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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Gordon, 407
Supreme Judicial Court of Massachusetts,
Argued
Decided
[407
Margaret J. Perry, Asst. Dist. Atty., for Com.
Before [407
[407
On January
4, 1989, tried before a jury of six in the Haverhill Division of the District
Court Department, the defendant, Jonathan P. Gordon, was found guilty of
violating a protective order issued pursuant to G.L.
c. 209A (1988 ed.). He was sentenced by
the judge to one year in a house of correction.
(FN1) The defendant now appeals
from his conviction, asserting various errors in the trial below. We affirm the conviction.
The
evidence submitted at trial warranted the jury finding the following
facts. The defendant and Karen Gordon
(Karen) had been married for eleven years when, on
Between
July 26, 1988, and November 10, 1988, the defendant came to the marital home on
five separate occasions. Generally,
these visits were to see his children.
On November 10, 1988, the defendant telephoned Karen and asked if she
would type a paper for a friend. She
agreed, and the defendant came to the house to deliver the paper. During this visit, the defendant and Karen
became involved in an argument when the defendant learned that Karen had been
dating another man. The defendant yelled
at his wife in front of their five year old son, calling her a
"bitch" and a "whore."
Karen testified at trial that, at this time, she was "upset"
and felt "insecure"; she
stated that she "didn't know what [the defendant] was going to do
next."
Five days
later, on November 15, 1988, the defendant returned to the house
unannounced. Karen's brother and a
neighbor were visiting at that time, and Karen sent her neighbor upstairs with
the Gordons' older son to telephone the police. The defendant came to the outside of the
front door of the house and urged Karen to let him in. He stated that he wanted to talk, but Karen
did not respond or open the door. The
defendant said that Karen was being "immature and ridiculous." The defendant left a note on the front door,
returned to his automobile, and started to back out of the driveway. When Karen opened the door to take the note,
the defendant left his automobile, walked up to the house, and stood with a
foot on the threshold, his back resting against the front door, holding it
open.
At this
point, two officers of the Newbury police department arrived at the house. Lieutenant Rick Frappier
ordered the defendant away from the door and arrested him for violation of the
209A order. The other police officer
went into the house to speak with Karen, who stated that the defendant [407 Mass. 343] had not abused her physically during his visit. Lieutenant Frappier
later filed a report incident to the defendant's arrest, which stated that
"[the defendant] did not appear to be abusive nor did he make physical
contact with [Karen]." (FN2)
On appeal,
the defendant contends that the trial judge erred in denying a motion for
directed verdict and a motion for mistrial.
The defendant also claims that the judge impermissibly admitted
irrelevant and prejudicial evidence, and failed to instruct the jury properly
regarding what acts would constitute a violation of the 209A order. Finally, the defendant argues that G.L. c. 209A, § 7, which makes criminal the violation of
certain sections of a 209A order, fails to give clear warning as to what
activities are proscribed. We address
each claim in turn.
1. Denial of the defendant's motion for a
required finding of not guilty. At
the close of the Commonwealth's case, defense counsel moved for a required
finding of not guilty. In support of the
motion, defense counsel argued that G.L. c. 209A, §
7, makes criminal only the violation of a 209A order to "refrain from abus[e]" or to "vacate the household," and
claimed that the Commonwealth had failed to present sufficient evidence to
prove beyond a reasonable doubt that the defendant had either
"abused" his wife on November 15, 1988, or that he had failed to
"vacate" the marital home by November 15, 1988. The judge denied the defendant's motion.
In
reviewing the denial of a motion for a required finding of not guilty, we must
determine " 'whether, after viewing the evidence in the light most
favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt' (emphasis in original)."
Commonwealth v. Latimore, 378 Mass. 671,
677, 393 N.E.2d 370 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979). See Commonwealth v. Merola,
405 Mass. 529, 533, 542 N.E.2d 249 (1989);
Mass.R.Crim.P. 25(a), 378 Mass. 896
(1979). In [407 Mass. 344] this
regard, we note that "[c]ircumstantial evidence
is competent to establish guilt beyond a reasonable doubt ... [and] [a]n
inference drawn from circumstantial evidence 'need only be reasonable and
possible; it need not be necessary or
inescapable.' " Commonwealth v. Merola,
supra, quoting Commonwealth v.
Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977).
