violence incidents and other testimony concerning her accounts to others of the defendant's violence and her own fear was properly admissible as relating to the victim's state of mind, where there was evidence that the defendant knew of that state of mind. The defendant was convicted of first-degree murder (deliberate premeditation) and stalking of his estranged girlfriend.

Testimonial Privilege

In Re A Grand Jury Subpoena, 447 Mass. 88 (2006)

The spousal privilege under G.L. c. 233, § 20 does not apply in grand jury proceedings.

Commonwealth v. King, 436 Mass. 252 (2002)

A witness need not be advised contemporaneously of their Fifth Amendment rights in order to voluntarily waive the privilege against self incrimination.



In the Matter of a Grand Jury Subpoena, 430 Mass. 590 (2000)

The SJC declined to recognize a parent-child testimonial privilege such that parents would not be forced to testify against their unemancipated minor children regarding confidential communications between the parent and the child. The Court noted that the Legislature is the proper government body to address the social policies surrounding the creation of such a privilege.

Unavailable Witness

Commonwealth v. Robinson, 69 Mass. App. Ct. 576 (2007)

Where the Commonwealth failed to demonstrate a good faith effort to locate and produce a witness at trial, the trial judge erred in admitting the witness’ probable cause hearing testimony as prior recorded testimony. Categories of actions that are relevant in determining the reasonableness of the Commonwealth’s efforts include: "searches of available public records from agencies, Federal, State, and local, with identity databases: the United States Postal Service, the Social Security Administration, the State Division of Employment Security, the State Registry of Motor Vehicles, State probation and court resources, municipal clerks, and voting officials." Inquiries about the missing witness should also be made to "family, friends, neighbors, employers, and others who are assumed as probable sources of information…."



Commonwealth v. Florek, 48 Mass. App. Ct. 414 (2000)

The Commonwealth did not fulfill its burden in proving the eyewitness’ unavailability where the Commonwealth failed to follow up on leads as to the witness’ whereabouts, failed to "enlist the cooperation of the Kentucky police to find the witness, attempt to make telephone contact with the witness or his girlfriend’s sister in Kentucky, or summons [the witness] under the Uniform Law to Secure the Attendance of Witnesses, G.L. c. 233, § 13A."



Commonwealth v. Ross, 426 Mass. 555 (1998)

The Commonwealth did not carry its burden of demonstrating that a witness was unavailable to testify within the meaning of Mass. R. Crim. P. 35 (g) so as to warrant the admission of the witness’ deposition as substantive evidence of assault and battery and several counts of breaking and entering a residential facility with intent to commit a felony. The court held that where the witness was in a foreign country and the Commonwealth failed to demonstrate that a reasonable effort had been made to obtain the witness, the defendant was entitled to a new trial.

INTIMIDATION OF A WITNESS, G.L. c. 268, § 13B

Commonwealth v. Pagels, 69 Mass. App. Ct. 607 (2007)

After the defendant had been arrested for assault and battery on his girlfriend he placed numerous telephone calls to her from jail in anticipation of obtaining her testimony on his behalf at his bail hearing. At trial, the judge properly denied the defendant’s motion for required finding of not guilty where the calls although not overtly threatening did in context sufficiently establish that the defendant attempted to influence the victim by means of force or threats of force. Specifically, the court considered, among other things, the intensity of the defendant’s demands, the way he controlled the discussion, and the number and timing of the calls.

Commonwealth v. Cathy C., 64 Mass. App. Ct. 471 (2005)

The crime of intimidation of a witness, in part criminalizes, "interference, actual or threatened, with a witness or juror" in any stage of a trial, grand jury or criminal proceeding. The defendant’s threat to a witness that she "was going to beat [the victim’s] ass" after the jury’s verdict was announced at a trial of a co-defendant, but before sentencing or post-conviction motions, was considered to be made during the pendency of the trial. Moreover, it was of no consequence that the victim had already testified when the threat was made.





Commonwealth v. Belle Isle, 44 Mass. App. Ct. 226, f.a.r.d., 427 Mass. 1103 (1998)

Defendant’s act of pulling a phone cord out of a wall after his sister-in-law stated that she was going to call the police was sufficient to satisfy the elements of intimidating a witness because the defendant "forcefully interfered with his sister-in-law’s attempt to furnish information to the police .　.　. ."

PROBATE AND FAMILY COURT ORDERS

Commonwealth v. Rauseo, 50 Mass. App. Ct. 699, f.a.r.d., 434 Mass. 1102 (2001)

A certified "true copy" of a 209A order issued by the Probate and Family Court is presumptively reliable. As a result, the defendant bears the burden to alert the trial judge to any claimed discrepancies resulting from modifications of the order. This case also discusses in great detail the extent to which a Probate Court order in a related proceeding, e.g., divorce, affects an existing 209A order in both the Probate Court and other courts.



Commonwealth v. Alphas, 430 Mass. 8 (1999)

Violation of an agreed to "stay-away" order in a divorce judgment entered pursuant to the Probate and Family Court's authority under G.L. c. 208, §18, was sufficient to support a conviction of stalking in violation of G.L. c. 265, §43(b).



Hector Champagne v. Susan Champagne, 429 Mass. 324 (1999)

G.L. c. 208, §18 allows the probate court to issue permanent protective orders. The statute expressly provides that the Court can issue any protective order deemed necessary to preserve one's personal liberty, nor does the statute expressly place a time limit on the order. In contrast, G.L. c. 208, § 34B and G.L. c. 209A expressly provide that an order can only be issued for one year.



Commonwealth v. Arce, 426 Mass. 601 (1998)

Evidence that victim petitioned, shortly before her death, through the Probate Court for child custody, a restraining order against the defendant, and alleged cruel and abusive treatment, was admissible.



Smith v. Joyce, 421 Mass. 520 (1995)

Portion of 209A order barring defendant contact with two children not warranted where there was a divorce judgment entered in the Probate Court which dealt with custody and where the judge did not make independent findings of fact to justify a conflict with that order. (§ 6.00 of the Draft Standards of Judicial Practice of the District Court Department of the Trial Court, Abuse Prevention Proceedings (Dec. 1994) ("Such findings will serve as information for any Probate and Family Court Judge who hears the case at a later time.")) Such findings by a District Court Judge should justify granting emergency relief for a reasonable but limited period so that a party may have to seek reconsideration of a conflicting outstanding Probate Court Order. The decision of the Probate Court would supersede the G.L. c. 209A order.

