Opinion
18-P-1270
05-06-2019
COMMONWEALTH v. ROBERTO SOTO.
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 appeals from his convictions, following a jury trial, of three violations of an abuse prevention order, G. L. c. 209A, § 7, and from the denial of his motion for postconviction relief. On appeal, the defendant contends, inter alia, that (1) the trial judge abused his discretion in denying his motion for a new trial because a juror knew the Commonwealth's victim witness advocate; and (2) there was insufficient evidence of one of the violations. We affirm.
1. Juror bias. After the jury returned their verdicts, the Commonwealth notified the defendant that one of the jurors, who had attended the same high school as the victim witness advocate (advocate) assigned to the case, had reached out to the advocate on the social media site Facebook. This information prompted the defendant to file a motion for a new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and request an evidentiary hearing. The motion judge, who was also the trial judge, conducted two evidentiary hearings. The advocate testified at the first hearing, and the juror testified at the second hearing.
The advocate testified that, when she was sitting next to the victim during the trial, she thought that she recognized a seated juror. The advocate explained that she and the juror had attended the same high school, but they had not seen or communicated with each other for at least six years. They had been "friends" on Facebook since high school, though they had not communicated prior to the communication sent by the juror to her after the trial. The advocate told the prosecutor during a lunch break that she thought she recognized the juror. The prosecutor did not inform the judge or defense counsel.
Prior to her testimony, the victim had been sequestered; however, following her testimony, she had been allowed to be present in the court room for the testimony of a police officer.
As the judge correctly noted, the prosecutor should have informed the judge immediately.
Following the trial, the advocate received a message on Facebook from the juror. The advocate's Facebook page identified her as a victim witness advocate at the Norfolk County district attorney's office. In her message, the juror stated, "[S]orry [I] didn't acknowledge you in court, didn't know if that would be appropriate but your job looks extremely interesting and it was good to see you even if not under the best circumstances." The advocate replied on Facebook, the gist of which was, "No worries. I told the prosecutor during the trial . . . and he said it was okay." Prior to this exchange, the advocate and the juror had not communicated since high school.
The advocate deleted the response.
After hearing testimony from the advocate, the judge agreed to summons the juror and conduct a further inquiry. The judge allowed both trial counsel and the prosecutor to question the juror after approving the lines of inquiry proposed by the parties. The juror testified that she recognized the advocate during the trial, but was unaware of why the advocate was in the court room. She confirmed the advocate's testimony that the two were Facebook friends, knew each other in high school, and had had no interaction since high school, including any communication on Facebook other than the aforementioned posttrial communication. The juror had over 1,000 Facebook "friends." She had no knowledge, prior to or during the trial, that the advocate worked for the district attorney's office. She testified specifically that she made no observations and drew no conclusions from the fact that the advocate sat next to the victim. The juror testified that she had assumed the advocate was a student. After the trial, the juror found the advocate on Facebook, learned she was an advocate at the district attorney's office, and contacted her through Facebook. This was the first message the juror had sent to the advocate.
Finding that the advocate and juror testified credibly, and that the defendant was not prejudiced by the association between the advocate and juror and that he received a fair trial, the judge denied the motion for a new trial. We review the judge's denial of the motion for a new trial for an abuse of discretion or other error of law. See Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). Although the defendant claims that the juror was exposed to an extraneous influence, the thrust of his argument is that the juror was biased in favor of the Commonwealth as a result of her prior relationship with the advocate. "Although juror bias is not an extraneous matter, a postverdict inquiry may be appropriate where there is evidence of bias in order to ensure that the defendant received a fair trial." Commonwealth v. Guisti, 434 Mass. 245, 253 (2001). "The defendant has the burden of showing that the juror was not impartial and must do so by a preponderance of the evidence. In the absence of clear abuse of discretion or a showing that the judge's findings were clearly erroneous, the judge's ruling will not be disturbed on appeal." Commonwealth v. Amirault, 399 Mass. 617, 626 (1987).
