2002;
56 Mass. App. Ct. 83;
775 N.E.2d 457
BARBARA D. CARROLL vs. JAMES P. KARTELL.
No. 00-P-219
APPEALS COURT OF MASSACHUSETTS
56 Mass. App. Ct. 83;775 N.E.2d 457;2002
Mass. App. LEXIS 1213
January 9, 2002, Argued
September 25, 2002, Decided
#160;PRIOR HISTORY: [*1] Middlesex. Civil action commenced in
the Concord Division of the District Court Department on April 15, 1999. An
abuse prevention order was issued by Paul L. McGill, J., and the order was
extended by William E. Melahn, J.
DISPOSITION: Trial court's orders issued April 15, 1999, and April
22, 1999, were vacated.
COUNSEL: J.W. Carney, Jr., for the defendant.
JUDGES: Present: Laurence, Dreben, & Trainor, JJ.
OPINIONBY: Robert J. Trainor
OPINION:
TRAINOR, J. James P. Kartell appeals from two abuse prevention orders n1 issued
against him pursuant to G. L. c. 209A upon the complaint of Barbara D. Carroll.
Finding insufficient evidence supporting the orders, we vacate both.
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n1 The first, issued ex parte on April 15, 1999, was for one week. After a full
hearing, that order was extended on April 22, 1999, to one year.
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Facts. Kartell and Carroll met at an event at the Boston Museum of Science in
early April of 1999. They had what Carroll later described as a "nice
conversation," and soon thereafter met for coffee with another couple at
the Burlington Mall. At some point prior [*2] to their next
meeting, Carroll disclosed to Kartell that she was divorcing an abusive
husband. n2
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n2 We learn later that Carroll had a restraining order in effect against her
husband. It is not clear whether Kartell was aware of this fact prior to their
next date on Easter Sunday.
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Two days later, the two met for a movie and dinner date. In her complaint,
Carroll stated that Kartell was insistent that she ride with him from the movie
theater to the restaurant in his car. She declined and drove her own car.
Carroll further stated that, during dinner, Kartell described a restraining
order obtained by his wife as "a feminist tool to screw him over,"
and asserted several times that he would "never hurt [Carroll]" or
"do harm to [her] children."
According to Carroll, Kartell began telephoning her house with great frequency.
n3 In some instances he spoke to Carroll's children, asking them about her
schedule and how to contact her, and in other instances he spoke to Carroll
directly. During one of these telephone [*3] conversations, Carroll
told Kartell that she was concerned about a ticket he had reserved in her name
for an event; that he was very abrupt and frightened her; and that he should
not contact her further. n4 Carroll further alleged that Kartell sent mail to
her house, and attempted to send her facsimiles. n5
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n3 It is unclear from the record when these phone calls began, or when the
frequency increased to the level alleged by Carroll.
n4 It is unclear from the record exactly when these remarks were made and
whether they occurred in the same or different telephone conversations.
n5 The record contains one letter from Kartell to Carroll, sent after their
final meeting. There is no other evidence of letters or facsimiles.
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Carroll last encountered Kartell at a Museum of Science brunch. This final
meeting was approximately eleven days after their first meeting and seven days
after their Easter Sunday movie and dinner date. On her way to this event,
Carroll learned from a friend that Kartell had recently been [*4] charged
with murder in connection with the shooting death of his wife's
boyfriend. n6 During the brunch, Kartell approached Carroll several times
attempting to speak with her. Describing Kartell's attempts as
"insistent," Carroll stated that after she told him not to contact
her he "demanded to call [her] that evening." Apparently, Kartell did
not telephone Carroll again. Two days later, Carroll received a letter from
Kartell containing reassurances that Kartell meant no harm to her or her
family. Kartell also stated that rather than telephone, "which you might
regard as intrusive," he would hope that the two could "continue to
cultivate a friendship", but only if she were to contact him.
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n6 Although the case had received considerable media attention, Carroll was not
aware of these events or Kartell's involvement until told by her friend.
Kartell had discussed a fight that resulted in his broken collar bone, but had
not told Carroll that a homicide had occurred or that he had been charged with
murder.
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On April 15, 1999, two [*5] days after receiving Kartell's
letter, Carroll filed a complaint in District Court for a protective order
against Kartell pursuant to G. L. c. 209A. After an ex parte hearing, an order
of one week's duration issued prohibiting Kartell from contacting Carroll or
her children. On April 22, 1999, both parties appeared in District Court for a
hearing, after which the judge extended the order for one year. Kartell filed a
timely appeal.
G. L. c. 209A. Under § 3 of G. L. c. 209A, as amended through St. 1998, c. 179,
§ 5, a person "suffering from abuse" by a "family or household
member" n7 may seek protection from such abuse by application to the court
for an order requiring the defendant (among other measures) to refrain from
abusing or contacting the victim. "Abuse" is defined by the
statute as acts "(a) attempting to cause or causing physical harm; (b)
placing another in fear of imminent serious physical harm; or (c) causing
another to engage involuntarily in sexual relations by force, threat or
duress." G. L. c. 209A, § 1, as amended through St. 1996, c. 450, § 232.
