Tuesday, October 31, 2006

Apparently, it's not just me that finds this troubling

In the October 2, 2006 issue of Massachusetts Lawyers Weekly, David Yas, Editor and Publisher of MLW devoted his "From the Publisher's Corner" column to my "crime". It's a good piece that touches on a few of the frightening societal implications that the technology explosion exposes us to. It's also pretty funny unless you're the one person on earth who would possibly be offended by it, me.

Click on the image below to enlarge:

I was compelled to respond.

October 21, 2006

Dear Mr. Yas,

I read your 10/9/06 story “Dialed the wrong number? Sorry, you’re under arrest” with great interest, as I am the lead character in it. I was pleased to see that the ridiculousness of this prosecution was as obvious to you as it has been to me. In fact, I was chuckling and nodding in agreement as I read until I came to the line “Clearly, McKay is no angel”, and later to the notion: “Then again, maybe we’re giving too much credit to someone who, according to prosecutors, may indeed be a stalker.”

First and foremost, to my knowledge I have not ever been accused of being a stalker in any way, shape or form. So, unless you know something that both the Courts and I do not know, that statement is entirely false. Secondly, I was acquitted at trial on the Assault and Battery charge which was prosecuted without a single shred of evidence other than Ms. Whelahan’s word. I’d like to take this opportunity to both correct the record and to address the knee-jerk presumption of guilt that even the merest suggestion of violence casts upon men in the Commonwealth today. Here, as Paul Harvey would say, is the rest of the story.

In January of 2002, my then wife Susan and I agreed to divorce amicably approximately a year and a half after the death of our only child, Alannah. A few months later, in April ’02, I met Cynthia Whelahan and we soon found ourselves head over heels in love with each other. For quite some time, I was the happiest guy on the planet; having been through a very difficult period and then having met what I thought was the woman of my dreams. We became engaged, and in May of 2003 we began living together in a joint tenancy arrangement. It soon became apparent that there were going to be problems, largely related to Ms. Whelahan’s control issues and my unwillingness to submit to them. This situation ultimately lasted for a bit more than 6 weeks.

On the night in question (early morning, July 13, 2003) Ms. Whelahan woke me up shortly after midnight and proceeded to unleash a barrage of invective at me, tangentially related to a $100.00 attempted bank withdrawal she had been furious at me for making without her explicit permission, from our joint account. My response was to inform her that I’d had enough of her abuse and that I’d be moving out in the morning. Ms. Whelehan then insisted that I leave immediately and that I leave without my then 12 year old daughter Kristin, who was visiting from Georgia at the time. (While I did not identify them as such at the time, I later learned that these are all classic examples of controlling, abusive behavior as taught in the 80 hour State Certified Batterer’s Intervention Program that I was sentenced to upon my conviction for that misdialed number.)

I then attempted to sleep on the couch, but Ms. Whelahan was having none of that. She decided that she was going to move me out in the dead of night, and began stuffing my belongings into trash bags which she then threw down the stairs. I went upstairs and confronted her, demanded that she stop and suggested that she to go to bed. She then smacked me in the face repeatedly and renewed her demand that I leave, and leave without my child.

When she called 911, she told the dispatcher “My boyfriend won’t leave”. She did not suggest to them that there had been any sort of violence, only that she wanted them to take me away because she didn’t want me there. When she got off the phone, she went and got her then 11 year old daughter out of bed and we all sat down and waited for the police to arrive. Foxborough Police Officer Edward McDonald entered the house and asked what was going on. I told him that I’d been struck several times. He then instructed Ms. Whelahan’s daughter to go to her room and instructed me to go to the living room while his partner, Officer Foscaldo, remained in the kitchen with Ms. Whelahan. McDonald questioned me very briefly, and then went into the kitchen to speak to Whelahan and Foscaldo. He then returned and placed me under arrest. I estimate that this happened no more than 5 minutes after they arrived at the house. The 911 call was placed at 12:55 AM. I was in the police station being booked by Sgt. Noonan at 1:23 AM. During that time, I spent at least 10 minutes alone in the back of a cruiser, except for when McDonald came out to ask me whether I wanted to leave my daughter there or have DSS come get her. Later, while I was in a cell at the Foxborough Police Station, waiting to make bail, Ms. Whelehan, my daughter Kristin and her mother were deciding that Kristin wanted to return immediately to her mother’s home in Georgia, given that her father had been universally deemed to be a bad man, thereby suspending a visitation that was scheduled to last for the entire month of July.

