Commonwealth v. Shea

Citation7 N.E.3d 1028,467 Mass. 788
Decision Date14 April 2014
Docket NumberSJC–11412.
PartiesCOMMONWEALTH v. Donna SHEA.
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Jin–Ho King, Boston, for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

GANTS, J.

A District Court jury convicted the defendant, Donna Shea, of violating a protection order issued by a judge in New Hampshire, which is a crime under G.L. c. 209A, § 7.1 The primary issue presented on appeal is whether the judge was correct in using Massachusetts law, rather than the law of New Hampshire, to instruct the jury regarding the intent required for a finding of a violation of the protection order. Given that G.L. c. 209A, § 5A, requires that a protection order issued by another jurisdiction be “enforced as if it were issued in the commonwealth,” we conclude that Massachusetts law governs the violation of such protection orders where the violation occurred in Massachusetts. We also conclude that no substantial risk of a miscarriage of justice arose with regard to the instructions to the jury.

Background. We briefly summarize the evidence at trial. The victim, Christine Frawley, is the widow of the defendant's nephew.2 The victim applied for a restraining order against the defendant from a court in New Hampshire, where the victim lived, because she “was in fear for [her] life and [her] children's lives.” At the hearing on March 30, 2010, at which the defendant failed to appear despite receiving notice, the judge issued an order of protection on behalf of the victim against the defendant, which was effective until March 29, 2011. The protection order prohibited the defendant, among other things, from abusing the victim, having any contact with her, and coming within one hundred yards of her. The defendant was served with the protective order at her residence in Weymouth on April 5, 2010.

Less than one month later, the defendant sought a temporary abuse protection order against the victim in the Quincy Division of the District Court Department pursuant to G.L. c. 209A. The judge issued a temporary restraining order, and scheduled an evidentiary hearing on May 7, 2010. At the hearing, after listening to both parties, the judge denied the defendant's application for an abuse protection order. After learning of the denial, the defendant stated to the judge, “Restraining orders don't work.” At the conclusion of the hearing, the court officer directed the victim to remain in the court room while he escorted the defendant out. As the defendant was leaving, she stopped in front of the victim and repeated, “Restraining orders don't work.” 3 The victim remained seated in the court room “probably not even a minute” when the court officer returned and escorted the victim out of the court room and to the stairwell. There, the victim encountered the defendant, who was “hiding” behind the open stairwell door. The defendant appeared to take a photograph of the victim with her cellular telephone, and stated, “Now everyone will know who you are,” before she went flying down the stairs.” 4,5 A complaintissued in the District Court charging the defendant with, inter alia, violating the New Hampshire abuse protection order, as prohibited by G.L. c. 209A, § 7.

After her conviction and sentencing,6 the defendant appealed and we transferred the appeal to this court on our own motion.

Discussion. The defendant argues three issues on appeal. First, as noted earlier, she contends that the judge erred by not instructing the jury as to the intent required under New Hampshire law to find a defendant guilty of violating a protection order. Second, she claims that the judge failed adequately to instruct the jury that they should find the defendant not guilty unless the Commonwealth proved beyond a reasonable doubt that the defendant's alleged contact with the victim did not occur by accident. Third, she argues that, where separate criminal incidents were alleged, the judge should have instructed the jury on the requirement of specific unanimity. Because the defendant did not object at trial to the judge's jury instructions, we determine if any of the alleged errors “created a substantial risk of a miscarriage of justice.” Commonwealth v. Alphas, 430 Mass. 8, 13–14, 712 N.E.2d 575 (1999).

1. Law governing violation of protection order issued by another jurisdiction.General Laws c. 209A, § 5A, provides, in pertinent part, that [a]ny protection order issued by another jurisdiction, as defined in [G.L. c. 209A, § 1], shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction.” 7 “Any violation of ... a protection order issued by another jurisdiction” is a crime. G.L. c. 209A, § 7. These provisions were enacted by the Legislature in 1996, following the enactment of Title II of the Violence Against Women Act, 18 U.S.C. § 2265 (1994) (VAWA), which requires that each jurisdiction give full faith and credit to abuse protection orders entered by courts of other jurisdictions. See C.P. Kindregan, Jr., M. McBrien, & P.A. Kindregan, Family Law and Practice § 78:1 (4th ed. 2013).

