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Opinions of The and the Court of Appeals To be used in
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Commonwealth v. Molloy, 44 Mass.App.Ct.
306 (1998)
Appeals Court of Massachusetts, Hampden.
No. 96‑P‑1618.
Submitted
Decided
Kenneth J. DiFazio,
Judith B. Stephenson, Assistant District
Attorney, for the Commonwealth.
Before ARMSTRONG, BROWN and SPINA,
JJ.
SPINA, Justice.
The
defendant appeals from a conviction of violating an order issued pursuant to G.L. c. 209A, § 5, following trial by jury in the District
Court for an incident that occurred on
[44 Mass.App.Ct.
307] Under the standard described in Commonwealth v. Latimore,
378 Mass. 671, 676‑677, 393 N.E.2d 370 (1979), the jury could have found
the following facts. On May 9, 1992, the
defendant's wife obtained a temporary order, ex parte,
pursuant to G.L. c. 209A, § 4, that included a
prohibition against his contacting her.
The temporary order, which was served upon him, contained a notice that
a hearing would be held on May 11, 1992, for the purpose of determining whether
the temporary order would be continued or modified. The defendant appeared at the designated time
and place for the hearing, and the order was continued, unmodified, to November
10, 1992. The May 11, 1992, order
contained the following notice:
"The above Extension of Order expires on the expiration date
indicated above. A hearing on whether to
continue and/or modify the Order will be held on the date and time
indicated," which was November 10, 1992, at 9 A.M. It also contained this notice: "The plaintiff must appear at scheduled
hearings, or this Order may be vacated.
The defendant may appear, with or without an attorney, to oppose any
extension or expansion of this Order. If
the defendant does not appear, an extended or expanded Order may remain in
effect for up to one year."
The
defendant and his wife appeared at the hearing on November 10, 1992, and the
order was extended, unmodified, to November 10, 1993. The defendant and his wife attended the
November 10, 1993, hearing, and the order was again extended one year to
November 9, 1994, unmodified. The
defendant's wife returned to court on November 9, 1994, and November 9, 1995,
(FN1) to request extensions, which were granted, the last relevant extension
expiring on November 12, 1996. All
extension orders contained the notices previously quoted. The defendant did not appear at the 1994
and 1995 hearings, and there was no evidence in the Commonwealth's case‑in‑chief
that he ever received notice of the 1994 and 1995 orders. The no‑contact provision appeared in
every order. There were slight
modifications to other provisions of the 1994 and 1995 orders which are not
relevant to this appeal.
The
defendant was convicted of violating the November, 1995, order by virtue of a
threatening telephone call he made to his wife at about 4 A.M. on February 18,
1996.
[1] [44 Mass.App.Ct.
308] 1. Motion for required finding.
The defendant contends that his motion for a required finding of not
guilty should have been allowed after the Commonwealth rested for want of
evidence that he had been served a copy of the November, 1995, order. Personal service is not required, however, if
the Commonwealth can show the defendant had actual or constructive knowledge of
the existence and terms of the court order.
See Commonwealth v. Delaney,
425 Mass. 587, 592, 682 N.E.2d 611 (1997).
[2][3]
The defendant next contends the Commonwealth failed to show he had actual or
constructive knowledge of the existence and terms of the 1995 order. The Commonwealth was required to prove that
the defendant knew of the November, 1995, order. Id. at 596, 682 N.E.2d
611. The Commonwealth relies upon a
footnote in Delaney for the
proposition that since the defendant "knew of the process of how a
protective order begins as a temporary order and could be extended after a
hearing," he is held to know of the existence of the November, 1995, order,
having been served the ex parte order and having
attended one continuation hearing and two extension hearings. Id.
at 591 n. 5, 682 N.E.2d 611. Knowledge
of the process is not the equivalent of knowledge of the existence and terms of
a specific order. Id. at 592, 682 N.E.2d 611. In
Delaney, the Supreme Judicial Court held that a defendant who is served
with a copy of an ex parte temporary order advising him of his right to be heard at a
scheduled hearing has actual and constructive notice that his failure to attend
the scheduled hearing will necessarily result in the continuation of the served
order by operation of law, namely, G.L. c. 209A, §
4. (FN2) Delaney, supra at 591, 682 N.E.2d 611. No similar result obtains with successive
annual extensions.