I am quite certain that I was arrested because I was the male in the situation. I would have liked the opportunity to question Officer McDonald at trial as to whether that was his reasoning for arresting me and not Ms. Whelahan, but he was conveniently unavailable and did not appear. The following morning, when I was arraigned and when the temporary 209A order was extended for a year, I was shocked to hear the District Attorney tell the Court that I have an extensive criminal record in California mainly because it is absolutely not true. Ms. Whelahan told them that and it is patently false. Later, at another 209A hearing in Barnstable Family and Probate, Ms. Whelahan testified that I have a history of attacking police officers, and that she learned of this and had proof she forgot to bring that she had gotten from the Wrentham DA’s office. It seems those parties and the Court are entirely comfortable with pretending that this is true while knowing that it is not. Even Michael O’Keefe, the Cape and Islands District Attorney is fine with it, though he refuses to explain why. Eventually, I expect to meet Alice somewhere down this rabbit hole.

So, there I was being prosecuted on nothing but the word of a “victim” that the DA knew was lying to him. I later learned that Ms. Whelehan had claimed that I attempted to physically restrain her from throwing my things out of the house, which I did not do. I did briefly grab her hands to prevent them from continuing to impact my face, but apparently, this is also frowned upon male behavior. It is important to note that Ms. Whelehan did not mention this alleged act when talking to the 911 dispatcher, but only after I told McDonald that she had struck me.

Moving on to the fateful call and the events surrounding it, you seem to have a fairly good grasp of the facts surrounding it. I’ll add just a few points. On the morning of July 18, I met Attorney Deborah Mason and hired her to defend me on the A & B charge. I also complained to her about Ms. Whelahan’s refusal to arrange a time for me to go back to what had been my house and collect my things. (Keep in mind that I had little more than the clothes I had on my back when I was dragged out of my house in the middle of the night) She advised me to go back to the Foxboro Police Department and have them attempt to arrange this with Ms. Whelahan. I did so and when the police spoke with Whelahan, she informed them that she would be out of town for the next 5 days or so. I found this suspect as she had just returned from a Provincetown vacation with her children the week before.

I then drove to my close friend Cynthia Baumann’s (not Bowman) house in Revere. I was completely surprised to get the call from the Foxboro PD, as I had been expecting to spend another week separated from virtually everything I owned. I was not prepared to move out, but I really had little choice in the matter. After a nearly 3 hour drive through Boston traffic, I met with Officer Scott Hodson and proceeded to my former home. Ms Whelahan had decided to entitle herself to approximately $4000.00 worth of my personal property (including irreplaceable materials relating to a brain tumor project I was working on), and upon asking Officer Hodson how to proceed he told me I’d have to take it to court. When I later did just that, I was quite surprised to see Ms. Whelahan produce a police log entry stating that I had told Hodson I had gotten everything I wanted. When I filed a complaint with the Foxboro PD regarding this, I was told that no wrong had been done because Officer Hodson hadn’t made the untrue log entry, a dispatcher had made it. This is the same officer Hodson that filed the 209A violation report, and completely mischaracterized the message I had left and failed to preserve the evidence; the tape.

I complained about that as well, and according to the letter I have in my possession from Foxboro Police Chief Edward O’Leary, and this is a direct quote from a list of items identified as the FPD’s findings: “That recording was preserved by Ms. Whelahan and could be produced for court presentation if needed. That Officer Hodson did not make a false entry on any police log about regarding conversation about your property. That any and all entries onto the police log were done so by a police dispatcher and not by Officer Hodson.” (Emphasis mine.)

