Commonwealth v. Goldman
| Decision Date | 17 October 2018 |
| Docket Number | No. 16-P-1741,16-P-1741 |
| Citation | 113 N.E.3d 392 |
| Parties | COMMONWEALTH v. Saul B. GOLDMAN. |
| Court | Appeals Court of Massachusetts |
Christopher DeMayo for the defendant.
Asher Kim, Assistant District Attorney, for the Commonwealth.
Present: Agnes, Sacks, & Lemire, JJ.
The defendant was convicted of violating the provisions of two G. L. c. 258E harassment prevention orders that required him to "remain away from [the protected persons'] residence." On appeal, the defendant argues that the remain-away provision was misinterpreted, both by a motion judge in refusing to dismiss the complaint for lack of probable cause, and by the trial judge in responding to a jury question about the provision.
We conclude that ordinarily, the remain-away provision of a c. 258E order prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.1
Applying these standards here, we conclude that there was probable cause to issue the complaint, but that it was an abuse of discretion for the trial judge to instruct the jury, in response to their request to explain the remain-away provision, that they should give the phrase its "plain meaning," using their common sense and life experiences. The defendant is therefore entitled to a new trial.
Background. The defendant had been a member of the Montefiore Society Synagogue, a small congregation located in Lowell, since at least 2007. After the defendant's conduct at the synagogue led to disputes between him and John and Mary Smith (pseudonyms) -- a husband and wife who held leadership positions in the congregation -- the Smiths obtained essentially identical c. 258E orders against the defendant in 2011. The orders, issued on the Trial Court's preprinted forms, originally required the defendant not to abuse or harass the Smiths, not to contact them, to stay at least one hundred yards away from them, and to "remain away from [their] residence located at" a specified address in Lowell.2 The defendant also lived in a house in Lowell, and he owned a rental property in Lowell, not far from the Smiths' residence.
The orders were extended in 2012 and 2013; they were extended again in 2014, with the modification that the defendant was no longer required to remain one hundred yards away from the Smiths or to refrain from contacting them. The orders were extended yet again in 2015, with the further modification that the defendant could "attend services at the synagogue ... respectfully and not abuse" the Smiths.
Shortly thereafter, a large snowstorm having been forecast for Saturday, February 21, 2015, the Smiths invited members of the synagogue to spend the night of February 20 at the Smith residence, so that services could be conducted at the residence the following day without members having to travel outdoors. About fourteen members accepted. The defendant was not invited.
There was conflicting evidence about what occurred during services the next morning. The Commonwealth's case included evidence that John Smith looked out his living room window and noticed the defendant walking along the street within thirty to forty feet of the Smiths' property. He asked his wife to call the police. She then looked out another window, saw the defendant walking up their driveway, and called 911. A police officer arrived a few minutes later and observed the defendant standing in front of the Smiths' house. The officer spoke to the Smiths and then arrested the defendant for violating the c. 258E orders.
The defendant told a different story. He testified that he had walked to the synagogue that morning but, finding no one there, walked in the direction of his rental property to speak to his tenants. Because the Smiths lived nearby, he also walked toward their residence, to see "if they did their service there so that I wouldn't be able to come." The defendant testified that he wanted to see whether there were cars at the Smiths' residence, and that he came no closer than an intersection that, according to a map admitted in evidence, was one and one-half blocks from the Smiths' residence. He denied that he went to the Smiths' house or onto their driveway.
After the defense rested, the judge informed the Commonwealth and defense counsel that, as to the meaning of "staying away from the residence ... I can anticipate that the jury could have a question about that," and that he intended his instruction to "leave it as [‘]remain away from the residence[’] and it will be up to the jurors to decide what that means." This was the central issue in the case. Both closing arguments focused solely on whether the defendant had violated the "remain away from the ... residence" provisions of the orders. The judge's final charge stated the pertinent element of the offenses as whether the defendant had violated the orders "by failing to stay away from a particular address."
As the judge had predicted, during their deliberations, the jury sent a note asking, The prosecutor proposed that the judge answer by instructing that the phrase had "no strict definition" and that the jury should consider "the plain meaning of what it is to ‘stay away’ from a given location, using [their] common sense and life experiences." Defense counsel objected, arguing that the phrase was ambiguous and vague, that the ambiguity was required to be resolved in the defendant's favor, and accordingly that
The judge chose to give the Commonwealth's proposed answer, and thus he instructed the jury:
The jury then returned guilty verdicts on both charges.
Discussion. Because the meaning of the remain-away provision is examined most productively in the context of the judge's response to the jury question, we begin with that issue. We then return to the question whether there was probable cause to issue the complaint.3
1. Response to jury question. "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." Commonwealth v. Waite, 422 Mass. 792, 807 n.11, 665 N.E.2d 982 (1996). But that discretion is not unlimited. "The alertness of the jury in this situation was impressive, and, unless for some particular reason it would be unfair to do so, the judge was obligated to respond with an accurate statement of the law." Commonwealth v. Thomas, 21 Mass. App. Ct. 183, 186, 486 N.E.2d 66 (1985). "When a jury makes explicit its difficulties, a trial judge should clear them away with concrete accuracy." Id., quoting Bollenbach v. United States, 326 U.S. 607, 612-613, 66 S.Ct. 402, 90 L.Ed. 350 (1946). See Commonwealth v. Leahy, 445 Mass. 481, 501, 838 N.E.2d 1220 (2005).
Here, although there is little appellate authority on the meaning of a remain-away provision, there was a clear answer to that part of the jury's question asking whether the phrase meant "nowhere in [the] vicinity." We have held, in the context of a stay-away provision of a G. L. c. 209A abuse prevention order,4 that:
Commonwealth v. O'Shea, 41 Mass. App. Ct. 115, 118, 668 N.E.2d 861 (1996), overruled on other grounds, Commonwealth v. Delaney, 425 Mass. 587, 597 n.9, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). The jury here thus should have been instructed that they could not convict the defendant based solely on a finding that he was in the vicinity of the protected residence.
O'Shea also provides guidance on another possible meaning of "remain away" identified by the jury: "to stay off [the] property." Although decided in the context of a stay-away order listing a workplace rather than a residence, O'Shea makes clear that such an order is not limited to the building the address of which is listed on the order, but extends at least to the property line. O'Shea, 41 Mass. App. Ct. at 116, 118, 668 N.E.2d 861. Id. at 118, 668 N.E.2d 861. This interpretation "create[s] a safe haven for [the protected person] at her workplace, a place ‘in which no further abuse need be feared ...." Id., quoting Commonwealth v. Gordon, 407 Mass. 340, 347, 553 N.E.2d 915 (1990).5
Nor does O'Shea establish the outer limit of the meaning of "stay away" or "remain away."...
To continue reading
Request your trial
-
Commonwealth v. Telcinord
...to contact or abuse the protected party if that party were on the property or entering or leaving it. See Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 113 N.E.3d 392 (2018) ; Commonwealth v. Watson, 94 Mass. App. Ct. 244, 113 N.E.3d 374 (2018). The protected party need not be present for......
-
Commonwealth v. Watson
...contact the plaintiff, in the event that the plaintiff were on the property, or entering or leaving it.6 See Commonwealth v. Goldman, 94 Mass. App. Ct. 222, 113 N.E.3d 392 (2018) ; Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 113 N.E.3d 382 (2018). Compare State v. Williams, 226 N.C. A......