The
defendant's argument in support of his motion for a required finding of not
guilty encompasses not only a dispute as to the testimony presented below and
the inferences which reasonably can be drawn therefrom,
but it also raises questions regarding the necessary elements of a criminal
violation of G.L. c. 209A. Specifically, the defendant claims that he
cannot be found to have "abused" his wife in violation of G.L. c. 209A, § 7, unless he physically harmed her or made
some outwardly threatening gesture which put her in fear of "imminent
serious physical harm." In
addition, the defendant claims that a 209A order to "vacate the
household" only requires him to surrender his residency at the marital
home and does not prohibit him from returning to the home for visits. This court has not faced these issues
before. A short review of the structure
of G.L. c. 209A, as it relates to the present case,
is in order.
General
Laws c. 209A, entitled "Abuse Prevention," provides a statutory
mechanism by which victims of family or household abuse can enlist the aid of
the State to prevent further abuse.
"Abuse" is defined as "the occurrence of one or more of
the following acts between family or household members: (a
) attempting to cause or causing physical harm;
(b ) placing another in fear
of imminent serious physical harm; (c ) causing another to engage
involuntarily in sexual relations by force, threat of force or
duress." G.L.
c. 209A, § 1.
Under § 3
of c. 209A, "[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...." The
complainant may request the court to issue orders which: (1) "[order] the defendant to refrain from
abusing the plaintiff," (2) "[order] the defendant to vacate [407 Mass. 345] forthwith the household," (3) "[award] the plaintiff
... temporary custody of a minor child," (4) "[order] the defendant
to pay temporary support for the plaintiff or any child in the plaintiff's
custody or both," (5) "[order] the defendant to pay to the person
abused monetary compensation for losses suffered as a direct result of ...
abuse," and (6) "[order] the plaintiff's address to
be impounded." G.L.
c. 209A, § 3(a )‑(f ).
Any orders issued by the court are for a fixed period of time not to
exceed one year. On the expiration of an
order, the plaintiff may move for an extension, which the court may grant if it
is needed to protect the plaintiff from abuse. Id.
While the
court is entitled to issue any of the orders which the complainant may request
under § 3, c. 209A appears to anticipate that only a violation of an order to
refrain from abuse, or an order to vacate the household, will represent a
criminal offense. Section 7 of c. 209A
requires any order to refrain from abuse or to vacate the household to contain
the statement: "VIOLATION OF THIS
ORDER IS A CRIMINAL OFFENSE," and provides that a violation of either of these
types of orders "shall be punishable by a fine of not more than five
thousand dollars or by imprisonment for not more than two and one‑half
years in a house of correction or both such fine and imprisonment." In contrast, no specific criminal sanctions
are provided for violations of 209A orders other than orders to refrain from
abuse or orders to vacate the household.
Furthermore, no statements warning of criminal liability for violations
are required for any 209A orders other than those described in § 7.
[1] a. Order to vacate the household. The defendant argues that, while the judge
below issued a 209A order requiring him to "immediately leave and remain
away from the [marital household]," criminal liability may attach for a
violation of the order only in so far as there is a failure to "vacate the
household," as is provided in § 7.
The defendant argues further that the order to "vacate" was
satisfied when he surrendered legal occupancy in the house, and that § 7 did
not require him to "remain away" from the house. Therefore, he concludes, he cannot be found
criminally liable for returning [407
Mass. 346] to the marital home for
visits, regardless of the terms of the 209A order below. We disagree.
The defendant has misconstrued the scope of the term "vacate"
as it is used in c. 209A.
In determining
the range of activity the Legislature intended to prohibit by authorizing
courts to issue orders requiring defendants to "vacate" the marital
home, this court must look to the words of the statute "construed by the
ordinary and approved usage of the language, considered in connection with the
cause of [the statute's] enactment, the mischief or imperfection to be remedied
and the main object to be accomplished." O'Brien v. Director of the Div.
of Employment Sec., 393 Mass. 482, 487‑488, 472 N.E.2d 253 (1984),
quoting Industrial Fin. Corp. v. State
Tax Comm'n, 367 Mass. 360, 364, 326 N.E.2d 1
(1975). Chapter 209A, while allowing an
order to "vacate," provides no particular definition for the
term. Webster's New Int'l Dictionary
2810 (2d ed. 1957) defines "vacate" as "3. [t]o make vacant, as an office, post, house,
etc.; to deprive of an incumbent or
occupant." While this definition
makes clear the fact that the Legislature intended an abusive defendant to
depart from the house, it provides no guidance in either a negative or
affirmative direction whether the Legislature intended to require such a
defendant to stay away from the house subsequent to the initial departure. The Legislature's intention, however, becomes
clear when we consider the "mischief or imperfection" with which c.
