In Commonwealth v. Kurko, the Appeals Court opined that where the Commonwealth failed to present to the jury a stipulation that the parties had intended to introduce, the evidence before the jurors at the close of evidence was insufficient to support the defendant’s conviction of violation of the harassment prevention order against her.
The background was as follows. “The complainant was a concierge at a luxury condominium complex…. During his employment there, he obtained a harassment prevention order against the defendant, a resident. The complainant continued to have regular daily contact with the defendant at the complex after obtaining the order, despite trying to avoid her. On the afternoon of January 5, 2016, … the complainant was beginning his shift, and was taking over from a coworker who was ending her shift. The complainant’s coworker had been assisting the defendant with paperwork, which was ‘jumbled and mixed up.’ When the complainant took over the task, he told the defendant that she needed to put the papers in order, and she ‘erupted.’ The defendant was ‘screaming at the top of [her] lungs’ and swearing. She lunged toward the complainant over the desk, and pointed her finger in his face. The complainant told her to lower her voice and ‘go to [her] unit,’ but she refused, and he ultimately called 911 for assistance.” “Prior to trial, the parties notified the judge that they intended to stipulate to (1) the existence of the [harassment prevention] order; (2) that it was in effect on the date of the offense; and (3) that the defendant was served with the order and [was] aware of its existence and terms. Ultimately, however, no such stipulation was introduced in evidence…. [Moreover,] [a]lthough the parties and the judge had expressed their expectation that the Commonwealth would introduce a redacted copy of the order itself in evidence, the order was never proffered. At the close of the Commonwealth’s evidence, the defendant moved for a directed verdict, arguing only that the defendant’s conduct did not rise to a level sufficient to violate the order…. During a charge conference, the parties reiterated their understanding of the stipulation…. Without objection, during the jury charge, the judge then instructed the jury that ‘both sides agreed and stipulated’ that (1) a court issued a harassment prevention order prohibiting the defendant from abusing or harassing the complainant; (2) the order was in effect on the day of the alleged violation; and (3) the defendant knew of the order and its terms. [The judge] instructed the jury that the only element that they needed to consider was whether the defendant violated the order by abusing or harassing the complainant.” On appeal, the defendant challenged the sufficiency of the evidence.
In its decision vacating the defendant’s conviction, the Appeals Court noted that “[t]o convict a defendant of violation of a harassment prevention order, the Commonwealth must prove ‘that a court had issued such an order; that the order was in effect on the date that the violation allegedly occurred; that the defendant knew the pertinent terms of the order; and that the defendant violated the order.’ Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492 (2002)…. The Commonwealth appropriately concedes that the stipulation at issue here,” regarding the harassment prevention order against the defendant, “was not before the jury prior to the close of evidence,” despite the parties’ apparent intention to present it to the jurors. “At the close of evidence …, the jury had no evidence before them specifying the terms of the harassment prevention order … and, thus, no basis to conclude that the defendant had violated the order.” Therefore, “[t]he Commonwealth’s proof at the close of evidence was fatally insufficient.”
Allegations of criminal harassment are serious. If you or a loved one is facing such charges, you will need the assistance of a skilled attorney who will work hard to raise all possible defenses on your behalf, and who knows how to hold the Commonwealth to its burden of proof. Attorney Daniel Cappetta is such an attorney – call him for a consultation today.