Opinion
13-P-1812
08-31-2015
COMMONWEALTH v. JORGE SALAZAR.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jorge Salazar, appeals from his convictions under G. L. c. 209A, § 7, of two counts of violating an abuse prevention order (the order). He raises several claims of error, primarily centered upon an argument that he lacked sufficient notice of the order. We affirm.
It is undisputed that the defendant is also known as Melvin Tejeda.
Specifically, the defendant argues (1) the complaint was not supported by probable cause that the defendant knew of, and violated, the order; (2) his constitutional due process rights were violated because he did not receive fair notice of the proscribed conduct prior to his arrest; (3) the evidence was insufficient to establish notice or contact to support a conviction under G. L. c. 209A; (4) the trial judge improperly admitted evidence of the defendant's alias and related identifying information; and (5) his trial counsel provided ineffective assistance by failing to request incidental contact jury instructions or file a motion to dismiss on the basis that an exemption to the statutory notice requirement was not met.
1. Background. The following facts, which we view, on the challenge to the sufficiency of the evidence, in the light most favorable to the Commonwealth, are taken from the trial evidence. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On March 28, 2012, in response to the defendant's threatening telephone calls the prior day, the victim (the defendant's estranged wife) changed her cellular telephone number and called the police. Officer Lawrence Velino, Jr., and another officer, both of the Attleboro police department, responded to the victim's home. After speaking with the victim, Officer Velino contacted an on-call judge via telephone, who granted an emergency temporary abuse prevention order pursuant to G. L. c. 209A, § 5. The order prevented the defendant from coming near or contacting the victim until the following day, when an extension hearing was scheduled.
Because the defendant's address and whereabouts were unknown and due to the ongoing threatening situation, Officer Velino elected to inform the defendant of the order by telephone. The victim called the defendant's cellular telephone from her house telephone and, after identifying the voice on the other end as the defendant's, handed Officer Velino the phone to take over the conversation. The officer identified himself to the defendant as Officer Velino with the Attleboro police department and asked if he was speaking to Melvin Tejeda, to which the defendant replied, "yes." The officer then asked if the defendant was also known as Jorge Salazar, and the defendant replied, "no," and became upset. Officer Velino informed the defendant that an emergency restraining order had been issued against him and read him its provisions. The defendant responded that he understood. Officer Velino explained that if the defendant had any questions or needed more verification, he could call the police station. The officer then provided the phone number for the Attleboro police department and spelled his last name before hanging up the phone.
Written notice was not provided to the defendant at any point.
At some point in the conversation, but not immediately, Officer Velino also provided the defendant with his badge number in response to the defendant's request.
Approximately one to two minutes later, the defendant called the house phone. The defendant testified that he called back the same number from which he had just been called, unaware that it was associated with the victim, in order to verify whether the original call was authentic. The answering machine picked up his call "and he was very, very angry, very belligerent, very upset, screaming into the answering machine." Officer Velino heard the defendant "yelling over the phone at the [victim]." The victim then picked up the phone and handed it to Officer Velino. The officer again identified himself and then advised the defendant he was in violation of the order by calling the victim. Officer Velino again informed the defendant he could call the police station to verify Officer Velino's identity, provided the police station's phone number, and terminated the call.
Several minutes later, the defendant called the house phone again. The victim answered the call and handed the phone to Officer Velino. Officer Velino explained to the defendant that he was in violation of the order a second time and ended the call after a brief conversation. Throughout the initial call and each of the two returned calls, the defendant was argumentative and yelling, and he questioned Officer Velino's identity as a police officer.
The following day, the defendant went to the police station to ask if he had any warrants against him. He identified himself as Melvin Tejeda and offered a driver's license under that name. The officer answered that the defendant did not have any warrants. That same day, an application for a criminal complaint was filed and a complaint issued against the defendant under the name Jorge Salazar. On June 18, 2012, a judge denied the defendant's motion in limine to exclude references to his alias, but granted his motion to exclude evidence of prior physical abuse against the victim. The defendant was then tried before a jury and convicted of two counts of violation of an abuse prevention order.
2. Violation of abuse prevention order. 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 Mass. 401, 403 (2000). The defendant challenges the proof of the second and third elements, arguing that, even viewed in the light most favorable to the Commonwealth, the evidence was insufficient to establish that (1) he possessed the requisite knowledge of the order to support his convictions, and (2) the phone calls at issue constituted contact under G. L. c. 209A where they were no more than "reasonable inquir[ies]" into the legitimacy of the call informing him of the order. We disagree.
