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Commonwealth v. Goldman

Appeals Court of Massachusetts, Middlesex

October 17, 2018


          Heard: December 11, 2017.

         Complaint received and sworn to in the Lowell Division of the District Court Department on February 23, 2015.

         A motion to dismiss was heard by Michael J. Brooks, J., and the case was tried before Daniel C. Crane, J.

          Christopher DeMayo for the defendant.

          Asher Kim, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Sacks, & Lemire, JJ.

          SACKS, J.

         The defendant was convicted of violating the provisions of two G. L. c. 258E harassment prevention orders that required him to "remain away from [the protected persons'] residence." On appeal, the defendant argues that the remain-away provision was misinterpreted, both by a motion judge in refusing to dismiss the complaint for lack of probable cause, and by the trial judge in responding to a jury question about the provision.

         We conclude that ordinarily, the remain-away provision of a c. 258E order prohibits a 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.[1]

         Applying these standards here, we conclude that there was probable cause to issue the complaint, but that it was an abuse of discretion for the trial judge to instruct the jury, in response to their request to explain the remain-away provision, that they should give the phrase its "plain meaning," using their common sense and life experiences. The defendant is therefore entitled to a new trial.


         The defendant had been a member of the Montefiore Society Synagogue, a small congregation located in Lowell, since at least 2007. After the defendant's 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 in 2011. The orders, issued on the Trial Court's preprinted forms, originally required the defendant not to abuse or harass the Smiths, not to contact them, to stay at least one hundred yards away from them, and to "remain away from [their] residence located at" a specified address in Lowell.[2] The defendant also lived in a house in Lowell, and he owned a rental property in Lowell, not far from the Smiths' residence.

         The orders were extended in 2012 and 2013; they were extended again in 2014, with the modification that the defendant was no longer required to remain one hundred yards away from the Smiths or to refrain from contacting them. The orders were extended yet again in 2015, with the further modification that the defendant could "attend services at the synagogue . . . respectfully and not abuse" the Smiths.

         Shortly thereafter, a large snowstorm having been 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.

         There was conflicting evidence about what occurred during services the next morning. The Commonwealth's case included evidence that John Smith looked out his living room window and noticed the defendant walking along the street within thirty to forty feet of the Smiths' property. He asked his wife to call the police. She then 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 had walked to the synagogue that morning but, finding no one there, walked in the direction of his rental property to speak to his tenants. Because the Smiths lived nearby, he also walked toward their residence, to see "if they did their service there so that I wouldn't be able to come." The defendant testified that he wanted to see whether there were cars at the Smiths' residence, and that he came no closer than an intersection that, according to a map admitted in ...

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