Commonwealth v. Silva

726 N.E.2d 408, 431 Mass. 194, 2000 Mass. LEXIS 168
CourtMassachusetts Supreme Judicial Court
DecidedApril 11, 2000
StatusPublished
Cited by23 cases

This text of 726 N.E.2d 408 (Commonwealth v. Silva) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Silva, 726 N.E.2d 408, 431 Mass. 194, 2000 Mass. LEXIS 168 (Mass. 2000).

Opinion

Greaney, J.

A jury in the District Court convicted the defendant on two counts of a complaint charging him with violations, on separate dates, of the no-contact provisions of a protective order. See G. L. c. 209A, § 7. The Appeals Court, in [195]*195an unpublished memorandum and order pursuant to its rule 1:28, affirmed the convictions. Commonwealth v. Silva, 48 Mass. App. Ct. 1101 (1999). We granted the defendant’s application for further appellate review. We reject the defendant’s arguments that he was entitled to required findings of not guilty. We also reject his contention that he should have a new trial because the jury were not instructed about his actual intent when he made contact with his former wife. Accordingly, we affirm the convictions.

The evidence, considered in the light most favorable to the Commonwealth, warranted the jury in finding the following facts. The defendant and his former wife were married for eleven years. Their marriage ended in a bitter divorce in April, 1997, and the defendant’s former wife was awarded custody of their four young children. In October, 1996, after a full hearing in the presence of the defendant, a judge in the Probate and Family Court granted the defendant’s former wife a thirteen-month extension of a previously entered G. L. c. 209A protective order. Under its terms, which were in effect at the time of his alleged violations, the defendant was ordered “not to contact [his former wife], except as permitted in [paragraphs] 8 & 13 below . . . either in person, by telephone, in writing or otherwise, either directly or through someone else, and to stay at least 50 yards from [his former wife] even if [she] seems to allow or request contact.” Paragraph 8 provided that the defendant could “visit with the children once per week on either Saturday or Sunday,” and paragraph 13 provided that the defendant was “allowed to telephone the children only between the hours of 3:00 p.m. until 6:30 p.m. and at any time on the weekend before 7:00 p.m.” (emphasis original). The order further stated that the defendant “shall not discuss the court proceedings with the children, [and] . . . shall not question the children about their mother or their mother’s activities.”

On November 3, 1997, at about 5:30 p.m., the defendant made a telephone call to the home of his former wife, who answered the telephone and asked him what he wanted. The defendant told her that he wanted to know “what the f was going on.” She again asked him what he wanted, because he had not made telephone calls to speak with the children in four months. The defendant responded that he wanted to speak with his older daughter. (The daughter’s whereabouts had been the subject of a recent police visit to the defendant. Apparently, she had fought [196]*196with her mother a few days earlier, and left, stating she was going to go see her father. The defendant’s former wife had then called the police.) His former wife refused his request, stating that, “you didn’t want to talk to the other kids, you’re not talking to just one and not the others.” At this point, the defendant told his former wife, “I’m sick of you. You fin bitch. I will get you. You’re gonna pay.” According to his former wife, the defendant was “yelling and screaming” and sounded “very angry.” She hung up the telephone. This conversation constituted the basis of the first count in. the complaint.

On November 11, 1997, at about 5:30 p.m., the defendant again made a telephone call to the home of his former wife. This time, his oldest daughter answered, said, “Oh hi Dad,” and handed the telephone to her mother. The defendant’s former wife testified that she asked him what he wanted, and he said that, “he wanted to know what the f was going on. Why the fin police were at his door. He was very angry and yelling at me .... He said he was going to get me. He was going to make me pay.” His former wife told the defendant to “take [her] to court.” After all four children had spoken with the defendant, the younger daughter handed the telephone back to her mother, who told the defendant not to call anymore. The defendant responded that “he’d call any fin time he want[ed].” The defendant’s former wife ended the conversation, and she reported the call to the police. At the suggestion of the police, she then wrote out a statement that she delivered to the police department. This conversation constituted the basis of the second count of the complaint.

On Friday, November 21, 1997, the day that the protective order was due to expire, a hearing was held in the Probate and Family Court. At the hearing, at which both the defendant and his former wife were present, a judge vacated the protective order. That same day, the defendant’s former wife went to a District Court and, without disclosing to the District Court judge that a judge in the Probate and Family Court had just vacated another order, obtained an emergency protective order against the defendant. The following Monday morning, November 24, 1997, the defendant went to the District Court and succeeded in having a judge there vacate this order. That afternoon, the defendant made a telephone call to his former wife, who testified that he sounded “happy that he had [the order] vacated.” He went on to tell her that, “[the order] was [197]*197against his civil rights and it was just a matter of time before he got his guns back

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Bluebook (online)
726 N.E.2d 408, 431 Mass. 194, 2000 Mass. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-silva-mass-2000.