1 of 15 DOCUMENTS ANNOTATED LAWS OF MASSACHUSETTS ...

ALM GL ch. 209A, § 7
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witness because defendant's testimony that he did not know that the victim was in the residence would have been
irrelevant, as his guilt did not depend on his knowledge of the victim's presence. Commonwealth v. Saladin (2008) 73
Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947,
2009 Mass. LEXIS 479.
Although defendant was acquitted of a prior charge of assault with a dangerous weapon in connection with an
incident against his brother, evidence of the prior charge was admissible in defendant's trial for violating an abuse
prevention order obtained by the brother against defendant because the previous assault charge was introduced to show
defendant's hostility and motive. Commonwealth v. Barboza (2010) 76 Mass App 241, 921 NE2d 117, 2010 Mass. App.
LEXIS 125.
Defendant's convictions of violating a ALM GL c 209A order were not duplicative of his conviction of criminal
harassment, as the two crimes had different elements, and the conduct forming the basis of the criminal harassment
charge predated service of the 209A order and violations thereof and thus was distinct from that forming the basis of the
209A order violations. Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902.
Defendant's conviction of violating a protective abuse order under ALM GL c 209A, § 7 did not violate due process
as a telephone call between defendant and the victim provided adequate notice of the restraining order (RO), defendant's
response to the information evidenced that defendant knew of the RO, and defendant violated the RO by calling the
victim the next day. Commonwealth v. Melton (2010) 2010 Mass. App. LEXIS 1176.
In a prosecution for violation of an abuse prevention order, a return of service completed by an out of state police
officer did not fall under the official or public records exception, under ALM GL c 233, § 76, and Mass.R.Crim.P. 40,
due to being maintained by the court, because the statute and Rule pertained to the authenticity of a record, which was a
precondition to, not the equivalent of, admissibility. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288.
In a prosecution for violation of an abuse prevention order, a return of service completed by an out of state police
officer was admissible without the officer's testimony to demonstrate defendant's knowledge of the order because (1) the
completed return of service fell within an exception to the hearsay rule for public documents, as the return was prepared
by an official in the performance of an official duty, and (2) the return's admission, absent the officer's live testimony or
a prior opportunity to cross-examine the officer, did not violate the confrontation clause, as the primary purpose for
which the return of service was created was to serve the routine administrative functions of the court system, and the
return was not created to prove a fact at a potential future criminal trial, was not per se testimonial, and was not
testimonial in fact. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288.
10. --Jury instructions
Judge was not required to include language on circumstantial evidence in jury instruction regarding elements of
abuse. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.
At trial of defendant for violating abuse prevention order prohibiting defendant from contacting former wife in
person or by telephone or otherwise, judge erred in refusing to instruct jury that it could find that defendant's contacts
with former wife, which occurred in course of attempt to speak to daughter by telephone, were "incidental" and that if
jury so found, such contacts did not constitute violation of ALM GL c 209A order. Commonwealth v. Leger (2001) 52
Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
Where ALM GL c 209A "no-contact" order prohibited defendant from contacting former wife but did not limit
right of defendant to have contact with his children, judge should have instructed jury to consider whether defendant's
telephoning of former wife with whom children lived, including repeated calls after wife hung up, was incidental to
legitimate attempt to telephone daughter, and if so, that such incidental contact was not violation of ALM GL c 209A
restraining order. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.