Commonwealth v. Crimmins

¶1(dissenting in part). Elaborating on Justice-Holmes’s now familiar maxim, in a recent opinion of this court, Justice Laurence stated that, like great cases and hard cases, sometimes “[sympathetic cases make bad law.” Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684, 685 (1998), citing Northern Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting). This case presents a factual scenario which, if the victim’s testimony is believed, may be fairly characterized as at once tragic and repugnant. Nonetheless, although I agree with much of the majoriy’s disposition of this appeal, I cannot agree that the Commonwealth met its burden of proof regarding the notice element of the G. L. c. 209A violation. Accordingly, I respectfully dissent.

¶2As the majority recognize, service, whatever its form, must be accomplished in a manner “reasonably calculated” to reach the defendant. Commonwealth v. Delaney, 425 Mass. 587, 591 n.7 (1997), cert, denied, 118 S. Ct. 714 (1998). Thus, when service is performed in hand or at the defendant’s last and usual address, a jury is permitted to infer that the defendant received the order. See id. at 589-592.

¶3However, if the jury has no information as to how service was performed, there is nothing from which they can infer that the defendant actually received, and thus actually knew of, the order. Thus, in the present case, although perhaps a rational jury could infer that the extension had been served in some manner, the absence of any information pertaining to the four possible methods of the attempted service left the jury to speculate whether service had been performed in a manner reasonably calculated to reach the defendant. In the absence of any additional evidence tending to show knowledge of the extension, the jury could not infer, beyond a reasonable doubt, that the defendant knew the restraining order was in effect.

¶4The majority conclude that we may properly infer that the *497defendant was served either in hand or at his last and usual address. It is axiomatic that when reviewing the sufficiency of the evidence, we may not indulge in speculation, nor may we (or a jury) pile inference upon inference. See Commonwealth v. Ferguson, 384 Mass. 13, 18 (1981); Commonwealth v. Baptista, 32 Mass. App. Ct. 910 (1992). Yet, the majority’s opinion improperly rests upon a series of faulty consecutive assumptions, each an inference from the previous, in order to support an ultimate finding that the defendant had knowledge of the existence and terms of the restraining order.

¶5Essentially, the majority reason that because G. L. c. 209A, § 7, requires that service be made upon the defendant “unless otherwise ordered by the court,” and because under these circumstances,1 obtaining a court order authorizing service by “other means” would have been unlikely, we may infer that service was not made by such other means. In turn, because we may assume that service was not made by other means, we may next infer that service was made either in hand, or by delivery at the defendant’s last known address, since these two choices are the only choices left on the (incomplete) return of service. Since either of these two methods can be probative of knowledge, we may finally infer, beyond a reasonable doubt, that the defendant knew of the existence and terms of the order.2

¶6The majority’s analysis is premised upon any of three foundational assumptions. First, the majority assume that an order for substitute service could not be obtained in the approximately three and one-half hour time span between the issuance of the order and its service. I am not prepared to accept as fact the unavailability of a trial court judge to issue an order for substituted service, even under these circumstances.

¶7The majority also assume both that the officer, having knowledge of the defendant’s address, would not request an order for substitute service, and also that a judge would not is*498sue such an order. Casting aside the utter lack of evidence from which a jury could make either of these inferences, this analysis remains at best incomplete, in that it is premised upon an additional unsupported assumption that the officer actually followed statutorily prescribed procedure, i.e., that if the officer chose to attempt substitute service, she would go before a judge and request authorization.3

¶8In short, I believe that this series of consecutive assumptions is simply too remote, and too speculative, to serve as a foundation for an ultimate finding of knowledge. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979) (“it is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense; it must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt”).

¶9Aside from the speculative nature of the majority’s reasoning, the analysis itself is not applicable to these facts. The issue which we address is whether a rational jury could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995). Needless to say, inferences may be drawn only from the evidence presented at trial. See Commonwealth v. Collier, All Mass. 385, 389 (1998).

¶10Here, there was no evidence presented to the jury concerning the procedural provisions of G. L. c. 209A, § 7. Pertaining to the knowledge element, the judge instructed the jury that the Commonwealth must prove “that the defendant knew that the pertinent terms of the order were in effect either by having received a copy of the order or by having learned of the terms of the order in some other way.”4 There was no mention of the procedure prescribed by G. L. c. 209A, § 7, nor was there any mention of Zullo v. Goguen, 423 Mass. 679 (1996), to which the majority cites. As a result, the jury simply had no opportunity to engage in the analysis which the majority now suggest.

¶11In sum, because there is no evidence in the record from which *499it may be inferred that service was made in a manner reasonably calculated to reach the defendant, and there is no additional evidence demonstrating knowledge, there is nothing from which knowledge may be inferred beyond a reasonable doubt, and, therefore, I would reverse the judgment.