　

PROCEDURAL ISSUES

Continuances

Commonwealth v. Taylor, 428 Mass. 623 (1998)

A judge may not continue a case without a finding over the Commonwealth's objection unless doing so is necessary. "Necessary" is determined by Mass. R. Crim. P. 10.

Double Jeopardy

Commonwealth v. Crawford, 430 Mass. 683 (2000)

The defendant was convicted of involuntary manslaughter for killing both his girlfriend and her viable fetus with a single gunshot. The trial judge did not violate the principles of double jeopardy when he imposed separate sentences for the killing of each victim by a single criminal act.



Commonwealth v. O.C. Houston, III, 46 Mass. App. Ct. 378 (1999), aff’d, 430 Mass. 616 (2000)

Kidnapping conviction dismissed because the "aggravated" factor to support the aggravated rape conviction was the same as the kidnapping conviction.



Commonwealth v. Johnson, Sr., 45 Mass. App. Ct. 473 (1998)

Conviction of threatening to commit a crime and violation of a protective order arising out of the same act, are not duplicative because each crime requires proof of a separate and distinct element from the other crime.



Commonwealth v. Bachir, 45 Mass. App. Ct. 204, f.a.r.d., 428 Mass. 1104 (1998)

Defendant husband charged with Parental Kidnapping of his son and violating a 209A order against wife were not duplicative. Defendant argued that the Commonwealth used one act, the taking of the son to prove both crimes. The Court held that there were two distinct acts, taking the son and previously speaking to the son shortly before the taking, but even if there was one act, the crimes do not share the same elements and neither crime was a lesser included of the other.

Probation

Commonwealth v. Ortiz, 58 Mass. App. Ct. 904, f.a.r.d., 440 Mass. 1104 (2003)

The hearing judge improperly revoked the defendant's probation based solely on a police officer's hearsay testimony where insufficient evidence was presented to show that the officer's testimony was trustworthy or reliable and the judge did not make any findings to the contrary.



Commonwealth v. Janovich, 55 Mass. App. Ct. 42 (2002)

A summary of the victim’s prior testimony at a preliminary probation surrender hearing was properly introduced in the Commonwealth’s case-in-chief during that final surrender hearing where the victim recanted her previous statements and testified on the defendant’s behalf at the subsequent hearing. The Court held that the summary of the victim’s prior testimony was admissible as prior recorded testimony where (1) the victim’s recantation rendered her "effectively unavailable", similar to a witness who takes the 5th Amendment, and (2) her prior testimony was "consistent with and corroborated by her original report to the probation department" making it reliable. The Court also noted that the victim’s prior testimony met the requirements for admission as prior inconsistent statements.



Commonwealth v. MacDonald, 435 Mass. 1005 (2001)

The defendant was placed on probation. The docket reflected that the sentencing judge imposed a stay away order as a condition of probation. The probation form containing the written conditions, however, stated that the defendant was to stay away from the victim in addition to having no contact with her. Where, the defendant was later served with a surrender notice citing a violation of the no contact order, which did not appear on the docket, the Court held that when the docket and the probation form conflict, the sentencing judge’s order controls. In this case, it was unclear whether the docket or the probation form reflected the judge’s actual sentencing order.

Jake J. v. Commonwealth, 433 Mass. 70 (2000)

General Laws chapter 276, § 87, gives the Court the inherent authority to revoke a juvenile's bail when he violates pretrial conditions of release. Although this case does not specifically make a finding as to whether bail revocation is appropriate when a defendant violates conditions of release in domestic cases under G.L. c. 276, § 42A, it analogizes §§ 87 and 42A providing the Commonwealth with a good argument that bail revocation is also appropriate for violations of § 42A conditions.

Commonwealth v. Podoprigora, 48 Mass. App. Ct. 136 (1999)

Probation revocation vacated where evidence of the violation consisted of a child’s hearsay statements testified to by a police officer and a sworn statement of the child's mother. The police officer’s testimony regarding the child's demeanor did not sufficiently corroborate the child's hearsay statementsand the sworn statement of the child's mother, who did not have personal knowledge of the violation, was not substantially reliable.

Commonwealth v. Wilson, 47 Mass. App. Ct. 924 (1999)

Probation revocation vacated where evidence of the violation consisted solely of uncorroborated hearsay. The evidence at the revocation hearing consisted of a police report containing statements that the defendant sent the victim a letter and testimony from the victim’s attorney. The police report did not contain any police observations or evidence of an investigation that would corroborate evidence of the alleged probation violation. Furthermore, although the defendant's letter revealed a close relationship between the victim and the defendant, the contents of the letter did not corroborate the victim's allegations of a prior improper sexual relationship.



Commonwealth v. Dodge, 428 Mass. 860 (1999)

The judge has no authority to make a defendant's pretrial release subject to conditions under the bail statute.



Commonwealth v. Holmgren, 421 Mass. 224 (1995)

A defendant who was acquitted of a crime he allegedly committed while on probation may still be surrendered on the basis of that conduct. The criminal conviction requires the "beyond a reasonable doubt" burden of proof, while a probation surrender hearing uses the lesser "preponderance of the evidence" standard.



Commonwealth v. Tate, 34 Mass. App. Ct. 446, f.a.r.d., 415 Mass. 1106 (1993)

The defendant violated the "no contact" condition of probation when he spoke to the victim and looked at her from the top of a street located approximately a ten minute walk from where the victim lived. The judge was not required to credit the defendant's innocent exculpatory explanations for the contact.

　

RAPE, G.L. c. 265, §§ 13B, 13F, 13H, 22, 23, 24, 24B

Commonwealth v. Dineen, Mass. App. Ct., No. 06-P-267, slip op. (August 30, 2007)

A defendant prosecuted for rape of a child was properly charged in the county where he transported the victim from (county of her residence) pursuant to G.L. c. 265, § 24A even though the rapes occurred in a different county (county of defendant’s residence). G.L. c. 265, § 24A confers dual venue for certain crimes where "the conveyance has a relation to, association with, or connective link to, the ensuing crime committed in the destination county." This determination is made be weighing the totality of the circumstances. In this case the conveyance was the "deliberate manner and means" to bring the victim to the second county where the defendant raped the victim in his own home. The Commonwealth need not establish that the defendant had a pre-existing plan at the time of the crossing into the destination county in order to prosecute him in the county of origin.

