Outrageous New Restraining Order Case from Mass. Appeals Court
Below is a summary of a horrible new restraining order case from the Massachusetts Appeals Court. A defendant is now presumed to have "notice" of the order if the "victim" tells him about the order, and can be convicted of violation of it, even if you have never seen the order or had it served on you. The noose tightens.
Published: September 13, 2010
Where a District Court jury convicted a defendant of violation of an abuse prevention order and of threats to commit a crime, the convictions should be affirmed, as the defendant has notice of the order and there was sufficient evidence of his intention to commit a crime.
"The defendant claims that the telephone conversation between [Maria] Monteiro and him on December 24, 2007, provided inadequate notice of the existence and terms of the restraining order issued on December 21, 2007. We disagree. During that call, Monteiro expressly asked him, ‘What are you doing calling me; there's a restraining order.' (Emphasis supplied.) The defendant answered, ‘Oh, you got a restraining order ... after all we've been through why would you do that. That's how you want to do this.' In the light most favorable to the Commonwealth, a jury could have found that Monteiro's statements put the defendant on notice of the existence of a restraining order against him and reasonably advised him that the order prohibited calling. ... In turn, the jury could have found also that the defendant's response indicated his awareness and comprehension that Monteiro had, in fact, taken a restraining order out against him. ...
"In the light most favorable to the Commonwealth, sufficient evidence enabled the jury to determine that the defendant's statement that he would ‘play dirty' with Monteiro constituted a threat as defined under the statutory and decisional law. The defendant expressly communicated his intent to ‘play dirty' with Monteiro in telephone calls on December 24 and 25 in 2007. Historically, the expression ‘play dirty' had been a precursor to serious physical violence and abuse of Monteiro by the defendant. Given the abusive nature of their relationship and the prior usage of the phrase to ‘play dirty,' Monteiro was justifiably apprehensive for her safety at the sound of those words."
Grasso, J. "I agree that the defendant's convictions of threats should be affirmed. I respectfully disagree that the evidence sufficed to establish that he had actual or constructive knowledge of the ex parte restraining order or its terms to support his conviction on that charge. ...
"Unlike a police officer, a person granted protection under a restraining order is an interested party who has no authority to serve the order, much less advise the subject of the order as to its existence and terms. ... Indeed, the Legislature has established that service of the order is to be made by ‘the appropriate law enforcement agency.' ... It is neither safe nor wise to permit the recipient of a restraining order to become the recognized source of the subject's knowledge of the order. Such reliance will make service of the order by authorities a less pressing need, expose the recipient to needless danger, and lead to confusion and misuse." RX MA Ad with CMIC + MA Med Society sponsor logos
Commonwealth v. Melton (Lawyers Weekly No. 11-162-10) (Sikora, J.) (Grasso, J., concurring in part and dissenting in part) (Appeals Court) Cases tried before Ziemian, J., in Boston Municipal Court. Neil L. Fishman for the defendant; Andrea Keeffe and Kathleen Celio for the commonwealth (Docket No. 08-P-2143) (Sept. 2, 2010).