Opinion
18-P-340
09-03-2019
COMMONWEALTH v. ERIC BROWN.
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
A jury convicted the defendant, Eric Brown, of violating an abuse prevention order issued under G. L. c. 209A, § 7 (209A order). The judge sentenced the defendant to two and one-half years in the house of correction, with one year to serve, and the balance suspended for three years of probation. The conditions of the defendant's probation included an order forbidding the defendant from contacting his former wife and their daughter, and an order to stay away from them. Another condition of the defendant's probation was global positioning system (GPS) monitoring, listing as exclusion zones the former wife's and daughter's residences and workplaces. The judge impounded the work and home addresses of his former wife and their children. Aside from the protected persons' work and home addresses, the judge did not include geographic exclusion zones in either the GPS monitoring or stay-away orders. Nevertheless, the probation officer who fit the defendant with his GPS monitor instructed the defendant that his GPS exclusion zone was defined by the boundaries of the town of Plymouth, and that he was to remain outside those boundaries, other than to pass through Plymouth via Route 3.
Thereafter, the probation department issued a probation violation notice when the defendant's GPS monitor alerted to the defendant's presence at the Plymouth Registry of Motor Vehicles (RMV). At the defendant's probation detention and probable cause hearing, a second judge "found probable cause to believe that the defendant had violated the stay-away condition of his probation, and detained him pending a final violation hearing." At that hearing, the second judge "explicitly confirmed [the probation officer's explanation that] the parameters of the stay-away order . . . requir[ed] the defendant to remain out of the town of Plymouth." A third judge, who presided at the final probation violation hearing, found that the defendant's appearance at the Plymouth RMV did not violate the terms of his probation. The defendant then filed a motion for reconsideration, seeking to vacate the second judge's order "imposing the expanded exclusion zone of the [t]own of Plymouth and re-impose the original conditions of victim's residence and place of employment." After a nonevidentiary hearing, the second judge (who had heard the defendant's probation detention hearing) denied the defendant's motion.
We note that the parties have not provided us with the probation violation hearing transcript, nor have they provided us with transcripts of the nonevidentiary probation detention and probable cause hearing, or the nonevidentiary hearing on the defendant's motion to reconsider the order adopting the probation officer's imposition of the town of Plymouth as the exclusion zone. Nevertheless, because the material events which transpired at those hearings are not contested, our consideration of the issues on appeal is unhindered by these omissions from the record.
On appeal, the defendant (1) challenges the sufficiency of the evidence to sustain his conviction for violating the 209A order, (2) submits that the prosecutor's closing argument was improper, and (3) claims that his motion for reconsideration should have been allowed because the second judge unlawfully modified the conditions of his probation by imposing a GPS geographic exclusion zone not imposed by the sentencing judge. We affirm the defendant's conviction, but vacate the order denying the motion for reconsideration.
1. Sufficiency of the evidence. The defendant submits that there was insufficient evidence supporting his conviction for violating a 209A order. We disagree. On a claim of insufficiency of the evidence, we 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." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). To convict a defendant of violating a 209A order, the Commonwealth must prove beyond a reasonable doubt:
"(1) that a court had issued an abuse protection order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) that the defendant violated a term of the order."Commonwealth v. Shea, 467 Mass. 788, 794 (2014). If the defendant has allegedly violated a no-contact provision of a 209A order, the Commonwealth must also prove "that the contact was not accidental (or that the defendant did not take reasonable steps to end an accidental contact), or that the contact was not incidental to the defendant's legitimate and lawful attendance at [a] court hearing." Id. See Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006). Contact is not accidental or incidental if a defendant places himself in close "proximity to the protected party after becoming aware of her presence," or fails to "promptly . . . remove himself from such proximity if an encounter arises unexpectedly." Id. at 76-77. Moreover, the Commonwealth is not obligated to prove that the defendant intended to violate the no-contact provision. See id. at 76; Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997). When presented with conflicting evidence, the jury are entitled to make reasonable inferences about whether the contact was accidental or incidental. See Shea, 467 Mass. at 796-797; Commonwealth v. Dostie, 425 Mass. 372, 375-376 (1997).
Here, viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. In 2013, the defendant's former wife obtained a 209A order against the defendant, which forbade the defendant from contacting her and the couple's teenage daughter. One evening in August 2014, the defendant's former wife received a call from her daughter, who was staying with a friend, telling her that she "was going to court with her father and they were going to take [the mother] down." The following morning, the defendant's former wife alerted the Plymouth Police Department to the situation. Later that morning, the defendant's former wife saw the defendant with their daughter and their daughter's friend, walking through the lobby together in the Plymouth County Court House, while their daughter carried the defendant's briefcase., An officer from the Plymouth Police Department also observed the defendant, standing together with his daughter and her friend, in a coffee shop located across the street from the court house.