Suliveres v. Commonwealth, 449 Mass. 112 (2007)

The defendant was indicted for rape after having sex with the victim by impersonating her longtime boyfriend, his brother, whereby the defendant entered the victim’s bedroom in the middle of the night while she was alone sleeping in the bedroom she shared with her boyfriend. Declining to overrule Commonwealth v. Goldenberg, 338 Mass. 377 (1959), the SJC held that consent to intercourse procured by fraud does not constitute rape and the defendant’s motion for required finding of not guilty should have been allowed.



Commonwealth v. McCourt, 438 Mass. 486 (2003)

The SJC reversed the Appeals Court’s opinion in Commonwealth v. McCourt, 54 Mass. App. Ct. 673 (2002). In doing so, the SJC held that the crime of aggravated rape does not require proof of "a causal or facilitating connection between the aggravating act or acts and the rape" as long as the rape and beating constitute "one continuous episode and course of conduct." The SJC affirmed the defendant’s conviction of aggravated rape. The SJC also overruled Commonwealth v. Kickery, 31 Mass. App. Ct. 720 (1991).

RECORDS

Commonwealth v. Dwyer, 448 Mass. 122 (2006)

The SJC announced a new protocol for defendants seeking privileged records from a third party. This replaces the Bishop-Fuller protocol and is derived from Mass. R. Crim. P. 17(a)(2) and Commonwealth v. Lampron, 441 Mass. 265 (2004). This protocol allows a "reasonable opportunity for defense counsel to inspect pretrial presumptively privileged records produced by a third party, subject to a stringent protective order." Initially, the defendant must show: (1) the records are relevant and have evidentiary value; (2) the records cannot otherwise be procured; (3) the defendant cannot properly prepare for trial without the records; and (4) the motion for the records is in "good faith" and not being used as a "fishing expedition." See the appendix in Dwyer and internal Dwyer memo for an outline of the detailed procedure.



Commonwealth v. Liang, 434 Mass. 131 (2001)

Prosecutors are responsible for asking advocates about their conversations with victims and/or witnesses, reviewing advocates’ notes to determine whether the notes contain exculpatory information or victim or witness "statements", and disclosing such information to the defendant. All other advocate notes, which are neither "statements" nor exculpatory, including an advocate's written description of oral conversations with victims or witnesses, which are not adopted by the victim or witness, are protected by the work product doctrine.



Commonwealth v. DiMonte, 427 Mass. 233 (1998)

Unqualified statements in the hospital records reporting the ultimate conclusion of the crime charged should be redacted from the report.



VICTIMS’ RIGHTS

Commonwealth v. Giaccobbe, 56 Mass. App. Ct. 144 (2002)

A judge properly allowed a victim witness advocate to sit in on defense counsel’s interview with two child witnesses. The victim witness advocate did not overstep her limited role, disclose the content of the interview with the prosecutor or interfere with the defendant's access to the children. In addition, the Court noted that it seemed reasonable to exclude the children's parents from the interview.

Hagen v. Commonwealth, 437 Mass. 374 (2002)

A victim filed a G.L. c. 211, § 3 petition to appeal the denial of her Superior Court motion to revoke the stay of the defendant’s sentence pending appeal. The victim asserted her right to do so through the Victim’s Bill of Rights, G.L. c. 258B, § 3(f). General Laws chapter 258B, § 3(f) provides victims with the right "to a prompt disposition of the case in which they are involved." The statutory requirement of a prompt disposition, however, was satisfied when the Superior Court sentenced the defendant following his conviction. The Supreme Judicial Court (SJC) held that the Superior Court properly denied the victim’s motion to revoke the defendant’s stay because the victim lacked standing to insert herself into the case. The SJC, however, stated that victims "should be permitted an opportunity to address the court directly when their fundamental right to a prompt disposition is jeopardized."

VIOLATION OF A RESTRAINING ORDER, G.L. c. 209A

Abuse

Ginsberg v. Blacker, 67 Mass. App. Ct. 139 (2006)

Using CW v. Gordon, 407 Mass. 340, 349 (1990) as a benchmark, the Court concluded that the plaintiff in a 209A proceeding sufficiently established she was reasonably "in fear of imminent serious physical harm" to obtain a restraining order against her husband where she testified that her husband flew into a fit of rage, flailing his hands in her face, screaming at her, chasing her up and down the stairs, and that given his recent erratic and unstable behavior (similar crazed name-calling incidents), she believed that he was going to "snap."　 The fact that her husband had not physically harmed her in the past or during this incident did not diminish her ability to establish this category of "abuse" under the statute.　 　

Smith v. Jones, 67 Mass. App. Ct. 129 (2006)

A district court judge properly granted a temporary ex parte restraining order on the basis of the plaintiff’s testimony that she had received an email from the defendant stating that he wished he could stab the plaintiff in the heart and she was unsure whether the defendant would come after her.　 This was sufficient to demonstrate a "substantial likelihood of immediate danger of abuse" required for a temporary ex parte order. However, there was insufficient evidence to establish that the plaintiff met any of the categories of abuse under 209A, § 1(a)(b) or (c) as required for the 1 year extension of the order because: (1) there was no evidence of attempting to cause or causing physical harm; (2) there was no evidence that the plaintiff was in fear of imminent serious physical harm where she testified that she did not interpret defendant’s threat to stab her literally; and (3) there was no evidence that the defendant caused the plaintiff to engage involuntarily in sex by force, threat, or duress despite the fact that the plaintiff was under 16 and legally incapable of "consenting" to sex, she did not claim she was either forced, threatened or under duress when she engaged in sex with the defendant as required by § 1(c).

Corrado v. Hedrick, 65 Mass. App. Ct. 477 (2006)

A district court judge erred in extending a 209A order out of fear that a situation could become volatile where he expressly found that the plaintiff had failed to demonstrate any category of abuse pursuant to G.L. c. 209A, § 1.

