Commonwealth v. Rauseo, III

• Decision Date: 10 May 2000
• Docket Number: P-375
• Citation: 50 Mass. App. Ct. 699,740 N.E.2d 1053
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. MICHAEL RAUSEO, THIRD. Docket No.: 99-
• Court: Appeals Court of Massachusetts

740 N.E.2d 1053 (Mass.App.Ct. 2001)

COMMONWEALTH vs. MICHAEL RAUSEO, THIRD.

Docket No.: 99-P-375.

Massachusetts Court of Appeals

May 10, 2000

January 10, 2001

County: Suffolk.

Present: Kass, Laurence, & Duffly, JJ.

Abuse Prevention. Protective Order. Evidence, Court record. Practice, Criminal, Presumptions and burden of proof, Required finding. Intent. Probate Court, Divorce.

Complaint received and sworn to in the Boston Municipal Court Department on January 9, 1998.

The case was heard by Raymond G. Dougan, Jr., J.

Mark G. Miliotis for the defendant.

Jennifer M. Davis, Assistant District Attorney, for the Commonwealth.

DUFFLY, J.

A judge of the Boston Municipal Court, sitting without a jury, convicted the defendant of violating orders entered in a G. L. c. 209A (abuse prevention) proceeding commenced by his then-wife in the Probate and Family Court, and imposed a one-day probation. The defendant appeals from the denial of his motion for a required finding of not guilty. He also claims that the trial judge erroneously admitted in evidence a certified copy of the 209A order because it did not reflect accurately the terms of the order at the time of the alleged violation. For reasons set forth in Smith v. Joyce, 421 Mass. 520, 521 (1995), we do not consider the defendant's claims to be moot, and affirm the judgment. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).

1. Background facts and proceedings.

Based on the evidence, the trial judge could have found that at about 10:30 P.M. on June 27, 1997, the defendant left his car at the side of the street in front of the entrance to the wife's home and rang the doorbell. Over an intercom, by which the wife had answered, the defendant asked to be let in to see his son. The wife responded that he was sleeping and asked the defendant to leave. Minutes later, the doorbell rang again; it was the defendant, who repeated his request to see his son and demanded that the wife bring the boy to the door. The wife told the defendant she would call the police if he did not leave. Observing that the defendant remained outside the building, the wife called the police, who arrived soon afterward. The defendant left before speaking to the police. The trial judge concluded that these acts were prohibited by the 209A restraining order then in effect.

An ex parte restraining order first issued on April 17, 1997, when, concurrent with the filing of a complaint for divorce in the Probate and Family Court, the wife also filed a complaint in that court under G. L. c. 209A, seeking an abuse prevention order against the defendant. The probate judge issued a temporary order on the printed form which the courts have adopted for that purpose. The order restrained the defendant from abusing his wife by harming, threatening or attempting to harm her physically or by placing her in fear of imminent physical harm; restrained the defendant from contacting the wife in person, by telephone, in writing or otherwise; and ordered the defendant to remain at least twenty yards away from her. He was further ordered to stay away from the wife's residence and workplace. This order continued in effect until April 23, 1997, when, after notice to the defendant, the parties appeared at a hearing in the Probate Court. Following hearing the order was modified and, as modified, was extended for one year to April 23, 1998. Those modifications and a further modification made on May 15, 1997, which we discuss in greater detail below, provided for visitation between the defendant and his minor son and lessened to some degree the restrictions on the defendant's behavior, but kept in place orders prohibiting the defendant from abusing the wife and from having in-person contact with her, and requiring that the defendant stay away from the wife's residence and workplace.

2. Admission of certified copy of c. 209A order. We first consider the defendant's claim that the trial judge should not have admitted in evidence the certified copy of the 209A order offered by the Commonwealth, because that document did not reflect the orders in place at the time of the alleged violation on June 27, 1997.

The front page of the printed order admitted in evidence (exhibit one), and included as part of the record appendix submitted with the case on appeal, is a copy of that page of the order as it was first issued on April 17, 1997, and does not reflect the emendations made to it on April 23, 1997, and May 15, 1997. The defendant argues that, having called the trial judge's attention to the fact that the order offered in evidence did not reflect all of the emendations as of June 27, it was not his burden, but rather the Commonwealth's, to establish what the emendations were. We disagree.

