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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Consoli,
Present: Beck, Mason, & McHugh, JJ.
Complaint received and sworn to in
the Salem Division of the District Court Department on
The case was tried before Mary A. Orfanello, J.
Christopher R. Hopkins for the defendant.
James A. Janda, Assistant District Attorney, for the
Commonwealth.
McHUGH, J.
A chance schoolyard encounter between the
defendant, his former wife and their son led to a conversation among the three.
At the time, orders issued pursuant to G. L. c. 209A, § 7, prohibited the
defendant from contacting his son and former wife. As a result, a two-count
complaint soon issued charging the defendant with violating the orders. A jury
trial ensued, and he was convicted on both counts and sentenced to concurrent
terms of probation. On this appeal, the defendant contends that the trial judge
should have given an instruction on intent, and that her failure to excise
certain language from copies of the orders introduced in evidence amounted to
prejudicial error.[1] We affirm.
Up to a point, the Commonwealth and the defendant agree on the material facts.
After the defendant and Evelyn, his wife, were divorced, Evelyn obtained
custody of their son, whom we shall call John. The evidence is not entirely
clear on who obtained custody of the couple's two daughters, one of whom does
not figure in this case and the other of whom we shall call Mary.
John was in elementary school and Mary was in high school when the conversation
of present interest occurred. Because the elementary school building was being
rehabilitated, John and his classmates temporarily attended classes in the high
school building. To keep the high schoolers from mixing with the grade schoolers,
grade school dismissal and parental pickup occurred fifteen minutes before, and
at a different location from, high school dismissal.
On the afternoon of the first day of school in September, 1999, the defendant
and his father went to the school in an automobile to pick up Mary. The
defendant drove and his father sat in the right front passenger seat. Evelyn
and a friend also drove to the school to pick up John. At the time, the
standard language of an effective c. 209A order[2]
prohibited, inter alia, the defendant from contacting
Evelyn or John "in person, by telephone, in writing or otherwise . . .
even if the Plaintiff[s, i.e., Evelyn and John] seem[] to allow or request
contact."[3]
Evelyn arrived at the school and found John waiting at the appropriate spot.
She and John were walking toward Evelyn's parked car when they encountered the
car the defendant was driving as that car moved slowly in thick traffic headed
for the high school pickup location. Everyone agrees that the encounter occurred
purely by chance.[4]
At this point, concordance ends. Evelyn testified that, upon seeing John, the
defendant pulled his car to the side of the road about ten feet from her,
lowered the window next to his father and called out to John "[h]ey, buddy, hey, buddy, how was your first day of
school." According to Evelyn, she intervened just as John was beginning to
say "hi" in response. The defendant testified that, as John saw him
in the slow-moving car, "his face lit up," he said "hi,
pop," and the defendant responded by saying "hi, [John], hi,
buddy."[5]
In either case, it is undisputed that Evelyn jumped between John and the
defendant and told the defendant that he was violating the restraining order by
talking to John. She testified that he responded by saying "fuck you, you
fat bitch." The defendant countered with testimony to the effect that he
responded "[g]o for it, fat stuff," a comment about Evelyn he
directed toward his father and "probably" laced with profanity.[6]
According to Evelyn, a further admonition on her part produced another
"[f]uck you, you fat bitch" from the
defendant. Everyone agrees that whatever conversation occurred was brief and
that the defendant's car moved on toward the high school pickup spot as quickly
as traffic would permit, accompanied as it departed by a "[f]uck you, baldie" from
Evelyn.
Based on that evidence, the defendant contends that he was entitled to an
instruction stating, in essence, that he could not be found guilty of violating
the no contact order unless the Commonwealth proved that he intentionally
initiated the prohibited contact.[7] The
encounter between himself, John and Evelyn was an unplanned event and, on his
view of the evidence, see note 5, supra, the defendant simply responded briefly
and unoffensively to John's greeting. He maintains
that a short, civil response to an unsolicited greeting is not a violation of
the restraining order.