　

Vittone v. Clairmont, 64 Mass. App. Ct. 479 (2005), f.a.r.d., 445 Mass. 1106 (2005)

A district court judge properly granted a permanent restraining order even though the defendant had been incarcerated for the eight years preceding the issuance of the order. The plaintiff, the defendant’s ex-wife, had obtained numerous restraining orders against the defendant prior to the defendant’s incarceration based on the defendant’s physical and sexual abuse of her throughout their marriage. Later in 1994, the defendant was convicted of the rape and sexual assault of two of their children and was sentenced to a nine to twelve year prison term. The prior restraining order had lapsed while the defendant was in prison. In 2002, the plaintiff sought another restraining order when she was notified that the defendant was going to be released on parole. The plaintiff’s fear of imminent serious physical harm was objectively reasonable given the "totality of the circumstances of the parties’ relationship" e.g. the prior restraining orders, sexual and physical abuse, and subsequent rape convictions. In addition, although the defendant did not contact the plaintiff or the children directly for eight years, while in prison the defendant "did what he could to have an impact [on the plaintiff and her children]" including unsuccessful attempts to gain visitation rights with the children, and putting a lien on marital property that was to have been transferred to the plaintiff.

Keene v. Gangi, 60 Mass. App. Ct. 667 (2004)

On appeal of the granting of an abuse prevention order, the Court vacated the order. Where the plaintiff’s apprehension "was unsupported by objective evidence sufficient to show" that she was "in fear of imminent serious physical harm" as required by G.L. c. 209A, § 1, the judge improperly found that the plaintiff met the standard required for obtaining an abuse prevention order.

Doe v. Keller, 57 Mass. App. Ct. 776 (2003)

The hearing judge properly extended a restraining order and issued a permanent order where the initial basis for obtaining the 209A included a rape. The Court echoed the judge’s finding that where the "triggering event (the rape) ‘was particularly egregious’", the judge did not abuse his discretion in finding that the plaintiff still feared the defendants even though there had been no contact between them for two years.

Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284 (2003)

The Court vacated a 209A order taken out by a child’s mother for the child against the child’s father. The father’s conduct towards the child included the following: the father kicked the child while they were sharing a bed, threw a plastic bottle at her, which hit her foot, pinched her, cuffed her under the chin, and told her about his dream involving monsters killing the child. The Appeals Court held that while the father's behavior was inappropriate, it was not sufficient to constitute abuse under G.L. c. 209A, § 1.



Commonwealth v. Fortier, 56 Mass. App. Ct. 116 (2002)

The defendant was convicted of attempting to cause physical harm to the victim where he asked the victim's acquaintance to beat her up and told the acquaintance that he would kill the victim. On appeal, the Court held that the defendant was wrongly convicted because the evidence did not support a finding that the defendant's words alone, without some overt act, constituted an attempt to commit a crime, i.e., an attempt to cause the victim physical harm under G.L. c. 209A, § 1(a).



Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002)

The plaintiff's "subjective and unspecified fear" of the defendant was insufficient to constitute abuse under G.L. c. 209A, § 1. The Court held that in order to determine "whether a defendant's acts rise to the level of abuse,"" the Court must assess whether the "plaintiff's apprehension that force may be used is reasonable."



　

　

　

Dollan v. Dollan, 55 Mass. App. Ct. 905 (2002)

A plaintiff’s "generalized apprehension" of abuse is insufficient to support a finding that the defendant presents a threat of "imminent serious physical harm" to the plaintiff, as required under G.L. c. 209A, §　1.

Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002)

Fear of arrest is an insufficient basis on which to issue a reciprocal abuse prevention order because such fear does not fall within the definition of "abuse" under G.L. c. 209A, § 1. Here, a Probate Court judge improperly granted the plaintiff’s husband a mutual restraining order because he feared that her repeated contacts with him would end in arrest. The Court emphasized that "retaliatory abuse prevention orders should only be allowed if the predicate conditions are shown and not as a prophylactic agent to prevent putative violations."

Jordan v. Clerk of the Westfield Division of the District Court, 425 Mass. 1016 (1997)

Complainant's testimony at a 209A hearing was insufficient to support the issuance of a 209A order against her former husband, who was then incarcerated for crimes committed against her. The court found that the complainant's testimony that she feared her ex-husband and that she feared he knew her address did not constitute abuse as defined in G.L. c. 209A, §1.



Larkin v. Ayer Division of One District Court Department, 425 Mass. 1020 (1997)

The Court declined to decide whether physical manifestations of emotional harm resulting in the aggravation of a preexisting medical condition can constitute "abuse."



Commonwealth v. Jacobsen, 419 Mass. 269 (1995)

The crime of threats in violation of G.L. c. 275, § 2 does not by definition constitute "abuse" as defined in G.L. c. 209A, §1. Police cannot make a "warrantless arrest" for the crime of threats but must comply with the warrant requirements of G.L. c. 275, §§ 2, 3 in order to make an arrest. Crimes of abuse in which police may make a warrantless arrest include the crime of assault. In these situations police should make a determination as to whether the conduct they are investigating rises to an assault or not.

Conduct

Pike v. Maguire, 47 Mass. App. Ct. 929 (1999)

The probate court judge properly denied the defendant’s motion for reconsideration on the issuance of a permanent restraining order. The defendant received a fair hearing to decide whether his ex-wife’s restraining order should be extended or made permanent. The only criterion for extending an original restraining order is a showing of continued need for the order. G. L. c. 209A, § 3. The probate court judge was entitled to credit the victim's testimony and could have drawn the conclusion that the plaintiff's apprehension was reasonable due to (1) the defendant's record of violations of a prior order; (2) the defendant’s emotionally charged statements during the hearing; and (3) the fact that the defendant failed to testify at the extension hearing.



Commonwealth v. Chartier, 43 Mass. App. Ct. 758 (1997)

At trial for complaints of violation of a 209A order and malicious destruction of property, evidence of prior harassing conduct was admissible to show the defendant's pattern or course of conduct toward the victim to give the jury the "whole picture". However, a limiting instruction by the judge was needed. Prior convictions of 209A orders under G.L. c. 233, §21 admissible for impeachment purposes but not substantively.



Commonwealth v. Delaney, 425 Mass. 587 (1997), cert. den., 522 U.S. 1058 (1998)

The Commonwealth was allowed to join for trial six charges of violating a protective order, one charge of stalking, and one charge of intimidating a witness because the incidents all demonstrated a pattern of conduct by the defendant toward the victim. There was evidence of the defendant's unhappiness that the relationship ended and the defendant demonstrated no prejudice from the joinder.



Larkin v. Ayer Division of One District Court Department, 425 Mass. 1020 (1997)

Complainant’s testimony at a 209A hearing that petitioner’s conduct in sending the complainant notices of a future lawsuits and court proceedings aggravated her ulcers was insufficient to warrant an extension of a 209A order because the conduct did not rise to the level of "imminent serious physical harm."