The defendant does not contest that he knew there was a 209A order in effect as of the date of his contact with his daughter. Thus, we focus our analysis on whether the Commonwealth presented sufficient evidence that the defendant violated the 209A order, and that his contact with his daughter was not accidental or incidental. See Shea, 467 Mass. at 794.
The defendant purportedly had a summons to appear in court that day on a criminal matter.
At trial, the defendant conceded that he "[p]robably" took a bag or briefcase with him to court on the day of the incident.
The father of the defendant's daughter's friend, who was himself a friend of the defendant, testified that in the days leading up to this incident, the defendant's daughter told his daughter that "she wanted a ride to go to the court to try to modify this -- restraining order" to permit the defendant to have contact with her. The friend's father testified that on that morning, he drove both his own daughter and the defendant's daughter to the court house. The defendant testified that his friend had previously informed him of the date that the defendant's daughter was planning on going to court to seek a change in the 209A order.
We conclude that the jury heard ample evidence that the defendant's contact with his daughter was not accidental. The jury could have found that the defendant knew when his daughter was going to be in the court house, based on his conversation with his friend about the daughter's plans to go to court. The jury also could have found that the defendant purposefully placed himself in proximity to his daughter by walking with her in the court house on the date that the defendant had discussed with his friend. See Kendrick, 446 Mass. at 76 (sufficient evidence where defendant placed himself "in proximity to the protected party after becoming aware of her presence"); Shea, 467 Mass. at 794. Moreover, even if the jury concluded that the defendant's presence in the court house with his daughter was accidental, the jury could have found that the defendant did not "take reasonable steps to end [the] accidental contact," where the daughter was walking with the defendant while holding his briefcase. Shea, supra at 794.
There was also evidence that the defendant's contact with his daughter that day was not "incidental" to the defendant's court appearance on his criminal matter. The defendant testified that his daughter's friend approached him in the court house and asked him to buy food for her and his daughter. A Plymouth police officer testified that on the morning of the alleged violation, he saw a man, who he later recognized as the defendant, "with two teenage girls . . . standing right next to" them at the coffee shop. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have inferred that the defendant went to the coffee shop to buy his daughter and her friend food, and that his interaction with them there was unrelated to his criminal court appearance. See Shea, 467 Mass. at 794, 796-797; Dotsie, 425 Mass. at 375-376. The jury could have concluded that the defendant's contacts with his daughter -- both at the court house and at the nearby coffee shop -- were neither accidental nor incidental to his criminal court appearance, and that, by failing to extricate himself from his daughter's presence, the defendant violated the terms of his 209A order. See Latimore, 378 Mass. at 677.
The defendant testified that his friend's daughter approached him in the court house, and asked if he could buy her and his daughter breakfast, but that he needed to stay one hundred yards away. The defendant further testified that he "bee-lined it" to the coffee shop across the street from the court house following this interaction, and left the coffee shop after seeing the two girls there.
2. The prosecutor's closing argument. The defendant also claims error arising from two statements in the prosecutor's closing argument. Because the defendant did not object to either statement at trial, "we review for a substantial risk of a miscarriage of justice." Commonwealth v. Resende, 476 Mass. 141, 154 (2017). "An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not 'materially influence[]' the guilty verdict" (citation omitted). Commonwealth v. Rosa, 73 Mass. App. Ct. 540, 549 (2009). "[W]e consider the prosecutor's remarks [during closing argument] in the context of the entire argument, the testimony, and the judge's instruction to the jury" (quotation and citation omitted). Commonwealth v. Mejia, 463 Mass. 243, 250 (2012). During a closing argument, the "prosecutor may argue the evidence, draw conclusions, and assist the jury in evaluating and analyzing the evidence," Commonwealth v. Lopez, 474 Mass. 690, 699 (2016), and may "respond to the defendant's closing argument." Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 821 (2018). Moreover, because we presume that jurors follow a judge's instructions, see Commonwealth v. White, 475 Mass. 724, 744 (2016), a judge's instructions to the jury may alleviate any prejudice from inaccurate closing arguments. See Commonwealth v. Santana, 477 Mass. 610, 628 (2017); Commonwealth v. Silva, 455 Mass. 503, 518 (2009).
During his closing argument, defense counsel argued that the contact between the defendant and his daughter was accidental, and suggested that the defendant was entitled to "fight" the 209A order because the "order should not [have been] in place, and [his daughter] wanted it vacated." In her closing argument, the prosecutor countered that the defendant's contact with his daughter was not accidental, and suggested that the defendant "decided to take it into his own hands and to have contact with his daughter that was unlawful at the time." The prosecutor further argued that "it doesn't matter what [his daughter's] feelings are" regarding the defendant's obligation to comply with the 209A order.
