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G. B. v. C.A.

Appeals Court of Massachusetts, Norfolk

November 1, 2018

G. B.
v.
C.A.

          Heard: May 3, 2018.

         Complaint for protection from abuse filed in the Dedham Division of the District Court Department on June 30, 2016.

         A motion to extend an abuse protection order was heard by Paul J. McCallum, J.

          Syrie D. Fried for the defendant.

          Present: Sullivan, Blake, & Englander, JJ.

          BLAKE, J.

         Following a three-day evidentiary hearing, a judge of the District Court extended an abuse prevention order, which had been issued ex parte, for a period of one year. The defendant appeals, [1] claiming that the evidence was insufficient to issue the G. L. c. 209A order (209A order) and that the doctrine of res judicata precludes entry of the order. We affirm.

         1. Chapter 209A proceedings.

         a. December 4, 2015, complaint.

         We summarize the facts as the judge may have found them. Compare Aguilar v. Hernandez-Mendez, 66 Mass.App.Ct. 367, 367-368 & n.1 (2006). The parties were involved in a dating relationship for close to three years. Their relationship ended on December 2, 2015. The following day, December 3, the defendant, a Boston police officer, appeared at the plaintiff's workplace.[2] A struggle ensued when he attempted to return ceramic flowers to the plaintiff, which he had taken from her home after having given them to her as a gift about a year earlier. The incident was captured by the plaintiff's workplace security cameras, from two different angles. The video equipment did not record sound.

         The videotape recordings show that the plaintiff threw the flowers in the trash, and the defendant, who had moved behind the service counter, attempted to, and finally did, retrieve them. The plaintiff lunged at the defendant, pointing long fingernails toward his face, and a struggle ensued. Some of the struggle appears on the recording, showing the plaintiff attempting to take the flowers back, and the defendant keeping them away from her. The parties then went off camera for a period of time. The plaintiff eventually landed on the ground, injuring her face and lip.[3] The recording did not capture how she landed there or how she was injured. The parties then came into the range of the camera and became visible on the recording. As the plaintiff attempted to call the police, the defendant tried to get the cellular telephone (cell phone) away from her; he boxed her in to a corner of the store. The plaintiff was initially unsuccessful in calling the police; the defendant disconnected and muted her cell phone. The defendant admitted that he had done so, contending that he wanted to talk to the plaintiff about the situation because "it might not be good for [her]." As a result of the 911 hang-up call, a 911 operator called back and the defendant answered the plaintiff's cell phone. The defendant then left the store and walked across the street to the police station.[4] Officers arrived on the scene and spoke to him at length. They then came in the store, and the recording was played for them. Initially, they did not speak to the plaintiff; she spoke Spanish and none of the officers spoke Spanish. Eventually, a Spanish-speaking officer arrived and assisted in interviewing the plaintiff. The plaintiff was transported to a hospital, treated, and released.

         The following day, December 4, 2015, both parties appeared at the West Roxbury Division of the Boston Municipal Court, each seeking a 209A order against the other. The judge requested that the video recording of the incident be brought to the court. After viewing the video, the judge denied both 209A requests.[5]

         Sergeant Detective John Hamilton, a member of the Boston police department domestic violence unit, was assigned to this case. Following his investigation, Hamilton determined that the plaintiff was the aggressor. As a result, he sought a criminal complaint against her for assault and battery on a family member, with a hearing date of February 2, 2016. The defendant was not charged with any offense. The matter was also referred to the police department's internal affairs division because it was a domestic violence incident involving a Boston police officer.

         b. January 15, 2016, complaint.

         Approximately six weeks later, on January 15, 2016, the plaintiff returned to the West Roxbury court house and filed another complaint seeking a 209A order. In her affidavit, the plaintiff alleged that on December 9, 2015, the defendant followed her in his motor vehicle. She stated that she was sitting in the passenger seat of a motor vehicle when the defendant pulled up next to her and looked at her with "anger in his face." When she grabbed her phone to call 911, the defendant drove away. She further alleged that, on January 2, 2016, the defendant solicited a friend from Spain to call her and "threaten [her] to not go to court" on February 2, 2016. The plaintiff averred that the defendant was intimidating her and that she did not feel safe. A different judge denied her request for a 209A order.

         c. Clerk magistrate hearing.

         On February 2, 2016, the parties appeared before a clerk magistrate for a hearing on the criminal complaint application against the plaintiff stemming from the December 3, 2015, altercation. After the hearing, and with both parties' assent, the clerk magistrate took no action. She told the parties that she would hold the application "in abeyance" for sixty days and that, if there were no further incidents, the complaint would be dismissed. She also told the parties to stay away from one another. The application was ultimately dismissed with the following notations: "no probable cause found," "request of complainant," and "failure to prosecute."

         d. May 12, ...


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