Ms. Whelehan testified at trial that she had NOT preserved the recording because Officer Hodson told her it was not necessary to do so. Furthermore, I may be mistaken but I have seen no indication that Ms. Whelehan placed a call to the FPD about the message on the machine, yet Officer Hodson either found his way back to the house or he had never left. I have no doubt that these two set me up and conspired to defraud the Court in order to cause me harm. (The Foxboro Police Department doesn’t care, and AG Tom Reilly’s office doesn’t care. They also don’t care that FPD Officer Scott Austin physically barred me from entering a probable cause hearing on A&B charges against Ms. Whelahan at which he was the police prosecutor and I was the victim. The Massachusetts Victim’s Bill of Rights does not apply to men, apparently.)

Someone, or presumably several someones, did not want that recording, which represents the entirety of the alleged crime, to be played at the trial where I was ultimately convicted for it. Justice Green of the Appeals Court wrote that he did not think the tape would be exculpatory. I disagree for two reasons. First, my tone of voice would indicate my intent. As you know, spoken language is more than just words. Tone, tenor and inflection relate significant information from the speaker to the listener. If you were to put yourself in my shoes for a moment and imagine how you might speak about a situation to newly former lover who is acting to make your life miserable versus how you might speak about it to a trusted friend and confidante of long standing, I think you can see that there would be an easily perceptible difference. Secondly, I was relating what had happened between us just minutes before and I referred to Whelahan in the third person, things I just wouldn’t do if I were talking to her.

This was an allegation of a serious crime. I understood the seriousness of it upon reading the 209A order. I also understood that the terms of my bail allowed for me to be incarcerated without bail for up to 60 days for such a violation, as did Ms. Whelehan. In order for the Commonwealth’s theory to be true, I would have had to have been either too stupid to understand the consequences, or too angry and out of control to care. Believe me when I tell you that had the latter been the case, there would have been no question about what I said and that that tape would have been played at a high volume during trial, assuming that it had not spontaneously combusted from the blistering invective I would have filled it with. In short, had I intended to call Ms. Whelahan, I would have gotten my money’s worth out of the violation. As it was, I had no idea I’d done it until the following morning when I received a call from my brother Mark who had received a call from the Foxboro police claiming to have a warrant for my arrest, which also turned out to be false.

I am not a stalker. I am not a batterer. I am not an abuser, and I have never been one. I am a victim of domestic violence, though Ms. Whelehan doesn’t pack much of a punch and the Commonwealth wouldn’t care if she did, so I know there’s little point in mentioning that particular fact. I am also a victim of blatant and malicious persecution by a "victim" and a “justice” system that held me beneath the law from the very instant the barest allegation was made, while raising Ms. Whelahan above the law. The Commonwealth’s ideological shields went up and they were impenetrable to logic, common sense and/or observable fact. (See former Patriot Ted Johnson’s case) Ms. Whelahan was given de facto encouragement as well as carte blanche to lie as much as she liked. Her dishonest statements are many, they are on the record, they are material, they are often contradictory and their falsity has been blessed by no less than 3 finders of fact sitting on Commonwealth benches, who have decided to simply ignore her committing felonies before the bench, affirming her apparent right to do so. The narrative was written as soon as the gender determination was done. Man bad, woman good, end of discussion. To this day, Ms. Whelahan still has an active 209A order against me despite the fact that I have not seen, spoken to, nor been in proximity of her outside of a courthouse since July 18, 2003. The last judge to extend it noted her obvious emotional problems and extended it anyway. So much for “reasonable fear.” That said, I actually consider myself somewhat lucky, as I’ve since met many fathers who have been torn from their homes and their children by similar poorly considered 209A orders that the Commonwealth issues at an astonishing rate.

This prosecution has turned my life upside down. My daughter Kristin, my only surviving child, has not spoken to me since this incident occurred. I am unable to obtain a security clearance which has been highly damaging to my career. I was also unable to travel for much of this time due to probation and batterer’s intervention program requirements which further damaged my ability to make a living. My finances are in a shambles. I was debt free when Ms Whelehan and I decided to live together. I am now several tens of thousands of dollars in debt, all of it legal fees and related costs. My nonprofit work has suffered tremendously, and my emotional and social well being haven’t fared much better as I’ve carried this millstone of idiocy around for the last three years. My reputation, as you know, has been seriously besmirched. This seems to me to be an absurd amount of damage to do to a guy who has done absolutely nothing wrong, save for a speed dial blunder.