The defendant argues that the evidence at trial did not support the prosecutor's argument that the defendant "decided to take it into his own hands and to have contact with his daughter." We disagree. Although the defendant argues that there was no evidence that he knew his daughter would be in court, the defendant himself testified that his friend had told him when the defendant's daughter was planning on going to court to modify the 209A order. Moreover, the defendant's friend, who drove the two girls to the court house that day, testified that he saw the defendant at the court house just prior to the defendant's contact with his daughter. That testimony supported the prosecutor's argument to the jury that the defendant chose to have contact with his daughter in the court house in violation of the 209A order. See Lopez, 474 Mass. at 699.
The defendant similarly contends that there was no "foundation" for the prosecutor's argument to the jury that "it doesn't matter what [the defendant's daughter's] feelings are" about the 209A order. We disagree. The prosecutor's argument was fair because it directly responded to defense counsel's argument that the "order should not be in place, [because the defendant's daughter] wanted it vacated," and that the defendant was entitled to "fight" the 209A order. See Chambers, 93 Mass. App. Ct. at 821. Moreover, the judge instructed the jury that closing arguments are not evidence, mitigating the risk of any prejudice to the defendant. See Santana, 477 Mass. at 628; Silva, 455 Mass. at 518. The prosecutor's closing argument did not create a substantial risk of a miscarriage of justice. See Resende, 476 Mass. at 154.
3. Motion for reconsideration. The defendant argues that the second judge erred when she added a geographic exclusion zone which encompassed the entire town of Plymouth to the defendant's GPS monitoring condition of probation. In denying the defendant's motion to reconsider her modification of his probation conditions, the judge reasoned that when she "explicitly confirmed" the probation officer's direction to the defendant that the parameters of the stay-away order required the defendant "to remain out of the town of Plymouth," she properly "clarified" the parameters of the defendant's GPS monitoring condition, and that she did not add a new probation condition. We disagree.
We review a modification of a probation condition for an abuse of discretion or an error of law. "Just as judges have considerable discretion at sentencing in establishing the terms of probation, they also have the discretion to modify those conditions 'as a proper regard for the welfare, not only of the defendant but of the community, may require.'" Commonwealth v. Goodwin, 458 Mass. 11, 17 (2010), quoting Buckley v. Quincy Div. of Dist. Court Dep't, 395 Mass. 815, 818 (1985). Pursuant to G. L. c. 276, § 87, the court "may place on probation in the care of its probation officer any person before it charged with an offense or a crime for such time and upon such conditions as it deems proper . . . in any case after a finding or verdict of guilty." When a probation order states the probation condition
"only in general terms, a judge may modify the condition to provide more detailed guidance to the defendant and probation officer as to what is required . . . [and] where a condition is ambiguous, the judge may modify the condition to provide the necessary clarity."Goodwin, 458 Mass. at 17. Nevertheless, a material change in circumstances is a prerequisite to adding or modifying "a probation condition that will increase the scope of the original probation conditions." Id.
First, we conclude that the probation officer improperly added the boundaries of the town of Plymouth as an exclusion zone to the defendant's GPS monitoring and stay-away orders of conditions. "It is the function of the sentencing judge to set the conditions of probation," and it is the duty of a probation officer to enforce conditions set by the judge. A.L. v. Commonwealth, 402 Mass. 234, 242 (1988). Even if it had been appropriate to modify a condition of the defendant's probation, the judge, not the probation officer, had the authority to "modify the condition to provide the necessary clarity." Goodwin, 458 Mass. at 17.
Second, we conclude that the second judge, who presided over the defendant's probation detention and probable cause hearing, was without authority to "confirm" the probation officer's directive by adding this significant exclusion zone to the original probation conditions. Given that the sentencing judge's order of probation conditions only imposed the protected persons' home and work addresses as geographic exclusion zones in his GPS monitoring orders, we conclude that the modification by the second judge imposed an entirely new exclusion zone where none was imposed in the first place.
We further conclude that by imposing an exclusion zone encompassing the entire town of Plymouth, the judge "increase[d] the scope of the original probation conditions." Goodwin, 458 Mass. at 17. Because the judge did not find, nor does the Commonwealth argue, that there existed any material change in the defendant's circumstances justifying this modification, the judge's order increasing the scope of the original probation conditions may not stand. See id. "A probation violation hearing is not the time for a judge to add a probation condition improperly imposed by a probation officer and then to find the defendant in violation of that order." Commonwealth v. Lally, 55 Mass. App. Ct. 601, 604 (2002).
Conclusion. For the reasons discussed, we affirm the defendant's conviction for violating a 209A order, and vacate the order denying the defendant's motion to reconsider. We remand for entry of an order allowing the defendant's motion to reconsider and reinstating the original terms of probation.
So ordered.
By the Court (Vuono, Wolohojian & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: September 3, 2019.