Commonwealth v. Marrero (Lawyers Weekly No. 11-064-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑122 Appeals Court COMMONWEALTH vs. FELIX MARRERO. No. 13‑P‑122. June 9, 2014. Abuse Prevention. Practice, Criminal, Instructions to jury. Evidence, Collateral matter, Prior inconsistent statement, Cross‑examination. Witness, Impeachment, Cross‑examination. The defendant was charged with assault and battery causing serious bodily injury, G. L. c. 265, § 13A(b), assault with intent to murder, G. L. c. 265, § 15, assault and battery by means of a dangerous weapon causing serious bodily injury, G. L. c. 265, § 15A(c)(i), and violation of an abuse prevention order, G. L. c. 209A, § 7.[1] The charges stemmed from a violent episode of domestic abuse during which the defendant’s girl friend suffered serious injuries. He appeals from his conviction of assault and battery causing serious bodily injury, asserting that the judge erred by allowing in evidence an attested copy of a G. L. c. 209A abuse prevention order (209A order) and that the judge also erred in permitting the Commonwealth to impeach the victim for claiming a lack of memory. Restraining order. The charge of violating a 209A order was dismissed after the judge allowed the defendant’s motion for a required finding of not guilty. Prior to the dismissal of the charge, the Commonwealth introduced a certified copy of the 209A order to prove the first element of that offense, namely that such an order had issued.[2] See Commonwealth v. Silva, 431 Mass. 401, 403 (2000). While the defendant agreed that a 209A order barring him from contact with the victim had issued, and that he had been served with it prior to the date of the alleged violation, he objected to the admission of the order because “the content of the affidavit is not sufficient as a matter of law to support the issuance of a restraining order.” The judge overruled the objection and admitted a redacted version of the 209A order as an exhibit. As a general rule the defendant does not have the option to act in violation of a court order and then, in a subsequent criminal proceeding, assert as a defense that the order should not have been issued. “Even if erroneous, a court order must be obeyed, and until it is reversed by orderly review, it is to be respected.” Mohammed v. Kavlakian, 69 Mass. App. Ct. 261, 264 (2007). See Commonwealth v. Dodge, 428 Mass. 860, 861 (1999), citing United States v. […]