|
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. Delaney, 5
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
[425
Marcia H. Slingerland,
Assistant District Attorney, for the Commonwealth.
Before WILKINS, C.J., and ABRAMS, LYNCH,
O'CONNOR and GREANEY, JJ.
ABRAMS, Justice.
On
The
following facts are not in dispute. On
There
was evidence from which the jury could have found the following facts. On
On
appeal, the defendant argues that, because he never was served with the
extended order he was charged with violating, the judge improperly asserted
jurisdiction over this case and denied him his due process rights under the
Fourteenth Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. The
defendant also argues that the Commonwealth improperly joined the charges
against him; he alleges error in the
jury instructions and claims that the judge's biased treatment of defense
counsel deprived him of his right to a fair trial. Finally, the defendant claims that his motion
for a new trial was improperly denied
because the Commonwealth's closing argument distorted the evidence against him.
(FN2)
[1]
1. Failure to serve the extended order. The defendant first argues that the failure
to serve him with a copy of the extended order deprived the District Court
judge of subject matter jurisdiction over his case. Because it is clear that the District Court
had subject matter jurisdiction, (FN3) we treat the defendant's argument as
asserting that the statute requires that there be [425 Mass. 590]
personal service on the defendant before he can be convicted of violating the
order. We conclude that personal service
of the extended order is not required.
General
Laws c. 209A, § 7, requires that a copy of an order issued under §§ 3, 4, or 5
of G.L. c. 209A be served on a defendant. (FN4)
The defendant argues, therefore, that, absent such service, he cannot be
convicted of violating an order issued pursuant to G.L. c. 209A. The defendant's argument, however, [425 Mass. 591] ignores the fact that the temporary order was served on him at his last and usual place of abode and that
the evidence warranted a finding that he had knowledge of the order. This order warned the defendant that, if he
failed to appear, "an extended or expanded [o]rder
may remain in effect." (FN5)
Section 4 mandated that "the temporary order[ ] shall continue in
effect without further order of the court
" when the defendant fails to appear (emphasis added). (FN6) The jury could have found that the defendant
had actual and constructive notice of the order and that it continued in effect
after the hearing date. In these
circumstances the service of the extended order on the defendant was not a
prerequisite to his prosecution for violating the terms of the order. This, however, does not end our inquiry. The defendant also argues that prosecuting a
defendant for violating an order that has not been served on him violates the
defendant's due process rights.
As
the defendant points out, "[t]he fundamental requisite of due process is
an opportunity to be heard at a meaningful time and in a meaningful
manner." Matter of Kenney, 399 Mass. 431, 435, 504
N.E.2d 652 (1987). See Langlitz v. Board
of Registration of Chiropractors, 396 Mass. 374, 376, 486 N.E.2d 48 (1985); LaPointe v. License Bd. of Worcester, 389 Mass. 454,
458, 451 N.E.2d 112 (1983). The
defendant, however, does not argue that he was deprived of an opportunity to be
heard before the judge entered the extended order. (FN7) Apparently, the defendant's argument is that,
because he was not served with a copy of the extended order, he was precluded
from moving to have the extended order vacated.
G.L. c. 209A, § 3 ("[t]he court may modify its order at any
subsequent time [425 Mass. 592] upon motion by either
party"). The ex parte
order informed the defendant that an extended order may be entered against him
if he did not appear at the hearing.
This information was certainly sufficient to put the defendant on
notice, for "[n]otice of facts which would
incite a person of reasonable prudence to an inquiry under similar
circumstances is notice of all the facts which a reasonably diligent inquiry
would develop." Commonwealth v. Olivo,
369 Mass. 62, 69, 337 N.E.2d 904 (1975), quoting Essex Nat'l Bank v. Hurley, 16 F.2d 427, 428 (1st Cir.1926). Indeed, a party may not "shut his eyes
to the means of knowledge which he knows are at hand, and thereby escape the
consequences which would flow from the notice if it had actually been
received." Commonwealth v. Olivo,
supra, quoting NLRB v. Local 3,
Bloomingdale Dist. 65, Retail, Wholesale & Dep't Store Union, 216 F.2d
285, 288 (2d Cir.1954). Thus, the
defendant, who with reasonable inquiry could have discovered that the temporary
order had been extended, cannot be heard to complain that he was deprived of an
opportunity to seek to have that extended order vacated.
Due
process also requires that a person be given a "reasonable opportunity to
know what the order prohibited, so that he might act accordingly."
Commonwealth v. Butler, 40 Mass.App.Ct.
906, 907, 661 N.E.2d 666 (1996). See Commonwealth v. Freiberg, 405 Mass.
282, 289, 540 N.E.2d 1289, cert. denied, 493 U.S. 940, 110 S.Ct.
338, 107 L.Ed.2d 327 (1989) (due process requires that individuals receive fair
notice of conduct proscribed by statute); Department of Youth Servs.
v. A Juvenile, 398 Mass. 516, 522, 499 N.E.2d 812 (1986) (same);
Commonwealth v. Williams, 395 Mass. 302, 304, 479 N.E.2d 687 (1985),
quoting Kolender
v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,
1858, 75 L.Ed.2d 903 (1983) ("penal statute must 'define the criminal
offense with sufficient definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement' "). Clearly,
a showing that a defendant was served with a copy of a court order is strong
evidence that a defendant had knowledge that certain conduct would not be
permitted and could result in a criminal conviction. The failure of such service, however, is not
fatal where the Commonwealth can prove beyond a reasonable doubt that the
defendant had actual knowledge of the terms of the order. Bongiovi
v. LaBeet, 155 A.D.2d 320, 321, 547 N.Y.S.2d 292
(1989) ("[a]t any rate, respondent conceded that she was, in fact, aware
of the order of protection and, therefore, personal service need not be
demonstrated"). Cf. [425 Mass. 593] State v. Delap, 466 N.W.2d 264, 269 (Iowa.Ct.App.1990) (where defendant
argues order not sufficiently clear, definite and unambiguous to support
contempt adjudication irrelevant because defendant had actual knowledge of
"no contact condition" in order and consequences of violating
condition). Indeed, as long as a
defendant had actual knowledge of the terms of the order, there is no danger
that a defendant will be convicted of conduct not known to be violative of a court order.
