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Commonwealth v. Tiernan

Appeals Court of Massachusetts, Middlesex

November 22, 2019

COMMONWEALTH
v.
MICHAEL J. TIERNAN.

          Heard: September 5, 2019.

          Complaint received and sworn to in the Cambridge Division of the District Court Department on September 30, 2011. The case was tried before Roanne Sragow-Licht, J.

          Andrea Lance for the defendant.

          Chia Chi Lee, Assistant District Attorney, for the Commonwealth.

          Present: Blake, Ditkoff, & McDonough, JJ.

          BLAKE, J.

         Following a jury trial in the District Court, the defendant, Michael J. Tiernan, was convicted of violating an abuse prevention order pursuant to G. L. c. 209A, § 7 (209A order). On appeal, he claims that the evidence was insufficient to show that he had knowledge of the 209A order and that he violated it. He also claims the judge improperly admitted hearsay evidence. Concluding that the Commonwealth did not put forth sufficient evidence to prove that the defendant was served with the 209A order, or that he otherwise had knowledge of it, we reverse.

         Background.

         The jury could have found the following facts. The victim and the defendant began dating in late 2007. The victim ended the relationship in November 2008. On June 18, 2009, the victim applied for and obtained an ex parte 209A order against the defendant. Among other things, the 209A order prohibited the defendant from contacting the victim and ordered him to stay at least one hundred yards away from her. It also ordered the defendant to stay away from the victim's residence but did not specify the distance that the defendant was ordered to remain from the victim's residence.

         At a hearing on June 29, 2009, at which both parties appeared, the 209A order was extended until July 13, 2009. [1] The defendant was served with this order in hand the following day. On July 13, 2009, both parties appeared at the hearing and the 209A order was extended for one year to July 13, 2010. The defendant was served with the extended order at that hearing. The following year, on July 13, 2010, only the victim appeared at the hearing; the 209A order was extended until July 13, 2011. The Commonwealth presented no evidence that the defendant was served with that order.[2]

         On August 21, 2010, the victim was returning home when she noticed a black Cadillac Escalade sport utility vehicle (SUV) that she recognized as belonging to the defendant in the driveway of a home on Mystic Valley Parkway, which was parallel to the street on which she lives. She went directly home and called the police. Officers Chris Gallagher and Brett Blanciforti of the Arlington Police Department responded to the victim's home.

         The victim informed Officer Gallagher that she had a 209A order against the defendant and that she had seen his SUV on a nearby street while on her way home. She also provided a copy of the 209A order to the police.

         Officer Blanciforti went to the Mystic Valley Parkway address and saw a black Cadillac Escalade SUV parked in the driveway. A check of the license plate confirmed that the SUV was registered to the defendant. Officer Gallagher joined Officer Blanciforti at the address and they then saw two people -- one of whom was later identified as the defendant -- leave the home and cross the street toward a park. The police followed the defendant into the park, confirmed his identity, and arrested him. The police told the defendant that he was in violation of the 209A order because the victim "lived on [a street] which was under 100 yards." The defendant indicated that he understood. The victim did not have any contact with the defendant on that day.

         D ...


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