The judge declined to give the precise instructions the defendant requested,
but did instruct the jury that, to prove a violation of the order, the
Commonwealth was required to prove that the defendant communicated with John
"voluntarily and intentionally and not because of mistake, accident,
negligence or other innocent reason."
First, the judge's instruction in fact contained the essence of what the
defendant sought, see note 7, supra, and she was under no obligation to
instruct in the specific or even general language the defendant requested.
Second, as the judge correctly observed, there was nothing
"accidental" about the defendant's verbal interchange with John.
Although the defendant and John found themselves within hailing distance by
chance or accident, the defendant's election to speak to John was an
intentional act, regardless of who initiated their brief dialog.
The defendant finally suggests that the judge should have viewed his request as
seeking an instruction to the effect that conviction required proof of
something more than a short, polite response to John's unsolicited greeting.[8] It may well be that a brief, civil,
conversation-ending response[9] to an unsolicited contact initiated by
the beneficiary of a protective order, particularly when the beneficiary is a
child, would not violate the order itself. Orders of this type, after all, are
issued to protect people from abuse or its likelihood, not to strip away
humanity by enjoining routine civilities responsive to unsolicited greetings.
Indeed, in Commonwealth v. Leger, 52 Mass. App. Ct. 232, 235-237 (2001), we
built on Commonwealth v. Silva, 431 Mass. 194 (2000), to hold that a contact
initiated by a defendant subject to a c. 209A order would not violate the
order if the contact was neither threatening nor uncivil and was incidental to
the defendant's exercise of his right to speak to his children.[10]
In this case, however, we need not decide the point. The defendant's request
for and receipt of an instruction on accidental[11]
contact cannot fairly be viewed as a request that the judge instruct on the
very different subject of an intentional, conversation-ending response to an
unsolicited greeting. "Inherent in the right to present written requests for
instructions and to rulings thereon, see Mass.R.Crim.P.
24(b), 378
Moreover, any error in the judge's failure to give an instruction regarding a
brief, civil, conversation-ending response to any unsolicited greeting by John
did not produce a substantial risk of a miscarriage of justice. See generally
Commonwealth v. Alphas, 430
Under those circumstances, the defendant's comment amounted to a prohibited
"contact" with John and Evelyn even accepting the defendant's
testimony that he directed the comment toward his father. As we stated in
Commonwealth v. Basile,
"Our cases generally interpret 'contact'
broadly; there are many ways to achieve a communication.
If the defendant had directed to John, as he
stood next to Evelyn, a profanity-laden description of Evelyn as "fat
stuff," no one could seriously doubt that the comment would be a
prohibited contact with both. Our broadly protective interpretation of
"contacts," an interpretation fully consistent with the statutory
purpose, means that one cannot undermine a no contact
order by the simple expedient of ricocheting prohibited comments off of third
parties, such as the defendant's father, who are in the vicinity of those whom
the order protects. As a consequence, the defendant's admitted comment violated
both the order protecting Evelyn and the order protecting John. Any instruction
describing the protected nature of the defendant's response to John's greeting
would have had to distinguish between that response and the defendant's
"fat stuff" comment. It is extremely unlikely that a jury so
instructed would have reached a different result.
The defendant's last claim is that the judge should have excised from the
copies of the orders introduced in evidence a portion that read "you are
ordered not to contact the plaintiff . . .
even if the plaintiff seems to allow or request contact." The quoted
language, the defendant urges, was likely to be confusing to the jury and was
inconsistent with what he claims are the purposes of G. L. c. 209A, i.e., to
protect individuals from unsolicited contacts by the defendant, not to protect
them from the consequences of contacts they initiate.
The purpose of the statute, however, is not simply to prevent the consequences
of discrete acts. The statute is designed instead to prevent abuse, however the
abuse might occur. See generally Commonwealth v. Fortier,
Judgments affirmed.
FOOTNOTES:
[1] After filing his notice of appeal, the defendant
filed a motion for new trial. He did not appeal from the subsequent order
denying that motion and we consider no matters raised
therein.
[2] The circumstances surrounding the order's
issuance are here irrelevant. The Commonwealth and the defendant agree that the
order was in effect and the defendant knew of its existence and its content.
