Opinion
19-P-1
06-08-2020
COMMONWEALTH v. ZANE MCNEILL.
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 was convicted, after a jury trial, of twice violating a G. L. c. 209A abuse prevention order. He appeals from those convictions, arguing that the jury should have received an incidental contact instruction and that prior bad act evidence was erroneously admitted. He also argues that the cumulative effect of these errors warrants reversal of his convictions. We affirm.
Background. The defendant and his two sisters together own property in Tewksbury they received from their parents. One of the sisters, whom we shall call Mary, lived with her husband in a house on the property. The defendant lived and worked in a garage on the property, which was located approximately 200 to 250 feet away from the house. Given the configuration of the property, the defendant needed to drive past Mary's house to reach the garage.
The other sister lived next door.
An abuse prevention order issued on August 26, 2016, requiring the defendant to stay at least one hundred feet away from Mary, and that he stay away from her house. However, the defendant was allowed to live and work in the garage. On September 7, 2016, the order was modified and extended for one year. The modified order allowed the defendant to use the driveway "for access only" and prohibited the defendant from "stop[ping] at the house."
On February 14, 2017, after a snowfall, the defendant stopped his truck about twenty-five to thirty feet away from the house, got out of the truck, and looked around. On April 29, 2017, the defendant drove his truck into the yard of the house, made a three-point turn in front of the house, got out of his truck, yelled obscenities, and took pictures of Mary's house and of the guests at the sister's house. On this occasion, the defendant was twenty to twenty-five feet away from Mary's house.
The defense to the February 14th incident was that the driveway had been plowed in such a way that the defendant had to stop his truck near the house. As to the April 29th incident, the defendant admitted to police that he had stopped near the house, but that his purpose had been to take photographs of signs Mary had posted on the property. The overall arching theme of the defense was that this was not a criminal matter, but rather part of a dispute among the siblings over the disposition of the property and that the sisters had set the defendant up to violate the order.
Discussion. The defendant argues that the judge erred in denying his request for an incidental contact instruction. Our cases have recognized that brief, nonabusive contact that is necessarily incidental to a legitimate activity permitted by an abuse prevention order may not violate the order. See Commonwealth v. Silva, 431 Mass. 194, 198 (2000); Commonwealth v. Leger, 52 Mass. App. Ct. 232, 237 (2001). Both Leger and Silva involved orders permitting the defendant to telephone his children, but not the children's mother; when he permissibly called his children, the mother picked up the phone. Where contact with the mother was brief, nonabusive, and inevitable in order to "exercise [the defendant's] right to reach his children," then it was a question of fact for the jury whether the contact was "permissible incidental contact or impermissible contact which 'crossed the line' and constituted a violation of the order." Leger, supra at 237, 238. On the other hand, where the contact was not unavoidable, and "went beyond permissible incidental contact by using abusive and threatening language," the defendant was not entitled to an incidental contact instruction. Silva, supra at 199.
Although it is true that the c. 209A order at issue here allowed the defendant to use the driveway to go past the house in order to reach the garage, it does not follow that his activities on February 14 and April 29 were "incidental" to that permitted activity. Most importantly here, there was nothing to suggest that circumstances unavoidably compelled the defendant to stop within twenty-feet of Mary's house, or to get out of his truck, let alone to take photographs within the prohibited zone and shout obscenities. In these circumstances, the judge did not err in declining to give an incidental contact instruction.
The defendant next argues that impermissible prior bad act evidence came in through Mary on redirect examination by the prosecutor. Specifically, he challenges the admission of her testimony that the reason why she posted signs on the property was because he had previously violated the restraining order by parking by her back door. Defense counsel had explored this topic in detail during cross-examination of Mary. Specifically, he showed her pictures of the signs, and elicited testimony that she had placed the signs to warn the defendant after he had parked there twenty times. The purpose of this examination was to try to establish that, during the April 29th incident, the defendant was taking pictures of these newly-posted signs rather than of Mary's house, thus justifying his actions on that day.
A defendant's prior bad acts are "generally inadmissible to show a defendant's propensity to commit the crime with which he or she is charged. See Mass. G. Evid. § 404(b)." Commonwealth v. Denton, 477 Mass. 248, 250 (2017). Here, Mary's testimony regarding the defendant's prior violations of the restraining order was not admitted to show the defendant's propensity to violate the order, but rather to explain Mary's motivation in posting signs on the property. For this reason, there was no error in the judge's decision to allow the testimony on redirect examination, particularly since the defendant had opened the door and explored the topic during cross-examination. See Commonwealth v. McCowen, 458 Mass. 461, 479 (2010) (no abuse of discretion to admit prior bad act evidence to explain investigator's state of mind when defendant had opened door to admission of evidence).
For these reasons, the defendant's claim of cumulative error also fails, and we affirm his convictions.
Judgments affirmed.
By the Court (Wolohojian, Maldonado & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 8, 2020.