Commonwealth v. Martinez

683 N.E.2d 699, 43 Mass. App. Ct. 408, 1997 Mass. App. LEXIS 188
CourtMassachusetts Appeals Court
DecidedAugust 21, 1997
DocketNo. 95-P-1951
StatusPublished
Cited by7 cases

This text of 683 N.E.2d 699 (Commonwealth v. Martinez) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Martinez, 683 N.E.2d 699, 43 Mass. App. Ct. 408, 1997 Mass. App. LEXIS 188 (Mass. Ct. App. 1997).

Opinion

Lenk, J.

The defendant was charged, through six complaints, with seven counts of violating a domestic protective order, G. L. c. 209A, § 7, one count of stalking by repeatedly following a victim, G. L. c. 265, § 43, one count of making harassing telephone calls, G. L. c. 269, § 14A, and one count of trespassing, G. L. c. 266, § 120. The Commonwealth by nolle prosequi [409]*409dismissed before trial one count of violating a domestic protective order. The jury found the defendant not guilty of making harassing telephone calls but convicted him of all remaining charges. He appeals, claiming that (1) the evidence was insufficient to permit a finding that he violated the stalking statute; (2) the trial judge’s instruction on the stalking charge was inadequate to define the offense; (3) it was prejudicial error to allow in evidence the defendant’s prior bad acts; and (4) he was deprived of the effective assistance of counsel.

1. Factual background. The charges against the defendant stem from allegations made by Elaine Williams, with whom he had an intermittent intimate relationship over a seven-year period beginning in 1983. Williams is the mother of the defendant’s daughter, bom in 1989. On March 30, 1992, Williams sought and received a domestic protective order against the defendant, which she renewed every year through April 14, 1995.1

The charges against the defendant are based on conduct alleged to have occurred over a three-year period from June 30, 1992, through March 12, 1995. While the stalking complaint alleged incidents occurring from February 12 through April 6, 1993, the trial judge limited the incidents relevant to this charge to nine dates in 1993 specified by the Commonwealth in its bill of particulars.2 The defendant does not challenge the sufficiency of the evidence as to his convictions on six counts of violating a domestic protective order and one count of trespassing, but instead limits his challenge in this regard to the stalking conviction. Accordingly, we need not recite the evidence of incidents other than on the nine dates in 1993 listed in the Commonwealth’s bill of particulars. Viewing this evidence in the light most favorable to the Commonwealth, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the judge could have found as follows. On four occasions, the defendant went to Williams’s workplace and was verbally abusive and threatening to [410]*410her. He twice telephoned her and was verbally abusive and threatening. He once stood outside her home in the middle of the night and screamed up to her bedroom window demanding to speak with her. He twice waited for Williams outside her workplace and followed her in his car, speaking to her from his car window.

2. Stalking. The defendant argues that this evidence is insufficient to uphold his conviction of stalking insofar as the jury heard evidence of only two instances when the defendant “followed” Williams. The stalking statute reads, in pertinent part:

“(a) Whoever willfully, maliciously, and repeatedly follows or harasses another person and who makes a threat with the intent to place that person in imminent fear of death or serious bodily injury shall be guilty of the crime of stalking. ...”

G. L. c. 265, § 43 (1994 ed). 3 The Commonwealth concedes in its brief that the harassing prong of the stalking statute did not form the basis of the stalking charge against the defendant.4 The question before us, then, is whether the phrase “repeatedly follows” requires proof of two, or more than two, incidents of “following.”

In Commonwealth v. Kwiatkowski, 418 Mass. 543 (1994), the Supreme Judicial Court held that the separate definition of “harasses” in § 43(d) of the stalking statute rendered vague the “repeatedly harasses” prong of § 43(a). 418 Mass, at 546-548. Section 43(d) defines “harasses” as: “a knowing and willful pattern of conduct or series of acts.” In light of this definition, the term “repeatedly” is ambiguous insofar as it may be unclear whether a violation of the “harasses” prong would require one “pattern of conduct or series of acts” or repeated “patterns of conduct or series of acts.” Id. at 546-548. The court eliminated uncertainty in the construction of this portion of the statute by holding that, henceforth, “the statutory crime of stalking based on conduct that harasses a victim . . . would involve more than two incidents.” Id. at 547-548. The court noted further that the [411]*411words “repeated” or “repeatedly,” which it described as ambiguous, can in some circumstances mean “simply more than once” and, in others, “more than twice. . . . The answer, of course, often depends on the context in which the word is used.” Id. at 548 n.6.

Two years later, in Commonwealth v. Wotan, 422 Mass. 740 (1996), the court addressed the scope of the “repeatedly” element of G. L. c. 269, § 14A (1994 ed.).5 That statute makes it a misdemeanor to telephone someone repeatedly solely to harass, annoy or molest them. The court, noting that it had in Kwiatkowski previously characterized the term “repeatedly” as being ambiguous and context dependent, prospectively construed the telephone harassment statute as requiring three or more calls. Because defendant Wotan had been charged in the complaint with having made two telephone calls, and the statutory term “repeatedly” was ambiguous when applied to the facts of the case, the court reversed Wotan’s conviction, according her the benefit of the statutory ambiguity. Id. at 742 n.4, 743.

The term “repeatedly” in the context of “repeatedly follows” is no less ambiguous than in the context of “telephones repeatedly” or “repeatedly harasses.” It admits of the meanings “more than once” and “again and again,” the former suggesting that two incidents would suffice, the latter suggesting at least three. We conclude that, henceforth, the statutory crime of stalking based on following a victim repeatedly will require more than two incidents of following. The defendant here was convicted on the basis of only two incidents of following. According him the benefit of the statutory ambiguity, his conviction for stalking cannot stand. Commonwealth v. Kwiatkowski, 418 Mass, at 547, citing Opinion of the Justices, 378 Mass. 822, 826 (1979). Commonwealth v. Wotan, 422 Mass, at 742-743, citing Commonwealth v. Gagnon, 387 Mass. 567, 569 (1982), cert, denied, 461 U.S. 921 and 464 U.S. 815 (1983). See Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992). We need not reach the claimed inadequacy of the judge’s instruction in this regard.

3. Other issues. The defendant also contends that the judge erred in admitting certain evidence of his prior bad acts and that his counsel provided him with ineffective assistance. We see no merit in the latter contention, apparently raised for the first time [412]*412on appeal, since the defendant has neither shown that counsel’s actions fell measurably below that which might be expected of an ordinary, fallible lawyer, nor that better work would have accomplished anything material for his defense. See Commonwealth v. Saferian, 366 Mass. 89, 96 (1974); Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

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Bluebook (online)
683 N.E.2d 699, 43 Mass. App. Ct. 408, 1997 Mass. App. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-martinez-massappct-1997.