That there were modifications on those dates appears from the second page of exhibit one. The modification on April 23, 1997, was, as noted on page two in the space provided, "Per order entered this date on visitation and any subsequent orders (Item #8 added)."¹ It is not disputed that the order to which the handwritten notation on the form refers is a separately issued order dated April 23, 1997.² That order allowed the defendant access to certain of his belongings during a specified period of time on a specific date; awarded physical custody of the parties' minor child to the wife until May 15, 1997; and allowed the defendant to have supervised visitation with the child, which was to be coordinated by the defendant's parents. Financial statements were ordered to be exchanged, and a hearing on support and related issues was scheduled for May 15, 1997.

That there was a further modification of the 209A order on May 15, 1997, is also indicated on page two of exhibit one, beneath the modifications made on April 23. In the area designated as "Prior court order modified," the appropriate boxes are marked with an "X," indicating that the defendant and the plaintiff appeared at the hearing. In the space provided is a judge's signature and the date "5/15/97." Following the preprinted text indicating that the prior order dated "4/23, 1997 shall be modified as indicated below," is this handwritten notation: "By amending item #2 and modifying item #8." No modifications to either item number 2 or 8 are reflected on page one of exhibit one.³ Testifying on cross-examination, the wife stated that on May 15, "There was a modification, but I've never seen it in writing, for telephone contact."

As proof of a valid order, the Commonwealth offered exhibit one, a copy of the 209A order that had been certified as "a true copy" by the Probate Court. See G. L. c. 233, § 76; Mass.R.Crim.P. 40(a)(1), 378 Mass. 917 (1979) ("An official record kept within the Commonwealth . . . when admissible for any purpose, may be evidenced by . . . a copy attested by the officer having legal custody of the record"). Such a copy is presumptively valid and accurate. See, e.g., Barry v. Commonwealth, 390 Mass. 285, 289 & n.7 (1983), S.C., 397 Mass. 718 (1986) (docket entries are prima facie evidence of the facts recorded therein; if docket is inaccurate, it is parties' burden "to bring the discrepancy to the attention of the court" [citing Mass.R.Crim.P. 42, 378 Mass. 919 (1979)]).⁴ Compare Rand v. Hanson, 154 Mass. 87 (1891) (presumption in favor of the validity of a judgment rebutted by other evidence).

We do not think it unfair to place upon the defendant the burden of alerting the trial judge to the substance of any claimed discrepancies resulting from modifications to the order, notice of which must have come to the defendant's attention when the order was served on him (he does not claim a lack of service). Indeed, it is apparent from the transcript of the proceedings that the defendant's attorney was aware that the May 15, 1997, modification "would have been the telephone contact." The attorney further stated, "And I suggest most respectfully that there's an exculpatory May 15th order, 1997, which is consistent with the evidence that's before Your Honor because the [wife] has testified that the judge did, in fact, orally alter the order."

Generally "'[a] presumption which shifts to the defendant the burden of persuasion on an element of the Commonwealth's case is constitutionally impermissible . . . .' Mullaney v. Wilbur, 421 U.S. 684, 703-704 (1975)." Commonwealth v. Claudio, 26 Mass. App. Ct. 218, 220 (1988), S.C., 405 Mass. 481 (1989). Nevertheless, there are circumstances in which "the burden is on the defendant to come forward with evidence of the defense." Commonwealth v. Jones, 372 Mass. 403, 406 (1977). "[I]n casting the production burden on the defendant in a criminal case" the "'limits of reason and fairness [dictate that] . . . the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.' Such a shift may be proper if there is a ?manifest disparity in convenience of proof and opportunity for knowledge . . . .'" Id. at 408, quoting from Morrison v. California, 291 U.S. 82, 88-89, 91 (1934). In Massachusetts, cases in which such a burden has been imposed on the defendant in a criminal matter include Commonwealth v. Douzanis, 384 Mass. 434, 443 (1981) (in attacking factual basis of affidavit in support of search warrant, burden is on defendant to make a "substantial preliminary showing" that the affiant made

an "intentional or reckless misstatement in the affidavit"); Commonwealth v. Lopez, 426 Mass. 657, 661-662 (1998) (in the absence of a contemporaneous or reconstructed record of a plea colloquy, burden is on defendant to produce evidence rebutting presumption of regularity in court proceedings); Commonwealth v. Hampton, 26 Mass. App. Ct. 938, 940 (1988) (un...