[4]
The last hearing the defendant attended was on November 10, 1993, which
resulted in an extension of the no‑contact order to November 9,
1994. That order expired under its own
terms on November 9, 1994. General Laws
c. 209A, § 3, as inserted by St.1990, c. 403, § 3, provides in relevant part:
"Any relief granted by the court
shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time
and date the order is to expire [44 Mass.App.Ct. 309]
and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the
date and time the order is to expire, the court shall determine whether or not
to extend the order for any additional time reasonably necessary to protect the
plaintiff...."
Thus,
the defendant's wife was required to attend the extension hearing, and the
court was required to hold a hearing.
The extension of an annual order pursuant to § 3, in contrast to a § 4
continuation of a temporary order, is, however, by no means automatic, even if
a defendant fails to appear. The last
thing the defendant could be held to have known was that he could have no
contact with his wife pursuant to a court order that expired on November 9,
1994. While the defendant could have
gone to court on November 9, 1994, to ascertain whether his wife ever appeared
and obtained an extension of the prior order, he was under no obligation to do
so. Instead, he was entitled to rely
upon the provisions of G.L. c. 209A, § 7, second
par., (FN3) and could expect to be served a copy of any extension order that issued. There was no evidence that anyone made a
"conscientious and reasonable effort to serve ... the defendant," or
that some alternative means of service was used to notify him. Zullo v. Goguen, 423 Mass.
679, 681, 672 N.E.2d 502 (1996). There
was evidence that the court had his correct address in its files.
The
Commonwealth offered no evidence that the defendant was either served a copy of
the November, 1995, order, or that he had actual knowledge of its existence and
terms. We, therefore, conclude that the
Commonwealth failed to establish an essential element of its case, and that
denial of the defendant's motion for a required finding of not guilty was
error.
2. Jury instruction on knowledge. The defendant claims error in that portion
of the judge's instruction to the jury that required the Commonwealth to prove
beyond a reasonable doubt "that the Defendant knew that the pertinent
terms of the [o]rder were [44 Mass.App.Ct. 310] in effect, either by having received a copy of the [o]rder or by having learned of them in some other
way." In particular, he claims
error in the judge's failure to instruct that the Commonwealth was required to
prove service. There was no objection to
the judge's instruction, which was taken from the Model Jury Instructions for
Use in the District Court, Instruction 5.61 (1995). The instruction was a correct statement of
the law. See Commonwealth v. Delaney, 425 Mass. at 595, 682 N.E.2d 611.
The
judgment of conviction is reversed, the verdict is set aside, and a new
judgment is to be entered for the defendant.
So ordered.
BROWN,
Justice (concurring).
I
think the judge properly could have denied the defendant's motion for a required
finding of not guilty, but for one major misstep by the Commonwealth. The defendant testified on his own behalf and
acknowledged that he knew of the extension order directing him to surrender all
firearms in his possession (issued November 9, 1994). He also acknowledged that he was subjected to
a probation surrender hearing in 1995 involving an allegation that he violated
the restraining order. Further, he
implicitly acknowledged that he knew of the 1995 order. In light of this evidence, the jury properly
could have inferred that the defendant had actual knowledge of all the orders
that had been issued in his case.
Thus,
the defendant's argument that the Commonwealth failed to establish his
knowledge of the existence of the 209A order on the day of the alleged
violation collapses. That said, I agree
that the defendant prevails in this matter because this inculpatory
evidence did not come in until after the close of the Commonwealth's case.
(FN1.) The matter came before the District
Court on November 9, 1995, and continued to November 13, 1995, at which time
the order was extended to November 12, 1996.
The defendant raises no issue as to the four‑day continuance.
(FN2.) General Laws c. 209A, § 4, as inserted
by St.1990, c. 403,§ 4, provides, in part:
"If the defendant does not appear at such subsequent hearing, the
temporary orders shall continue in
effect without further order of the court
" (emphasis added).
(FN3.) General Laws c. 209A, § 7, as inserted
by St.1990, c. 403,§ 8, second par., provides in relevant part: "Whenever the court orders under section
[ ] ... three ... of this chapter ... the defendant to ... have no contact with
the plaintiff ... the clerk‑magistrate shall transmit two certified
copies of each such order ... to the appropriate law enforcement agency which,
unless otherwise ordered by the court, shall serve one copy of each order upon
the defendant...."