[3] The order contained an exception, not here
relevant, that allowed weekly, hour-long supervised visits between John and the
defendant.
[4] In addition to prohibiting "contacts,"
the relevant orders required the defendant to stay one hundred yards away from
Evelyn and John. Nevertheless, the Commonwealth, no doubt considering the
accidental nature of the defendant's closer approach, agreed that the case
would proceed only on its claim that the defendant had violated the order's no
contact provisions.
[5] It is possible that
the defendant testified that he said either "hi, [John], hi, buddy"
or "hi, buddy, how was school?" Unfortunately, the transcript of this
case was made from a tape apparently recorded on the marginal recording
equipment now found in many of our trial courts and, like so many others we
see, is consequently plagued by an "(inaudible)" at a crucial spot.
Here is the exchange as it appears in the transcript after the defendant
testified that he simply said "hi, buddy" in response to John's
unsolicited greeting:
Q. "Okay. Did you
say anything further to [John] at that point?"
A. "Everyone's saying I did. I don't
remember saying anything else, but, '[h]i, buddy, how
was school,' like I said, I don't [inaudible]."
It is impossible to tell from that passage whether the defendant was
agreeing that he said "hi, buddy, how was school," or that he may
have said it, or that he did not remember saying it. The difference between
"hi, buddy" and "hi, buddy, how was school"
is significant, for the latter response explicitly invites further discussion.
Nevertheless, the jury could have adopted the view of the defendant's testimony
most favorable to him, see Commonwealth v. Raymond,
[6] The defendant does not contend that his words
were inaudible to Evelyn and John.
[7] Specifically the
defendant sought two instructions. His first request was for the following:
"The defendant is alleged to have violated
the no contact provision of the restraining order involved herein. Please be
advised that to prove this allegation the Commonwealth must establish beyond a
reasonable doubt that the Defendant intended to contact the alleged victim. It
must be shown that he made some affirmative action with an accompanying mental
element of intent to cause the contact complained of in this matter. It is not
the intent of the law to make accidents and mistakes criminal conduct under
this statute. Therefore the Commonwealth must prove beyond a reasonable doubt
that the Defendant intended to initiate contact involved herein and absent such
proof you must find him not guilty."
The defendant's second request was for this:
"Evidence has been introduced in this case
which you may consider in determining whether the defendant intentionally
committed an act that was a criminal offense, or whether what occurred was a
pure and simple accident.
"In considering such evidence, please keep
in mind that the Commonwealth must prove beyond a reasonable doubt that what
occurred was not an accident. If the Commonwealth has failed to prove to you
beyond a reasonable doubt that [what] occurred was not an accident, then you
must find the defendant not guilty.
"An 'accident' is defined as an unexpected happening that occurs
without intention or design on the defendant's part. It means a sudden,
unexpected event that takes place without the defendant's intending it."
[8] The defendant makes a similar argument regarding
his exchange with Evelyn because, under any view of the evidence, he was
responding to a contact Evelyn initiated. The argument is wholly unpersuasive.
Even his own version of his response, see supra at ,
stripped that response of any protection it might otherwise have enjoyed.
[9] There is a difference between a response that
civilly terminates or stifles further discussion and one that invites the
discussion's enlargement. See note 5, supra.
[10] Contrary to the defendant's suggestion, neither
Silva nor Leger require the Commonwealth to prove that
the defendant acted with intent to violate the order. Although the Commonwealth
is required to prove that the defendant acted intentionally, it is not required
to prove that the defendant acted with intent to violate the order.
[11] In an effort to take advantage of the holding
in Leger and the dictum in Silva, the defendant uses the term accidental and
incidental as if they were interchangeable and characterizes his contact with
John as "incidental." The terms are not synonymous and sound analysis
requires distinguishing between them. The contacts at issue in Silva and Leger
were "incidental" in the sense that they were preliminaries necessary
for exercise of the defendant's right to contact his children. Commonwealth v.
Silva, 431
[12] The witness's testimony about the content of
that remark differed, however, both from the defendant's testimony and,
although slightly, from Evelyn's.