Articles Posted in Domestic Violence Crimes

In a recent case involving the issuance of a restraining order – S.V. v. R.V. – the Appeals Court affirmed the denial of the plaintiff’s motion to extend an abuse prevention order that was issued pursuant to G.L. c.209A. In its decision, the Appeals Court ruled that the judge properly rejected the plaintiff’s claim “that she had an objectively reasonable fear of imminent serious physical harm from the defendant.”

The background was as follows. “On October 8, 2016, the plaintiff obtained an emergency ex parte 209A order against the defendant [her former husband] based on evidence that he had harassed her and ‘grabbed and pinched [her] arm’ during an argument at their residence.” “[O]n December 28, 2016, … the judge extended the 209A order for one year, until December 29, 2017.” On March 9, 2017, roughly two and a half months into the extension period, “the parties executed a stipulation … that the defendant was permitted to attend [their] children’s activities held in public locations and that such attendance would not violate the 209A order. The same stipulation provided that the parties would not directly or indirectly communicate during those public events. At the hearing on the expiration date of the extension period, “the plaintiff requested an additional extension of the 209A order,” on the grounds “that she remained in fear of the defendant as a result of the original incident and because she continued to see him at their children’s extracurricular activities…. For his part, the defendant testified that he and the plaintiff had been together in public locations ‘virtually every day for the past year’ while coordinating their children’s activities and parenting time. He also stated that the parties often attended the children’s activities at the same time…. [T]he judge denied the request for an extension” and the plaintiff appealed. Continue reading →

The Appeals Court reversed the defendant’s conviction of domestic assault and battery on a family or household member in Commonwealth v. Wilson because the admission of testimonial out-of-court statements by the complainant, who did not testify at trial, violated the defendant’s right to confrontation.

The background was as follows. At the defendant’s trial, the complainant (the defendant’s wife) “assert[ed] spousal privilege and … decline[d] to testify.” In lieu of the wife’s testimony, the judge admitted a recording of a 911 call made by her and the testimony of a police officer (Barnes) who, in response to the 911 call, went to the marital home and spoke to her. During the 911 call, the defendant’s wife “stat[ed] that [the defendant] ‘choked [her] out,’ and that he said he would be back in fifteen minutes to kill her.” Barnes testified that when he spoke to the defendant’s wife, she reiterated “that the defendant left the premises and said that he would be back in fifteen minutes to kill her…. Barnes then testified, ‘I asked her to give me the rundown of exactly how it happened.’ He continued as follows: ‘[She said that] [h]er husband came home, and he was extremely upset … that he had seen a picture of her with a friend that he thought to be a drug addict. He accused her of being a drug addict…. He attempted to strangulate her and stick her head into a pill (sic) and suffocate her. He then went upstairs. He grabbed a handful of pills, tried to shove them down her throat, and said[,] ‘If you want to be a drug addict, I’m going to make you a drug addict.’” On appeal, the defendant argued that the judge erred in admitting his wife’s 911 call and Barnes’s testimony. Continue reading →

The Appeals Court vacated the dismissal of the plaintiff’s complaint that sought a G.L. c.209A abuse prevention order in M.G. v. G.A., because the trial court judge erroneously found that the parties’ conduct at the critical juncture did not constitute “sexual relations.”