Cf. Lambert v. California, 355
U.S. 225, 229, 78 S.Ct. 240, 243, 2 L.Ed.2d 228
(1957) (where there was "absence of an opportunity either to avoid the
consequences of the law or to defend any prosecution brought under it,"
defendant's conviction violated due process).
We
conclude then that the failure to serve a copy of the extended order on the
defendant is not a bar to charging him with violating that order. Failure to serve the defendant, however, with
a copy of the extended order is, of course, relevant to a determination as to
whether the defendant possessed the knowledge required to convict him of
violating the order. See note 5, supra.
Evidence that the ex parte order delivered to
the defendant's last and usual address was actually received warrants the
conclusion that the defendant had actual knowledge of the terms of the extended
order, as does the defendant's testimony that, following his arrest after the
September 28 incident, he was aware that there was a protective order against
him.
[2]
2. Joinder. Prior to trial, there was a joinder of numerous charges pending against the defendant.
(FN8) The defendant argues that the
offenses joined did not involve a "pattern of conduct" and that he
was severely prejudiced by the joining of these charges. We disagree.
A
judge's decision on "whether joinder is
appropriate is committed to the sound discretion of the trial judge."
Commonwealth v. Montanez, 410 Mass. 290, 303, 571 N.E.2d 1372
(1991). See Commonwealth v. Shelton, 37 Mass.App.Ct.
964, 964, 643 N.E.2d 48 (1994). The
defendant bears the burden of demonstrating that prejudice will [425 Mass. 594] result from a failure to sever the charges. Commonwealth v. Gallison, 383 Mass. 659, 671, 421 N.E.2d 757
(1981). Indeed, Mass. R.Crim. P. 9(a)(3),
378 Mass. 859 (1979), provides that where offenses are related, "[t]he
trial judge shall join the charges for trial unless he determines that joinder is not in the best interests of justice."
Related
offenses are defined in part as "aris[ing] out of a course of criminal conduct or series of
criminal episodes connected together or constituting parts of a single scheme
or plan." Mass. R.Crim.
P. 9(a)(1), 378 Mass. 859 (1979). We
have stated that offenses are related if the evidence "in its totality
shows a common scheme and pattern of operation that tends to prove all the
indictments." Commonwealth v. Feijoo,
419 Mass. 486, 494‑495, 646 N.E.2d 118 (1995). Time and space play an important role in
determining whether offenses are related offenses for the purposes of joinder. See Commonwealth v. Mamay,
407 Mass. 412, 417, 553 N.E.2d 945 (1990); Commonwealth v. Cruz, 373 Mass. 676, 690,
369 N.E.2d 996 (1977).
In
the instant case, the judge joined for trial the charges of violating a c. 209A
order, stalking, and intimidating a witness.
All the incidents giving rise to the charges involved the same
victim. All the incidents occurred
between March and November of 1992;
indeed, the six counts of c. 209A violations, which include the five
counts of which the defendant was ultimately convicted, occurred within an
approximate eight‑week period.
Thus, the offenses charged demonstrated a pattern of conduct by the
defendant toward the victim because of his unhappiness with the ending of their
relationship and his desire to reunite with her. See
Commonwealth v. Feijoo, supra at 495, 646 N.E.2d
118 (joinder appropriate where offenses indicated scheme
whereby defendant used his position as karate teacher to induce students to
engage in homosexual activity); Commonwealth v. Mamay,
supra at 416, 553 N.E.2d 945 (joinder appropriate
where offenses indicated scheme whereby defendant used his position of
authority and trust to commit sexual crimes on female patients visiting his
office). As such, evidence of each
offense would have been admissible at trials for a separate offense. See
Commonwealth v. Feijoo, supra. Indeed, if the charges were tried
separately, much testimony would be duplicated at each trial merely establishing
the relationship between the victim and the defendant. See
Commonwealth v. Hoppin, 387 Mass. 25, 32, 438
N.E.2d 820 (1982) ("[j]oinder may promote
economy in the trial of criminal offenses, particularly [425 Mass. 595] when
the same witnesses will testify concerning more than one offense"). Finally, we note that, in the instant case,
the defendant has failed to demonstrate that he was prejudiced by the joinder of these offenses.
The defendant's burden is "not satisfied by a showing merely that
the defendant's chances for acquittal would have been better had the
[complaints] been tried separately." Commonwealth v. Montanez, supra at 304,
571 N.E.2d 1372. Rather, the
defendant's burden is to show that "the prejudice resulting from a joint
trial is so compelling that it prevent[ed][him] from obtaining a fair
trial." Commonwealth v. Clarke, 418 Mass. 207,
217, 635 N.E.2d 1197 (1994), quoting
Commonwealth v. Moran, 387 Mass. 644, 658, 442 N.E.2d 399 (1982). See
Commonwealth v. Ferraro, 424 Mass. 87, 90, 674 N.E.2d 241 (1997). In the instant case, the jury acquitted the
defendant of the stalking charge and the charge that he intimidated a
witness. The defendant was also
acquitted of one of the counts charging him with violating a protective order. Thus, it is clear that the jury carefully
considered the evidence with regard to each crime charged.
