Opinion
No. 15–P–1129.
05-09-2016
COMMONWEALTH v. Cynthia MONTEIRO–ELIAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of one count of violating a stay away order issued by a Probate and Family Court judge. For the reasons set forth below, we conclude that the defendant is entitled to a new trial.
Background. In the context of divorce proceedings between the defendant and her husband, a Probate and Family Court judge issued a domestic relations protective order against the defendant pursuant to G.L. c. 208, § 18 (order). That order was initially issued on February 23, 2011, and eventually was extended to March 22, 2013. The order mandated that the defendant “NOT ... ABUSE [her husband],” “stay at least 100 yards away from [him],” and “stay away from 24 Concord Ave, Milton, MA” (the husband's residence).
The two arresting officers testified that they were dispatched to “the area of 9 and 24 Concord Ave.” in Milton on the afternoon of December 14, 2012, in response to a call to the Milton police. There, they observed a person—later identified as the defendant—sitting in a car parked on the side of the road “approximately seventy yards” away from the husband's residence. That road was a residential street, with houses in close proximity to each other, and no businesses on it. The car was parked “[d]own the street” facing “[t]owards the home.” The officers had learned of the order against the defendant, and asked her “why she was there.” The defendant replied, “No reason.”
No admitted evidence established the identity of the caller.
Despite the parameters of the actual order (which was admitted at trial), both officers testified that the order required the defendant to stay one hundred yards from the husband's residence, not just his person. The first officer testified that the defendant “wasn't allowed within a hundred yards of 24 Concord Ave.” The second officer testified that the defendant “couldn't be within one hundred yards of a certain residence,” and that she was “within the hundred yards as specified by the restraining order.” The defendant did not object to any of this testimony, e.g., on the ground that the description was inconsistent with the order, or that the order spoke for itself. Nor did she attempt to rectify the officers' misstatements on cross-examination.
The Commonwealth argues that the first officer later “correct [ed]” her erroneous testimony. This simply is not accurate. Later, the prosecutor showed the first officer the actual order, and the officer read from its terms, stating that the defendant was “supposed to stay at least a hundred yards away from the [husband], no contact and supposed to stay away from the children.” Notably, the officer neither clarified nor even mentioned the provision to “stay away” from the husband's residence, and nothing else in her testimony served to correct her earlier misstatement.
After the close of the Commonwealth's case, the defendant moved for a required finding of not guilty. Because there was no evidence that the husband was home at the time the defendant was parked seventy yards away, the parties agreed that the only violation for which there might be sufficient evidence related to the provision requiring the defendant to “stay away” from the husband's residence. The trial judge pointed out to the parties, outside of the jury's purview, that the officers provided erroneous testimony about that provision. Nevertheless finding the evidence sufficient to go to the jury, the judge denied the motion for a required finding.
Specifically, the judge stated that “both of [the officers] testified, that she's ordered to stay a hundred yards from the residence and that's not what the order says, it says that she's just to stay away from the residence.”
In her closing argument, the defendant made no effort to point out that the officers' testimony about what the order provided was inconsistent with what the order actually said. In her closing, the prosecutor touched on the issue as follows:
“If you go through the certified copy of the domestic relations order, you will be able to see the terms of the order, were that she stay away from 24 Concord Ave in Milton. And in fact, it doesn't even provide a yardage of that stay away. She sp—was specifically ordered to stay away one hundred yards from [her husband], but she wasn't even given a yardage on how far away she was supposed to stay away from 24 Concord Ave....
“The testimony is that the area of Concord Avenue is a residential neighborhood, it's not a cut-through street, the homes are very close together, so it wasn't that this defendant was nowhere near 24 Concord Ave, she was near 24 Concord Ave, she was approximately seventy yards away from 24 Concord Ave. And seventy yards, a hundred yards, a hundred and fifty yards away, she was not supposed to be near 24 Concord Ave, and where is she parked? Just down the street from 24 Concord Ave.”
Even though the judge had pointed out to the parties that the officers had misstated what the order prohibited, the defendant did not request, nor did the judge issue, a curative instruction that called the jury's attention to the issue. Rather, in laying out the elements of what the Commonwealth had to prove, the judge in pertinent part instructed merely that the Commonwealth had to prove “that the defendant violated the order by failing to remain away from a certain location.”
Discussion. Testimony mischaracterizing the “stay away.” The officers' testimony that the order required the defendant to stay at least one hundred yards from the husband's residence was indisputably incorrect. Because the defendant did not object to this testimony, we review whether the admission of this evidence caused a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999).
In the face of uncontradicted testimony from a police witness that the defendant was found approximately seventy yards from the residence, a conviction was virtually preordained if the jury accepted the officer's erroneous testimony about what the order required. If, on the other hand, the jury had understood that the order stated only that the defendant had to “stay away” from the residence, they might well have concluded that someone who remained seventy yards away from the residence did not violate that provision. Thus, the misinformation provided by the two police witnesses potentially was critical to the verdict. We now turn to examining whether the problem was cured by: (1) the fact that the order itself was before the jury, (2) the judge's instructions, or (3) the prosecutor's closing argument.
It bears noting that the second officer not only repeatedly stated that the order contained a provision that did not exist, but also described in detail his method to measure the distance between the defendant and the residence. Indeed, at trial, even the defendant seemed to believe that the precise distance between her car and the residence was determinative. Thus, for example, on cross-examination of the second officer, trial counsel focused exclusively on the officer's ability to conduct accurate measurements, including questions such as “[H]ow often do you ... conduct measurements?”; “[W]hat type of instrument do you use?”; and “Where you measured either the front of the house or the beginning of the house, or the end of the house[, that] would depend upon the measurements also?”
