Opinion
No. 11–P–472.
2012-08-6
COMMONWEALTH v. Anthony GIELLO.
By the Court (MILLS, BROWN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with violating a restraining order that prohibited him from contacting his former girlfriend, Tiffany West. The order was issued on January 15, 2008. On January 28, 2008, it was extended for one year. A handwritten notation appears in the section of the form provided for, and signed by, the judge who granted the extension. The notation states that “per” a Saugus police report dated January 22, 2008, the defendant was given notice of the restraining order by police Officer Flynn over the telephone.
While a few letters may have been cut off on the appendix photocopy, the notation appears to read: “Per 1/22/08 Saugus Police Report, [defendant] was given notice of R.O. by P.O. Flynn over telephone.”
West complained that on February 16, 2008, the defendant called her three times.
The jury convicted the defendant of violating the order under G.L. c. 209A. On appeal, the defendant argues that the notation was inadmissible hearsay and that the judge erred in admitting the unredacted order. We agree and reverse.
She testified that she received these calls at around 1:30 or 1:45 A. M.
The Commonwealth does not dispute that the notation was hearsay.
Because we reverse the judgment on this issue, we need not reach the defendant's additional arguments charging error in the judge's jury instructions and the prosecutor's closing.
Instead, it argues that the notation was admissible under the public record exception to the hearsay rule because it “functioned” as a return of service. In Commonwealth v. Shangkuan, this court determined that the hearsay statement “contained in the return of service (to wit, that the defendant was served in hand on a particular day) falls within the official or public records exception to the hearsay rule because it is a ‘record of a primary fact, made by a public officer in the performance of official duty.’ “ Commonwealth v. Shangkuan, 78 Mass.App.Ct. 827, 830–831 (2011), quoting from Commonwealth v. Slavski, 245 Mass. 405, 417 (1923). See Mass. G. Evid. § 803(8)(A) (2012). Both the restraining order itself and G.L. c. 209A, § 7, mandate that law enforcement serve the order to the defendant in hand and record such service via a return of service to the court. Shangkuan, 78 Mass.App.Ct. at 831. See Brodin & Avery, Massachusetts Evidence § 8.12.1, at 544 (8th ed. 2007) (“The fact that the official has a duty generally to keep records is not sufficient. It must be shown that he has a public duty to record that particular type of fact”).
It is undisputed that the defendant was not present in court when the order was issued or when it was extended. At trial, the Commonwealth relied on the notation to show that the defendant had knowledge of the restraining order prior to calling West. As such, the notation was offered for its truth and was hearsay, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Mass. G. Evid. § 801(c) (2012).
Unlike a return of service, the notation in this case contained the hearsay statement that, according to a police report, an officer gave the defendant verbal notice of the order over the telephone. We are unaware of any duty for a police officer to verbally notify the defendant of a restraining order over the telephone and record such notice.
In the absence of such a duty, the hearsay statement that an officer gave notice of the order to the defendant over the telephone does not satisfy the public records exception and its admission constituted an abuse of discretion.
In response to the Commonwealth's assertion that the recording of verbal notice in the police report functioned as a return of service to the court, we note that while a return of service indicates that the defendant received a copy of the order, see Shangkuan, 78 Mass.App.Ct. at 831, the notation in no way identifies the scope of notice given to the defendant (for example, whether he was read the full terms of the order over the telephone).
Although the admission of the notation presents multi-layer hearsay, we do not find an exception for the first layer and need not travel further up the totem pole.
As the defendant brought a motion in limine to redact the notation from the order and renewed the motion when the order was introduced, we review for prejudicial error. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). A central issue in the case was whether the defendant had knowledge of the order prior to contacting West. “To establish a violation of G.L. c. 209A, § 7, the Commonwealth must [prove beyond a reasonable doubt] 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.” Shangkuan, 78 Mass.App.Ct. at 829, quoting from Commonwealth v. Griffen, 444 Mass. 1004, 1005 (2005). To prove the third element, the Commonwealth advanced two theories at trial and in closing—first, that the defendant gained knowledge of the order from Officer Flynn prior to calling West (shown solely by the notation), and second, that even if he did not have notice from Officer Flynn, he received notice during the first call when West told him, “I have a restraining order against you, don't call again .”
Under this theory, he then violated G.L. c. 209A, § 7, during the second and third calls.
In the prosecutor's words, the defendant “was given notice of the restraining order over the telephone, that was in January, January 28th,” “and if he wasn't notified of the terms on that date by Officer Flynn ..., he most definitely was notified February 16th when he called Tiffany West for the first time....”
West's testimony was the only evidence that she notified the defendant of the order during the first call. Although West testified that she told the responding police officer, Officer Birretteri, that she had told the defendant of the order during that call, Birretteri testified that he did not recall her saying anything of that nature. In other words, the only evidence the jury received in support of the theory that the defendant gained knowledge of the order from West came exclusively from her testimony. We cannot fairly conclude that the objectionable evidence, which supported the alternate theory that the defendant gained knowledge of the order from Officer Flynn, “did not influence the jury, or had but very slight effect.” Flebotte, 417 Mass. at 353, quoting from Commonwealth v. Peruzzi, 15 Mass.App.Ct. 437, 445 (1983).
While we cannot conclude that the erroneous admission of the written notation in this case did not prejudice this defendant, our analysis and conclusion in no way alters the principle that a complainant's testimony of a verbal warning to a defendant can provide sufficient evidence of actual notice of a restraining order. See Commonwealth v. Mendonca, 50 Mass.App.Ct. 684, 688 (2001); Commonwealth v. Melton, 77 Mass.App.Ct. 552, 556 (2010).
Judgment reversed.