[3]
3. Jury instructions. The defendant argues that, in order to be
convicted of violating a c. 209A order, the Commonwealth must show a manifest intent
on the part of the defendant to violate that order. We disagree.
The
judge instructed the jury that, in order to convict the defendant of the crime
of violating a c. 209A order, the Commonwealth must prove: "First ... that a court had issued an order
pursuant to Chapter 209A of our General Laws, which ordered the defendant to
refrain from abusing the alleged victim.
Second, that such order was in effect on the date that this violation of
the order allegedly occurred. Third,
that the defendant knew that the pertinent terms of the order were in effect,
either by having received a copy of the order or in some other way. And fourth, that the defendant violated the
order by failing to vacate the household or by abusing alleged victim."
The
defendant argues that this charge was erroneous because, by allowing the jury
to convict the defendant based solely on the fact that there was a violation of
the order instead of requiring a finding that the defendant intended to violate
the order, the instruction lowered the Commonwealth's burden of proof. The defendant urges us to look to the law of
contempt and conclude that an essential element of the crime of violating a c.
209A order is a finding that the defendant intended to violate the order. Because there was no objection at trial, we
review the [425 Mass. 596] charge to determine whether it
"was so erroneous that it created a 'substantial risk of a miscarriage of
justice.' " Commonwealth v. Preziosi,
399 Mass. 748, 751, 506 N.E.2d 887 (1987), quoting Commonwealth v. Murray, 396 Mass. 702, 705, 488 N.E.2d 415 (1986).
We
have read § 7 as limiting to the enumerated offenses those actions which will
constitute a criminal violation of G.L. c. 209A. Commonwealth v. Gordon, 407
Mass. 340, 345, 553 N.E.2d 915 (1990).
All other violations of a c. 209A order cannot be prosecuted as a
statutory offense; rather, they can be
prosecuted as criminal contempt.
Commentary to § 8:02 of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct.1996).
In
order to prove a defendant guilty of criminal contempt, the Commonwealth must
prove beyond a reasonable doubt that "there was a clear, outstanding order
of the court, that the defendant knew of that order, and that the defendant clearly
and intentionally disobeyed that order in circumstances in which he was able to
obey it." Commonwealth v. Brogan, 415 Mass. 169,
171, 612 N.E.2d 656 (1993), quoting Furtado v. Furtado, 380 Mass.
137, 145, 402 N.E.2d 1024 (1980). See United Factory Outlet, Inc. v. Jay's
Stores, Inc., 361 Mass. 35, 45, 278 N.E.2d 716 (1972) (Tauro,
C.J., concurring) ("[t]he rule that intent is not an element of civil
contempt is a direct consequence of the separate functions of criminal and
civil contempt").
While
intent is an element of criminal contempt proceedings, § 7 of G.L. c. 209A
establishes a distinct statutory crime for certain violations of c. 209A
orders. The statute does not speak
explicitly to the defendant's state of mind;
it is conceded, however, by the Commonwealth that, in order to convict a
defendant of violating an order, it must be proved beyond a reasonable doubt
that the defendant knew of the order.
See Commonwealth v. Crosscup, 369 Mass. 228, 234, 339 N.E.2d 731 (1975)
("clear statutory language would be needed ... to buttress an
interpretation that knowledge was irrelevant"); Commonwealth v. Wallace, 14
Mass.App.Ct. 358, 364, 439 N.E.2d 848 (1982)
("[b]ecause traditionally, at common law, some
element of intent or knowledge was required before punishment could be imposed
... and because due process considerations may, in some cases, require some
degree of notice ... courts are reluctant to infer a legislative intent to
impose absolute liability" [citations omitted] ). This statute, however, requires no more knowledge
than that the defendant knew of the order.
We decline to read [425 Mass.
597] any additional mens rea requirements into the
statute. (FN9) Simon v. Solomon, 385 Mass. 91, 103, 431
N.E.2d 556 (1982) ("[a]lthough the requirement
of due process places some limits on legislative power to penalize innocent
conduct, legislatures generally have broad power to define and limit the mens rea element of criminal
offenses"); Commonwealth v. Jackson, 369 Mass. 904,
909, 344 N.E.2d 166 (1976) ("Legislature has great latitude to determine
what conduct should be regarded as criminal and to prescribe penalties to
vindicate the legitimate interests of society"). The defendant does not argue that the failure
of the statute to require a showing of intentional violation is
unconstitutional.
4. Failure to allow certain arguments. The defendant also argues that the judge
erred in failing to allow the defendant to pursue certain avenues of argument.
(FN10) The defendant attempts to cite
five instances where the judge improperly discarded the defendant's
arguments. We think that this argument
is without merit.
At
trial, the defendant did not object to the judge's rulings, instructions, or
comments. Therefore, we examine whether
the judge's actions constituted a "substantial risk of a miscarriage of
justice." Commonwealth v. Boyer, 400 Mass. 52, 59,
507 N.E.2d 1024 (1987).
[4]
[5] The first occasion occurred during the defendant's opening statement where
defense counsel made the following comment:
"[The victim] has a motive in this trial, and you will hear
it. She has a credibility problem, you
will find out, that she has a hard time telling the truth." Following an objection by the prosecutor,
the judge instructed: "The
credibility and believability of witnesses is the sole province of the
jurors. Refrain from making
comment." There was no error. Defense counsel's statement was improper
argument. See United States v. Dinitz, 424 U.S. 600,
612, 96 S.Ct. 1075, 1082, 47 L.Ed.2d 267 (1976)
(Burger, C.J., concurring). The judge [425 Mass. 598] did not
create a substantial risk of a miscarriage of justice with his
instruction. The defendant's second
instance involved his discussion of a note left on a witness's automobile that
related that the defendant "had tried to break [the victim's] arm"
and that he was "violent."
