McIsaac v. Porter (Lawyers Weekly No. 11-172-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-135 Appeals Court KELLY McISAAC vs. TIM PORTER. No. 16-P-135. Suffolk. October 14, 2016. – December 9, 2016. Present: Vuono, Massing, & Sacks, JJ. Abuse Prevention. Protective Order. Evidence, Cross-examination. Words, “Abuse.” Complaint for protection from abuse filed in the Suffolk Division of the Probate and Family Court Department on January 21, 2014. A motion to extend an abuse prevention order was heard by Megan Christopher, J. Joseph P. Calandrelli for the defendant. Adam J. Malinowski for the plaintiff. SACKS, J. The defendant appeals from a Probate and Family Court order making permanent a G. L. c. 209A abuse prevention order (209A order) issued one year earlier. He argues that the judge erred by (1) making the order permanent based solely upon the plaintiff’s fear arising out of a past incident of serious physical abuse, without any finding that the plaintiff reasonably feared imminent serious physical harm; and (2) limiting defense counsel’s ability to cross-examine the plaintiff at the renewal hearing. We conclude that the judge properly extended the order, because the statute authorizes a judge to issue or to extend a 209A order where, as here, the judge finds that the victim is still reasonably suffering fear due to a past incident of serious physical abuse, regardless of whether the victim also reasonably fears imminent serious physical harm.[1] We also discern no abuse of discretion in the judge’s limitation on defense counsel’s cross-examination. We therefore affirm. Background. In late January, 2014, the plaintiff successfully applied for the 209A order. We recount the circumstances as stated in her supporting affidavit. She and the defendant had dated for about six years and had lived together for about six months, until early January, 2014. The defendant was “much bigger” than she was, weighing 270 pounds and standing just under six feet tall. The defendant had told her he had depression; the defendant drank alcohol to escape, causing him to become aggressive and violent. His violence toward the plaintiff had escalated in the few months prior to her application for the 209A order. In the summer of 2013, the defendant dragged her across the room by her feet to prevent her from leaving their residence. In August, 2013, she and the defendant had a disagreement during which he grabbed her eyeglasses from […]
Commonwealth v. Porter (Lawyers Weekly No. 11-082-15)
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-1668 Appeals Court COMMONWEALTH vs. KEVIN PORTER. No. 13-P-1668. Middlesex. December 8, 2014. – July 30, 2015. Present: Kafker, Grainger, & Agnes, JJ. Escape. Imprisonment, Escape. Penal Institution. Statute, Construction. Practice, Criminal, New trial, Plea. Complaint received and sworn to in the Lowell Division of the District Court Department on August 27, 2007. A motion for a new trial, filed on August 29, 2012, was heard by Patricia A. Dowling, J. Leslie B. Salter for the defendant. Randall F. Maas, Assistant District Attorney, for the Commonwealth. AGNES, J. This case presents a question not previously addressed by the Supreme Judicial Court or this court about the scope of the statute which punishes an escape or an attempted escape by “[a] prisoner of any penal institution.” G. L. c. 268, § 16.[1] In particular, we are asked to determine whether a person serving a house of correction sentence, which was ordered to be served on weekends, see G. L. c. 279, § 6A,[2] who fails to report by 6:00 P.M. on a particular weekend, as required by the terms of his sentence, has “escaped” within the meaning of § 16 because he “fail[ed] to return from any temporary release from said institution.” G. L. c. 268, § 16. For the reasons that follow, we answer that question in the affirmative, and we affirm the order denying the defendant’s motion to withdraw his guilty plea. Background. The essential facts are not in dispute. On December 14, 2007, the defendant, Kevin Porter, pleaded guilty to one count of escape from a penal institution in violation of G. L. c. 268, § 16, and was sentenced to ten days in a house of correction, to be served consecutively after completion of a sentence he was then currently serving.[3] At the time of his plea, the defendant was serving a house of correction sentence of one year, six months to serve, with the balance suspended for eighteen months. The sentencing judge specifically had ordered that sentence to be served on weekends, beginning on August 3, 2007. See G. L. c. 279, § 6A. On Friday, August 24, 2007, the defendant failed to appear by 6:00 P.M. to serve his weekend sentence as required by G. L. c. 279, § 6A. The defendant telephoned the house of correction to warn them […]