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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. Welch (2003)
Present: Porada, Smith,
& Kafker, JJ.
The case was heard by Paul V. Buckley, J.
Gregory C. Kachagian for the defendant.
Donna Jalbert Patalano,
Assistant District Attorney, for the Commonwealth.
PORADA, J.
Convicted in a bench trial in the District
Court of violating a G. L. c. 209A order,[1]
the defendant on appeal claims that his motions for a required finding of not
guilty should have been allowed because the Commonwealth failed to prove that
the protective order was valid and that the defendant had knowledge of the
terms of the order. We agree and reverse.
In order to "establish a violation of G. L. c. 209A, § 7,
the Commonwealth must prove that (1) a valid G. L. c. 209A order was entered by
a judge and was in effect on the date of the alleged violation; (2) the
defendant violated the order; and (3) the defendant had knowledge
of the order." Commonwealth v. Silva, 431
1. Validity of the order. The defendant challenges the validity of the order on
the ground that he had no notice of the proceeding resulting in the order.
Under G. L. c. 209A, § 7, a copy of the order is required to be served on
the defendant by the appropriate law enforcement agency. Personal service of
the order, however, is not required provided the following due process
considerations have been met: namely, the defendant has received notice of the
proceedings, has been given an opportunity to be heard at a meaningful time and
place, and has received fair notice of what the order prohibits so that the
defendant may act accordingly. Commonwealth v. Delaney, 425
2. Knowledge of the terms of the order. The defendant argues that his
conviction must be reversed because the Commonwealth has failed to prove that
he had knowledge of the terms of the order. Failure to serve an order is
"relevant to a determination as to whether the defendant possessed the
knowledge required to convict him of violating the order." Commonwealth v.
Delaney, 425
To prove the defendant's knowledge, the Commonwealth relied upon testimony of
the victim that "[o]nce or twice maybe" she
had had telephone conversations with the defendant about the restraining order
and that, to the best of her knowledge, she "[knew] whether or not the
defendant knew that there was a [r]estraining [o]rder." The victim did not testify to what she or the
defendant said during those conversations or when those conversations occurred.
Absent further details, we do not think this evidence suffices to prove that
the defendant had actual knowledge of the terms of the order or was put on
sufficient notice to make reasonable inquiry concerning the issuance and terms
of the order. Contrast Commonwealth v. Mendonca, 50
Mass. App. Ct. 684, 688 (2001) (even assuming a failure of service, the
defendant's actual knowledge of the terms of the order was established by evidence
that the victim told the defendant "a few times" that he was not
supposed to call, the defendant's response that he "didn't believe"
in restraining orders, and the victim's daughter's corroboration of the
conversation).
The Commonwealth also points to evidence that the victim testified that the
defendant and she worked different shifts at the same place of employment
because of the restraining order. However, the victim further testified that
she had never worked the same shift as the defendant even prior to the issuance
of the order. We thus reject this evidence as establishing sufficient proof of
the defendant's actual knowledge of the order and its terms.
Finally, the Commonwealth points to the evidence upon which the trial judge as
the fact finder relied as establishing the defendant's knowledge of the terms
of the order. The victim testified that about two months prior to the
defendant's violation of the order she spied the defendant standing outside of
their place of employment on a crowded street as she left a store with her son.
Her son ran towards the defendant, his father. The victim yelled to her son
that he could not go with the defendant because of the restraining order and
told her son to come back. After the victim shouted this out to her son, the
defendant sent him back to his mother. It is not clear from the testimony that
the defendant, who, according to the victim, was standing about thirty feet
from her on a busy street at 4:30 or 5:00 P.M., actually heard the victim or
what the defendant's reason was for sending his son back. As such, we think
this evidence was likewise inconclusive and does not establish beyond a
reasonable doubt that the defendant had knowledge of the terms of the order.
Judgment reversed.
FOOTNOTES:
[1] The defendant was also convicted of assault and
battery and assault and battery by means of a dangerous weapon. The defendant
has not appealed from those convictions.
[2] The temporary restraining order issued on