Commonwealth v. Nom, 426 Mass. 152 (1997)

At a murder trial, evidence that the victim-wife twice obtained protective orders against the defendant-husband, the first of which was obtained four months prior to the killing, was admissible to show the status of the relationship and the defendant's motive to kill despite the defendant’s argument that the orders were too remote in time and that the relationship had improved.

Domestic Violence Registry

Smith v. Jones, 67 Mass. App. Ct. 129 (2006)

The defendant was not entitled to expungement of a restraining order against him from the statewide domestic violence registry where the plaintiff did not perpetrate a fraud on the court, but merely fell short of adequately establishing "abuse" under G.L. c. 209A.

Comm’r of Probation v. Adams, 65 Mass. App. Ct. 725 (2006)

A district court judge has the inherent authority to expunge a civil abuse prevention order, issued pursuant to G.L. c. 209A, from the statewide domestic violence registry when the order was obtained through a fraud on the court.

Vaccaro v. Vaccaro, 425 Mass. 153 (1997)

A district court judge has no statutory or other authority to order that a record of the issuance of a temporary 209A order be expunged from the statewide domestic violence registry.

Duration of Abuse Prevention Orders

Iamele v. Asselin, 444 Mass. 734 (2005)

The standard for granting an extension of an abuse prevention order is similar to the standard for granting the initial order. The plaintiff must show reasonable fear of imminent serious physical harm by a preponderance of the evidence. The judge must consider the totality of the conditions that exist at the time the plaintiff seeks an extension, viewed in the light of the initial abuse prevention order. Specifically, the judge should consider: (1) the basis for the initial order; (2) defendant’s violations of the order; (3) ongoing child custody or other litigation that engenders hostility; (4) the parties’ demeanor in court; (5) the likelihood that the parties will encounter one another in the course of their usual activities; and (6) significant changes in the circumstances of the parties.

Mitchell v. Mitchell, 62 Mass. App. Ct. 769 (2005)

A probate court judge improperly allowed the defendant’s motion to vacate/modify the plaintiff’s restraining order where the defendant asserted that the plaintiff was no longer in fear of imminent harm because the two had been together on a few occasions while the 209A order was in effect. In order to vacate a 209A order retroactively, the party seeking relief must establish the existence of newly discovered evidence that was not available to them at the time of the order by the exercise of reasonable diligence. In addition, the evidence must have been material, admissible and important enough to affect the result at the outset had it been available. The standard to modify a 209A order is more flexible based on a substantial change in circumstances and generally the judge has broad discretion, however, the judge should use a "continuum" paradigm. "The greater the likelihood that the safety of the protected party may be put at risk by a modification, the more substantial the showing the party seeking relief must make."



Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003)

The judge improperly refused to exercise his discretion to grant the plaintiff a permanent restraining order. The judge could not categorically refuse to exercise his discretion based solely on personal preference.



Jones v. Gallagher, 54 Mass App. Ct. 883 (2002)

A permanent restraining order should not be granted based solely on the fact that a judge previously found that the plaintiff required a 209A order to protect her from abuse. Instead, the reviewing judge must make a new finding that the plaintiff still requires protection from abuse. The burden is on the plaintiff to justify the continuance of the order.



Crenshaw v. Macklin, 430 Mass. 633 (2000)

The judge erred in refusing to issue a permanent restraining order pursuant to G.L. c. 209A, § 3, where the statute explicitly grants the authority to issue such an order. Thus, at a 209A abuse prevention order renewal hearing, the judge has the authority to 1) permit the existing order to expire without renewal; 2) issue a permanent order; or 3) issue an order for a shorter duration of "any time reasonably necessary" to protect the abused person. The Court also noted that their previous decision in Champagne v. Champagne, 429 Mass. 324 (1999), should be read to conform to their decision in Crenshaw.

Family or Household Member

Aguilar v. Hernandez-Mendez, 66 Mass. App. Ct. 367 (2006)

"Family" and "household member" as defined by G.L. c. 209A, § 1 are interpreted broadly. The defendant, the son of the plaintiff’s boyfriend who resided with the plaintiff and his father (her boyfriend) for two years before he went to live elsewhere was a "household member" and had a "family-like" connection with the plaintiff and thus fell within the ambit of the statute.

C.O. v. M.M., 442 Mass. 648 (2004)

The judge erred in finding that the plaintiff in a 209A case had meet her burden of establishing her 15 year-old daughter was involved in a "substantive dating relationship" where the plaintiff testified that the defendant had "taken her daughter to the movies", but that she was "not really sure" of the nature of the relationship, but that they did "go out." The court noted that in determining whether the requisite relationship exists, the judge must weigh the factors set forth in the statute and should not substitute other factors, such as the age of the alleged victim or whether a criminal case is pending. The court also made clear that a defendant still has a right to present evidence and cross-examine witnesses at a 209A hearing regardless of a pending criminal case.

Turner v. Lewis, 434 Mass. 331 (2001)

A "paternal grandparent of a child whose parents were not married is 'related by blood' to the child's mother, and thus, has a right to invoke protection from domestic abuse under G.L. c. 209A."



Heather Sorgman v. Marc Sorgman, 49 Mass. App. Ct. 416 (2000)

The Court rejected defendant’s argument that G.L. c. 209A, § 1, defining "family or household member" did not include protection for ex-stepchildren. The language of the statute is clear. The victim was both related to the defendant and had lived in the same household with the defendant for ten years.

Intent

Commonwealth v. Delaney, 425 Mass. 587 (1997), cert. den., 522 U.S. 1058 (1998)

The Commonwealth need not prove that the defendant intended to violate a 209A order merely that the defendant knew of the order and violated a criminal provision of the order.



Commonwealth v. Collier, 427 Mass. 385 (1998)

Where the evidence fairly raises an issue as to the defendant's intent (whether directly or indirectly) or acquiescence in the conduct of a third party, the Commonwealth must prove that the defendant intended to violate the restraining order and the jury should be instructed that the defendant cannot be convicted unless he intends to commit the act that resulted in the violation of the restraining order.

Mutual Restraining Orders

Sommi v. Ayer, 51 Mass. App. Ct. 207 (2001)

Reciprocal orders between the parties are considered mutual restraining orders under G.L. c. 209A, § 3, regardless of whether the orders are obtained within the same court or proceeding. The judge is "required to make specific written findings of fact" in support of the issuance of mutual restraining orders pursuant to G.L. c. 209A, § 3. Where the judge did not make such written findings in this case, the Appeals Court vacated the orders.