I had the opportunity to agree to a Continuation Without Finding plea on both charges. I declined because I refused to take an oath and then admit to a set of untrue facts. I have maintained my innocence from the first second Officer McDonald told me to stand up, turn around and put my hands behind my back. I took these charges to trial because they’re nonsense and the Commonwealth had no case, and I was stunned at the refusal of a mistake instruction and my subsequent conviction on the 209A charge. I decided to appeal it because I want my name cleared and this smear removed from my reputation. Now that I’ve finally had that wrong righted, and have been cleared of all charges against me, I’m quite dismayed to read that I might be a stalker.

All in all, I liked the article. If it hadn’t been about me, I’d have thoroughly enjoyed it. I hope you can understand my somewhat visceral reaction to the factual inaccuracy that impugns my character, and I hope you’ll agree that you owe me a correction. I really do appreciate that you gave this story some ink, and I’d like just a little more to set the record straight, if you would be so kind.

Thanks in advance.

Best regards,
Paul P. McKay
President, Brain Tumor Action Network
Smithfield, RI

P.S. You wouldn’t happen to know a good civil rights attorney, would you?

OK, so I'm a windbag with a vengence. I admit it. Thankfully, Dave Yas is a gentleman, and he did not let my wordiness deter him. On the contrary, he offered to print "an edited version" of my response, which is below.

While I might want to complain about what didn't make the cut, this is the second half page of Massachusetts Lawyers Weekly (Oct 30, 2006) that has been dedicated to this case, and I can't do anything other than thank them for that.


Monday, October 23, 2006

How to Be a Man: The Short Version

Or, "But I Don't Feel Like a Neanderthal!"

This is a handout that I received during the mandatory reeducation for my horrific speed dialing crime, aka the Commonwealth of Massachusetts' State Certified Batterer's Intervention Program. They call this little number "The Male Emotional System". Not surprisingly, it fits on a single 8.5 X 11 sheet, but I never would have guessed that it looked like this. Click the image to enlarge it.

If anyone has a copy of the Female Emotional Funnel System, please let me know in the comments. I can't wait to see where it ends!

If anyone knows where I can go to get that year of my life back, I'd like to hear about that too.

Clearly, men need more positive input.


When in Massachusetts...

In keeping with local custom, I'll start at the conclusion and work backwards from there. But this time, we'll be working with reality.

The following is the Massachusetts Appeals Court's ruling which set aside my conviction of violating an "Abuse Prevention Order" issued under MGL 209A. As you will soon see, this statute is poorly named, as this order has not prevented a bit of abuse, but instead has enabled a mountain of it. The Court Docket for the case is here.

Without further ado, the Appellate opinion in Commonwealth vs. Paul P. McKay:

DOCKET 05-P-506.
Dates: June 7, 2006. - September 15, 2006.
Present: Green, Dreben, & Grainger, JJ.
County: Norfolk.
KEYWORDS: Abuse Prevention. Protective Order. Practice, Criminal, Instructions to jury. Intentional Conduct. Mistake. Evidence, Best and secondary, Hearsay.

Complaint received and sworn to in the Wrentham Division of the District Court Department on July 21, 2003.

The case was tried before Emogene Johnson Smith, J.

John V. Siskopoulos for the defendant.

Pamela Alford, Assistant District Attorney, for the Commonwealth.

GREEN, J. At his trial on a charge of violating a "no contact" order issued under G. L. c. 209A, the defendant did not dispute that he had left a voice mail message on his former fiancée's answering machine. His defense consisted essentially of his contention that he had dialed her number by accident, by pressing her "speed dial" entry in his mobile telephone while intending to call a female friend with the same first name (whose entry in his list of stored numbers was immediately adjacent to his former fiancée's). In furtherance of that theory, the defendant requested, but was denied, an instruction to the jury on mistake or accident. Based on our conclusion that the defendant was entitled to instruction on his theory of mistake or accident, we reverse the conviction.