209A is concerned and "the main object" which c. 209A seeks to
accomplish. O'Brien v. Director of the Div. of Employment
Sec., supra, 393 Mass. at 488, 472 N.E.2d 253.
As we
discussed earlier, c. 209A represents a legislative response to the troubling
social problem of family and household abuse in the Commonwealth. Judicial orders issued pursuant to c. 209A
afford abused individuals the opportunity to avoid further abuse and to provide
them with assistance in structuring some of the basic aspects of their lives,
such as economic support and custody of minor children, in accordance with
their right not to be abused.
[407 Mass. 347] Of the types of orders allowed under c. 209A, orders requiring an
abusive defendant to "refrain from abusing" a family or household
member and to "vacate" the household have been accorded the most
importance by the Legislature, as is demonstrated by the criminal sanctions
prescribed for violations thereof. The
significance attached to these two types of orders is eminently reasonable, in
that they both serve directly to support the statute's primary goal of abuse
prevention. An order to "refrain
from abus[e]" serves the obvious purpose of
putting an abusive party on notice of the possibility of criminal penalties,
thereby deterring further abuse. An
order to "vacate the household," on the other hand, creates a haven
for the abused party in which no further abuse need be feared and provides a
temporary, partial separation of the abused and abusive party, thereby leaving
fewer opportunities for abusive contact.
Were we to
adopt the defendant's definition of "vacate," an abusive party,
having surrendered occupancy of the household, would be free to return to the
house at will. The abused party would
have no ability to lessen the abusive party's prerogative to initiate contact
and could expect no refuge from the possibility of further abuse. That the Legislature intended the word
"vacate" to include the concept of "remain away" is demonstrated
by the authority of a judge to issue a "vacate" order for a period of
one year. G.L.
c. 209A, § 3(b ). See G.L. c. 266, §
120 (1988 ed.) (making it a criminal
trespass to "enter" in violation of an order under G.L. c. 209A). The
Legislature can be assumed to know that opportunities for abuse do not ebb or
flow automatically according to the pull of the legal notion of occupancy; a true haven from abuse exists only where an
abusive party has no right to enter at any time.
The 209A
order issued below, which required the defendant to "immediately leave and
remain away from the [marital] household" was entirely consonant with the
terms of G.L. c. 209A, § 7, requiring a defendant to
"vacate the [407 Mass. 348] household." Accordingly, the defendant may be held
criminally liable for the violation of the 209A order. (FN3)
The
evidence presented supported a conclusion that the defendant failed to
"remain away" from the house in violation of the 209A order. On such evidence, the jury clearly were entitled
to find the defendant guilty under G.L. c. 209A, § 7,
for violating an order to "vacate" the house. The defendant's motion for a required finding
of not guilty regarding the order to "vacate" was appropriately
denied.
[2][3] b. Order to refrain from abuse. For the purposes of criminal punishment
under G.L. c. 209A, § 7, a party violates an order to
"refrain from abus[e]" when he or she: (1) "attempt[s] to cause or caus[es] physical
harm"; (2) "place[s] another
in fear of imminent serious physical harm"; or (3) "caus[es] another to engage involuntarily in sexual relations by
force, threat of force or duress." G.L. c. 209A, § 1.
In the present case, there have been no allegations that the defendant
either physically harmed or attempted physically to harm his wife on the date
of his arrest. Furthermore, there have
been no allegations that he caused his wife to engage involuntarily in sexual
relations. Therefore, any claim of a
violation of the order to refrain from abuse must have been [407 Mass. 349] based
on an allegation that the defendant
"plac[ed his wife] in fear of imminent serious
physical harm."
The
defendant claims that the test whether such fear exists must be objective, and
that his actions on November 15, 1988, cannot be found to have created an
objective fear of "imminent serious physical harm." In support of his conclusion, the defendant
directs our attention to the fact that, at trial, Karen did not testify that
she was in fear of "imminent serious physical harm" at the time of
the defendant's visit, and claims that the evidence presented below
demonstrates that he made no outwardly threatening or menacing gestures toward
his wife.
The
relevant definition of "abuse" provided by G.L.
c. 209A, § 1, "placing another in fear of imminent serious physical
harm," closely approximates the common law description of the crime of
assault. We must presume that the
Legislature was aware of the common law definition of assault when it provided
a similar definition for "abuse" in c. 209A. Selectmen of Topsfield v. State
Racing Comm'n, 324 Mass. 309, 313, 86 N.E.2d 65
(1949). Accordingly, we turn to the
common law treatment of assault for guidance in our examination of c. 209A.