The judge reminded the jury that the opening statements were not
evidence. The judge acted properly
because the evidence from the note regarding the victim's arm was inadmissible
hearsay and therefore improper to discuss as evidence during opening
statements. See Commonwealth v. Murray, 22 Mass.App.Ct.
984, 985, 496 N.E.2d 179 (1986). The
note was not offered as an exhibit.
[6]
The next two allegations of error involve the judge's refusal to allow the
defense to pursue during cross‑examination a line of argument that the
victim had been on welfare. The defense
contended that the issue was relevant to the defendant's credibility. Despite being given an opportunity to do so,
the defense was unable to produce a relevant link between the victim's welfare
status and her credibility. These
rulings were not erroneous.
[7]
The defendant argues that the judge's instructions to the jury on an employer's
obligation to report monies paid to employees did not permit defense's point to
reach the jury. However, the facts that
the witness evaded taxes did reach the jury. (FN11) The judge's instruction to the jury merely clarified
the distinction between the employer's obligation to report income and the
employee's obligation to file a tax return.
An error, if any, on the part of the judge was harmless.
[8] [425 Mass. 599] 5. Closing argument. The defendant also argues that the
prosecutor misstated the evidence in her closing argument. He claims that the prosecutor mislead the
jury by implying that the proof of service was for the permanent order, rather
than for the temporary order. We do not
agree.
[9]
[10] Because the defendant failed to object to the closing argument, the
standard of review is whether the prosecutor's argument created a substantial
risk of a miscarriage of justice. See Commonwealth v. Mello, 420 Mass. 375,
649 N.E.2d 1106 (1995); Commonwealth v. Marquetty,
416 Mass. 445, 450, 622 N.E.2d 632 (1993); Commonwealth v. Kozec,
399 Mass. 514, 518 n. 8, 505 N.E.2d 519 (1987).
Under that standard, "[w]e analyze the remarks in 'light of the
"entire argument, as well as in light of the judge's instruction to the
jury and the evidence at trial." ' " Commonwealth v. Marquetty, supra, quoting Commonwealth v. Yesilciman, 406 Mass.
736, 746, 550 N.E.2d 378 (1990). The
defendant's argument, however, ignores that standard and focuses on one
sentence out of context. To adopt the
defendant's position we would have to abandon our responsibility to analyze the
prosecutor's remarks in light of the entire argument. See Marquetty, supra at 445, 622 N.E.2d 632.
Read
in context, the relevant portion of the Commonwealth's closing argument breaks
down into two distinct parts. The first
part of the excerpt addresses the process through which the victim obtained a
restraining order against the defendant.
The second half of the excerpt switches to the defendant's claim that he
never received the original temporary restraining order. The Commonwealth simply highlighted the
return of service from the temporary order. (FN12) The prosecutor was entitled to reply to the
defendant's main contention that he had never received the [425 Mass. 600]
temporary or the extended order. (FN13)
The prosecutor's reply was based on evidence admitted during the trial.
The
defendant argues that it was never brought out that a copy of the extended
order was not served on him. However,
that fact was brought out during the trial by the defendant and in the
defendant's closing. If the defendant
desired to focus on the fact that the extended order was not served, he had the
opportunity to do so by noting the absence of service of the extended order in
his closing argument. (FN14) Instead,
the defendant's argument at trial attempted to convince the jurors that there
was no service of any kind.
The
Commonwealth noted that the return of service was left at the address which the
defendant admitted was his primary [425
Mass. 601] place of residence for
twelve years. The evidence highlighted
by the prosecutor was how and where the defendant received his mail, evidence
which came from the defendant himself.
The prosecutor simply was arguing facts in evidence and reasonable
inferences from those facts. Commonwealth v. Paradise, 405 Mass. 141,
152, 539 N.E.2d 1006 (1989).
Further,
the prosecutor encouraged the jurors to look at the proof of return of service
by bringing their attention to the exhibit which was the temporary order, and
which was extended on September 11, 1992.
In doing so, the prosecutor made clear her intention that the jurors
look at the evidence including the proof of return of service. The proof of service unequivocally shows the
date and time of service as "9/1/92 10:00 AM." (FN15)
We
also trust the citizens that serve as the foundation of our jury system. The judge told the jurors both before the
trial began and after the closing argument that they were the sole finders of
fact and that arguments by the attorneys should not be viewed as evidence. (FN16) The judge's instructions should have cured the
prejudicial effect, if any, of the statement that the defendant would like us
to use to conclude there was a substantial miscarriage of justice. "[T]he judge made it clear that the
arguments of counsel were not evidence.
The argument was forceful but fair.
It did not exceed the limits of propriety." Commonwealth v. Haskins,
411 Mass. 120, 122, 578 N.E.2d 788 (1991).
Judgments affirmed.
LYNCH,
Justice (dissenting).
Today
the court affirms a criminal conviction for violating a protective order that
had not been [425 Mass. 602] served on the defendant, even though
G.L. c. 209A, § 7, (FN1) clearly requires such service and even though the
prosecutor told the jury that service had been made. Accordingly, I dissent.
It
should be kept in mind that, although two protective orders issued against the
defendant‑‑a temporary order and an extended order‑‑only
one order, the extended order, formed the basis of the defendant's
conviction. The temporary order expired
on September 11, 1992.
During
closing argument, the prosecutor stated:
"[At] the end of August of 1992,
[the complainant] went to Lawrence District Court.... The court gave her a restraining order. This restraining order, ladies and gentlemen,
which you will have with you in the jury room, it states on it, '[t]he court
has issued the following orders to the defendant. You are not to abuse the plaintiff. You are to immediately leave and stay away
from her address. You are to refrain
from making phone calls to said plaintiff, not to follow her and to have no
contact with her whatsoever.'
