Heard: February 7, 2018.
received and sworn to in the Quincy Division of the District
Court Department on August 5, 2016.
case was heard by Mark S. Coven, J.
Meredith Shih for the defendant.
Marguerite T. Grant, Assistant District Attorney (Sean P.
Riley, Assistant District Attorney, also present) for the
Present: Trainor, Blake, & Lemire, JJ.
jury trial in the Quincy Division of the District Court
Department, the defendant, Elisabeth Telcinord, was convicted
on a criminal complaint charging her with one count of
violating an abuse prevention order pursuant to G. L. c.
209A, § 7. On appeal, the defendant argues that
(1) there was insufficient evidence that she violated the
stay-away provision of the order; (2) the judge's
instruction to the jury to use their common understanding of
the phrase "stay away from the plaintiff's
residence" when the jury asked for a legal definition
was error; and (3) testimony about the defendant's arrest
created a substantial risk of a miscarriage of justice. We
affirm the judgment.
August 3, 2016, the Brockton Division of the District Court
Department issued a G. L. c. 209A abuse prevention order
directing the defendant to stay at least fifty yards away
from the victim, not contact him, stay away from his
workplace, and stay away from his residence located at 13
Hall Street in Randolph.
P.M. on August 4, 2016, a Brockton police officer served the
defendant with a copy of the c. 209A order in hand. At about
3 A.M. on August 5, 2016, a Randolph police officer was
dispatched to Hall Street. The officer drove on North Main
Street, turned onto Hall Street, and parked his marked
cruiser at 15 Hall Street.
officer observed two vehicles drive onto Hall Street from
North Main Street. The first vehicle was driven by a man,
later identified as the victim and the subject of the abuse
prevention order. The second vehicle was operated by the
defendant and was traveling about three car lengths behind
the victim's vehicle. As the vehicles approached the
cruiser, the defendant pulled her vehicle over to the right
side of the street and stopped. The victim stopped his
vehicle in front of the cruiser and got out to speak to the
officer, who described the victim as "upset." The
officer thereafter drove his cruiser back to the
defendant's vehicle to speak with her.
defendant told the officer that "she thought that she
was in compliance with the order by the distance she was away
from the [victim's] house." She also said that she
was married to the victim, and admitted that she was
following him; she was trying to deal with a family issue
involving the victim having contacted her father. The officer
described the defendant as "upset." The officer
spoke again with the victim, who was still upset, and then
returned to the defendant's vehicle and arrested her. She
identified herself by name, birthdate, and address at the
Legislature enacted G. L. c. 209A in 1978. The original
version of G. L. c. 209A, § 7, criminalized only a
defendant's violation of an order to "refrain from
abus[e]" or "vacate the household." See St.
1983, c. 678, § 5. In 1990, the Supreme Judicial Court
considered the question whether a trial court judge's
order requiring the defendant to "leave and remain away
from the [marital household]" was authorized under the
statute, because the statute, at that time, only contained
the provision to "vacate forthwith the household."
Commonwealth v. Gordon, 407 Mass. 340, 344-345
(1990). The defendant argued that the order could only be
violated by failing to vacate the household, and not by his
returning to visit it. Id. at 345-346. The court
concluded that the defendant had misconstrued the purpose and
scope of the term "vacate" as used in G. L. c.
209A.' Id. at 346-348.
court proceeded to elaborate on the harm that the Legislature
was attempting to prevent, and why it was essential that the
defendant be required to stay away from the residence and
workplace of the victim.
"An order to 'vacate the household' . . .
creates a haven for the abused party in which no further
abuse need be feared and provides a temporary, partial
separation of the abused and abusive party, thereby leaving
fewer opportunities for abusive contact.
"Were we to adopt the defendant's definition of
'vacate,' an abusive party, having surrendered
occupancy of the household, would be free to return to the
house at will. The abused party would have no ability to
lessen the abusive party's prerogative to initiate
contact and could expect no refuge from the possibility of
further abuse. That the Legislature intended the word
'vacate' to include the concept of 'remain
away' is demonstrated by the authority of a judge to
issue a 'vacate' order for a period of one year. G.
L. c. 209A, § 3 (b) . "
Id. at 347.
Gordon court read into the statutory language the
requirement that the defendant not only vacate the residence
but also remain away from it. The Legislature responded by
amending the statute and making the court's
interpretation explicit in the statutory language. See note
5, supra. The purpose of this interpretation,
significantly, is the recognition of the core purpose of an