Appeals Court, March 19, 2014

Defense counsel’s failure to redact the language: "THERE IS A SUBSTANTIAL LIKELIHOOD OF IMMEDIATE DANGER OF ABUSE. YOU ARE ORDERED TO IMMEDIATELY SURRENDER to the Lynn Police Department all guns, ammunition, gun licenses . . . ." from an abuse prevention order and to object to the prosecutor’s emphasis on it during closing argument constituted ineffective assistance of counsel.  In this case, where the prosecutor exploited this language in closing argument, the Court reversed the defendant’s conviction for assault and battery.    

Unredacted Abuse Prevention Order:

The defendant was convicted of an abuse prevention violation, G. L. c. 209A, § 7, and assault and battery under G. L. c. 265, § 13A(a).  The assault and battery occurred after the issuance of the restraining order and contemporaneously with the abuse prevention violation.  During the trial, the Commonwealth entered the abuse prevention order into evidence over the defendant’s hearsay objection.  Defense counsel did not move to redact the language "THERE IS A SUBSTANTIAL LIKELIHOOD OF IMMEDIATE DANGER OF ABUSE. YOU ARE ORDERED TO IMMEDIATELY SURRENDER to the Lynn Police Department all guns, ammunition, gun licenses . . . . ." During closing argument, the prosecutor stated that before she covered the elements of the assault and battery that it was important to know for the jurors to know that the judge issuing a restraining order “has to find that there's a substantial likelihood of imminent danger of abuse. . . . So when [the victim] came in to get that restraining order, based on what she told the judge, the judge found that there was . . . a substantial likelihood of an imminent danger of abuse.”  Defense counsel did not object.

The Appeals Court held that this language (substantial likelihood of immediate danger of abuse) “has no place in a criminal trial on charges of violating the abuse prevention order or assault and battery. This type of predictive or propensity evidence is not admissible to prove a crime.”  The Court expressed concern that the prosecutor’s argument improperly highlighted the judge’s findings of the defendant’s likelihood to commit the crime, which, by inference, suggested that the issuing judge credited the victim. 

Based on the evidence at trial and the defenses offered, the court found that the ineffective assistance of counsel created a substantial miscarriage of justice as to the assault and battery charge but not as to the violation of restraining order.  

Practice Note: Consider redacting this language when offering an abuse prevention order in any criminal case.  

Return of Service:

The Court quickly disposed of defendant’s argument that offering the restraining order return of service without live testimony of the court officer violated his confrontation rights.  The Appeals Court held that Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827 (2011)(209A return of service is not testimonial) was not overruled by Commonwealth v. Parenteau, 460 Mass. 1 (2011)(notice by registry of motor vehicle is testimonial), which was decided several months later.