a. Knowledge. Our cases make clear that "[p]ersonal service [of an abuse prevention order] is not required . . . if the Commonwealth can show the defendant had actual or constructive knowledge of the existence and terms of the court order." Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 308 (1998). Furthermore, even if service itself fails, it has been "[r]epeatedly held that proof of service is not required in a prosecution under G. L. c. 209A, § 7." Edge v. Commonwealth, 451 Mass. 74, 77 (2008). Rather, it is well established that "failure of service is not fatal to a conviction, [but] may be relevant to whether the defendant had the requisite knowledge" under the statute. Commonwealth v. Griffen, 444 Mass. 1004, 1005 (2005), citing Commonwealth v. Delaney, 425 Mass. 587, 593 (1997), cert. denied, 522 U.S. 1058 (1998). The defendant is correct that the required knowledge element is a personal one. See, e.g., Commonwealth v. Holiday, 349 Mass. 126, 128 (1965). However, "[k]nowledge is a question of fact, and proof is frequently made by inference from the facts and circumstances developed at trial." Commonwealth v. Tavares, 87 Mass. App. Ct. 471, 475 (2015). The defendant's knowledge may be established by evidence sufficient "[t]o 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." Commonwealth v. Welch, 58 Mass. App. Ct. 408, 410 (2003).
The defendant concedes that he was the person on the telephone and that he heard Officer Velino read the terms of the abuse prevention order. He argues instead that the officer's efforts were not adequate to provide sufficient notice given the context of his explanation.
In Commonwealth v. Griffen, the Supreme Judicial Court held that under the circumstances of the case, an officer's service of the defendant with the protective order over the telephone was improper where the officer read the order to the defendant over the phone, but the defendant abruptly ended the call without indicating that she had heard the officer or understood the terms of the order. See 444 Mass. at 1005. The court nonetheless concluded, in reviewing the grant of a petition under G. L. c. 211, § 3, that the order was "relevant to show exactly what the officer said to [the defendant] and to show [her] knowledge of the order and its terms." Ibid.
Here, Officer Velino testified that he "read the provisions of the emergency restraining order" to the defendant and the defendant "stated that he understood." In addition, the defendant testified that Officer Velino explained the terms of the order. That the defendant also testified that he was confused and did not believe the call was legitimate does not render the evidence insufficient. Questions of credibility are for the jury and, on appeal, to be resolved in favor of the Commonwealth. See, e.g., Commonwealth v. Platt, 440 Mass. 396, 401 (2003). Furthermore, the defendant's reaction to the initial call (immediately calling back and screaming into the answering machine) permitted a reasonable inference that he was angry about the order. A rational jury could have concluded that the defendant had actual knowledge of the existence and terms of the order. See Commonwealth v. Mendonca, 50 Mass. App. Ct. 684, 688 (2001) (sufficient evidence of actual knowledge where victim testified she told defendant "a few times" he was not supposed to call and he responded that he "didn't believe" in restraining orders and said "to hell with them"); Commonwealth v. Melton, 77 Mass. App. Ct. 552, 556 (2010) (sufficient evidence of knowledge of order with no-call term where, on the day before, victim asked defendant "what are you doing calling me; there's a restraining order"). Contrast Commonwealth v. Welch, supra at 410-411 (insufficient evidence of knowledge where victim simply testified she had telephone conversations with defendant about restraining order "[o]nce or twice maybe").
While Officer Velino did not testify as to the exact language he read to the defendant, he read the order itself to the jury earlier in his testimony. The jury were entitled to infer that Officer Velino read the defendant the same provisions to which he had already testified.
The defendant makes much of the fact that Officer Velino did not make the initial call from an official police telephone and terminated the calls abruptly, arguing that this required the defendant to speculate about whether the call was legitimate. These points lack any merit. The jury were entitled to consider and assign weight to these facts as they saw fit. Furthermore, the fact that the officer terminated the defendant's return calls abruptly has no bearing on the defendant's knowledge of the order at the end of the initial call (before he called back).
b. Violation of the order. The defendant contends that his calls were a reasonable inquiry into, and therefore not a violation of, the order. This argument is unavailing. Officer Velino offered the defendant a lawful means by which to verify the legitimacy of the initial call, and the defendant may not escape conviction by choosing to ignore the information he was given. Where the terms of the order (of which the defendant was aware) prohibited the defendant from having any contact with the victim and he knew she was in some way associated with the telephone number he was calling, any contact, regardless of its purpose, was a violation of the order. See Commonwealth v. Silva, 431 Mass. 194, 199 (2000) ("Proof that the defendant had an unlawful purpose in placing his telephone calls was not necessary"). Moreover, the jury were entitled to infer, from the testimony that he yelled at the victim over the answering machine, that the defendant intended to contact her when he returned the call.
The defendant's reliance on Commonwealth v. Olivo, 369 Mass. 62, 69 (1975), is misplaced. Olivo makes clear that "[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." Ibid., quoting from Essex Natl. Bank v. Hurley, 16 F.2d 427, 428 (1st Cir. 1926). However, this language does not somehow turn the defendant's conduct into "a reasonably diligent inquiry" into the validity of the order, particularly where Officer Velino specifically informed the defendant that he could verify the order by calling the police station and provided the appropriate phone number. The Supreme Judicial Court went on to say, "[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.'" Ibid. (citation omitted).
The evidence supported findings that the defendant (1) had actual knowledge of the existence and terms of the order and (2) twice violated the order by calling the house phone and yelling at the victim. Thus, the defendant's motion for a required finding of not guilty was properly denied. In addition, because the defendant had actual knowledge of the order, his related due process claim also fails. See Commonwealth v. Delaney, 425 Mass. at 591-593.
