Opinion
11-P-561
03-01-2012
COMMONWEALTH v. HASSAN MASKOUTE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a two-day jury trial, the defendant was found guilty of violating an abuse prevention order, in violation of G. L. c. 209A, § 7. On appeal, the defendant claims that the judge violated art. 30 of the Massachusetts Declaration of Rights and deprived him of due process when he ordered two special verdict slips. We affirm.
The defendant was charged with, but found not guilty of, threatening to commit a crime (bodily harm), in violation of G. L. c. 275, § 2.
1. Article 30. The defendant claims for the first time on appeal that the judge violated the separation of powers doctrine set forth in art. 30. He argues that '[t]he judge built the structure of the pleadings on language of the defense rather than of the Commonwealth.' In context, the defendant claims that the judge adopted the defendant's suggestion that the Commonwealth be forced to choose whether it would proceed on a violation of the 'no contact' provision or the 'stay away' provision of the abuse prevention order. But this is incorrect. Based on the transcript of the pretrial conference, the judge did not use the language of the defense, as the defendant claims. Rather, it appears the judge was attempting to clarify the charges against the defendant, as well as how the Commonwealth intended to prove the allegation. The judge looked to the defendant's motion in limine to ensure the defendant understood the Commonwealth's theory that there could be but one conviction, but two bases of culpability on which that conviction could rest. The judge properly endeavored to clarify the issue and did not exceed his judicial authority. Article 30 was not violated, and thus, there was no risk that justice miscarried.
Article 30 of the Massachusetts Declaration of Rights states, in relevant part, that 'the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.'
Nor is there any merit to the defendant's claim that the judge intruded on the Legislature's authority by determining that there is more than one way to violate a c. 209A abuse prevention order.
2. Due process. The defendant also claims for the first time on appeal that it was a violation of his due process rights to have two verdict slips for one conviction. We disagree. The defendant claims that because there were two verdict slips, one for the 'no contact' provision and one for the 'stay away' provision of the c. 209A order, he was essentially convicted of duplicative offenses. However, the defendant's single conviction duplicated no other, nor was he convicted of two cognate offenses. Compare Commonwealth v. King, 445 Mass. 217, 225-226 (2005), cert. denied, 546 U.S. 1216 (2006). We cannot say the judge erred by giving the jury verdict slips that delineated both manners in which a violation could be found. See Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003). Here, the Commonwealth was seeking one conviction based on either of two methods of proof. Even if the violations of the 'no contact' and 'stay away' provisions were committed as part of a single episode, and the judge was not required to do so, he was also not prohibited from ordering the two special verdict slips. See Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 254-255 (2001).
There is also no merit to the defendant's suggestion that he was twice placed in jeopardy by the judge's action. The defendant was not tried for this crime twice, and he was punished only once. See Aldoupolis v. Commonwealth, 386 Mass. 260, 271-272, cert. denied, 459 U.S. 864 (1982).
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Judgment affirmed.
By the Court (Katzmann, Vuono & Meade, JJ.),