In our view, the fact that the jury had the correct terms of the order in front of them was not enough to cure the prejudice created by the officers' misstatements. For one thing, in the face of the officers' unchallenged testimony about what the order said, the jury had little reason to scrutinize the order itself. For another, had the jury read the order, they could have harmonized what they saw there as follows: while the order did not include a specific set distance, the officers explained that “stay away” meant the defendant had to be at least one hundred yards away. For similar reasons, we also conclude that the problem was not cured by the judge's instructions that the jury had to find that the defendant had failed to “remain away from a certain location.” The jurors might well have interpreted that statement as saying that the “certain location” that the defendant had to stay away from was the one hundred yard envelope around the residence.
The prosecutor's statements in her closing argument present somewhat different issues, because at least they suggested that what the jury heard about what the order stated might not exactly be true. However, in some respects, the prosecutor exacerbated the problem by indicating—with seeming authority—that so long as the defendant was anywhere “near” the residence, that was enough to convict her (regardless of whether it was “seventy yards, a hundred yards, a hundred and fifty yards away”). Moreover, the jury were twice instructed (properly) that “closing arguments ... are not evidence and ... are not a substitute for the evidence.” The prosecutor's statements did not cure the problem caused by the officers' critical misstatements.
There is a substantial risk of a miscarriage of justice where there is “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002), quoting from Commonwealth v. LeFave, 430 Mass. 169, 174, 714 N.E.2d 805 (1999). We conclude that the defendant has met that standard. In short, she did not receive a fair trial, and she is therefore entitled to a new one.
Sufficiency. We still must examine whether the trial evidence was insufficient as a matter of law (which, if true, would bar a retrial). In addressing that issue, we review the evidence in the light most favorable to the Commonwealth to determine whether “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, 393 N.E.2d 370 (1979). We consider everything “which was admitted in evidence, without regard to the propriety of the admission,” including, here, the mistaken testimony about the contents of the order. Commonwealth v. Sepheus, 468 Mass. 160, 164, 9 N.E.3d 800 (2014), quoting from Commonwealth v. Farnsworth, 76 Mass.App.Ct. 87, 98, 920 N.E.2d 45 (2010). Viewed in that light, the evidence was plainly sufficient, as the jury readily could have concluded that the defendant violated the order merely by being within one hundred yards of the residence.
Some argument can be made that the officers' misstatements should not be considered in determining sufficiency, because they really go to what the Commonwealth had to prove rather than the underlying facts. However, even if we were to remove such testimony from our consideration, we would still deem the other evidence sufficient. Without any articulable reason to be there, the defendant, who was well aware that she had a legal duty to “stay away” from her husband's residence, parked on the same residential side street as the residence, close enough that whoever called the police was able to spot her there. In our view, a jury rationally could have concluded that the defendant engaged in exactly the kind of behavior that the order was designed to prohibit. There was enough for the case to go to the jury. ,
The context of this case is markedly different from that of Commonwealth v. O'Shea, 41 Mass.App.Ct. 115, 668 N.E.2d 861 (1996), in which we found the evidence insufficient. There, the order provided that the defendant stay away from the victim's place of work, which was surrounded by other businesses, and the defendant presented a plausible reason for being in the vicinity. Id. at 116–117, 668 N.E.2d 861. Moreover, the Supreme Judicial Court since has expressly abrogated O'Shea with regard to the statements on the necessary mens rea. See Commonwealth v. Delaney, 425 Mass. 587, 596–597 & n. 9, 682 N.E.2d 611 (1997). In any event, contrary to the defendant's contentions, neither O'Shea nor any other case establishes that a “stay away” order that does not include a set distance applies only to the curtilage of the referenced property.
We discern no merit in the defendant's argument that the order somehow was per se invalid under Commonwealth v. Blessing, 43 Mass.App.Ct. 447, 448–449, 683 N.E.2d 724 (1997). See Champagne v. Champagne, 429 Mass. 324, 328, 708 N.E.2d 100 (1999).
Other arguments. For similar reasons, we conclude that the “stay away” provision was not impermissibly vague. “A person of ordinary intelligence could not have reasonably understood that the order requiring [her] to stay away from [the husband's residence] would sanction” her parking her car seventy yards away from, and on the same block as, that address for “[n]o reason.” Commonwealth v. Saladin, 73 Mass.App.Ct. 416, 422, 898 N.E.2d 514 (2008).
The defendant makes a variety of arguments based on the fact that there were multiple references made to the order as an “abuse prevention order” rather than a “domestic relations protective order,” the term used in G.L. c. 208, § 18 (including on the verdict slip). The Commonwealth counters that this is a distinction without a difference. To the extent that the defendant argues that she was convicted of a crime that she could not have committed (there being no abuse prevention order here that she could have violated), we disagree. To the extent that she makes other arguments—e.g., that the use of the term “abuse” caused her undue prejudice in the absence of any demonstrated abuse—we need not consider such arguments (having already concluded that the defendant is entitled to a new trial on other grounds).
Even though the order was a domestic relations protective order, the Commonwealth points out that it also could be classified as an abuse prevention order because it expressly warned the defendant that she would be subject to criminal charges for any such violation. See Hennessey v. Sarkis, 54 Mass.App.Ct. 152, 155–156 & n. 6, 764 N.E.2d 873 (2002).
Judgment reversed.
Verdict set aside.