The background was as follows. “[T]he plaintiff, M.G., filed a complaint for an abuse prevention order against the defendant, G.A., pursuant to G.L. c.209A…. An evidentiary hearing on the matter was … held…. Viewing the evidence in the light most favorable to the plaintiff, the judge could have found the following facts. The plaintiff and the defendant began dating in … 2012[] and purchased a condominium together by the end of 2013. In … 2015, the defendant moved out of the condominium, but the parties continued to have sexual relations. In December [of that year,] the defendant initiated a consensual sexual encounter with the plaintiff. The parties engaged in ‘genital-to-genital contact’ as well as ‘finger-to-genital contact.’ At some point during the sexual encounter, the plaintiff stated, ‘I’m done, I’m tired’ while the defendant was physically on top of her. She told the defendant at least twice that she ‘did not want to be doing this.’ The defendant stated ‘that he wanted to finish.’ The defendant then masturbated to ejaculation while remaining physically on top of the plaintiff.” At the close of the plaintiff’s case, the defendant moved for a directed finding that the evidence did not justify issuance of an abuse prevention order. “The judge allowed the motion [and dismissed the complaint], concluding that the plaintiff failed to prove that the defendant caused her to ‘engage involuntarily in sexual relations by force, threat or duress [G.L. c.209A, §1(c)],’” one of the predicates for issuance of an order, “because the parties were no longer engaging in sexual intercourse after the plaintiff said she was ‘done’ and ‘tired.’ Rather, the judge reasoned, ‘the most it could have been was an assault and battery at that point in time.’” On appeal, “[t]he plaintiff argue[d] … that the term ‘sexual relations’ as used in G.L. c.209A, §1, should not be so narrowly construed.” Continue reading →

The Supreme Judicial Court ruled in Commonwealth v. Rosado that the Commonwealth had failed to prove, pursuant to the doctrine of forfeiture by wrongdoing, that the defendant forfeited his right to object to the admission of a witness’s out-of-court statements.

The background was as follows. “The defendant … is the former boy friend of the witness [Ortiz], and the father of her young daughter.” “Ortiz was a key witness for the prosecution” in the murder prosecution of a friend of the defendant (Mercado). “[T]he day before Mercado’s trial began, Ortiz was interviewed by two State police troopers regarding [Facebook] communications she had received from the defendant,” including statements calling her a “‘trifling bitch’” and “‘an undercover rat.’” Another posted message from the defendant “urged [Ortiz] not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her.” Ultimately, “Ortiz did testify at Mercado’s trial, but the jury” acquitted him. Subsequently, the defendant was indicted for intimidation of a witness (Ortiz), in violation of G.L. c.268, §13B. “[T]he Commonwealth moved in limine to admit in evidence Ortiz’s recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz’s testimony at the defendant’s trial.” Under that doctrine, “a defendant, by his or her wrongdoing, may … forfeit his or her right under art. 12 [of the Massachusetts Declaration of Rights] and our common-law rules of evidence to object to the admission of hearsay evidence.” In Commonwealthv. Edwards, 444 Mass. 526, 540 (2005), the Court “held that the Commonwealth must prove three elements by a preponderance of the evidence for forfeiture by wrongdoing to apply,” including that “‘the defendant acted with the intent to procure the witness’s unavailability.’” Continue reading →

In Commonwealth v. Fragata, the Supreme Judicial Court ruled that the evidence was insufficient to support the defendant’s conviction of intimidating a witness under G.L. c.268, §13B(1)(c)(i).

The background was as follows. “[T]o convict the defendant of witness intimidation under [the statute], the Commonwealth had to prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding.” In this case, the defendant and the alleged victim, who were in romantic relationship, “hosted a small gathering in [their] apartment…. After their guests left, the defendant screamed at the victim and called her ‘nasty names.’ The victim began to cry and told the defendant that she was going to telephone 911. The defendant immediately took the victim’s cellular telephone from her and begged her not to call the police. The victim told the defendant that she wanted to leave and that she was still going to call 911. As soon as she ran to the door to get out and call 911, the defendant stood in front of the door; grabbed the victim by the arms, causing them to bruise; and pushed the victim aside, again begging her not to call 911. Then, while the victim was sitting on a couch, the defendant approached her, grabbed her throat, and started choking her, hitting her head against the wall. After that attack, the victim sat on the couch and cried; the defendant had told her that he would not let her leave and she did not feel free to do so. Finally, after about thirty to forty-five minutes, the victim was able to grab her cellular telephone, leave the apartment, and call 911 from across the street.” At the defendant’s trial for intimidation of a witness, “[t]he Commonwealth’s theory … was that the defendant violated §13B(1)(c)(i) by taking away the alleged victim’s cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her.” On appeal, “the defendant contend[ed] … that the evidence was insufficient to sustain his conviction of witness intimidation under §13B(1)(c)(i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim’s cellular telephone.” Continue reading →