113 N.E.3d 374
Mass. App. Ct.2018Background
- E.C. obtained an ex parte G. L. c. 209A abuse prevention order (Aug 25, 2015) later extended to Sept 2, 2016; paragraph 3 ordered defendant to "immediately leave and stay away from [E.C.'s] residence" including the entire apartment building.
- Commonwealth proceeded solely on an alleged violation of paragraph 3 (stay away from the apartment building); paragraphs proscribing abuse, contact, and 100-yard distance were not charged.
- On Sept 22, 2015 an officer responded to a radio call and found defendant standing on the public sidewalk immediately outside the apartment building, about 20–30 feet from the front door and separated from the property by a low iron fence; defendant did not enter the building or property.
- Defendant was served with the c. 209A order in hand at court on Sept 11, 2015 (documented on the court docket). The Commonwealth introduced the docket as evidence of service.
- After a jury-waived trial the judge found defendant guilty of violating the stay-away provision; defendant appealed arguing insufficient evidence, vagueness, lack of notice, and invalidity of the extended order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — whether standing immediately outside property violated "stay away from residence" | Commonwealth: "stay away" is tied to premises and can be violated by positioning sufficiently proximate to contact or abuse plaintiff; judge may infer a reasonable distance | Watson: He did not enter or intrude on property and did nothing beyond talking with friends, so no violation | Court: "Stay away" not limited to physical entry; positioning immediately outside property so as to be able to contact/abuse plaintiff suffices — evidence adequate to convict |
| Vagueness — whether order gave fair notice of prohibited conduct | Commonwealth: phrase is clear enough to prohibit standing immediately outside boundary | Watson: "stay away" is imprecise and void as applied | Court: Not unconstitutionally vague as applied; words gave sufficient notice that standing just outside boundary was prohibited |
| Notice of order — whether Commonwealth proved defendant had notice before Sept 22 violation | Commonwealth: service in court on Sept 11 shown by docket entry; docket is prima facie evidence and nontestimonial record admissible | Watson: Docket is inadequate proof and raises confrontation clause issues | Court: Docket is prima facie evidence; court records are nontestimonial business records — no Confrontation Clause bar |
| Validity of extended order / due process — whether lack of earlier notice invalidates conviction | Commonwealth: actual notice before the violation suffices even if temporary order issued ex parte | Watson: Order invalid because he lacked notice/opportunity to be heard before issuance | Court: No due process violation — defendant had actual notice (Sept 11) before alleged violation and could have sought vacatur |
Key Cases Cited
- Commonwealth v. O'Shea, 41 Mass. App. Ct. 115 (1996) (stay-away extends to property on which workplace/residence is located; mere "vicinity" insufficient)
- Commonwealth v. Habenstreit, 57 Mass. App. Ct. 785 (2003) (conduct outside property that directly intrudes on protected place can violate stay-away order)
- Commonwealth v. Gordon, 407 Mass. 340 (1990) (purpose of c.209A orders is to create a "safe haven")
- Commonwealth v. Delaney, 425 Mass. 587 (1997) (conviction may be based on defendant's knowledge of order; prior intent not required)
- Commonwealth v. McGhee, 472 Mass. 405 (2015) (judicial construction can alleviate vagueness concerns)
- Commonwealth v. Forbes, 86 Mass. App. Ct. 197 (2014) (rejecting overly textual, mathematically precise interpretation)
- Commonwealth v. Coppinger, 86 Mass. App. Ct. 234 (2014) ("stay away" wording provides adequate notice in appropriate contexts)
- Commonwealth v. McEvoy, 93 Mass. App. Ct. 308 (2018) (government records kept in ordinary course are nontestimonial and admissible to prove notice)