Background. At trial, there was evidence to the following effect. On the evening of July 13, 2003, Foxborough police officers responded to a call arising from a dispute between the defendant and his former fiancée, Cynthia Whelahan, at the apartment they shared. The defendant was arrested and charged with assault and battery.(1) Thereafter, the defendant moved out of the apartment and an abuse prevention order issued under G. L. c. 209A, prohibiting him from contacting Whelahan.

Five days later, on July 18, 2003, the defendant had lunch with a friend named Cynthia Bowman. During lunch, the defendant received a telephone call from the Foxborough police department on his mobile telephone, advising him that police were available to accompany him to his former apartment to retrieve his personal belongings.(2) Bowman asked the defendant to call her after he had recovered his belongings. The defendant proceeded to the apartment, and retrieved his belongings without incident.

While driving from the apartment, the defendant dialed Whelahan's telephone number by means of pressing her "speed dial" entry on his cellular telephone. In Whelahan's apartment, her answering machine answered the call, and the defendant left a message. The precise phrasing of the message is a matter of some disagreement; the recorded message itself was not offered in evidence at trial. According to the defendant, he said,

"Hey, hi it's Paul. I just called to amuse you. Hey, can you say Tessa? I went, I got most of my things, the majority of what I really and [sic] wanted. I got my laptop so that's great. She's decided she's keeping a whole bunch of stuff and we'll have to fight about that later. At any rate, just called to say, hey so hey."(3)

Whelahan called the Foxborough police department to report the message the defendant had left on her answering machine. Officer Scott Hodson (who previously had accompanied the defendant to the apartment) responded to the report and listened to the recorded message. At trial, after having his memory refreshed by looking at his police report, he described the message as:

"This is Paul. I called to amuse you. Can you say temper? I called to say hi. Hi."(4)

The defendant testified that he dialed Whelahan's number by mistake and that he had intended to dial Bowman, as she had requested when he departed to retrieve his belongings. The defendant explained that Bowman's entry in the list of contacts he stored in his mobile telephone was immediately adjacent to Whelahan's,(5) and that he was not fully attentive to the task of scrolling through the list of phone numbers because he was driving at the same time, with his car filled with personal effects, and that he was somewhat distracted by the disruption of moving out of his former apartment. He attributed to similar distracting influences his inattention to the fact that Whelahan's voice delivered the recorded greeting when the answering machine answered the call.

The trial judge charged the jury according to Instructions 5.61 and 3.051 of the Model Jury Instructions for Use in the District Court (1995), the former pertaining specifically to violations of abuse prevention orders under c. 209A(6) and the latter relating generally to knowledge.(7) The judge denied the defendant's request for instruction to the jury that they should find him not guilty if they found that he called Whelahan by mistake.(8)

Discussion. In Commonwealth v. Delaney, 425 Mass. 587, 595- 597 (1997), the Supreme Judicial Court considered and rejected a defendant's argument that, in order to support a conviction under G. L. c. 209A, § 7, the Commonwealth must show a "manifest intent" on the part of the defendant to violate the order. See Commonwealth v. Collier, 427 Mass. 385, 388 (1998). As a foundational matter, the statute "requires no more knowledge than that the defendant knew of the order." Commonwealth v. Delaney, 425 Mass. at 596.