"[The complainant] again came back
to the court on September 11, 1992, asking that order to be extended for a
year. The judge ordered again [the
defendant] to stay away from [the complainant]. You have in front of you‑‑you
will have in front of you the return of service. It states here it was left, a copy of this at
the defendant's last and usual address.
"[The defendant], by his own
admission, has lived at [that address] for the last twelve years. He gets his mail there. He gets his bills there. He gets his taxes there. In fact, all of his mail is left on the
kitchen table. But this one very
important piece of paper, he didn't get.
Isn't that convenient?
"You heard [the defendant], [the
defendant's brother] [425 Mass. 603] and [the defendant's mother] testify
that, when he got an important letter from his attorney, everyone was searching
for him to find him. But when there is a piece of paper given to
[the defendant] by a police officer, he's claiming he didn't get it. I would suggest that's a little too
convenient." (Emphasis added.)
The court reads a paragraph break
immediately prior to the prosecutor's reference to the return of service, and
after so doing, asserts that "read in context" the Commonwealth's
closing argument breaks down into two distinct parts, one part addressing the
process by which the complainant obtained a protective order against the
defendant and one part addressing the defendant's claim that he never received
the original temporary protective order. Ante at 619‑620 & n. 12. The Commonwealth, however, did not argue that
the prosecutor was making two distinct arguments, nor does the reproduction of
the argument in the Commonwealth's brief insert a paragraph break. (FN2) I contend that, read in context, it is clear that
the prosecutor was improperly suggesting to the jury that what was in front of
them was proof of service of the extended order when no such proof existed. Indeed, the prosecutor's reference to the
extended order, which the Commonwealth concedes was not served on the
defendant, is immediately preceded by the prosecutor's reference to September
11, 1992, the date the complainant obtained the extended order. Moreover immediately following is a reference
to testimony that was elicited by the prosecutor alluding to the extended
order. See note 5, infra. Furthermore, the
prosecutor referred to "a piece of paper given to [the defendant] by a
police officer." Not even the
temporary order was given to the defendant by a police officer rather, the
proof of service of the temporary order states that it was left at the
defendant's last and usual address; thus
the prosecutor compounded the misstatement she made earlier in her argument.
Because the prosecutor referred both to
service and to proof of service which did not exist, her argument misstated the
evidence and was improper. It is well
settled that "[a] prosecutor must limit comment in closing statement to
the evidence and fair inferences that can be drawn from the evidence."
Commonwealth v. Kelly, 417 Mass. 266, 270, 629 N.E.2d 999
(1994). See Commonwealth[425 Mass. 604]
v. Kozec, 399 Mass. 514, 516, 505 N.E.2d
519 (1987); Commonwealth v. Shelley, 374 Mass. 466,
472, 373 N.E.2d 951 (1978), S.C., 381
Mass. 340, 409 N.E.2d 732 (1980), and 411 Mass. 692, 584 N.E.2d 629
(1992). Moreover, the prosecutor's
statement cannot be characterized as responding to the defendant's argument
that there was no service at all. The
thrust of the defendant's argument was that he did not receive either order and
was not aware at least until September 28, 1992, of the existence of a
protective order. In support of this
claim the defendant offered testimony to the effect that he did not spend a lot
of time at the address where the temporary order was left and emphasized that
no order was served in hand. More
importantly, while the prosecutor was entitled to reply to the defendant's
contention, she was not entitled to rebut his contention by stating that proof
of service of the extended order would be before the jury and that he had been
given written notice by a police officer when those facts were not in evidence.
(FN3)
In the face of such prosecutorial error,
several factors must be considered, including whether the argument was
seasonably objected to; whether the
error was limited to collateral issues or went to the heart of the case; whether the judge's instructions to the jury
may have mitigated the error; and generally,
whether the error, in the circumstances, possibly made a difference in the
jury's conclusion. See Commonwealth v. Kozec,
supra at 517‑518, 505 N.E.2d 519; Commonwealth v. Pavao,
34 Mass.App.Ct. 577, 581, 614 N.E.2d 682 (1993). Because the argument here was not objected
to, review is limited to whether a substantial risk of a miscarriage of justice
has occurred. Where the evidence before
the jury has been distorted, however, "we have recognized that the failure
to object and possibly obtain a curative instruction may be the very thing
which permits the remarks to have their maximum prejudicial effect."
Commonwealth v. Shelley, supra at 469, 373 N.E.2d 951. See
Commonwealth v. Nordstrom, 364 Mass. 310, 314, 303 N.E.2d 711 (1973). See also
Commonwealth v. Cifizzari, 397 Mass. 560, 578,
492 N.E.2d 357 (1986); Commonwealth v. Fitzgerald, 376 Mass.
402, 416, 381 N.E.2d 123 (1978).
[425
Mass. 605] Clearly, the defendant's
knowledge of the protective order and the terms it contained were crucial elements
of the Commonwealth's case. Indeed, without proving beyond a reasonable
doubt that the defendant knew of the existence of the order, the defendant
could not be convicted of violating the order.