The New Hampshire protection order obtained by the victim was issued pursuant to N.H.Rev.Stat. Ann. § 633:3–a (2005), which prohibits the “stalking” of a person, and therefore is a “protection order issued by another jurisdiction” under G.L. 209A, § 7. Under New Hampshire law a person is “guilty of a Class A misdemeanor if such person knowingly violates a protective order” issued under its stalking statute. See N.H.Rev.Stat. Ann. § 633:3–a, par. III-a; N.H.Rev.Stat. Ann. § 173–B:9, par. III (2002). “A person acts knowingly with respect to conduct or to a circumstance that is a material element of an offense when he is aware that his conduct is of such nature or that such circumstances exist.” N.H.Rev.Stat. Ann. § 626:2, par. II(b) (2005).

If the defendant had violated the protection order in New Hampshire, she could not be convicted of its violation unless the jury found beyond a reasonable doubt that she had “knowingly” violated the order, as defined under New Hampshire law. The defendant contends that the same standard should apply where the alleged violation occurred in Massachusetts. The choice of law matters because, as will be discussed in more detail infra, under Massachusetts law, the Commonwealth need not prove a knowing violation of a protection order; instead, the Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant knew that the relevant terms of the order were in effect and, where the evidence fairly raises the issue, that the violation was not accidental or incidental to lawful activity. See Commonwealth v. Finase, 435 Mass. 310, 315, 757 N.E.2d 721 (2001); Commonwealth v. Silva, 431 Mass. 194, 198, 726 N.E.2d 408 (2000); Commonwealth v. Delaney, 425 Mass. 587, 595–596, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Commonwealth v. Raymond, 54 Mass.App.Ct. 488, 492, 766 N.E.2d 113 (2002).

The question of which jurisdiction's law applies to a violation of a protection order appears to be one of first impression. The parties have cited no case, in Massachusetts or anywhere in the United States, that has decided this issue, and we have found none. We conclude that, where an out-of-State abuse protection order is allegedly violated in Massachusetts and prosecuted under c. 209A, the violation is governed by Massachusetts law and the jury should be instructed in accordance with Massachusetts law.

Had the protective order in this case been issued in Massachusetts and allegedly violated in Massachusetts, its violation would plainly be governed by Massachusetts law. Where, under G.L. c. 209A, § 5A, a New Hampshire order must be “enforced as if it were issued in the commonwealth,” the alleged violation of the order in Massachusetts must also be governed by Massachusetts law. See Sack, Domestic Violence Across State Lines: The Full Faith and Credit Clause, Congressional Power, and the Interstate Enforcement of Protection Orders, 98 Nw. U. L. Rev. 827, 839 (2004) (under VAWA, “the definition of what constitutes a violation is determined by the law of the enforcing state”). See also Klein, Full Faith and Credit: Interstate Enforcement of Protection Orders Under the Violence Against Women Act of 1994, 29 Fam. L.Q. 253, 257 (1995) (under VAWA, enforcing State applies its own law to violation of out-of-State order). Therefore, the law of Massachusetts determines whether a person prosecuted under G.L. c. 209A, § 7, has violated a protection order in Massachusetts, regardless of whether the protection order is issued in Massachusetts or in another jurisdiction. The judge did not err by instructing the jury regarding the requirements of proof under Massachusetts law.

2. Inadequacy of the accident instruction. The defendant contends that, where she testified that she encountered the victim by accident in the stairwell of the court house, the judge failed adequately to instruct the jury that the Commonwealth must prove beyond a reasonable doubt that the alleged encounter did not occur by accident. The defendant is correct that she was entitled to such an instruction in the circumstances of this case and that the instruction the judge provided regarding accident was inadequate.8 To determine whether the inadequate instruction created a substantial risk of a miscarriage of justice, we must first examine the requirements of proof in a case alleging violation of an abuse protection order, in violation of G.L. c. 209A, § 7.

To prove a defendant guilty of such a violation, the Commonwealth must prove four elements beyond a reasonable doubt: (1) that a court had issued an abuse protection order; (2) that the order was...

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