Commonwealth v. Telcinord

• Decision Date: 17 October 2018
• Docket Number: No. 17-P-1050.,17-P-1050.
• Citation: 113 N.E.3d 382
• Parties: COMMONWEALTH v. Elisabeth TELCINORD.
• Court: Appeals Court of Massachusetts

113 N.E.3d 382

COMMONWEALTH

v.Elisabeth TELCINORD.

No. 17-P-1050.

Appeals Court of Massachusetts, Norfolk..

Argued February 7, 2018

Decided October 17, 2018

Meredith Shih for the defendant.

Marguerite T. Grant, Assistant District Attorney (Sean P. Riley, Assistant District Attorney, also present) for the Commonwealth.

Present: Trainor, Blake, & Lemire, JJ.

TRAINOR, J.

After a jury trial in the Quincy Division of the District Court Department, the defendant, Elisabeth Telcinord, was convicted on a criminal complaint charging her with one count of violating an abuse prevention order pursuant to G. L. c. 209A, § 7.¹ On appeal, the defendant argues that (1) there was insufficient evidence that she violated the stay-away provision of the order; (2) the judge's instruction to the jury to use their common understanding of the phrase "stay away from the plaintiff's residence" when the jury asked for a legal definition was error; and (3) testimony about the defendant's arrest created a substantial risk of a miscarriage of justice. We affirm the judgment.

On August 3, 2016, the Brockton Division of the District Court Department issued a G. L. c. 209A abuse prevention order directing the defendant to stay at least fifty yards away from the victim, not contact him, stay away from his workplace, and stay away from his residence located at 13 Hall Street in Randolph.²

At 8:15 P . M . on August 4, 2016, a Brockton police officer served the defendant with a copy of the c. 209A order in hand. At about 3 A . M . on August 5, 2016, a Randolph police officer was dispatched to Hall Street. The officer drove on North Main Street, turned onto Hall Street, and parked his marked cruiser at 15 Hall Street.³

The officer observed two vehicles drive onto Hall Street from North Main Street. The first vehicle was driven by a man, later identified as the victim and the subject of the abuse prevention order. The second vehicle was operated by the defendant and was traveling about three car lengths behind the victim's vehicle. As the vehicles approached the cruiser, the defendant pulled her vehicle over to the right side of the street and stopped. The victim stopped his vehicle in front of the cruiser and got out to speak to the officer, who described the victim as "upset." The officer thereafter drove his cruiser back to the defendant's vehicle to speak with her.⁴

The defendant told the officer that "she thought that she was in compliance with the order by the distance she was away from the [victim's] house." She also said that she was married to the victim, and admitted that she was following him; she was trying to deal with a family issue involving the victim having contacted her father. The officer described the defendant as "upset." The officer spoke again with the victim, who was still upset, and then returned to the defendant's vehicle and arrested her. She identified herself by name, birthdate, and address at the booking.

Discussion. 1. Statutory framework. The Legislature enacted G. L. c. 209A in 1978. The original version of G. L. c. 209A, § 7, criminalized only a defendant's violation of an order to "refrain from abus[e]" or "vacate the household." See St. 1983, c. 678, § 5. In 1990, the Supreme Judicial Court considered the question whether a trial court judge's order requiring the defendant to "leave and remain away from the [marital household]" was authorized under the statute, because the statute, at that time, only contained the provision to "vacate forthwith the household." Commonwealth v. Gordon, 407 Mass. 340, 344-345, 553 N.E.2d 915 (1990). The defendant argued that the order could only be violated by failing to vacate the household, and not by his returning to visit it. Id. at 345-346, 553 N.E.2d 915. The court concluded that the defendant had misconstrued the purpose and scope of the term "vacate" as used in G. L. c. 209A.^{5 ,6} Id. at 346-348, 553 N.E.2d 915.

The court proceeded to elaborate on the harm that the Legislature was attempting to prevent, and why it was essential that the defendant be required to stay away from the residence and workplace of the victim.

"An order to ‘vacate the household’ ... creates a haven for the abused party in which no further abuse need be feared and provides a temporary, partial separation of the abused and abusive party, thereby leaving fewer opportunities for abusive contact.