Subsequent cases, however, have clarified that a defendant will not be held criminally liable for violations over which he lacked control. For example, in Commonwealth v. Collier, 427 Mass. at 389, the court considered a defendant who encroached the limits of a restraining order while he was a passenger in a vehicle driven by another person, and concluded that "the Commonwealth is required to prove beyond a reasonable doubt an intentional act by the defendant which led to the violation of the c. 209A order."(9) In Commonwealth v. Leger, 52 Mass. App. Ct. 232, 237-238 (2001), we concluded that no criminal violation arises from telephone contact incidental to the defendant's exercise of a right, not prohibited under the order, to contact another person (the defendant's child) living in the same household as the party protected by the order (the child's mother). Compare Commonwealth v. Silva, 431 Mass. 194, 198-199 (2000) (incidental telephone contact which degenerated into angry outbursts sufficient to support convictions). To similar effect is Commonwealth v. Finase, 435 Mass. 310, 315 (2001), where the court suggested that "accidental, mistaken, or unknowing violations of the distance requirements of an abuse prevention order" are not criminal. Most recently, in Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 493 (2002), we held that "a defendant cannot be convicted of violating a 'no contact' order issued under c. 209A where the contact occurs in circumstances where the defendant did not know, and could not reasonably have been expected to know, that the protected person would be present," citing Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982), for the proposition that "in the absence of specific language to the contrary, the Legislature does not intend to make accidents and mistakes crimes."

In the present case, the heart of the defendant's theory of defense was that his telephone call to his former fiancée occurred by accident. The Commonwealth suggests that the defendant should nonetheless be held accountable for his actions as intentional, because he could have done more to prevent the accident from occurring (by removing his former fiancée's entry from his list of stored numbers, exercising greater care in pressing the buttons on his telephone, or paying more attention to the voice mail greeting when his call was answered). The argument misses the point; the question is not whether the defendant exercised reasonable care (or, put another way, was negligent), but whether the defendant intentionally violated the c. 209A order. The defendant's act in the present case was voluntary in the sense that he intended to press a button on his telephone, but the effect of that voluntary act (if the defendant's characterization of the evidence is to be believed)(10) was no more intentional than in the case of a defendant seated as a passenger in a vehicle being directed by another person, or a defendant who enters a building without knowledge of its occupants.(11)

Both parties vigorously argued in their closings that the defendant's telephone call was (or was not) the result of an accident. However, without instruction on the point the jury were not informed that mistake or accident would absolve the defendant of criminal liability for the call he indisputably made to his former fiancée. The defendant is entitled to a new trial.

Other issues. We reject the defendant's claim that he is entitled to dismissal of the complaint by reason of the Commonwealth's failure to preserve the recorded voice mail message that was the subject of the alleged c. 209A violation. Even if the defendant's testimony regarding the content of the message is credited, rather than that of Officer Hodson, the defendant's version of the content of the message is not particularly exculpatory. Moreover, the defendant could have attempted to obtain, or otherwise to record and preserve, the message as readily as the Commonwealth at the time of his arrest, had he wished to present it at trial.(12) Because the issues could recur in a retrial, we also express our views that testimony concerning the content of the voice mail message is not barred by the best evidence rule (which does not apply to tape recordings, see Commonwealth v. Duhamel, 391 Mass. 841, 844 [1984]), and that Officer Hodson's testimony as to the content of the message was not hearsay, as the purpose for which it was offered related to the fact that it was made, and to whom, rather than to the truth of any matter asserted in it. See Commonwealth v. Sullivan, 410 Mass. 521, 526 (1991).(13)

Conclusion. The defendant's judgment of conviction on the charge of violation of a c. 209A restraining order is reversed, the verdict is set aside, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

(1) The jury acquitted the defendant of the charge of assault and battery.

(2) The "no contact" order required police presence during that activity.

(3) Bowman testified that "Tessa" was a private term the two of them used as a form of shorthand to communicate a vulgar reference to a person who annoyed them.

(4) Officer Hodson added, "That's the best I can remember."

(5) Whelahan appeared in his directory as "Cindy," Bowman as "Cindy B."

(6) Instruction 5.61 is as follows:

"The defendant is charged with knowingly violating an abuse prevention order issued by a court. Section 7 of chapter 209A of our General Laws provides in substance that:

"Any violation of an order issued pursuant to chapter 209A ordering the defendant (to refrain from abusing the person who requested the order, or that person's child) (or) (to vacate and remain away from the [household] [multiple family dwelling] [or] [work place] of the person who requested the order) (or) (to refrain from contacting an individual directly or indirectly unless authorized by the court) shall be punished.

