Commonwealth v. Delaney

682 N.E.2d 611, 425 Mass. 587, 1997 Mass. LEXIS 187
Massachusetts Supreme Judicial Court·Decided July 28, 1997·Published·Cited by 102 cases

Opinions

Abrams, J.

On March 9, 1994, a District Court jury found the defendant, Martin F. Delaney, Jr., guilty of five counts of violating a protective order issued pursuant to G. L. c. 209A.1 The defendant appeals from the convictions, as well as from an order denying his motion for a new trial on various grounds. We transferred the case here on our motion. We affirm.

The following facts are not in dispute. On August 31, 1992, the victim, the defendant’s former female companion, obtained an ex parte protective order against the defendant pursuant to G. L. c. 209A, § 4. The order stated that the defendant was to refrain from having any contact with the victim, and specifically restrained the defendant from following the victim and making telephone calls to her. The order also stated that there was to be a hearing on September 11, 1992, to determine whether the order would be extended and that the defendant “may appear, with or without an attorney, to oppose any extension or expansion of this [ojrder. If the defendant does not appear, an extended or expanded [ojrder may remain in effect for up to one year.” Service of the temporary order was made by leaving a copy of it at the defendant’s last and usual place of abode on September 1, 1992. On September 11, 1992, the defendant did not appear at the hearing; the order was extended for one year to September 10, 1993. The extended order contained the same [589] terms as the temporary order, but there is no evidence that the extended order was ever served on the defendant.

There was evidence from which the jury could have found the following facts. On September 14, 1992, the defendant telephoned the victim and stated, “You got a restraining order against me.” The defendant offered to put a clutch in the victim’s automobile for free if she would “drop” the restraining order against him. The defendant again telephoned the victim on September 18, 1992, and asked the victim to “give [him] another chance.” On September 28, 1992, the defendant forced the victim’s automobile off the road and apparently referring to charges in an unrelated matter told her, “You are going to drop the charges or else.” The defendant was arrested following this incident. On October 8, 1992, the defendant pulled his vehicle up behind the victim and asked her “if [they] could handle their problems outside of court.” Again, the defendant was arrested. Finally, on November 2, the defendant blocked the victim’s vehicle as she tried to leave a gasoline station.

On appeal, the defendant argues that, because he never was served with the extended order he was charged with violating, the judge improperly asserted jurisdiction over this case and denied him his due process rights under the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. The defendant also argues that the Commonwealth improperly joined the charges against him; he alleges error in the jury instructions and claims that the judge’s biased treatment of defense counsel deprived him of his right to a fair trial. Finally, the defendant claims that his motion for a new trial was improperly denied because the Commonwealth’s closing argument distorted the evidence against him.2

1. Failure to serve the extended order. The defendant first argues that the failure to serve him with a copy of the extended order deprived the District Court judge of subject matter jurisdiction over his case. Because it is clear that the District Court had subject matter jurisdiction,3 we treat the defendant’s argument as asserting that the statute requires that there be [590] personal service on the defendant before he can be convicted of violating the order. We conclude that personal service of the extended order is not required.

General Laws c. 209A, § 7, requires that a copy of an order issued under §§ 3, 4, or 5 of G. L. c. 209A be served on a defendant.4 The defendant argues, therefore, that, absent such service, he cannot be convicted of violating an order issued pursuant to G. L. c. 209A. The defendant’s argument, however, [591] ignores the fact that the temporary order was served on him at Ms last and usual place of abode and that the evidence warranted a finding that he had knowledge of the order. TMs order warned the defendant that, if he failed to appear, “an extended or expanded [o]rder may remain in effect.”5 Section 4 mandates that “the temporary order[] shall continue in effect without further order of the court” when the defendant fails to appear (emphasis added).6 The jury could have found that the defendant had actual and constructive notice of the order and that it continued in effect after the hearing date. In these circumstances the service of the extended order on the defendant was not a prerequisite to his prosecution for violating the terms of the order. This, however, does not end our inquiry. The defendant also argues that prosecuting a defendant for violating an order that has not been served on him violates the defendant’s due process rights.

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Commonwealth v. Delaney, 682 N.E.2d 611, 425 Mass. 587, 1997 Mass. LEXIS 187 (Mass. 1997).

682 N.E.2d 611 (Commonwealth v. Delaney) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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