Heard: May 3, 2018.
for protection from abuse filed in the Dedham Division of the
District Court Department on June 30, 2016.
motion to extend an abuse protection order was heard by Paul
J. McCallum, J.
D. Fried for the defendant.
Present: Sullivan, Blake, & Englander, JJ.
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,  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.
Chapter 209A proceedings.
December 4, 2015, complaint.
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. 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.
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. 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. 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
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
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.
January 15, 2016, complaint.
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.
Clerk magistrate hearing.
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."
May 12, ...