Thus, this "is not a case in which overreaching argument was
confined to collateral issues only." Commonwealth v. Shelley, supra at 470,
373 N.E.2d 951. Moreover, the judge's
instructions on the mental state element of the crime emphasized that the
Commonwealth must prove that the defendant had actual knowledge of the terms of
the extended order, the very issue to which the prosecutor's improper arguments
referred. Thus, absent specific
instructions that mitigated the error, I do not believe that the judge's reminder
to the jury that closing statements are not evidence cured the prejudicial
impact of the prosecutor's argument. See Commonwealth v. Rosa, 412 Mass. 147,
160, 587 N.E.2d 767 (1992) (curative instruction regarding the prosecutor's
improper closing argument not sufficient and new trial required given the
importance to the Commonwealth's case of the issue that was part of improper
argument); Commonwealth v. Clary, 388 Mass. 583,
591, 447 N.E.2d 1217 (1983) ("judge's instructions to the jury, which
stated only in general terms that the arguments of counsel are not evidence did
not cure adequately the prejudicial impact of the prosecutor's
assertion"); Commonwealth v. Pavao,
supra at 581‑582, 614 N.E.2d 682 (where prosecutor misstated evidence
by improperly attributing to defendant a statement indicating defendant acted
with intent necessary to be convicted of murder, new trial required even though
judge did instruct the jury that closing arguments were not evidence because
there were not forceful statements by judge that argument was inappropriate and
should be disregarded); Commonwealth v. Shelley, supra (where
overreaching argument not confined to collateral issues only, adequate curative
instructions did not render the prosecutorial misconduct harmless).
The court suggests that the parties knew
that the defendant had not been served with a copy of the extended order and
chose to use their closing statements to argue whether the defendant received a
copy of the temporary order‑‑a doubtful proposition particularly
where, until today, a reading of the statute would suggest that a defendant
must be served with a copy of the order he was charged with violating. I believe that a [425 Mass. 606] fairer
and more plausible reading of the testimony and the closing arguments suggests
that both defense counsel (FN4) and the prosecutor (FN5) operated as if the
proof of service before them was [425 Mass. 607] proof
of service of the extended order, an error that makes the distortion of the
evidence during the prosecutor's closing argument even more significant.
Given that the outcome of the case
essentially depended on whether the jury believed the complainant's or the
defendant's version of events, the suggestion that the defendant was served
with a copy of the extended order could very well have influenced the jury's
assessment of the defendant's credibility and thus, their verdict. Indeed, this is hardly a case where there is
overwhelming evidence of the defendant's guilt.
See Commonwealth v. Clary, supra
at 593, 447 N.E.2d 1217; Commonwealth v. Shelley, supra. Contrast
Commonwealth v. DeChristoforo, 360 Mass. 531,
538, 277 N.E.2d 100 (1971) (overwhelming evidence of guilt neutralizing
prosecutorial misconduct). Thus, it is
impossible to say that the improper argument, which undermined the defendant's
credibility and went to a crucial issue in the case, did not make a difference
in the jury's verdict, and I would order a new trial for the defendant. See
Commonwealth v. Kelly, 417 Mass. 266, 271, 629 N.E.2d 999 (1994) (where
improper argument went to police credibility, the crux of the case, new trial
was necessary); Commonwealth v. Clary, supra at 593, 447
N.E.2d 1217 (where argument of prosecutor struck at defendant's sole defense,
that error contributed to conclusion that new trial was warranted);
Commonwealth v. Shelley, supra at 470‑471, 373 N.E.2d 951
(argument as to credibility of expert witness urging an inference that expert
testimony was purchased "struck impermissibly, at the defendant's sole
defense" and warranted a new trial).
Finally, I agree that great trust should
be and is placed in the citizens who serve as jurors, for they are the
foundation of our justice system. Where
the evidence is distorted, however, it is unfair to those very jurors to place
on them the burden of correcting[425
Mass. 608] or overlooking a prosecutor's mistake.
(FN6) Indeed, a jury's verdict can be
only as fair as the trial allows. I
would therefore reverse the defendant's convictions and order a new trial.
FN1.
The defendant was acquitted of one count of violating a protective order on
October 12, 1992, one count of stalking on November 2, 1992, and one count of
intimidating a witness on September 28, 1992.
FN2.
The defendant also appeals from the denial of his motion for a new trial on the
above grounds.
FN3.
Subject matter jurisdiction refers to the "court's power to hear and
determine cases of the general class or category to which proceedings in
question belong; the power to deal with
the general subject involved in the action." Black's Law Dictionary 1425 (6th ed.1990).
General Laws c. 209A, § 7,
provides in pertinent part: "Any
such violation may be enforced in the superior, the district or Boston
municipal court departments." In addition,
District Courts have jurisdiction of all misdemeanors, G.L. c. 218, § 26, and
violation of a c. 209A protective order is a misdemeanor.
FN4.
Section 7 of G.L. c. 209A provides:
"Whenever the court orders under ... [§§ 3, 4, and 5] of [c. 209A]
... the defendant to vacate, refrain from abusing the plaintiff or to have no
contact with the plaintiff or the plaintiff's minor child ... the appropriate
law enforcement agency ... shall serve one copy of each order upon the
defendant...."
Section
3 of G.L. c. 209A, provides: "A
person suffering from abuse from an adult or minor family or household member
may file a complaint in the court requesting protection from such abuse,
including, but not limited to, the following orders: '(a
) ordering the defendant to refrain from abusing the plaintiff, whether the
defendant is an adult or minor; (b ) ordering the defendant to refrain
from contacting the plaintiff, unless authorized by the court, whether the
defendant is an adult or minor ....' "
Section
4 of G.L. c. 209A, provides: "Upon
the filing of a complaint under this chapter, the court may enter such
temporary orders as it deems necessary to protect a plaintiff from abuse,
including relief as provided in section three.
Such relief shall not be continued upon the filing of a complaint for
divorce, separate support, or paternity action.
"If
the plaintiff demonstrates a substantial likelihood of immediate danger of
abuse, the court may enter such temporary relief orders without notice as it
deems necessary to protect the plaintiff from abuse and shall immediately thereafter
notify the defendant that the temporary orders have been issued. The court shall give the defendant an
opportunity to be heard on the question of continuing the temporary order ...
and of granting other relief as requested by the plaintiff no later than ten
days after such orders are entered.