No Contact Provision

Commonwealth v. Consoli, 58 Mass. App. Ct. 734, f.a.r.d., 440 Mass. 1103 (2003)

The defendant was convicted of violating a no contact order that protected his ex wife and young son. The charges arose from a chance encounter wherein the defendant responded to his son's greeting. When the plaintiff intervened and reminded the defendant about the restraining order, he called her a derogatory name. The Court held that the defendant's "brief, civil, conversation-ending response" to his son's greeting did not violate the no contact order as long as the response does not invite further conversation. However, the defendant violated the order when he used the occasion to further abuse the plaintiff by calling her a name.



Commonwealth v. Raymond, 54 Mass. App. Ct. 488 (2002)

The trial judge improperly denied the defendant’s request for an instruction on incidental contact where the jury could have found from the evidence that the defendant was not aware of the victim’s presence prior to the point of contact.



Commonwealth v. Leger, 52 Mass. App. Ct. 232 (2001)

The defendant was entitled to an instruction on incidental contact where the defendant's wife had a valid "no contact" order against him that did not govern the defendant's contact with his daughter. Therefore, it was reversible error not to instruct the jury that if the defendant's contact with his wife was incidental to his attempt to speak to his daughter, then the jury could find the defendant not guilty of violating the "no contact" order. The Court also noted that the incidental contact in this case was non-abusive, citing Commonwealth v. Silva, 431 Mass. 194 (2000).



Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, f.a.r.d., 434 Mass. 1101 (2001)

The defendant violated a no contact order when he called the victim from Bridgewater State Hospital. The Commonwealth was not required to prove that the telephone contact placed the victim in fear, only that the contact violated a valid no contact order. The Court noted in footnote 8 that even if the defendant had the right to call the victim to obtain information about his family or grandchildren, his verbal abuse and threats transformed his contact into a "substantive violation" of the order.



Commonwealth v. Silva, 431 Mass. 194 (2000)

Where a no-contact order permitted the defendant to contact his children at his former wife’s house during specified times, the Court held that the defendant "violated the order when he went beyond permissible incidental contact by using abusive and threatening language directed at his former wife." The Commonwealth was not required to prove that the defendant had an unlawful purpose in making the telephone calls. The Court also held that the no-contact order was not ambiguous because a reasonable man in the defendant’s position could not have thought that the restraining order provision, which allowed him to contact his children, also sanctioned his abusive behavior.



Commonwealth v. Morrison, 429 Mass. 511 (1999)

Where victim had no-contact order against defendant and police knew of the order, officers permissibly entered victim's house without a warrant and against victim's will because police had reason to believe defendant was present and violating the order and a witness had seen the two arguing prior that evening.



Commonwealth v. Russell, 46 Mass. App. Ct. 307, f.a.r.d., 429 Mass. 1104 (1999)

Evidence of a call placed by a third party (who was in jail with the defendant) to the defendant's wife, together with another phone call, days later, from the defendant to his wife, allowed the jury to infer that the defendant, on both occasions, violated the no-contact order.



Commonwealth v. Johnson, Sr., 45 Mass. App. Ct. 473 (1998)

Where "no contact" provision was not marked on the restraining order, judge's instruction to jury that defendant could be found guilty if the jury found abuse or contact, was erroneous, and even though not objected to, calls for a vacated verdict.



Commonwealth v. Cove, 427 Mass. 474 (1998)

Defendant found not guilty of violating a restraining order because evidence of telephone company records that the defendant placed phone calls to a number listed as his wife's employer was insufficient to prove that the defendant contacted his wife. There was no evidence to show that the defendant reached his wife or her "voice mail." The defendant also challenged the jury instruction where the instruction improperly allowed the jury to convict him of "attempted contact." The Court refused to hear this issue. By the tone of the opinion, however, it appears that "attempted contact" is insufficient unless the restraining order specifically states as such.



Commonwealth v. Picariello, 40 Mass. App. Ct. 902 (1996)

Evidence of underlying abuse for issuance of 209A order was inadmissible because it was highly inflammatory and not probative, where issue at trial was whether the defendant had contacted the victim per the order and defendant argued that he never went to the victim's home.



Commonwealth v. Butler, 40 Mass. App. Ct. 906 (1996)

The "no contact" provision of G.L. c. 209A is not unconstitutionally vague. Evidence sufficient to prove defendant violated a protective order where defendant anonymously sent roses to the victim and florist identified the defendant at trial.



Commonwealth v. Laskowski, 40 Mass. App. Ct. 480 (1996), f.a.r.d., 423 Mass. 1101 (1996)

The defendant was convicted of violating the "no contact" provision of the G.L. c. 209A restraining order by telephoning the victim (former girlfriend). Defendant claimed on appeal that due process was violated by the restraining order which prevented him from contacting the victim's child. The Court held that the defendant's challenge to the conviction is unrelated to the conviction itself. Further, the defendant's avenue of redress was to file a motion for modification pursuant to G.L. c. 209A, § 3, Brossard v. West Roxbury Div. of the Dist. Ct., 417 Mass. 183, 185 (1994), or an appeal to a single justice pursuant to G.L. c. 211, § 3, Callahan v. Boston Mun. Ct., 413 Mass. 1009, (1992); Frizado v. Frizado, 420 Mass. 592, 593 (1995).



Commonwealth v. Robicheau, 421 Mass. 176 (1995)

Evidence that defendant/husband told victim/wife to "shut the f--- up and he'd do exactly as he pleased," "gave [her] the finger," telephoned victim and threatened to kill her, and evidence of defendant's prior misconduct admissible where victim testified defendant's conduct scared and upset her and she believed he would kill her. Victim's fear not necessary or determinative in prosecution for violation of a 209A order, specifically the "Refrain from Abuse" portion of the order, but is material.



Commonwealth v. Tate, 34 Mass. App. Ct. 446, f.a.r.d., 415 Mass. 1106 (1993)

The defendant violated the no contact condition of probation when he spoke to the victim and looked at her from the top of a street located approximately a ten minute walk from where the victim lived. The judge was not required to credit the defendant's innocent exculpatory explanations for the contact.

