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18-P-1397 Appeals Court
COMMONWEALTH vs. MICHAEL J. TIERNAN.
No. 18-P-1397.
Middlesex. September 5, 2019. - November 22, 2019.
Present: Blake, Ditkoff, & McDonough, JJ.
Abuse Prevention. Protective Order. Due Process of Law, Abuse
prevention, Notice. Notice.
Complaint received and sworn to in the Cambridge Division
of the District Court Department on September 30, 2011.
The case was tried before Roanne Sragow-Licht, J.
Andrea Lance for the defendant.
Chia Chi Lee, Assistant District Attorney, for the
Commonwealth.
BLAKE, J. Following a jury trial in the District Court,
the defendant, Michael J. Tiernan, was convicted of violating an
abuse prevention order pursuant to G. L. c. 209A, § 7 (209A
order). On appeal, he claims that the evidence was insufficient
to show that he had knowledge of the 209A order and that he
violated it. He also claims the judge improperly admitted
2
hearsay evidence. Concluding that the Commonwealth did not put
forth sufficient evidence to prove that the defendant was served
with the 209A order, or that he otherwise had knowledge of it,
we reverse.
Background. The jury could have found the following facts.
The victim and the defendant began dating in late 2007. The
victim ended the relationship in November 2008. On June 18,
2009, the victim applied for and obtained an ex parte 209A order
against the defendant. Among other things, the 209A order
prohibited the defendant from contacting the victim and ordered
him to stay at least one hundred yards away from her. It also
ordered the defendant to stay away from the victim's residence
but did not specify the distance that the defendant was ordered
to remain from the victim's residence.
At a hearing on June 29, 2009, at which both parties
appeared, the 209A order was extended until July 13, 2009.1 The
defendant was served with this order in hand the following day.
On July 13, 2009, both parties appeared at the hearing and the
209A order was extended for one year to July 13, 2010. The
defendant was served with the extended order at that hearing.
The following year, on July 13, 2010, only the victim appeared
1 With one exception not relevant here, no modifications
appear to have been made to the 209A order at any of the
extension hearings.
3
at the hearing; the 209A order was extended until July 13, 2011.
The Commonwealth presented no evidence that the defendant was
served with that order.2
On August 21, 2010, the victim was returning home when she
noticed a black Cadillac Escalade sport utility vehicle (SUV)
that she recognized as belonging to the defendant in the
driveway of a home on Mystic Valley Parkway, which was parallel
to the street on which she lives. She went directly home and
called the police. Officers Chris Gallagher and Brett
Blanciforti of the Arlington Police Department responded to the
victim's home.
The victim informed Officer Gallagher that she had a 209A
order against the defendant and that she had seen his SUV on a
nearby street while on her way home. She also provided a copy
of the 209A order to the police.
Officer Blanciforti went to the Mystic Valley Parkway
address and saw a black Cadillac Escalade SUV parked in the
driveway. A check of the license plate confirmed that the SUV
was registered to the defendant. Officer Gallagher joined
2 The Commonwealth concedes that it failed to prove that the
defendant was served with the July 13, 2010, 209A order. Having
reviewed the record, we agree. See Commonwealth v. McClary, 33
Mass. App. Ct. 678, 686 n.6 (1992), cert. denied, 510 U.S. 975
(1993) ("The Commonwealth's 'admission of error' does not
relieve us of our appellate function of determining whether
error was committed").
4
Officer Blanciforti at the address and they then saw two people
-- one of whom was later identified as the defendant -- leave
the home and cross the street toward a park. The police
followed the defendant into the park, confirmed his identity,
and arrested him. The police told the defendant that he was in
violation of the 209A order because the victim "lived on [a
street] which was under 100 yards." The defendant indicated
that he understood. The victim did not have any contact with
the defendant on that day.
Discussion. 1. Standard of review. We review the denial
of a required finding of not guilty by determining "whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(emphasis and citation omitted). Commonwealth v. Latimore, 378
Mass. 671, 677 (1979).
To establish a violation of an abuse prevention order, "the
Commonwealth must prove that (1) a valid G. L. c. 209A order was
entered by a judge and was in effect on the date of the alleged
violation; (2) the defendant violated the order; and (3) the
defendant had knowledge of the order." Commonwealth v. Silva,
431 Mass. 401, 403-404 (2000). Intent to violate the order is
not necessary, and the statute "requires no more knowledge than
that the defendant knew of the order." Commonwealth v.
5
Telcinord, 94 Mass. App. Ct. 232, 241 n.17 (2018), quoting
Commonwealth v. Delaney, 425 Mass. 587, 596 (1997), cert.
denied, 522 U.S. 1058 (1998).
2. Service of the extended order. As a general rule, when
a court issues, extends, or modifies an abuse prevention order,
"the register or clerk-magistrate shall transmit two certified
copies of each such order and one copy of the complaint and
summons forthwith to the appropriate law enforcement agency
which . . . shall serve one copy of each order upon the
defendant, together with a copy of the complaint, order and
summons." G. L. c. 209A, § 7. If the defendant is not served
in accordance with § 7, however, "that failure of service is not
fatal to a conviction." Commonwealth v. Griffen, 444 Mass.