"Were we to adopt the defendant's definition of ‘vacate,’ an abusive party, having surrendered occupancy of the household, would be free to return to the house at will. The abused party would have no ability to lessen the abusive party's prerogative to initiate contact and could expect no refuge from the possibility of further abuse. That the Legislature intended the word ‘vacate’ to include the concept of ‘remain away’ is demonstrated by the authority of a judge to issue a ‘vacate’ order for a period of one year. G. L. c. 209A, § 3 (b )."

Id. at 347, 553 N.E.2d 915.

The Gordon court read into the statutory language the requirement that the defendant not only vacate the residence but also remain away from it. The Legislature responded by amending the statute and making the court's interpretation explicit in the statutory language. See note 5, supra. The purpose of this interpretation, significantly, is the recognition of the core purpose of an abuse prevention order, that is, the creation and maintenance of a safe haven from the threat of continued abuse.

To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was issued by a judge, (2) the order was in effect on the date of the alleged violation, (3) the defendant had knowledge of the order, and (4) the defendant violated the order. See Commonwealth v. Collier, 427 Mass. 385, 388, 693 N.E.2d 673 (1998) ; Commonwealth v. Delaney, 425 Mass. 587, 595-597, 682 N.E.2d 611 (1997), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). Only the fourth requirement is in dispute here, i.e., whether the defendant violated the order.

2. Stay away. The defendant argues that the phrase "stay away" is so vague that without the judge defining specific geographic boundaries for the meaning of "stay away," the jury were allowed to speculate in reaching their decision on an essential element of the crime.⁷

Our courts have not required this kind of mathematical specificity in order to find a statute enforceable and a defendant's due process rights protected. In Commonwealth v. Bohmer, 374 Mass. 368, 369, 372 N.E.2d 1381 (1978), the Supreme Judicial Court addressed a similar issue where the defendants challenged their convictions of wilfully interrupting or disturbing a school in violation of G. L. c. 272, § 40.⁸ The defendants contended that the statute was unconstitutionally vague and therefore void, and that their convictions under the statute were denials of their right to due process under the Fourteenth Amendment to the United States Constitution. Id. at 371, 372 N.E.2d 1381. The court answered their contentions while upholding the constitutionality of the statute.

"Due process requires that a criminal statute be sufficiently clear to give notice of the conduct that it prohibits. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. Due process requirements also mandate that no statute have such a standardless sweep that arbitrary and discriminatory enforcement by the police and the courts is permitted. It would certainly be dangerous if the [L]egislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.

"However, since words are the elements that constitute a statute, mathematical precision in the definition of legislative enactments is not required. A statute is satisfactory so long as it clearly indicates what it prohibits as a whole.... Uncertainty as to whether marginal offenses are included within the coverage of a statute does not render it unconstitutional if its scope is substantially clear." (Citations and quotations omitted.)

Id. at 371-372, 372 N.E.2d 1381.

In Commonwealth v. Orlando, 371 Mass. 732, 733-736, 359 N.E.2d 310 (1977), the court previously addressed this principle when upholding the constitutionality of G. L. c. 272, § 53, which provides punishment for disturbers of the peace.⁹

"A law is unconstitutionally vague if it is not sufficiently explicit to give clear warning as to proscribed activities. Commonwealth v. A Juvenile, 368 Mass. 580, 586-587 (1975). Connally v. General Constr. Co., 269 U.S. 385, 391 [46 S.Ct. 126, 70 L.Ed. 322] (1926). A law is not vague, however, if it requires a person to conform his conduct to an imprecise but comprehensible normative standard so that men of common intelligence will know its meaning. Broadrick v. Oklahoma, 413 U.S. 601, 608 [93 S.Ct. 2908, 37 L.Ed.2d 830] (1973). Coates v. Cincinnati, 402 U.S. 611, 614 [91 S.Ct. 1686, 29 L.Ed.2d 214] (1971). Moreover, even when the outer boundaries of a law are imprecise, such imprecision does not permit a facial attack on the entire law by one whose conduct ‘falls squarely within the "hard core" of the [statute's] proscriptions,’ [Broadrick, supra ], particularly if greater specificity in the law is impractical." (Emphases added.)

Id. at 734, 359 N.E.2d 310.

Approximately fifty per cent of our country's State Legislatures have adopted the general "stay away" from a specified location provision in their domestic violence prevention statutes.¹⁰ Various States use different phraseology for their general stay-away provisions but all result in the same prohibition. Arizona, for example, prohibits "coming near" the residence (or place of employment or school), Ariz. Rev. Stat. Ann. § 13-3602 (2018); Texas prohibits ...