Notice

Commonwealth v. Griffen, 444 Mass 1004 (2005)

The trial judge erroneously excluded an abuse prevention order from evidence based on improper service. The officer attempted to notify the defendant, who was homeless, by calling one of the phone numbers for the defendant provided by the plaintiff. The officer asked for the defendant, the person on the other end answered in the affirmative, and then the officer read the terms of the order verbatim. Generally, G.L. c. 209A, § 7 requires that the defendant must be served with copies of the complaint, order, and summons unless otherwise ordered by the court, however, failure to do so does not make the order inadmissible. The order is still relevant to whether the defendant had the requisite knowledge of the order and should have been admitted.



Commonwealth v. Welch, 58 Mass. App. Ct. 408 (2003)

The Commonwealth presented insufficient evidence that the defendant had notice, either actual or constructive, of a restraining order where: the defendant was not served with the order either in hand or at his last known address; the victim's testimony regarding telephone conversations in which she and the defendant discussed the order was not sufficiently detailed to prove that the defendant had actual knowledge of the order; the victim and defendant always worked separate shifts at the same company even before the restraining order had issued; and the defendant's act in sending his son back across the street to the victim after the victim yelled to her son that he could not go with the defendant because of the restraining order was inadequate where there was no evidence presented that the defendant heard the victim's statement.



Commonwealth v. Henderson, 434 Mass. 155 (2001)

An incarcerated defendant received adequate notice that a temporary restraining order against him had been extended because he was initially served with the temporary order, which contained language that the order may be extended or modified if the defendant did not appear at the ten day hearing. For this reason, personal service of the extended order was not required. In addition, the defendant made no attempt to attend the ten day hearing through requesting a writ of habeas corpus, was familiar with the process, and was represented by counsel at all times.



Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, f.a.r.d., 434 Mass. 1101 (2001)

A showing that the defendant was served with a 209A order is "strong evidence" that the defendant knew what conduct was prohibited by the order. Even assuming failure of service, evidence that the victim told the defendant a few times that he was not supposed to call and the defendant responded the he "didn't believe" in restraining orders was sufficient to prove that the defendant had actual knowledge of the terms of the order.



Commonwealth v. Daniel Silva, 431 Mass. 401 (2000)

Evidence from a police that the defendant’s mother told him that she would give the defendant the 209A order and that the defendant was already aware of the order was sufficient to prove that the defendant had knowledge of the order.



Commonwealth v. Crimmons, 46 Mass. App. Ct. 489 (1999)

Where officer failed to mark on the 209A form how he served the defendant, evidence of notice was inferred from a completed return of service notice, the officer marked three hours as the time it took to serve, and officer had knowledge of defendant’s address.



Commonwealth v. Munafo, 45 Mass. App. Ct. 597, f.a.r.d., 428 Mass. 1110 (1998)

Notice requirement is met where defendant received notice of the 209A order even though it was not accompanied by the required summons and complaint. Defendant received in-hand service of the order in the courthouse, and defendant had knowledge of the 209A process.



Commonwealth v. Molloy, 44 Mass. App. Ct. 306, f.a.r.d., 427 Mass. 1107 (1998)

At a trial of a complaint for violation of a protective order that had been extended four times pursuant to G.L. c. 209A, § 3, the Commonwealth failed to demonstrate that the defendant either was served a copy of the final extended order or had actual or constructive knowledge of its existence and terms. The Commonwealth has the burden to prove that the defendant knew the terms of the order in question.



Commonwealth v. Delaney, 425 Mass. 587 (1997), cert. den., 522 U.S. 1058 (1998)

On August 31, 1992, the victim obtained a temporary restraining order against the defendant, and service was made by leaving the order at the defendant's last and usual abode. The defendant did not appear at the September 11, 1992, hearing. The order was extended but there was no evidence that the extended order was served on the defendant. However, there was evidence that, subsequent to September 11th the defendant knew of the existence of a restraining order. Held, the jury could have found that the defendant had actual and constructive notice of the temporary order which stated that, should he fail to appear at the September 11th hearing the order shall continue in effect.



Commonwealth v. Chartier, 43 Mass. App. Ct. 758 (1997)

The Court upheld the conviction for a 209A violation where the defendant was served with the preliminary order and did not appear at the ten-day hearing when the Court extended the order for one year. The Court reiterated its holding in Delaney and stated "He cannot, by avoiding the hearing and, thereby, further notification, defend on the basis of lack of notice."

Relief

Lamarche v. Lussier, 65 Mass. App. Ct. 887 (2006)

A plaintiff could not obtain a restraining order against a defendant where the defendant was not subject to personal jurisdiction in Massachusetts. The defendant never resided here, none of the conduct occurred here and there were no other contacts with the state that justified the use of the long arm statute. Moreover, the defendant’s appearance at the hearing did not amount to waiver of lack of personal jurisdiction where the defendant had objected to personal jurisdiction throughout the proceeding.



Sertel v. Kravitz, 54 Mass. App. Ct. 913 (2002)

An abuse prevention order entered by a Probate Court judge in a divorce proceeding pursuant to G.L. c. 208, § 18 is appealable by either party, upon issuance, as long as it is an order in which violation will result in criminal penalties.



Fabre v. Walton, 436 Mass. 517 (2002)

A defendant’s remedy for the issuance of an abuse prevention order against him lies in an appeal of the judge’s order, not in a civil action for abuse of process against the victim who petitioned for relief under G.L. c. 209A and showed a reasonable factual basis for the issuance of the 209A order.



Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998)

A person against whom an abuse prevention order has issued may challenge the lawfulness of the order even after it expired because the person may continue to be adversely affected by the entry of the order in the criminal records system.



Zullo v. Goguen, 423 Mass. 679 (1996)

In order to promote uniformity and consistency, all appeals of 209A orders must be filed in the Appeals Court. This changes the prior practice of appealing 209A orders by way of G.L. c. 211, § 3.

Stay Away

Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785, f.a.r.d., 439 Mass. 1106 (2003)

The defendant was ordered to stay away from the victim's workplace pursuant to a valid restraining order. The defendant violated the order when he drove within forty yards of the workplace, honked his horn, yelled obscenities, and made threats against the victim's new boyfriend/coworker. The fact that the victim was home sick that day was not a valid defense because violation of the order was not dependant on the victim's presence in the workplace.



Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002)

A probate Court judge properly exercised his discretion to deny the defendant’s request to modify an abuse prevention order that ordered the defendant to stay at least 500 yards away from the plaintiff and one mile from her residence. Where the defendant had been previously convicted for assaulting and beating the plaintiff and illegal possession of a machine gun and silencer, the relief ordered was warranted.