See Commonwealth v. Gordon, 407 Mass. 340, 344-345, 553 N.E.2d 915 (1990);
[*6] Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638-639, 700
N.E.2d 296 (1998).
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n7 As defined in G. L. c. 209A, § 1, as amended through St. 1996, c. 450, §
232, "family or household members" include persons who "are or
have been in a substantive dating or engagement relationship" as adjudged
by the court in consideration of the following factors: "(1) the length of
time of the relationship; (2) the type of relationship; (3) the frequency of
interaction between the parties; and (4) if the relationship has been
terminated by either person, the length of time elapsed since the termination
of the relationship." We assume without deciding that the relationship
between the parties in this case fell within the statutory definition.
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Kartell argues on appeal that there was no basis for the judge to conclude that
he had placed Carroll "in fear of imminent serious physical harm." n8
We agree. Kartell's actions, while persistent, did not rise to the level of
"abuse" as so defined. [*7] This definition
("placing another in fear of imminent serious physical injury")
closely approximates the common-law description of the crime of assault,
and we are guided by the law of that crime. Commonwealth v. Gordon, 407
Mass. at 349. Commonwealth v. Robicheau, 421 Mass. 176, 181, 654 N.E.2d 1196
(1995). Accordingly, we consider whether "the actions and words of the
defendant placed [Carroll] in reasonable apprehension that physical force might
be used against her." Ibid.
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n8 The 209A order was apparently sought and obtained on this basis alone;
Carroll made no allegation in her complaint that Kartell caused or attempted to
cause physical harm, or that he caused her to engage involuntarily in sexual
relations.
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There is no evidence that Kartell ever threatened Carroll, either implicitly
or explicitly, with physical harm. Instead, there is evidence that
certain aspects of Kartell's behavior (e.g., his persistent phone calls and
other unsolicited efforts to contact her), [*8] combined with the
revelation of the criminal charges against him, caused Carroll to fear Kartell
and his attentions generally. However, Carroll's subjective and unspecified
fear of Kartell is insufficient to meet the definition of "abuse"
under G. L. c. 209A, § 1(b), and thus fails to serve as the basis for issuance
of a c. 209A order. "Generalized apprehension, nervousness, feeling
aggravated or hassled, i.e., psychological distress from vexing but nonphysical
intercourse, when there is no threat of imminent serious physical harm, does
not rise to the level of fear of imminent serious physical harm."
Wooldridge v. Hickey, 45 Mass. App. Ct. at 639. See Larkin v. Ayer Div. of the
Dist. Court Dept., 425 Mass. 1020, 681 N.E.2d 817 (1997).
Although Carroll stated repeatedly during the hearings that she was frightened
by Kartell's behavior, she identified no particular menacing language or
gesture suggesting she was in imminent peril of physical force being used
against her. n9 It is possible that Carroll's experience with domestic violence
caused her to be particularly sensitive to Kartell's assertiveness and his
persistent [*9] efforts to contact her. Seen in this light, her
fear of Kartell is understandable. The standard for determining whether a
defendant's acts rise to the level of abuse, however, is not subjective.
Rather, the court looks to whether the plaintiff's apprehension that force may
be used is reasonable. See Commonwealth v. Robicheau, 421 Mass. at
181-182. See also Commonwealth v. Gordon, 407 Mass. at 349 (in determining
whether an apprehension of anticipated physical force is reasonable, a court
examines "the actions and words of the defendant in light of the attendant
circumstances"). Objectively considered, Carroll's apprehension was not
here reasonable. Contrast Commonwealth v. Gordon, supra at 349-350
(defendant appeared at victim's house in violation of 209A order, called victim
"bitch" and "whore," and prevented victim from closing door
to her house by propping his back against it); Commonwealth v. Robicheau, supra
(defendant parked and stood in the street in front of victim's house in
violation of 209A order, yelled obscenities and made an obscene gesture, and
later told her over the telephone that he would [*10] kill her).
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n9 Carroll did voice particular concern regarding Kartell's statements that he
would "never hurt [her]" or "do harm to [her] children,"
asserting these statements were made "out of the blue" and suggesting
that they represented a threat of some kind. However, given that soon after
meeting Kartell Carroll disclosed to him her experience with domestic violence,
his statements may have been intended as a reassurance to her that she had
nothing to fear from him.
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Carroll unquestionably perceived Kartell's behavior as threatening, and the
judge undoubtedly acted out of an abundance of caution. Nevertheless, the
powers of the court under c. 209A must be exercised in accordance with the
statutory language, which appropriately sets a higher bar for the issuance
of a protective order than is found in the facts of this case. "The
judge must focus on whether serious physical harm is imminent and should not
issue a c. 209A order on the theory that it will do no harm, i.e., 'seems to be
a good idea or because [*11] it will not cause the defendant any
real inconvenience.'" Wooldridge v. Hickey, 45 Mass. App. Ct. at 639,
quoting from Smith v. Joyce, 421 Mass. 520, 523 n.1, 658 N.E.2d 677 (1995).
The orders issued April 15, 1999, and April 22, 1999, are vacated. The District
Court judge shall cause a notification and direction to be sent, conformably
with G. L. c. 209A, § 7, third paragraph, for the destruction of all records of
the vacated orders.
So ordered.