Here, the evidence established that the juror recognized the advocate, but did not know that she was affiliated with the district attorney's office, did not know that she had any role with the prosecution, and indeed assumed that she was a student. The juror specifically testified that she drew no conclusions and made no observations from the fact that the advocate was sitting next to the victim. The judge, who had the opportunity to view the juror, found her credible. See Commonwealth v. Bernard, 84 Mass. App. Ct. 771, 774 (2014), quoting Commonwealth v. Sanna, 424 Mass. 92, 97 (1997) ("[T]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses"). The mere fact that someone who the juror knew from high school was associated with the victim of a crime is not enough to require a finding of bias. See Commonwealth v. Murphy, 86 Mass. App. Ct. 118, 124 (2014). On this record, the judge's finding that the juror was not biased against the defendant was not clearly erroneous or an abuse of discretion.
The defendant's argument that the judge should have conducted a broader inquiry to determine whether the jury had been exposed to an extraneous influence depends entirely on his claim that the juror was biased. Because the judge found the juror was not biased, however, the judge was obligated to go no further. See Commonwealth v. Guisti, 449 Mass. 1018, 1019 (2007); Murphy, 86 Mass. App. Ct. at 124.
"When there is a claim of extraneous influence on a jury, a two-step procedure is to be followed. First, the defendant 'bears the burden of demonstrating that the jury were in fact exposed to the extraneous matter. To meet this burden he may rely on juror testimony.' If the defendant meets this burden and the judge finds that extraneous matter came to the attention of the jury, 'the burden then shifts to the Commonwealth to show beyond a reasonable doubt that [the defendant] was not prejudiced by the extraneous matter'" (citation omitted). Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). The defendant does not contend that any material outside the record was given to the jury. Instead, his claim is that the juror was biased against him because of her relationship with the advocate and that the bias tainted the entire jury and their verdict.
2. Sufficiency of the evidence. To prove a defendant violated an abuse prevention order, the Commonwealth must prove beyond a reasonable doubt that (1) "a court had issued an abuse protection order"; (2) "the order was in effect on the date when its violation allegedly occurred"; (3) "the defendant knew that 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) "the defendant violated a term of the order." Commonwealth v. Shea, 467 Mass. 788, 794 (2014). In addressing the defendant's challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the Commonwealth to determine whether the jury could have found each of the elements beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Viewed in that light, the evidence was as follows. In March 2015, the victim obtained an abuse prevention order, pursuant to G. L. c. 209A, against the defendant, her estranged husband. The order prohibited the defendant from contacting the victim with certain limited exceptions, including mailing child support payments to her. The order was first served by hand on the defendant in March 2015, and was made permanent in October 2016.
The order was extended and again served, by hand, on the defendant on March 19, 2015, and March 26, 2015.
While the order was in effect, the defendant contacted the victim three times. First, in January 2016, he contacted the victim telephonically, stating, "I'm risking everything by calling you, please let me talk to you." Second, in April 2016, while outside a court room, the defendant approached the victim rapidly, and from within two feet of her, yelled angrily, "permanent, really?" The order prohibits the defendant from coming within 100 yards of the victim. The court house contact was witnessed by the victim's sister-in-law, who corroborated the essential details. Third, in September 2016, the defendant contacted the victim by mailing an envelope to the victim, containing a child support payment as well as court papers and documents.
The defendant admitted that he and the victim spoke on the telephone early in the morning on January 21, 2016.
The defendant challenges the sufficiency of the evidence of the element of knowledge in regard to the violation that occurred in September 2016. At trial, the defendant admitted to mailing court documents along with a child support payment to the victim. The defendant asserts that he reasonably believed, based on the wording of the order, that he was permitted to mail court documents to the victim so long as the child support payments were also included. He further contends that his mailing was "incidental" to the legitimate obligation to pay child support because he misunderstood the order.
At the defendant's request, the judge gave the jury an incidental contact instruction. To the extent the defendant contends that the judge should have given an accidental contact instruction sua sponte, we disagree. There was nothing to suggest that the contact by mail was an unexpected happening. To the contrary, the evidence was that he intentionally mailed the documents to the victim. Cf. Commonwealth v. McKay, 67 Mass. App. Ct. 396, 401-402 (2006) (accident instruction warranted when claimed violation occurred because defendant's "speed dial" was activated inadvertently).
