Commonwealth v. Julio C. Joaquin. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-265
COMMONWEALTH
vs.
JULIO C. JOAQUIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Julio C. Joaquin, appeals from a judgment of
conviction, after a jury trial in the District Court, for
violating a G. L. c. 209A abuse prevention order. We affirm.
1. Impeachment by prior conviction. More than a decade
before trial, the plaintiff on the underlying c. 209A order, who
testified at trial, pleaded guilty to a charge of armed robbery.
The defendant moved in limine to use the conviction to impeach
the plaintiff's credibility. The only evidence of the
conviction presented at trial was a printout of the electronic
docket sheet. The judge denied the motion because the defendant
did not offer a certified copy of the court record. The
defendant argues that the judge's denial of the motion was
reversible error.
Under G. L. c. 233, § 21, a criminal conviction may be used
to impeach a witness's credibility so long as the statutory
requirements regarding the nature of the offense, the
disposition, and the age of the conviction are met. See
Commonwealth v. Harris, 443 Mass. 714, 720 (2005). If those
requirements are met, "the decision whether to admit evidence of
prior convictions to impeach a witness involves an exercise of
discretion by the judge" (quotation and citation omitted).
Commonwealth v. Leftwich, 430 Mass. 865, 869 (2000). "In order
to impeach a witness by a criminal conviction, the conviction
must be proved by a court record or a certified copy."
Commonwealth v. Puleio, 394 Mass. 101, 104 (1985). See Mass. G.
Evid. § 609(a) (2024).
The defendant argues that the judge had the discretion to
permit him to impeach the plaintiff with the printout, and that
the judge abused his discretion by not acknowledging he had such
discretion. We need not address the issue. Assuming without
deciding that there was error, and further assuming that the
standard of review most favorable to the defendant applies, any
error was harmless beyond a reasonable doubt.
The plaintiff testified favorably to the defendant. On
cross-examination she freely admitted that she initiated contact
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with the defendant by sending him more than fifty text messages,
that she asked him to come to her apartment, that she was drunk,
and that she was aggravated when he left. (She had previously
testified on direct that she called the police because she was
mad at the defendant for leaving rather than staying to argue
with her.) She also testified that the defendant's first
language was Spanish. Her testimony completely supported the
defendant's trial strategy, and defense counsel ably used her
testimony in support of his closing argument. In short, the
defendant had nothing to gain by challenging the plaintiff's
credibility. Moreover, her testimony was not necessary to prove
the defendant's conduct that violated the order; the conviction
could stand based solely on the testimony of the responding
police officer, who apprehended the defendant within ten yards
of the plaintiff's apartment.
2. Sufficiency of the evidence. The defendant argues that
the Commonwealth failed to prove the requisite mens rea for the
offense, because the plaintiff invited him to violate the order,
and failed to prove that he had knowledge of the order's terms,
because of his limited English proficiency.
The c. 209A order, which was admitted as an exhibit,
required the defendant to stay at least one hundred yards away
from the plaintiff and not to contact her "even if [she]
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seem[ed] to allow or request contact."1 It plainly stated, in
boldface, capital letters that "violation of this order is a
criminal offense," and included a warning, in ten languages,
including Spanish, that it was a court order and that recipients
who did not understand English should get it translated. It
included a certificate of service showing that the order was
delivered to the defendant by hand.2
The Commonwealth's burden was to show that "(1) there was
an abuse prevention order in effect; (2) the defendant knew of
the terms of the order; and (3) he violated the provision of the
order which prohibited certain contact." Commonwealth v. Silva,
431 Mass. 194, 199 (2000). That the plaintiff invited him to
make contact is irrelevant. Proof of a violation of a c. 209A
order "requires no more knowledge than that the defendant knew
of the order." Commonwealth v. Delaney, 425 Mass. 587, 596
(1997), cert. denied, 522 U.S. 1058 (1998). There are no
"additional mens rea requirements." Id. at 596-597. "Proof
1 "The order was not ambiguous to a person of ordinary
intelligence." Commonwealth v. Silva, 431 Mass. 194, 198
(2000).
2 The defendant was not deprived of any right to cross-
examine the officer who served the order. The return of service
is nontestimonial, and its use in enforcing an ex parte order
raises no due process or confrontation clause issues. See
Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 834 (2011),
which itself involved service of an ex parte order by an out-of-
State police officer.
4
that the defendant had an unlawful purpose . . . was not
necessary." Silva, supra.Notwithstanding the defendant's claim of limited English
proficiency, the evidence was sufficient to show that he had
knowledge of the order's terms. The certificate of service
established that he had notice of the order. See Commonwealth
v. Henderson, 434 Mass. 155, 164 (2001); Commonwealth v. Olivo,
369 Mass. 62, 70 (1975); Commonwealth v. Shangkuan, 78 Mass.
App. Ct. 827, 830-831, 834 (2011). The evidence also permitted
the jury to conclude that the defendant understood English well
enough to grasp its basic terms. At least one of the text
messages between the defendant and the plaintiff was in English.
The defendant completed the entire booking process in English
without an interpreter.3 Even if the defendant did not
understand English, "in-hand service of an official order by a
constable was sufficient to put a reasonable person on notice
that the order was important and, if not understood, required
translation." Olivo, 369 Mass. at 70. The defendant "cannot
rely on [his] failure to have the [order] translated, and [his]
resulting ignorance of the actual facts, to avoid criminal
conviction." Id. at 71.
3 Although an interpreter's services were used at trial,
defense counsel informed the judge that the defendant "speaks
pretty good English, but we have an interpreter because of legal
jargon and that type of thing."
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3. Claim of biased juror. The defendant argues for the
first time on appeal that by seating a juror who was an
acquaintance, and then assigning that juror to be the presiding
juror during deliberations, the judge created a biased jury
amounting to structural error. The defendant has not cited, nor
are we aware of, any case holding that it is error to seat a
juror who is a friend or acquaintance of the trial judge.
Furthermore, nothing in the record suggests that the juror's
acquaintance with the judge made the juror any more likely to
convict the defendant. During jury selection, the judge asked
the juror if he could "be fair to both sides in this matter" and
"[d]ecide this case based solely on the evidence." The juror
answered in the affirmative, and defense counsel did not object
to the juror being seated. During the final charge, the judge
instructed the jury to decide the case solely on the evidence
and stated, "You should not consider anything I have said or
done during the trial as any indication of my opinion as to how
you should decide the defendant's guilt or innocence." We
discern no error, let alone a substantial risk of a miscarriage
of justice.
4. Due process claim. The defendant argues that
prosecuting him for violating a temporary c. 209A order obtained
ex parte violates fundamental principles of due process. The
issue is not properly before us. The defendant did not raise
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this constitutional challenge at any time in the trial court,
and "a defendant may not argue for the first time on appeal
that a statute is unconstitutionally applied." Commonwealth
v. Laskowski, 40 Mass. App. Ct. 480, 482 (1996). In any
event, the cases the defendant relies upon arise in the
context of contempt proceedings and concern the court's
inherent power to vindicate its own authority. Prosecutions
under c. 209A involve violations of court orders made
criminally punishable by an act of the Legislature.4
Judgment affirmed.
By the Court (Green, C.J.,
Vuono & Massing, JJ.5),
Clerk
Entered: August 29, 2024.
4 We do not reach the issues raised for the first time in
the defendant's reply brief. See Mass. R. A. P. 16 (c), as
appearing in 481 Mass. 1631 (2019); Commonwealth v. Hampton, 64
Mass. App. Ct. 27, 33 n.8 (2005).
5 The panelists are listed in order of seniority.
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