Commonwealth v. Silva

¶1(dissenting). When the trial record is purged of the erroneously admitted hearsay testimony, see Commonwealth v. Alphas, 430 Mass. 8, 13 & n.6 (1999), the remaining evidence does not warrant a finding that the defendant had knowledge of the extended 209A order he is charged with violating, an essential element of the offense under G. L. c. 209A, § 7. See Commonwealth v. Collier, All Mass. 385, 388 (1998); Commonwealth v. Delaney, 425 Mass. 587, 595-596 (1997), cert, denied, 522 U.S. 1058 (1998). That evidence consists of the 209A complaint form and order, both of which provide an address for the defendant, and the testimony of Officer DeRosa that he handed the order to a woman at this address. The record discloses no evidence regarding the source of this address, other than the fact that it first appeared on the 209A complaint that the complainant completed and filed. There was no further testimony or documentary evidence before the jury to establish that the defendant either currently or previously resided at, or had any connection to, that residence. I do not doubt that, under G. L. c. 209A, § 7, as amended by St. 1990, c. 403, § 8, service of a 209A order at an address shown by admissible and competent evidence to be a defendant’s “last and usual” address would warrant a reasonable jury in finding that a defendant had knowledge of that order.1 However, in my judgment, the admissible evidence introduced by the Commonwealth in this case does not, without more, support a reasonable inference that the address to which the officer delivered the 209A order was in fact an address at which the defendant had ever lived or received mail. Accordingly, there was insufficient admissible evidence at trial to warrant a jury’s conclusion that the defendant knew of the existence and terms of the 209A order and, therefore, the Commonwealth failed to satisfy its burden of proof on the mens rea of the offense. See Commonwealth v. McGovern, 397 Mass. *408863, 867-868 (1986), citing Commonwealth v. Assad, 19 Mass. App. Ct. 1007, 1008 (1985) (“findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice”). Contrast Commonwealth v. Crosscup, 369 Mass. 228, 231-233 (1975); Commonwealth v. Lora, 43 Mass. App. Ct. 136, 143-144 & n.12 (1997) (defendant may be convicted of driving with a suspended license, G. L. c. 90, § 23, without proof of actual knowledge of suspension, on proof that notice of suspension was mailed to operator’s “last address” as listed in official records of registrar of motor vehicles, which was provided to registrar by defendant himself).

¶2The court concludes that no substantial risk of a miscarriage of justice exists here because defense counsel’s failure to object to the hearsay evidence concerning the defendant’s knowledge of the 209A order was a “reasonable tactical decision.” Ante at 406. The court observes that the defendant argued at trial that the complainant caused the violation of the 209A order by continually approaching him as he walked away, and that, in closing argument, defense counsel stated “[the defendant] was told to stay a hundred yards away from her,” thereby, ostensibly, conceding the mens rea of the offense. Ante at 405-406.2 1 cannot agree. Because the 209A order entered against the defendant in this case plainly states that the complainant’s allowance of or request for contact does not relieve the defendant of his obligation to comply with the order’s no-contact provision, I do not understand how counsel’s decision to make this unavailing theory of defense the core of the defendant’s trial strategy can be construed by the court to have been reasonable. Moreover, counsel’s statement in closing argument that the defendant “was told” to keep his distance from the complainant appears, when taken in context, not to be a concession that the defendant knew of the 209A order, but rather a summary of the terms of the order, the existence of which counsel had expressly conceded in the immediately preceding sentence. In short, it is inconceivable *409to me that defense counsel’s failure to object to the Commonwealth’s use of inadmissible hearsay to prove an essential element of the offense was a deliberate strategy, let alone a “reasonable tactical decision.” Commonwealth v. Alphas, supra at 13, quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).

¶3I am mindful that our authority to vacate a conviction in a noncapital case under the miscarriage of justice standard — whether that standard is cast in terms of a trial error’s material influence on the jury’s verdict or the danger that an innocent person has been convicted of a crime — should be exercised with caution and, therefore, rarely.3 See Commonwealth v. Alphas, supra at 13; id. at 27-28 (Fried, J., concurring, with whom Lynch. J., joined). Here, given the state of the Commonwealth’s admissible evidence on the mens rea of the crime, it appears to me not only plausible, but highly likely, that the jury’s result might have been otherwise but for the erroneous admission of hearsay testimony concerning the defendant’s knowledge of the 209A order and, consequently, that the matter should be remanded for retrial. See id. at 13.1, therefore, respectfully dissent.