COMMONWEALTH v. VELASQUEZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

A Superior Court jury convicted the defendant of violating an abuse prevention order, G. L. c. 209A, § 7.² The conviction was based on evidence that the defendant violated the order by repeatedly communicating with the victim, with whom he had a longstanding relationship, by telephone calls and text messages in November and December, 2015. In addition, the jury heard testimony from the victim that on December 31, 2015, the defendant arrived at the victim's home unexpectedly and beat her and her mother with his fists. The defendant testified at trial that the victim initiated the communications with him, that the beatings never happened, and that the victim told him that the abuse prevention order had been vacated at her request. On appeal the defendant claims (1) the judge's erroneous jury instruction on the element of knowledge created a substantial risk of a miscarriage of justice, and (2) the judge's response to a question from the jury was prejudicial error. We affirm.

Discussion. 1. Jury instruction. The judge instructed the jury that the Commonwealth had the burden of proving beyond a reasonable doubt the following four elements of the crime of violation of an abuse prevention order: (1) that a court had issued an order requiring the defendant not to contact or visit the victim; (2) “that such order was in effect on a date when the violation allegedly occurred”; (3) that the defendant “knew that the pertinent terms of the order were in effect, either by having received a copy of the order or by having learned of it in some other way”; and (4) that the defendant violated the order. This instruction was consistent with Instruction 6.720 of the Criminal Model Jury Instructions for Use in the District Court (3d ed. 2009). The defendant claims that, in the circumstances of this case, where the defendant testified he was told that the order had been vacated, the instruction did not adequately convey the Commonwealth's burden to prove that the defendant knew that the order was in effect at the time of the alleged violation. Specifically, the defendant asserts that “it was necessary to instruct the jury that the Commonwealth must prove beyond a reasonable doubt that [the defendant] knew the restraining order was still in effect at the time of the alleged violations.” Because the defendant did not object to the instruction at trial or request additional instructions on the knowledge element, we review his claim to determine whether there was error, and, if so, whether the error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

“We evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words․ We do not consider bits and pieces of the instruction in isolation.” Commonwealth v. Young, 461 Mass. 198, 207 (2012). Here, after instructing the jury on the elements of violation of an abuse prevention order, the judge referred the jury back to his instructions moments earlier on the crime of aggravated assault and battery,³ explaining that those instructions “also apply here.” In connection with the charge of aggravated assault and battery the judge had specifically instructed the jury that the Commonwealth had the burden of proving that the defendant knew the abuse prevention order “was in effect at the time of the events” -- that is, “at the time of the assault and battery.” These instructions, taken together, adequately conveyed to the jury that the defendant could not be convicted of violating the abuse prevention order unless he knew the order was in effect at the time of the violation. Accordingly, we discern no error in the instructions, much less a substantial risk that justice miscarried.

2. Jury question. During deliberations, the jury sent the following written question to the judge:

“If a restraining order is vacated does the party (offending party) receive official notification of any kind? If so, how soon after? i.e. we need clarification of how a vacated restraining order is communicated to the person against whom it has been issued.”

Defense counsel argued that the judge should respond by simply saying “no” because the only notice required by G. L. c. 209A, § 7, when an abuse prevention order is vacated, is notice to the police. When pressed by the judge for more direct legal authority supporting his claim that a defendant is not served with notice when an order has been vacated, defense counsel responded, “I can say that is my practice but also my experience. I'm not aware of the statutory requirement that the defendant get notice of a vacated order.” Thereafter, over the defendant's objection, the judge responded to the jury as follows:

“I am unable to find law that answers this question. What happens in practice is a factual question, which I cannot answer (because I am the judge of the law only) and which you would determine, if you can, from the evidence and without speculation.”

We are not persuaded that the absence in G. L. c. 209A, § 7, of any requirement that the defendant be served with an order vacating an abuse prevention order means, as a matter of law, that official notice is never served on a defendant. Where defense counsel's argument to the judge was based primarily on his experience and practice rather than on legal authority, the judge's response to the jury question was not an abuse of discretion. See Commonwealth v. Nelson, 468 Mass. 1, 16 (2014) (“The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly” [quotation omitted] ).

Moreover, where it was undisputed that the abuse prevention order in this case was never vacated and that, therefore, no notice of a vacated order would have issued, the judge could reasonably have inferred from the question that the jury were speculating as to whether the defendant should have been aware that the order remained in effect. In these circumstances, we discern no prejudice to the defendant from the judge's instruction that they rely on the evidence without speculation.

Judgment affirmed.

FOOTNOTES

2.   The defendant was acquitted of aggravated assault and battery, assault and battery on a household member, assault by means of a dangerous weapon (two counts), simple assault and battery, stalking, witness intimidation, malicious destruction of property (two counts), and threats to kill. The judge allowed the defendant's motion for a required finding of not guilty as to a second count of threatening to kill and reduced a second count of malicious destruction of property to a misdemeanor. Prior to trial, a judge dismissed a second count of witness intimidation.

3.   The judge stated that the elements of aggravated assault and battery included that (1) there was an outstanding abuse prevention order against the defendant at the time of the alleged assault and battery, and (2) the defendant knew the order was in effect at the time of the assault and battery.