122 N.E.3d 1078
Mass. App. Ct.2019Background
- Defendant, a U.S. citizen, had two children removed by DCF and placed in foster care; DCF obtained permanent custody and moved to transfer custody to the mother in Switzerland.
- Nine days before the transfer hearing, after a supervised visit, defendant followed the children to the foster home, entered the home, pushed the foster mother aside, seized both children and drove them out of state; he was arrested later in Connecticut.
- Defendant proceeded pro se at trial and was convicted of breaking and entering with intent to commit a felony, two counts of aggravated parental kidnapping, assault and battery on a person over sixty, and battery on a child; acquitted of assault with intent to commit a felony and reckless endangerment of a child.
- Defendant raised multiple claims on appeal (some unpreserved or waived), including challenges to jury instructions, necessity defense to kidnapping, sufficiency of evidence of lack of lawful authority, exclusion of evidence attacking juvenile-court custody orders, and access to trial audio recordings.
- The trial judge allowed limited audio access where defendant identified specific potential transcript errors; otherwise denied broad collateral attacks and full room recordings; appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury instruction that a person's body can be an "obstruction" (breaking) was erroneous | Commonwealth: instruction acceptable; any error harmless because either version of entry constituted breaking | Defendant: instruction misstated law; a person cannot be an "obstruction" to create breaking | Affirmed; even if instruction erroneous, both factual versions established breaking so error nonprejudicial |
| Whether jury was properly instructed that felonious intent must exist at time of entry | Commonwealth: instructions read as whole showed intent required contemporaneously | Defendant: instructions failed to tie intent to the moment of breaking | Affirmed; instructions taken as a whole and specific-intent charge made timing clear |
| Whether judge should have instructed on lesser-included misdemeanor parental kidnapping | Defendant: jury could have convicted of misdemeanor rather than felony aggravated kidnapping | Commonwealth: evidence (packed car, trip out of state, defendant's admission, risk to children) supported felony elements | Affirmed; no rational basis to acquit of felony and convict of lesser because evidence supported felony ab initio |
| Whether "no person lawfully therein being put in fear" is an element of § 18 | Defendant: Commonwealth failed because occupants were placed in fear | Commonwealth: language differentiates §18 from §17 and is not an element to be proved | Affirmed; phrase is a nonelement-creating differentiation, not an element requiring proof |
| Whether necessity defense to parental kidnapping should have been submitted to jury | Defendant: believed children faced imminent harm and forceful removal was necessary | Commonwealth: perceived harms speculative and legal alternatives existed (court process) | Affirmed; defendant did not present evidence meeting all necessity elements |
| Whether Commonwealth proved defendant lacked lawful authority to take children | Commonwealth: DCF mittimuses and testimony showed custody vested in DCF, only supervised visits permitted | Defendant: custody orders were procured by fraud and therefore void | Affirmed; proof that children were in DCF custody and defendant had only supervised visits was sufficient; collateral attack on orders excluded |
| Whether judge abused discretion in denying full trial-room audio and excluding collateral evidence | Defendant: entitled to full recordings and to present fraud evidence attacking custody orders | Commonwealth: transcript was prepared; defendant had to identify material inaccuracies to justify audio; collateral attack would create trial-within-trial | Affirmed; judge properly required specific showing for recordings and excluded collateral attack as improper for criminal trial |
Key Cases Cited
- Commonwealth v. Moffett, 383 Mass. 201 (Moffett procedure for pro se supplemental briefs)
- Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437 (1983) (harmless-error standard where alternative facts independently support conviction)
- Kotteakos v. United States, 328 U.S. 750 (1946) (standards for nonprejudicial error)
- Commonwealth v. Arias, 84 Mass. App. Ct. 454 (2013) (review of unpreserved jury instruction objections)
- Commonwealth v. Egerton, 396 Mass. 499 (1986) (standards for lesser-included-offense instructions)
- Commonwealth v. Muir, 84 Mass. App. Ct. 635 (2013) (distinguishing statutory language that does not create elements)
- Commonwealth v. Winfield, 464 Mass. 672 (2013) (court reporter/recording access and limits)
- Matter of M.C., 481 Mass. 336 (2019) (right to sufficient record does not automatically require verbatim transcript)