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SJC‑11412

COMMONWEALTH  vs.  DONNA SHEA.

Norfolk.     January 7, 2014.  ‑  April 14, 2014.

Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Protective Order.  Abuse Prevention.  Practice, Criminal, Instructions to jury, Contempt, Law of the case.  Intent.  Statute.

Complaint received and sworn to in the Quincy Division of the District Court Department on May 11, 2010.

The case was tried before Robert P. Ziemian, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Jin-Ho King for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

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 prevention 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 prevention 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 complaint issued in the District Court charging the defendant with, inter alia, violating the New Hampshire abuse prevention 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 (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 (2001); Commonwealth v. Silva, 431 Mass. 194, 198 (2000); Commonwealth v. Delaney, 425 Mass. 587, 595-596 (1997), cert. denied, 522 U.S. 1058 (1998); Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492 (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”); 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 prevention 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 prevention order; (2) that the order was in effect on the date when its violation allegedly occurred; (3) that the defendant knew the relevant terms of the order were in effect, either by having received a copy of the order or by having learned of the terms of the order in some other way; and (4) that the defendant violated a term of the order.  See Commonwealth v. Delaney, 425 Mass. at 595-596; Commonwealth v. Raymond, 54 Mass. App. Ct. at 492.  See generally Instruction 6.720 of the Model Jury Instructions for Use in the District Court (2011).

However, where the term of the order allegedly violated was to have no contact with the protected party, and where there is evidence that the alleged contact may have occurred by accident, or that it was incidental to a legitimate, lawful activity such as attending a court hearing, there is a fifth requirement of proof:  the Commonwealth must prove beyond a reasonable doubt that the contact was not accidental (or that the defendant did not take reasonable steps to end an accidental contact), or that the contact was not incidental to the defendant’s legitimate and lawful attendance at the court hearing.  See Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006) (“Happening on a protected person whom one did not, and could not reasonably, know to be present is not a violation, but the party subject to the order must end the encounter by leaving”); Commonwealth v. Finase, 435 Mass. at 315 (absent contrary indication from Legislature, court will assume that Legislature did not intend to make accidents and mistakes crimes); Commonwealth v. Raymond, 54 Mass. App. Ct. at 493 (“defendant cannot be convicted of violating a ‘no contact’ order issued under c. 209A where the contact occurs in circumstances where the defendant did not know, and could not reasonably have been expected to know, that the protected person would be present”).  See generally Instruction 6.720(2) and (3) of the Model Jury Instructions for Use in the District Court, supra.^[9]

Here, where the defendant testified that she stepped into the stairwell while sending a text message to her daughter to avoid encountering the victim when she left the court room, the Commonwealth bore the burden of proving that the defendant’s contact with the victim was not accidental or that, if accidental, the defendant did not take reasonable steps to end the contact.  But in the circumstances of this case, if the defendant acted as she testified, her presence in the stairwell would also be incidental to her earlier legitimate and lawful attendance at the court hearing.  Although the judge did not provide an adequate instruction regarding accident, his instruction to the jury regarding incidental contact was more than adequate and closely reflected the District Court’s model instruction regarding incidental contact.  See Instruction 6.720(3) of the Model Jury Instructions for Use in the District Court, supra.^[10]

In determining whether the inadequacy of the judge’s instruction regarding accident created a substantial risk of a miscarriage of justice, we review the judge’s final charge to the jury as a whole in the context of the totality of the evidence.  See Commonwealth v. Whitman, 430 Mass. 746, 755 (2000).  If the jury credited the victim’s testimony that the defendant on leaving the court room stopped in front of the victim to tell her that “[r]estraining orders don’t work,” or that in the stairwell the defendant appeared to take a photograph of the victim with her cellular telephone and said that “[n]ow everyone will know who you are,” the absence of an adequate instruction on accident would be inconsequential because no reasonable jury could have found those contacts with the victim to be accidental.  Therefore, the inadequacy of the instruction on accident would matter here only if the jury found the defendant guilty solely because she violated the no contact provision of the order by being in close proximity to the victim in the stairwell after the victim left the court room.  But if the jury had credited the defendant’s testimony that she moved to the stairwell to avoid encountering the victim, the jury reasonably would have understood from the judge’s instruction on incidental contact that the contact in the court house was incidental to the defendant’s appearance at the court hearing, and therefore not in violation of the no contact order.  Because, in the context of the evidence in this case, the adequate instruction on incidental contact cured any prejudice arising from the inadequacy of the instruction on accident, we conclude that there is no substantial risk that the inadequacy of the judge’s instruction on accident may have materially influenced the verdict in this case, and therefore no substantial risk of a miscarriage of justice.  See Commonwealth v. Alphas, 430 Mass. at 13, quoting Commonwealth v. Freeman, 352 Mass. 556, 564 (1967) (“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[]‘ the guilty verdict”).

3.  Absence of instruction on specific unanimity.  The defendant was charged with a single count of violating a restraining order but, in her closing argument, the prosecutor argued that there were two violations of the restraining order:   the first, when the defendant was walking down the aisle to leave the court room, and the second, at the stairwell outside the court room.  The defendant claims that a substantial risk of a miscarriage of justice arose from the judge’s failure to instruct the jury that, to convict the defendant, they must unanimously agree as to the incident or incidents that constituted the violation.

“[I]t is beyond dispute that the jury verdict in a criminal trial . . . must be unanimous.”  Commonwealth v. Berry, 420 Mass. 95, 111 (1995), quoting Commonwealth v. Hebert, 379 Mass. 752, 754 (1980).  “A general unanimity instruction informs the jury that the verdict must be unanimous, whereas a specific unanimity instruction indicates to the jury that they must be unanimous as to which specific act constitutes the offense charged.”  Commonwealth v. Conefrey, 420 Mass. 508, 512 (1995), quoting Commonwealth v. Keevan, 400 Mass. 557, 566-567 (1987).  An insruction on specific unanimity is warranted “when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged.  There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident.”  Commonwealth v. Santos, 440 Mass. 281, 284-285 (2003).  See Commonwealth v. Accetta, 422 Mass. 642, 646 (1996) (“where there is evidence of separate incidents, each of which could warrant a guilty verdict, the jury must be instructed that specific unanimity is required at least as to one incident”).  However, “[w]hen a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required.” Commonwealth v. Santos, supra at 285, quoting Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995).