113 N.E.3d 392
Mass. App. Ct.2018Background
- Defendant had multiple G. L. c. 258E remain-away orders (against John and Mary Smith) requiring him to "remain away from [their] residence," among other prohibitions; some provisions were modified over time.
- On Feb 21, 2015, the Smiths hosted synagogue services at their home after a snowstorm; the defendant was not invited.
- Commonwealth evidence: Smiths saw defendant walking within ~30–40 feet of their property, then up their driveway; police arrived and observed the defendant in front of the house and arrested him for violating the orders.
- Defendant’s account: he walked toward his rental property and remained about 1.5 blocks from the Smiths’ residence; denied going onto their driveway or property.
- During trial the jury asked for clarification of what it means to "remain away from the plaintiff’s residence." The judge told them to apply the phrase’s "plain meaning" using "common sense and life experiences." Jury convicted; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning/scope of "remain away" in a c. 258E order | Must be interpreted to prevent proximity that reasonably enables abuse/contact/harassment | Must be limited to physically entering the residence/property (bright-line at property line) | "Remain away" prohibits (1) crossing property line, (2) conduct that intrudes directly into residence, and (3) coming close enough to enable abuse/contact/harassment if protected person were present or entering/leaving; protected person need not actually be present. |
| Adequacy of trial judge’s jury instruction about "remain away" | Plain-meaning/common-sense instruction sufficient | Instruction vague; ambiguity must be resolved for defendant | Judge’s supplemental instruction was inadequate and an abuse of discretion; new trial required. |
| Probable cause to issue complaint/arrest | Officer observations that defendant was within two houses (~within 100 yards) supported probable cause | No probable cause unless defendant actually entered property | Probable cause existed based on officer’s report that defendant was two houses down and within 100 yards. |
| Vagueness/due process of remain-away orders | Standard must give fair notice and enforceability; judicial construction acceptable | Order vague without specifying distance; requires bright-line rule | Standard adopted balances protection and notice; courts may specify distances in orders to avoid ambiguity. |
Key Cases Cited
- Commonwealth v. O'Shea, 41 Mass. App. Ct. 115 (stay-away order extends to property line and cannot rest on vague term "vicinity")
- Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785 (prohibited intrusive conduct that entered workplace sphere even when outside property line)
- Commonwealth v. McGhee, 472 Mass. 405 (vagueness: imprecise but comprehensible normative standards can be constitutional)
- Commonwealth v. Delaney, 425 Mass. 587 (applying c. 209A principles to related restraining-order contexts)
- Commonwealth v. Waite, 422 Mass. 792 (trial judge has discretion in responding to jury questions but must give accurate law)