"In order to prove the defendant guilty of this offense, the Commonwealth must prove four things:

"First: That a court had issued an order pursuant to chapter 209A of our General Laws which

"If relevant to evidence: , among other things, "ordered the defendant (to refrain from abusing [alleged victim]) (to vacate and remain away from the household or workplace located at [address]) (to refrain from contacting [alleged victim]);

"Second: That such order was in effect on the date that this violation of the order allegedly occurred;

"Third: That the defendant knew that the pertinent terms of the order were in effect, either by having received a copy of the order or by having learned of them in some other way; and

"Fourth: That the defendant violated the order by (abusing [alleged victim]) (failing to vacate the household or work place located at [address]) (reentering the household or work place located at [address]) (contacting [alleged victim])."

(7) Instruction 3.051 is as follows:

"I have already instructed you that one of the things the Commonwealth must prove beyond a reasonable doubt is that at the time of the offense the defendant knew that _________________.

"This requires you to make a decision about the defendant's state of mind at that time. It is obviously impossible to look directly into a person's mind. But in our everyday affairs, we often look to the actions of others in order to decide what their state of mind is. In this case, you may examine the defendant's actions and words, and all of the surrounding circumstances, to help you determine the extent of the defendant's knowledge at that time.

"You should consider all of the evidence, and any reasonable inferences you draw from the evidence, in determining whether the Commonwealth has proved beyond a reasonable doubt, as it must, that the defendant acted with the knowledge that ."

(8) Due to a malfunction in the electronic tape recorder used to record the trial, the transcript of the trial ends before the portion of the judge's instructions to the jury that form the basis of the defendant's challenge on appeal. Pursuant to Mass. R.A.P. 8, as amended, 430 Mass. 1601 (1999), the trial judge on September 1, 2005, entered an order stating that she instructed the jury in accordance with Instructions 5.61 and 3.051. Both model instructions include supplemental instructions, but the judge's order did not address whether she included any one or more of such supplemental instructions. Supplemental instruction number 3 to Instruction 3.051 provides, inter alia, that "[t]he requirement that the defendant's act must have been done 'knowingly' to be a criminal offense means that it must have been done voluntarily and intentionally, and not because of mistake, accident, negligence or other innocent reason." Accordingly, by order of this court on June 23, 2006, we asked the trial judge to clarify her previous order, to indicate whether she included any one or more of the supplemental instructions in her charge to the jury. By order entered on August 8, 2006, the judge clarified her prior order to state specifically that she did not administer any of the supplemental instructions to either Instruction 5.61 or Instruction 3.051. The judge went on to state her assumption that she did not give Instruction 6.09 of the Model Jury Instructions for Use in the District Court (1995), relating to accident. In light of our disposition of the case, we need not address the defendant's request that we strike the judge's comment in her second order regarding Instruction 6.09.

(9) The court in Collier went on to conclude that the evidence was sufficient for the jury to find such an intentional act, but that the absence of instruction to the jury clarifying the required intent required a new trial. See 427 Mass. at 389-390.

(10) Whether the defendant is to be believed is, of course, a question for the jury.

(11) We do not intimate that a defendant may with impunity recklessly avoid or ignore knowledge that would allow a reasonable person to anticipate that his act would result in a violation of a restraining order. In the present case, however, the defendant's contention is that he inadvertently pressed a wrong number on his telephone.

(12) The record does not illuminate the nature of the answering machine or the recording of the message, or even whether the message still existed in any form at the time of trial. By motion to expand the record on appeal, the defendant suggests that the Commonwealth's culpability for failing to preserve the recorded message was borne out by a subsequent police internal investigation which concluded that Whelahan preserved a copy of the recording. If so, however, the defendant could have obtained a copy of the recording through discovery and submitted it in evidence at trial.

(13) Even if the statement were offered for the truth of the matter asserted, it would be admissible under the exception to the hearsay rule for statements by a party opponent. See Commonwealth v. Mendes, 441 Mass. 459, 467 (2004).


Saturday, October 21, 2006

Hello Blogosphere!

I swear to God that the Commonwealth of Massachusetts has gone completely off the rails.

We're going to talk about that here.

Hi Cindy!