1004, 1005 (2005). Evidence that the defendant received actual
or constructive notice can be used to meet the knowledge element
of the crime. See M.M. v. Doucette, 92 Mass App. Ct. 32, 37-38
(2017). See also Commonwealth v. Olivo, 369 Mass. 62, 68
(1975), quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)
("the adequacy of notice so far as due process is concerned is
dependent on whether the form of notice is 'reasonably
calculated to give . . . actual notice of the proceedings and an
opportunity to be heard'"). In those circumstances, the
Commonwealth must prove beyond a reasonable doubt that the
defendant had knowledge of the order and its relevant
6
provisions. See Griffen, supra. See also Commonwealth v.
Reddy, 85 Mass. App. Ct. 104, 109 (2014), and cases cited.
Here, the Commonwealth argues that the constructive notice
analysis in Delaney, 425 Mass. at 591-593, applies to this case.
In Delaney, the Supreme Judicial Court held that failure of
service of the first extension of a 209A order is not fatal to a
conviction of violating it where the defendant was properly
served with the ex parte 209A order, and the law mandated that
an extension of the ex parte 209A order enter if the defendant
failed to appear at the first extension hearing.3 Id. at 588,
590-592. The court reasoned that service of the ex parte order
put the defendant on constructive notice of the possibility of
an extended order; as such, "a party may not 'shut his eyes to
the means of knowledge which he knows are at hand, and thereby
escape the consequences which would flow from the notice if it
had actually been received.'" Id. at 592, quoting Olivo, 369
Mass. at 69.
3 General Laws c. 209A, § 4, provides in relevant part:
"[T]he court may enter such temporary relief orders without
notice as it deems necessary to protect the plaintiff from abuse
and shall immediately thereafter notify the defendant that
temporary orders have been issued. The court shall give the
defendant an opportunity to be heard on the question of
continuing the temporary order. . . . If the defendant does not
appear at such subsequent hearing, the temporary orders shall
continue in effect without further order of the court."
7
The procedural posture of this case, however, is distinct
from that in Delaney and is governed in all material respects by
Commonwealth v. Molloy, 44 Mass. App. Ct. 306 (1998). In
Molloy, the defendant appeared at three extension hearings but
did not appear for the fourth and fifth successive annual
extensions of the 209A order, and he was not served with the
extension orders. Id. at 307. The defendant was convicted of
violating the 209A order after the fourth and fifth extensions,
and this court reversed, holding that the constructive notice
analysis in Delaney did not apply to successive annual
extensions of a 209A order. Id. at 308-309. The court reasoned
that, unlike in Delaney, extension was not mandated if the
defendant failed to appear,4 and the defendant "was entitled to
rely upon the provisions of G. L. c. 209A, § 7, . . . and could
expect to be served a copy of any extension order that issued."5
4 General Laws c. 209A, § 3, provides in relevant part: "If
the plaintiff appears at the court at the date and time the
order is to expire, the court shall determine whether or not to
extend the order for any additional time reasonably necessary."
5 Notably, since Delaney and Molloy, the Legislature amended
§ 7, see St. 2014, c. 260, § 14, to provide for additional
notice to defendants:
"Law enforcement agencies shall establish adequate
procedures to ensure that, when effecting service upon a
defendant pursuant to this paragraph, a law enforcement
officer shall, to the extent practicable: (i) fully inform
the defendant of the contents of the order and the
available penalties for any violation of an order or terms
thereof and (ii) provide the defendant with informational
8
Molloy, supra at 309. Here, because there was no service of the
July 13, 2010, extension of the 209A order, the Commonwealth had
the burden of proving that the defendant had actual knowledge of
the order.
The Commonwealth contends that the defendant's indication
to the police that he "understood" why he was being arrested was
sufficient to show knowledge of the extension of the 209A order.
Without more than the officer's testimony that the defendant
indicated that he understood why he was being arrested, this was
not an inference that the jury could draw. Compare Commonwealth
v. Mendonca, 50 Mass. App. Ct. 684, 688 (2001) (affirming
judgment where victim testified she told defendant "a few times"
that he was not permitted to call, and he responded that he
"didn't believe" in abuse prevention orders), with Commonwealth
v. Welch, 58 Mass. App. Ct. 408, 410-411 (2003) (reversing
judgment where victim testified that "[o]nce or twice maybe" she
had telephone conversation with, and told defendant about, order
but did not testify to any further details).
resources, including, but not limited to, a list of
certified batterer intervention programs, substance abuse
counseling, alcohol abuse counseling and financial
counseling programs located within or near the court's
jurisdiction."
9
Conclusion. As to the defendant's conviction of violating
an abuse prevention order, the judgment is reversed, the verdict
is set aside, and judgment shall enter for the defendant.6
So ordered.
6 We need not reach the defendant's remaining contentions in
light of our disposition.