Notice shall be made by the appropriate law enforcement agency as
provided in section seven. If the
defendant does not appear at such subsequent hearing, the temporary orders
shall continue in effect without further order of the court."
Section
5 of G.L. c. 209A, provides: "When
the court is closed for business, any justice of the superior, probate and
family, district or Boston municipal court departments may grant relief to the
plaintiff as provided under section four if the plaintiff demonstrates a
substantial likelihood of immediate danger of abuse."
FN5.
There was evidence that the defendant knew of the process of how a protective
order begins as a temporary order and could be extended after a hearing. In fact, the defendant introduced evidence of
a previous protective order obtained against him.
FN6.
"The court may modify its order at any subsequent time upon motion by
either party." G.L. c. 209A, § 3,
fourth par.
FN7.
It is clear that "[d]ue process requires that no
[extended] order be issued against a person without prior notice and the
opportunity to be heard."
Commentary to § 5:05 of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct.1996). "[T]he adequacy of notice so far as due
process is concerned is dependent on whether the form of notice is 'reasonably
calculated to give ... actual notice of the proceedings and an opportunity to
be heard.' " Commonwealth v. Olivo,
369 Mass. 62, 68, 337 N.E.2d 904 (1975), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct.
339, 343, 85 L.Ed. 278 (1940). In the instant case, service of the temporary
order was made by delivering a copy of the order to the defendant's last and
usual address. The defendant does not argue
that the extended order against him was entered improperly, and we do not
consider that issue.
FN8.
The Commonwealth was allowed to join the five offenses of which the defendant
was convicted and three charges that he was acquitted of, including another
charge that he violated a protective order on October 12, 1992, stalking, and
intimidating a witness. See note 1, supra.
The Commonwealth also sought to join for trial a charge of assault and
battery, malicious destruction of property, and threatening to commit a crime
which involved the same victim. The
motion judge ordered these offenses to be tried separately and the defendant
was found not guilty.
FN9.
We note that the Appeals Court recently stated that, on a complaint charging a
defendant with a violation of a G.L. c. 209A order, the Commonwealth must prove
that "there was a clear, outstanding order of the court, that the
defendant knew of the order, and that the defendant clearly and intentionally
disobeyed the order in circumstances in which he was able to obey it."
Commonwealth v. O'Shea, 41 Mass.App.Ct.
115, 118, 668 N.E.2d 861 (1996), quoting
Commonwealth v. Brogan, 415 Mass. 169, 171, 612 N.E.2d 656 (1993). To the extent that that decision is
inconsistent with our decision today, it is incorrect.
FN10.
The defendant's argument includes references to bias on the part of the trial
judge. There is neither support nor a
specific argument for that claim. The
defendant's discussion on that point does not rise to the level of appellate
review. Mass. R.A.P. 16(a)(4), as
amended, 367 Mass. 921 (1975).
FN11.
The following exchange occurred between the defense counsel and the witness:
DEFENSE
COUNSEL: "Did you ever pay taxes on
[the cash money you received from Riverside House of Pizza]?"
THE
PROSECUTOR: "Objection."
DEFENSE
COUNSEL: "It goes to credibility,
Your Honor."
THE
JUDGE: "She can have that."
DEFENSE
COUNSEL: "Did you ever pay
taxes?"
THE
WITNESS: "No, I didn't."
DEFENSE
COUNSEL: "You never reported that
to the State or the Federal government?"
THE
WITNESS: "No."
FN12.
The prosecutor stated: "[At] the
end of August of 1992, [the victim] went to Lawrence District Court. She went to Lawrence District Court in front
of a judge, under oath, and she told the judge that she feared for her life and
she needed help. She needed help from
the court and she needed protection from the court. And that's what the court gave her. The court gave her a restraining order. This restraining order, ladies and gentlemen,
which you will have with you in the jury room, it states on it, 'The court has
issued the following orders to the defendant.
You are not to abuse the plaintiff.
You are to immediately leave and stay away from her address. You are to refrain from making phone calls to
said plaintiff, not to follow her and to have no contact with her
whatsoever.' [The victim] again came
back to the court on September 11, 1992, asking that order to be extended for a
year. The judge ordered again [the
defendant] to stay away from [the victim]."
The
prosecutor then shifted focus and continued:
"You have in front of you‑‑you will have in front of
you the return of service. It states
here it was left, a copy of this at the defendant's last and usual
address. [The defendant], by his own
admission, has lived at 35 Groton Street for the last twelve years. He gets his mail there. He gets his bills there. He gets his taxes there. In fact, all of his mail is left on the
kitchen table. But this one very
important piece of paper, he didn't get.
Isn't that convenient? You heard
[the defendant], [the defendant's brother], and [the defendant's mother]
testify that when he got an important letter from his attorney, everyone was
searching for him to find him. But when
there is a piece of paper given to Mr. Delaney by a police officer, he's
claiming he didn't get it. I would
suggest that's a little too convenient."
(Paragraph break added.)
FN13.
On direct examination, the defendant said that he had no knowledge of the order
until he was arrested on September 28, 1992.
Further, in closing argument defense counsel stated, "Look at the
restraining order. The Commonwealth has
to prove beyond a reasonable doubt that [the defendant] knew about the
restraining order. Did he receive it in
hand from a police officer? No."
This statement clearly referred to the defense argument that neither the
temporary restraining order nor the extended order had been served on the
defendant.
FN14.