Under the
common law, "it is well established ... that an act placing another in
reasonable apprehension that force may be used is sufficient for the offense of
criminal assault." Commonwealth v. Delgado, 367 Mass. 432,
437, 326 N.E.2d 716 (1975), and cases cited.
In determining whether an apprehension of anticipated physical force is
reasonable, a court will look to the actions and words of the defendant in
light of the attendant circumstances. Id. at 436‑437, 326 N.E.2d
716. See Commonwealth v. Tarrant, 367 Mass. 411, 414‑416, 326 N.E.2d
710 (1975). In a criminal assault, the
Commonwealth need not prove that the victim was in fear. "[N]either fear, nor terror nor
apprehension of harm is an essential ingredient of the common law crime of
assault." Commonwealth v. Slaney,
345 Mass. 135, 139, 185 N.E.2d 919 (1962).
In the
present case, there was evidence of a verbal outburst between the defendant and
Karen five days before the incident in question, during which the defendant
called his [407 Mass. 350] wife a "bitch" and a
"whore." Karen testified
that, at this time, she was "upset," and that she "didn't know
what [the defendant] was going to do next." At the next meeting between Karen and the
defendant, on November 15, 1988, the defendant arrived at the house
unannounced, and when Karen refused to respond to the defendant's requests that
she open the door, the defendant said that Karen was being "immature and
ridiculous." Despite Karen's
obvious unwillingness to speak with him, the defendant left his automobile when
she appeared and prevented Karen from closing the front door by propping his
back against it.
In these
circumstances, we cannot say that a jury could not conclude beyond a reasonable
doubt that Karen entertained a reasonable apprehension that her husband might
physically abuse her. The fact that the
defendant had violated an order to remain away from the house, the evidence of
the tension between the parties, the previous verbal abuse by the defendant,
and the defendant's physical actions in holding open the door when Karen
clearly desired to avoid contact could reasonably be combined by the jury to
create a picture of a volatile situation in which the possibility of physical
abuse was present. Moreover, the fact
that the prosecutor did not ask Karen whether she anticipated physical abuse does
not preclude such a conclusion on the part of the jury. The jury were entitled to draw reasonable
inferences from the circumstantial evidence described above. See
Commonwealth v. Walker, 401 Mass. 338, 342‑343, 516 N.E.2d 1143
(1987). The denial of the defendant's
motion for a required finding of not guilty was appropriate.
[4] 2. Denial of the defendant's motion for a
mistrial. The defendant claims
error in the denial of his motion for a mistrial. The defendant states his claim on appeal in conclusory fashion and cites no legal authority to support
his claim. "This is an insufficient
appellate argument and is not properly before us. Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975)." Commonwealth v. Silva, 401
Mass. 318, 327, 516 N.E.2d 161 (1987).
[407 Mass. 351] [5] 3. Admission of
evidence. The defendant claims that
the judge erred by allowing the admission of evidence regarding a confrontation
between Karen and the defendant at the marital household on November 10, 1988. During this confrontation, which was the last
contact between Karen and the defendant prior to the visit of November 15, the
defendant learned that Karen had become involved with another man. He yelled at Karen, calling her a
"bitch" and a "whore."
The defendant claims on appeal that evidence regarding this incident was
irrelevant to the material issues in this case.
We disagree.
"The
relevancy of proffered evidence depends on whether it tends to prove some issue
in the case on trial." Commonwealth v. Chretien,
supra, 383 Mass. at 135, 417 N.E.2d 1203.
"Evidence need not establish directly the proposition sought; it must only provide a link in the chain of
proof." Commonwealth v. Tobin, 392 Mass. 604,
613, 467 N.E.2d 826 (1984). Evidence
that the defendant was angry with Karen for seeing another man, and that he had
called her a "bitch" and a "whore" during their last
contact prior to his arrest was relevant to proving that Karen was in fear of
her husband. See, e.g., Commonwealth v. Mora, 402 Mass. 262,
267‑268, 521 N.E.2d 745 (1988); Commonwealth v. Person, 400 Mass. 136,
143, 508 N.E.2d 88 (1987). Furthermore,
such evidence provided support for the prosecution's assertion that Karen's
fear of physical harm was reasonable, because it had roots in the defendant's
outburst just five days earlier.
"[R]elevant evidence should be admitted
unless there is a quite satisfactory reason for excluding it."
