Commw. v. Silva, SJC-08191
| Decision Date | 07 March 2000 |
| Docket Number | SJC-08191 |
| Citation | 431 Mass. 194,726 N.E.2d 408 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | (Mass. 2000) COMMONWEALTH, v. ANTHONY P. SILVA. No.: |
Summary: Abuse Prevention. Protective Order. Due Process of Law, Abuse prevention.
Complaint received and sworn to in the Brockton Division of the District Court Department on November 25, 1997.
The case was tried before Richard D. Savignano, J.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Paul M. Freitas for the defendant.
Gail M. McKenna, Assistant District Attorney, for the Commonwealth.
A jury in the District Court convicted the defendant on two counts of a complaint charging him with violations, on separate dates, of the no-contact provisions of a protective order. See G. L. c. 209A, § 7. The Appeals Court, in an unpublished memorandum and order pursuant to its rule 1:28, affirmed the convictions. Commonwealth v. Silva, 48 Mass. App. Ct. 1101 (1999). We granted the defendant's application for further appellate review. We reject the defendant's arguments that he was entitled to a required finding of not guilty. We also reject his contention that he should have a new trial because the jury were not instructed about his actual intent when he made contact with his former wife. Accordingly, we affirm the convictions.
The evidence, considered in the light most favorable to the Commonwealth, warranted the jury in finding the following facts. The defendant and his former wife were married for eleven years. Their marriage ended in a bitter divorce in April, 1997, and the defendant's former wife was awarded custody of their four young children. In October, 1996, after a full hearing in the presence of the defendant, a judge in the Probate and Family Court granted the defendant's former wife a thirteen-month extension of a previously entered G. L. c. 209A protective order. Under its terms, which were in effect at the time of his alleged violations, the defendant was ordered "not to contact [his former wife], except as permitted in [paragraphs] 8 & 13 below . . . either in person, by telephone, in writing or otherwise, either directly or through someone else, and to stay at least 50 yards from [his former wife] even if [she] seems to allow or request contact." Paragraph 8 provided that the defendant could "visit with the children once per week on either Saturday or Sunday," and paragraph 13 provided that the defendant was "allowed to telephone the children only between the hours of 3:00 p.m. until 6:30 p.m. and at any time on the weekend before 7:00 p.m." (emphasis original). The order further stated that the defendant "shall not discuss the court proceedings with the children, [and] . . . shall not question the children about their mother or their mother's activities."
On November 3, 1997, at about 5:30 P.M., the defendant made a telephone call to the home of his former wife, who answered the telephone and asked him what he wanted. The defendant told her that he wanted to know "what the f was going on." She again asked him what he wanted, because he had not made telephone calls to speak with the children in four months. The defendant responded that he wanted to speak with his older daughter. His former wife refused his request, stating that, "you didn't want to talk to the other kids, you're not talking to just one and not the others." At this point, the defendant told his former wife, According to his former wife, the defendant was "yelling and screaming" and sounded "very angry." She hung up the telephone. This conversation constituted the basis of the first count in the complaint.
On November 11, 1997, at about 5:30 P.M., the defendant again made a telephone call to the home of his former wife. This time, his oldest daughter answered, said, "Oh hi Dad," and handed the telephone to her mother. The defendant's former wife testified that she asked him what he wanted, and he said that, His former wife told the defendant to "take [her] to court." After all four children had spoken with the defendant, the younger daughter handed the telephone back to her mother, who told the defendant not to call anymore. The defendant responded that "he'd call any f'in time he want[ed]." The defendant's former wife ended the conversation, and she reported the call to the police. At the suggestion of the police, she then wrote out a statement that she delivered to the police department. This conversation constituted the basis of the second count of the complaint.
On Friday, November 21, 1997, the day that the protective order was due to expire, a hearing was held in the Probate and Family Court. At the hearing, at which both the defendant and his former wife were present, a judge vacated the protective order. That same day, the defendant's former wife went to a District Court and, without disclosing to the District Court judge that a judge in the Probate and Family Court had just vacated another order, obtained an emergency protective order against the defendant. The following Monday morning, November 24, 1997, the defendant went to the District Court and succeeded in having a judge there vacate this order. That afternoon, the defendant made a telephone call to his former wife, who testified that he sounded "happy that he had [the order] vacated." He went on to tell her that, "[the order] was against his civil rights and it was just a matter of time before he got his guns back1 and that he would get [her]." That evening, "afraid that [the defendant] would get his guns back and that he would come to [her] house and kill [her]," the defendant's former wife reported the defendant's threats to the police,2 and her report resulted in a third protective order being issued by a judge in the Probate and Family Court. The defendant was arrested the next day, at the court house after appearing at a hearing concerning this order.
1. Represented by new counsel on appeal, the defendant claims that the judge erred in denying his motion for required findings of not guilty because (a) the terms of the abuse prevention order were ambiguous and placed him in the impossible position of being unable to comply strictly with the court's mandate; and (b) there was insufficient evidence to support findings by the jury that the defendant intended to telephone the family home with the purpose of impermissibly making contact with his former wife.
(a) The defendant argues that he could not realistically comply with the no-contact provisions of the order because the order specifically allowed him to make contact with his former wife's home during certain time periods to talk with his children, thus making it inevitable that he would, at times, speak with his former wife. The defendant further maintains that the terms of the order were ambiguous because they failed to include clear instructions to guide him in this situation, and because they failed to warn him that he risked violating the order if he spoke with his former wife while trying to reach his children. Based on these arguments, the defendant concludes that due process considerations necessitated the entry of required findings of not guilty.
A protective order of this sort raises practical difficulties. As has been stated, the order was entered after a hearing in the Probate and Family Court in which the defendant participated. We do not have a record of that hearing, so we do not know what alternatives may have been considered by the probate judge to permit the defendant to speak by telephone to his children in a way which avoided, or minimized, improper contact with his former wife. The order, as entered, may have posed a matter of necessity in the circumstances, and the order called on the parties to use restraint in complying with it. Attentiveness to civility, however, is easier to talk about in the abstract than to expect from two people who, in the aftermath of a difficult divorce, harbor bitterness and anger toward each other. Protective orders, by their nature, are often entered under pressure, in the midst of volatile feelings between the parties and the likelihood of threatened...
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