The dissent suggests that all parties "operated as if the proof of service
before them was proof of service of the extended order." Post
at 623‑624. We do not agree. Examination and the cross‑examination
of the defendant on the temporary order does not show that the parties focused
solely on proof of service of the extended order. When the exhibit was introduced, it was
introduced as the restraining order in effect against the defendant without
reference to the return of service because that return was not yet at issue. Despite an effort to do so, the dissent
cannot point to any instance in the transcript where the prosecutor stated or
implied that the return of service was for the extended order. As we read the record, the prosecutor's
challenge, see post at 623 n. 5, went
to the defendant's testimony that he had not received the temporary order which
was left at his last and usual home address.
FN15.
The temporary order, left at the defendant's last and usual address, referred
to a hearing date of September 11, 1992, and included the statement that
"[i]f the defendant does not appear [at the
scheduled hearing], an extended or expanded Order may remain in effect for up
to one year."
FN16.
Before any evidence was presented, the judge told the jury: "If one of the attorneys or I refer to
some part of the evidence, and that does not coincide with what your
recollection is, it is your recollection which you are to follow in your
deliberation, not the attorneys or not mine."
After
the closing arguments had concluded, the judge again instructed the jury: "The opening statements and the closing
arguments of the lawyers are not a substitute for the evidence. They are only intended to assist you in
understanding the evidence and the contentions of the parties."
FN1.
General Laws c. 209A, § 7, states in pertinent part: "Whenever the court orders under ... [§§
3, 4, and 5] of [c. 209A] ... the defendant to vacate, refrain from abusing the
plaintiff or to have no contact with the plaintiff or the plaintiff's minor
child ... the appropriate law enforcement agency ... shall serve one copy of each order upon the defendant.... The law enforcement agency shall promptly make its return of
service to the court" (emphasis added).
FN2.
Indeed, the Commonwealth reproduces the same portion of the argument reproduced
here and characterizes the argument as referring to "the issue of notice
and to the service of the protective order."
FN3.
The court reasons from evidence of a previous protective order obtained against
the defendant "that the defendant knew of the process of how a protective
order begins as a temporary order and then may be extended after a
hearing." Ante at 614 n. 5. It should be noted,
however, that, while there was evidence that the complainant had obtained
protective orders against the defendant in the past, she had also, on at least
one occasion, failed to appear at the hearing as required in order to get the
temporary order extended. Thus, in the
defendant's experience, notice of a temporary order did not necessarily mean
that an extended order would follow; the
absence of any service of an extended order could only have buttressed this
conclusion.
FN4.
A review of several portions of the transcript indicates that defense counsel
had confused the return of service of the temporary order as a return of
service of the extended order. Indeed,
when defense counsel moved for a directed verdict, alleging that the
Commonwealth had not proved that the defendant had known of the existence of
the order he was charged with violating (the extended order), she stated: "Under the facts that on that
restraining order that they have entered into evidence, they have not proven
that the defendant ... either knew of the pertinent terms of the order were in
effect by either having received a copy of the order or in some other way. The reason I would state that, Your Honor, is
looking at the return of service checked off as leaving a copy at the
defendant's last and usual address as shown on this order, Your Honor, that
doesn't constitute proof that [the defendant] had any knowledge of the effect of
this order. And he had no‑‑it
does not prove that he had knowledge of any portion of the order."
In
addition, in her own closing argument, defense counsel argued: "Look at the restraining order. The Commonwealth has to prove beyond a
reasonable doubt that [the defendant] knew about the restraining order. Did he receive it in hand from a police
officer? No. Could [the complainant]
have told the police officer, well, he's never at that 35 Groton Street
address, go to his parents' house....
She never told him that. If she
told him that, maybe it would have gotten served. And who better to know [the defendant's]
schedule, where he is? She knew when
she went into court, she knew where that restraining order was going to
be. Could she have gone and taken the
restraining order? Could she have
orchestrated his arrest?"
Certainly, it would seem likely that, in both examples, if defense
counsel was aware that the extended order had not been served on the defendant
she would have just said so in her argument to both the judge and the jury.
FN5.
Indeed, when the defendant was being cross‑examined by the prosecutor,
the prosecutor showed the defendant a copy of the extended order that had been
introduced in evidence as the extended order obtained by the complainant on
September 11, 1992. The defendant then
testified that he lived at the address indicated on the order and received his
mail there. The prosecutor then
challenged the defendant's testimony that he did not receive a copy of the
extended order in the following exchange:
THE
PROSECUTOR: "You receive any and
all correspondence that is sent to you at 35 Groton Street; isn't that correct?"
THE
DEFENDANT: "Yes. What's your point now?"
THE
PROSECUTOR: "But you didn't receive this restraining order that was sent to
you; is that correct?"
THE
DEFENDANT: "No, I did not."
I
would suggest that this exchange supports the inference that the prosecutor,
who challenges the defendant's contention that he did not receive a copy of the
extended order, was operating as if the proof of service before her was proof
of service of the extended order.
Indeed, she goes on to elicit testimony regarding what would happen to
mail if left by a police officer with the defendant's brother at the 35 Groton
Street address or in the mailbox.
In
addition, in responding to the defendant's motion for a directed verdict, the
prosecutor argued: "With regards to
the ... three counts of violations of restraining orders.... Judge, you have before you that is placed
into evidence the service of the restraining order, that it has been left at
the defendant's last and usual address, that being I believe, 35 Groton
Street." I suggest that this
reference to the return of service, coupled with the reference to the order in
evidence, demonstrates that the prosecutor was acting as if the proof of
service before the court was proof of service of the extended order.
FN6.
The copy of the order is confusing at best apparently because the same piece of
paper was used to indicate the existence and service of both. Thus, a "cursory glance" might give
the impression to the jury that the order which had been served on the
defendant was the order he was charged with violating.