Green v. Richmond, 369 Mass. 47, 59, 337 N.E.2d 691 (1975). (FN4)
This evidence was relevant and admissible. See P.J. Liacos, Massachusetts Evidence 408 (5th ed. 1981 &
Supp.1985).
[407 Mass. 352] [6] The defendant also claims that the judge improperly allowed
the admission of Karen's testimony that three checks given her by the defendant
during their separation had "bounced." This testimony arose in response to
questions by the prosecution on redirect examination. When the defendant objected to its admission,
the judge ruled that the evidence was admissible because defense counsel had
raised the issue of the checks during cross‑examination of Karen.
"The
scope of redirect examination of a witness is within the sound discretion of
the trial judge." Commonwealth v. Maltais,
387 Mass. 79, 92, 438 N.E.2d 847 (1982).
"A defendant who claims, on appeal, an abuse of discretion, assumes
a heavy burden." Id.
In this case, that burden has not been met.
The
defendant had raised the issue of the checks when he questioned Karen as to
whether one of the defendant's prior visits had been for the purpose of
"bringing [Karen] a check which [she] then took down to the bank for
deposit." In pursuing this line of
questioning, defense counsel could have been attempting to prove to the jury
that an amiable relationship existed between the defendant and Karen, thereby
casting doubt on the prosecution's assertion that Karen had reason to fear the
defendant. Karen's testimony on redirect
examination merely explored in more detail a subject opened up by defense
counsel on cross‑examination, and served to rebut the inference that the
relationship between the defendant and Karen was without tension. See
Commonwealth v. Mandeville, 386 Mass. 393, 400, 436 N.E.2d 912 (1982). "The purpose of redirect examination is
to explain or rebut adverse testimony or inferences developed during cross‑examination."
Commonwealth v. Hoffer, 375 Mass. 369, 375,
377 N.E.2d 685 (1978). There was no
error.
4. Jury instructions. The defendant claims that the judge
committed reversible error in his instructions to the jury and in his rejection
of two of the defendant's proposed jury instructions. In essence, the defendant's claims in this
regard suggest that the judge should have instructed the jury that a failure to
remain away from the marital home does not constitute a violation of c. 209A. We have already rejected this [407 Mass. 353] position. See section 1, supra.
There was no error in the jury instructions.
As we
perceive no error by the judge in the trial below, the defendant's conviction
is affirmed.
Judgment affirmed.
(FN1.) The judge ordered the defendant to
serve thirty days, and suspended the remainder of the sentence. A fine of $5,000 also was imposed, but was
reduced subsequently to $500. The
defendant sought a stay of execution of his sentence from a single justice of
the Appeals Court and a single justice of this court, pending an appeal from
his conviction. Both requests for a stay
were denied.
(FN2.)
The defendant did not testify, and no witnesses were presented in his behalf.
(FN3.)
The defendant argues that, even though his acts may have constituted a
violation of G.L. c. 209A, § 7, he cannot be held
criminally liable because the phrase "vacate the household" was not
sufficiently explicit to give him clear meaning of the activities proscribed
under § 7 at the time of his arrest.
"We have not hesitated to relieve defendants of criminal
responsibility where the law was so unsettled or unclear that it did not
provide fair notice of what conduct was forbidden." Commonwealth v. Chretien, 383 Mass. 123, 132, 417 N.E.2d 1203
(1981). However, the 209A order below,
which carried the warning "VIOLATION OF THIS ORDER IS A CRIMINAL
OFFENSE," ordered the defendant to "immediately leave and remain away from the [marital]
household" (emphasis added). The
terms of the order put the defendant on notice as to precisely the range of
activity that was forbidden. He cannot
reasonably claim that he was unaware that he risked criminal punishment for
failing to "remain away" from the house. The particularity of the terms of the 209A
order, of which the defendant was well aware, leads us to reject the
defendant's request that we apply our holding today in a prospective manner
only. See Commonwealth v. Klein, 372 Mass. 823, 833, 363 N.E.2d 1313 (1977).
(FN4.)
The defendant claims that the evidence regarding the incident on November 10,
1988, was inadmissible because it was unduly prejudicial, but he provides no
explanation. "We accord the judge
substantial discretion in deciding whether ... the prejudicial implications of
[relevant] evidence outweigh its probative value." Commonwealth v. Tobin, supra,
392 Mass. at 613, 467 N.E.2d 826. We
perceive no unfair prejudice to the defendant's case arising out of the
admission of this evidence. There was no
abuse of discretion.