The second paragraph of the order provides that the defendant is "ordered not to contact the plaintiff . . . in writing . . . either directly or through someone else." The paragraph further states that "[t]he only exceptions to this order are: a) contact as permitted in Sections 8, 9, 10 and 11 below; or b) by sending the Plaintiff, by mail, by sheriff or by other authorized officer, copies of papers filed with the court when that is required by statute or court rule." Paragraph 9, in turn, ordered the defendant to pay child support by mailing it directly to the victim.
The evidence demonstrated that the defendant previously had spoken with the victim's counsel regarding court matters, and the victim testified that service of court papers in their pending divorce action was made to her counsel and not directly to her. There was no evidence of any rule or statute requiring service on the victim directly, as opposed to service on her attorney. The jury were entitled to disbelieve the defendant's testimony that he misunderstood the order and to find instead that he knew, when he sent the package, that he was violating the terms of the order, now for the third time. See Commonwealth v. Forte, 469 Mass. 469, 478 (2014) ("The judge properly reserved an assessment of the . . . credibility of the witnesses for the jury").
3. Issuance of the order. The defendant argues that the abuse prevention order should not have issued. This, however, is not a defense available to him in a criminal proceeding. See Commonwealth v. Marrero, 85 Mass. App. Ct. 911, 912 (2014).
The remaining issues on appeal were raised by the defendant pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208 (1981).
4. Notice of the order. The defendant contends that the evidence was insufficient to show he had actual notice of the order at the time of the violations. We disagree. In January 2016, when he first violated the order, he stated that he was "risking everything by calling you." The evidence was that he was served by hand on March 6, 2015, March 19, 2015, and March 26, 2015. From this evidence, the jury were permitted to infer he had notice of the order each of the three times he violated it.
5. Court house contact. The defendant maintains that the evidence was insufficient for the jury to find that the defendant's contact with the victim in April 2016, outside the court room, was not incidental. The evidence was that the defendant came within two feet of the victim, approached her angrily, and yelled at her. This was sufficient evidence to support a finding that the contact was not incidental. See Shea, 467 Mass. at 797.
6. Telephone contact. Contrary to the defendant's contention, the victim's testimony that the defendant called her and said, "I'm risking everything by calling you," and his acknowledgement that he and the victim spoke on the telephone on January 21, 2016, were sufficient to sustain the conviction for this violation. See Shea, 467 Mass. at 794.
7. Duplicative convictions. There was no risk of a duplicative conviction where, as here, each violation occurred on a separate date, each violation was different, and the jury verdict slips referenced a distinct theory as to each violation. See Commonwealth v. Housen, 83 Mass. App. Ct. 174, 175-177 (2013).
8. Alleged defects in complaints. The defendant was also not entitled to a mistrial due to alleged defects in the complaints. The defendant asserts that the complaints were "broad," that G. L. c. 209A, § 7, "is sufficiently vague," and that he should not have been subjected to a trial without being issued complaints with greater specificity. This argument fails to rise to the level of appellate argument. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975); Commonwealth v. Gray, 423 Mass. 293, 296-297 (1996) (under rule 16 [a] [4], claims of error not supported by reasoned argument or citations do not rise to required level of appellate advocacy).
The defendant also asserts that he was entitled to a probable cause hearing prior to his arrest and, because this did not occur, he was deprived of his constitutional rights under art. 12 of the Massachusetts Declaration of Rights. The defendant was arrested pursuant to G. L. c. 209A, § 6 (7), which provides that an officer may "arrest any person a law officer witnesses or has probable cause to believe has violated a temporary or permanent vacate, restraining, or no-contact order or judgment." Therefore, this argument is without merit.
9. Unredacted language in abuse prevention order. The defendant contends that admitting a copy of the abuse prevention order without redacting the language, "there is a substantial likelihood of immediate danger of abuse," was unfairly prejudicial to him. The lack of redaction was error. See Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 105 (2014). However, in light of the evidence that the defendant knew of the order and nonetheless contacted the victim on three separate occasions, there was no substantial risk of a miscarriage of justice. See id. at 111.
To the extent the defendant raises any other issues on appeal, we have not overlooked them. They are without merit. See Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), citing Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Vuono, Ditkoff & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 6, 2019.