Court: Massachusetts Appeals Court; March 19, 2014; Massachusetts; State Appellate Court
Jessen Reddy was convicted of violating an abuse prevention order under G. L. c. 209A and assault and battery under G. L. c. 265. The defendant's appeal, which focused on ineffective assistance of counsel, highlighted trial counsel’s failure to object to the prosecutor's emphasis on the unredacted language from the abuse prevention order during closing arguments. Specifically, the prosecutor underscored the phrase indicating a "substantial likelihood of immediate danger of abuse," which was deemed highly prejudicial, exploiting judicial findings regarding the defendant's likelihood to abuse the victim and the victim's credibility. This ineffective assistance created a substantial risk of a miscarriage of justice, prompting a reversal of the assault and battery conviction. However, the conviction for violating the abuse prevention order was upheld, as evidence showed the defendant was aware of the order's terms and had contacted the victim, violating its conditions.
The background reveals that the abuse prevention order was issued on October 4, 2006, after a hearing where both parties were present, prohibiting the defendant from contacting the victim. On December 31, 2006, the defendant allegedly assaulted the victim after repeatedly ringing her doorbell and banging on her door. The jury heard the victim's testimony about the incidents, which included being struck by the defendant. The defense argued the victim's credibility and claimed the defendant lacked knowledge of the order, with only a police officer testifying for the defense. The trial's evidence included the abuse prevention order and its return of service, despite the absence of the service person’s testimony and a missing transcript of the officer's direct testimony.
The defense challenged the victim's credibility by highlighting discrepancies between her testimony and the police officer's account. The Commonwealth argued that the defendant had violated the abuse prevention order by appearing at the victim's residence, engaging in an argument, and physically assaulting her. The prosecutor emphasized that the issuance of a restraining order indicates a judge's finding of substantial likelihood of imminent danger of abuse based on the victim's statements.
The defendant was convicted of assault and battery and subsequently appealed, claiming that the inclusion of evidence regarding a second incident in Salem was improper. The appellate court rejected this argument, affirming that the Salem incident was relevant to the defendant's motive. Following this, the defendant sought a new trial, alleging ineffective assistance of counsel on several grounds: failure to object to the introduction of unredacted order language, violation of confrontation rights due to the lack of the court officer's live testimony, and failure to request a jury instruction regarding the violation of the order.
The motion for a new trial was denied by the trial judge. The defendant's claims were reviewed to determine if they posed a substantial risk of a miscarriage of justice. The abuse prevention order's language, which indicated a substantial likelihood of immediate danger of abuse and mandated the surrender of firearms, was deemed inadmissible in the criminal trial context as it constituted predictive or propensity evidence, which is prohibited to demonstrate a defendant's character or likelihood of committing the charged offenses.
In People v. Zackowitz, the court, led by Chief Justice Cardozo, established that guilt cannot be determined solely based on a defendant's character or past behavior. To prove a violation of an abuse prevention order, specific elements must be established: the existence of the order, the defendant's knowledge of its terms, and the violation of those terms. The prosecution must demonstrate beyond a reasonable doubt that the order was effective at the time of the alleged violation and that the defendant was aware of it. Notably, the 'substantial likelihood' of abuse that justified issuing the order is not relevant in determining guilt for its violation.
During the trial, the prosecutor improperly emphasized the likelihood of the defendant's potential for abuse, leveraging the judge's findings on the victim's credibility, which may have unduly influenced the jury. The jury received this information without appropriate objections or clarifying instructions regarding the differing burdens of proof associated with the issuance of the order versus the criminal violation. Additionally, references to the surrender of firearms heightened the prejudicial impact, suggesting the defendant was inherently dangerous without context. The court must assess whether this error prejudiced the trial's outcome, considering the strength of the prosecution's case, the nature of the error, and the significance of the error within the trial context, as well as the lack of objection potentially being a tactical choice.
The sole evidence of assault and battery against the defendant was the victim's testimony, with no additional witnesses or physical evidence presented. While the evidence was deemed sufficient, it relied heavily on the victim's credibility. The prosecutor's reference to prior findings by the issuing judge was viewed as prejudicial. Trial counsel's failure to redact this language and to object to the prosecutor's emphasis on it posed a substantial risk of a miscarriage of justice regarding the assault and battery conviction. However, doubts about the jury's decision on the violation of the abuse prevention order were less significant, as the defense centered on the defendant's lack of knowledge of the order's terms rather than denying contact with the victim.
Additionally, the defendant argued ineffective assistance from first appellate counsel for not contesting the admission of the return of service by a court officer without live testimony, claiming it violated his confrontation rights. This claim was previously addressed in Commonwealth v. Shangkuan, which established that such a return of service is admissible under the public records exception to the hearsay rule and is not considered testimonial. The defendant contended that Shangkuan was wrongly decided or implicitly overruled by Commonwealth v. Parenteau; however, Shangkuan remains valid law, and Parenteau does not contradict it. In Parenteau, a notice by the registry of motor vehicles was deemed testimonial, while the return of service in question is more akin to routine administrative records and thus admissible in this context.
The admission of the return of service without testimony from the court officer was deemed appropriate. The jury instructions for the abuse prevention order violation required the Commonwealth to prove that the defendant had actual knowledge of the order's terms, either through direct receipt or other means. Although the trial judge did not provide the general knowledge instruction from the model jury instructions, the given instruction sufficiently covered the issue.
The conclusion determined that ineffective assistance of counsel occurred due to failure to object to prior findings of the defendant’s likelihood to abuse, leading to a substantial risk of a miscarriage of justice concerning the assault and battery conviction. Therefore, the judgment on that charge was vacated, and the verdict set aside. However, the denial of the motion for a new trial regarding the violation of the abuse prevention order was affirmed, as was the judgment on that charge.
The victim testified about the defendant's presence when the abuse prevention order was granted, but discrepancies arose regarding the specifics of her testimony. The defendant claimed prosecutorial misconduct for injecting personal beliefs during arguments, but this was not considered improper vouching. The Commonwealth was not required to prove all elements of the order to demonstrate its violation, only that the defendant was aware of the proceedings and had a fair opportunity to be heard. The existence of the abuse prevention order could be presented to illustrate the relationship dynamics and the defendant's motivations. The defendant's knowledge of the order was supported by his attendance at the hearing, and the assessment of his knowledge could rely on his actions and surrounding circumstances.