Commonwealth v. Finase, 435 Mass. 310 (2001)

The defendant was ordered to stay at least 100 yards away from the victim and he failed to do so. The Court held that a violation of the 100 yard stay away order was a violation of the broader provision that he not contact the victim and thus was a prosecutable offense under G.L. c. 209A, § 7.



Commonwealth v. Stewart, 52 Mass. App. Ct. 755 (2001)

The victim’s former husband was ordered not to come within 50 yards of the victim. The visitation provision of the restraining order, however, "implied an exception to the stay away provision for the limited purpose of driving up to the curb to drop off and pick up the children." The court held that the defendant violated the stay away order when he left his car to walk his son into the foyer of the apartment building because, in doing so, he left the "protective bubble" of his car and entered into the victim’s "protective zone" created by the 50 yard stay away order. The Court also noted that the violation of the stay away order was properly prosecuted as a statutory offense.

STALKING, G.L. c. 265, §§43(a), (b) and (c)

General Cases

Commonwealth v. Hughes, 59 Mass. App. Ct. 280, f.a.r.d., 440 Mass. 1107 (2003)

The defendant was convicted of stalking the victim in violation of a restraining order. At trial, the Commonwealth introduced evidence that while in jail the defendant told his brother that if the victim had been afraid of the defendant before, she should be more afraid of him now. The defendant's brother responded that the defendant would have to go through him to get to the victim. The defendant said that he "would go around" his brother. The defendant's brother, who had previously acted as an intermediary between the victim and defendant to arrange for child visitation, did not communicate this threat to the victim. On appeal, the Court held that the defendant's statements satisfied the Commonwealth's burden of proof on the threat element of stalking because the jury could have found that the defendant intended that his statements would be passed onto the victim.



Commonwealth v. Bibbo, 50 Mass. App. Ct. 648 (2001)

Where the defendant was charged with unarmed burglary, there was sufficient evidence to prove that the defendant broke and entered into the victim's house with intent to stalk the victim. The Court held that the burglary was the "culmination of a pattern of persistent harassment and following" sufficient to constitute the "two or more acts" required for the underlying felony offense of stalking, even though the burglary itself was only a single event.



Commonwealth v. Jenkins, 47 Mass. App. Ct. 286, f.a.r.d., 430 Mass. 1107 (1999)

Trial judge's failure to include the word "knowing" in stalking instruction is of no import where "willfully and knowingly" included, and that type of conduct is intentional by design, in contrast to that which is thoughtless or accidental.



Commonwealth v. Cruz, 424 Mass. 207 (1997)

The defendant's pattern of aggression and violence toward his victim which created a reasonable apprehension on her part that she was in danger of imminent physical harm was sufficient in proving that the defendant murdered and stalked his estranged girlfriend.



Commonwealth v. Potter, 39 Mass. App. Ct. 924 (1995)

A defendant charged with stalking, who continues stalking his victim after criminal proceedings have commenced, may also be charged with intimidation of a witness under G.L. c. 268, §13B.

Stalking by Harassing

Commonwealth v. Matsos, 421 Mass. 391 (1995)

Where the defendant was charged with stalking by harassing, evidence that the defendant's more than forty letters, some of which contained explicit threats, was sufficient to prove he intended to place the victim in fear of imminent bodily injury. Moreover, it was improper for the trial judge to exclude some of the letters from evidence on the grounds of repetition, irrelevance, and undue prejudice because, in stalking cases, the Commonwealth is entitled to present to a jury admissible evidence of the totality of the defendant's conduct toward the victim.

Stalking by Following

Commonwealth v. Martinez, 43 Mass. App. Ct. 408, f.a.r.d., 426 Mass. 1103 (1997)

The "following" prong of the stalking statute, which criminalizes "willfully, maliciously and repeatedly following a victim", requires more than two instances of following. Presumably, this interpretation will be applied to any cases pending on direct appeal. Further, the Commonwealth is entitled to present in a stalking case "evidence of the totality of the defendant's conduct toward the victim."

THREATS, G.L. c. 275, § 2

Commonwealth v. Kerns, 449 Mass. 641 (2007)

In interpreting the communication element of threatening to use deadly weapons (G.L. c. 269, § 14(b)), the SJC clarified that when proving threatening to commit a crime pursuant to G.L. c. 269, § 2 the Commonwealth need not prove that the threat was actually communicated to the intended victim (as defined in the first element of the Model Jury Instructions for Use in the District Court § 5.03 (1995)) , but rather must prove that the "threat was made in circumstances which, viewed objectively, could have caused the intended victim to fear that the defendant had both the intention and ability to carry out the threat."



Commonwealth v. Simmons, 69 Mass. App. Ct. 348 (2007)

The following evidence admitted during the defendant’s probation revocation hearing established by a preponderance of the evidence that the defendant made threats intending to reach his former girlfriend. While on probation for restraining order violations, during a court-ordered substance abuse evaluation the defendant told the therapist that he was going to kill his former girlfriend and that he was going to "shoot" her. Prior to the evaluation, the therapist informed the defendant that any threats of violence to himself or others would be reported to the "appropriate authorities." After the session, the therapist notified the probation department who notified the defendant’s former girlfriend.

Commonwealth v. Maiden, 61 Mass. App. Ct. 433 (2004)

A threat must be communicated, but it need not be communicated to the victim as long as the defendant communicates the threat to a person who he believes will pass it on to the victim or to a person who he knows will probably pass it on to the victim. Moreover, the threat need not cause actual fear in the victim. The objective test to apply is "whether the threat by its content in the circumstances was such as would cause the target of the threat to fear that the threatened crime or injury might be inflicted."



Commonwealth v. Furst, 56 Mass. App. Ct. 283 (2002)

The Commonwealth did not prove the intent element of the crime where the defendant asked the third party to murder the victim, and, therefore, it was not likely that he intended the third party to communicate the threat to the victim.



Commonwealth v. Meier, 56 Mass. App. Ct. 278 (2002), f.a.r.d., 438 Mass. 1105 (2003)

When a third party communicates the defendant's threat to the victim, the Commonwealth has the burden to prove that the defendant intended the third party to transmit the threat to the victim. Where the defendant considered the third party and the victim to be "in league with each other", it was likely that the defendant intended the third party to transmit the threat to the victim.