Summary
The Massachusetts Supreme Judicial Court held that improper telephone service of an ex parte G. L. c. 209A protective order did not render the order inadmissible in a prosecution for violating it. Although service was relevant to whether the defendant had knowledge of the order, the officer’s testimony that he read the order to the defendant established its relevance to the alleged violation. The judgment was affirmed.
Topics
Practice areas
Questions Presented
- Whether an ex parte G. L. c. 209A protective order is inadmissible in a criminal prosecution because the defendant was not properly served with copies of the complaint, order, and summons.
- Whether the Commonwealth's petition for review was untimely and required a finding of not guilty.
Holdings
- Improper service of a G. L. c. 209A protective order does not render the order inadmissible in a criminal prosecution for an alleged violation of the order.
- Failure to serve an ex parte G. L. c. 209A order does not render the order invalid, although service defects may affect the validity of a later extended order and may be relevant to the defendant's knowledge.
- The Commonwealth's petition was not untimely in a manner requiring a finding of not guilty, and Griffen suffered no prejudice from its timing.
Key quotations
“However, the improper service does not render the order inadmissible in a prosecution for an alleged criminal violation of the order.” (1005)
“It is settled that failure of service is not fatal to a conviction, although it may be relevant to whether the defendant had the requisite knowledge.” (1005)
Factual background
Griffen's father obtained an ex parte protective order from the Probate and Family Court containing no-contact provisions and delivered it to a police department for service. A police officer called one of the telephone numbers provided for Griffen, confirmed that the person answering was Kerri Griffen, read the applicable terms of the order verbatim, and offered to provide her a copy at the station. The officer did not serve copies of the documents or seek an alternative service order from a judge, and reported that the order had been served by telephone.
Procedural history
Griffen was prosecuted for allegedly violating an ex parte protective order. The order had been communicated by telephone, but copies of the complaint, order, and summons were not served and police did not obtain an alternative service order from a judge. The appellate court held that the defective service did not make the order inadmissible and affirmed the judgment; it also rejected Griffen's challenge to the timeliness of the Commonwealth's petition because no prejudice resulted.