The defendant also argues the Commonwealth's application for the criminal complaint lacked probable cause to establish that he had notice of, or violated, the order and, therefore, his motion to dismiss should have been allowed. We review de novo whether the complaint application alleged sufficient facts to establish probable cause as to each element of the offense. See Commonwealth v. Humberto H., 466 Mass. 562, 566 (2013). We conclude that it did. The application included Officer Velino's incident report from March 28, which contained a narrative that was consistent with his testimony at trial. For the reasons already discussed, these facts constituted "reasonably trustworthy information . . . sufficient to warrant a prudent man in believing" that the defendant had knowledge of and violated an abuse prevention order pursuant to G. L. c. 209A, § 7. Commonwealth v. Bell, 83 Mass. App. Ct. 61, 63 (2013) (citation omitted). For his argument that the complaint painted a distorted picture of the events in question, the defendant improperly relies primarily on Officer Velino's testimony at trial, which we do not consider. See id. at 62 ("[A] motion to dismiss a criminal complaint for lack of probable cause is decided from the four corners of the complaint application, without evidentiary hearing"). Consequently, the defendant's motion to dismiss was properly denied.
3. Questioning on defendant's alias. The defendant argues that the judge erred in permitting the Commonwealth to cross-examine him about his alias, birth date, country of origin, and immigration status because these matters were not relevant to the crime charged (as his identity was not at issue) and were highly prejudicial as suggestive of bad character.
The background of the trial testimony was as follows. The defendant testified that he went to the police station the day after the phone calls in order to verify the validity of the order (and his attorney emphasized this theory in closing argument). However, at the police station, the defendant provided only the name and information associated with his false identity, which allowed for an inference that this trip to the police station was not actually an effort to verify the existence of the order.
We reject the defendant's contention that the alias was not a proper topic on cross-examination. The evidence of the defendant's alias was relevant to his knowledge of the order and necessary to rebut the defendant's theory of the case. However, the prosecution interrogation went much further than just the alias. Therefore, while this evidence of alias was relevant in part, in the context of this case, there should have been a balancing by the trial judge of the entirety of what was the subject of cross-examination by the prosecution (e.g., the defendant's country of origin and immigration status). That balancing required consideration of the potential for unfair prejudice. See generally Mass. G. Evid. § 403 (2015); Ruszcyk v. Secretary of Pub. Safety, 401 Mass. 418, 423 (1988). Viewed another way in such a balancing, the "extra" evidence concerning the country of birth and immigration status was not central to proof of either the use of an alias or the elements of the G. L. c. 209A offense, and was, it seems, attenuated. While there is a close question presented concerning undue prejudice, we do not perceive that any error, even absent balancing, in the full scope of the admission of the evidence "'substantially sway[ed]' the outcome of the case." Commonwealth v. Rodriguez, 457 Mass. 461, 477 (2010) (citation omitted). The evidence which we have recited was strong, and the alias was embedded in the case by the defendant's own words and actions.
We note that the Commonwealth submits that the prosecutor brought up the defendant's immigration status only after the defendant mentioned it on direct examination. But that does not resolve whether the further inquiry was properly allowed to proceed in the cross-examination.
On this point, we also note that evidence that the defendant gave his alias and false information when he went to the police station was also admissible as evidence of consciousness of guilt. See Commonwealth v. Munoz, 461 Mass. 126, 139 (2011), vacated on other grounds sub nom. Munoz v. Massachusetts, 133 S. Ct. 102 (2012).
The defendant's related argument that the Commonwealth exploited this error in its closing argument also fails. The Commonwealth concedes that the statement at issue impermissibly commented on the defendant's believability. However, no substantial risk of a miscarriage of justice resulted from this isolated comment in light of the strength of the evidence against the defendant and the judge's instructions that closing arguments were not evidence. Contrast Commonwealth v. Martin, 442 Mass. 1002, 1003 (2004).
4. Ineffective assistance of counsel. The defendant contends his trial counsel provided ineffective assistance by failing to (1) request incidental contact jury instructions or (2) file a motion to dismiss based upon the Commonwealth's failure to provide notice of a clerk's hearing or state on the complaint application an exemption to the notice requirement under G. L. c. 218, § 35A. As a threshold matter, neither claim falls within the narrow exception for cases in which ineffectiveness is apparent on the record of the direct appeal. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). In any event, we discern no merit in these claims. First, the defendant has not demonstrated that he was entitled to a jury instruction on incidental contact, and the cases to which he cites are inapposite. Next, even if the complaint application was deficient for the reasons stated, the defendant cannot have been prejudiced where there was probable cause to support the complaint and he was convicted by a jury beyond a reasonable doubt. See Commonwealth v. Irick, 58 Mass. App. Ct. 129, 131-133 (2003). Accordingly, counsel was not shown to have been ineffective.
Judgments affirmed.
By the Court (Berry, Wolohojian & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 31, 2015.