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Appeals Court Reverses Conviction in HO Case and Provides Definition for “Remain Away Provision”

snow-covered-street-1223222-225x300In Commonwealth v. Goldman, the Appeals Court reversed the defendant’s convictions of “violating the provisions of two G.L. c.258E harassment prevention orders that required him to ‘remain away from [the protected persons’] residence,’” because the judge did not adequately instruct the jurors as to the meaning of the phrase “remain away.”

The background was as follows. The defendant was a member of the congregation of a small synagogue. “After [his] conduct at the synagogue led to disputes between him and John and Mary Smith (pseudonyms) — a husband and wife who held leadership positions in the congregation — the Smiths obtained essentially identical c.258E orders against the defendant.” The orders required that the defendant “‘remain away from [the Smiths’] residence,’” but indicated that “the defendant could ‘attend services at the synagogue … respectfully[, so long as he did] not abuse’ the Smiths.” When “a large snowstorm [was] forecast for Saturday, February 21, 2015, the Smiths invited members of the synagogue to spend the night of February 20 at the Smith residence, so that services could be conducted at the residence the following day without members having to travel outdoors. About fourteen members accepted.  The defendant was not invited.” During the services the next morning, “John Smith looked out his living room window and noticed the defendant walking along the street … thirty to forty feet [from] the Smiths’ property.” A short time later, Mary Smith “looked out another window, saw the defendant walking up their driveway, and called 911. A police officer arrived a few minutes later and observed the defendant standing in front of the Smiths’ house. The officer spoke to the Smiths and then arrested the defendant for violating the c.258E orders. The defendant told a different story…. [He] testified that he … came no closer [to the Smiths’ residence] than an intersection that … was one and one-half blocks [away].” The judge instructed the jury that the central issue was “whether the defendant had violated the [harassment prevention] orders ‘by failing to stay away from [the Smiths’] address.’…. [D]uring their deliberations, the jury sent a note asking, ‘Is there further definition/specification available for what it means to “remain away from the plaintiff’s residence”…?  Does it mean to stay off … or a certain distance away … or nowhere in vicinity, etc.?’” Over the defendant’s objection, “[t]he judge … instructed the jury: ‘[T]he term stay away has no strict definition for you to consider; instead, you are to assess the term by the plain meaning [of] what it is to stay away from a given location using your common sense and life experiences….’ The jury then returned guilty verdicts on both charges.” On appeal, the defendant challenged the adequacy of the judge’s instructions.

In its decision, the Appeals Court “conclude[d] that the judge’s answer to the jury’s question — that they should give the remain-away provision its ‘plain meaning,’ using their common sense and life experiences — did not adequately inform the jury about the meaning of that provision…. To accept the judge’s answer would leave each defendant to guess at the interpretation of the remain-away provision … and make that interpretation a subjective judgment call for the jury.” The Court also criticized the judge for not giving “a clear answer to that part of the jury’s question asking whether [‘remain away’] meant ‘nowhere in [the] vicinity.’” “[T]he correct answer — no — was not given.” In the Court’s view, because the word “vicinity” is so imprecise, “[t]he jury… should have been instructed that they could not convict the defendant based solely on a finding that he was in the vicinity of the protected residence.” The Court set forth the following general principles to be applied to cases like this one: “[I]f no distance is specified, the remain-away provision of a typical c.258E order prohibits the defendant from (1) crossing the residence’s property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.”

Incorrect or inadequate jury instructions is the most common reason for reversal of a conviction on appeal.  If you or a loved one is charged with a criminal offense, it is of critical importance that you have an attorney who is well versed in the law and who knows to properly and timely object to any insufficiencies in the jury instructions.  Further, if you have already had a trial and been convicted, you will need an attorney who is able to recognize any inadequacies in the trial court’s jury instructions so the issue can be raised on appeal.  Daniel Cappetta has extensive experience at both the trial and appellate court level.  Call him today for a free consultation to make sure you get the best outcome possible for your case.