Commonwealth v. N.H. – Plymouth District Court

AT TRIAL, DISTRICT ATTORNEY’S OFFICE DISMISSES CASE AFTER THE TRIAL JUDGE RULES THAT ATTORNEY PATRICK J. NOONAN CAN INTRODUCE EVIDENCE THAT THE POLICE ENTRAPPED HIS CLIENT INTO COMITTING THE CRIME

Defendant was in a relationship with a girlfriend and they had a baby together. Defendant was originally from Florida but he moved to his girlfriend’s apartment in Plymouth where they raised their baby together. Defendant and his girlfriend were not getting along and they were arguing a lot. Defendant told his girlfriend that he was going to take the baby down to the Florida for a week to visit his family. The girlfriend agreed. The girlfriend called the Defendant several times but he did not answer. The girlfriend called the Plymouth Police to report that the Defendant had taken the baby to Florida and he was not answering her calls. The Police told the girlfriend that the Defendant had not committed any crime because there were no court orders in effect prohibiting the Defendant from taking the child. The Police instructed the girlfriend to obtain a restraining order (“RO”) against the Defendant. The girlfriend obtained an Abuse Prevention Order (G.L. c. 209A) against the Defendant. The RO ordered the Defendant to return the child to the girlfriend in Massachusetts. The RO also ordered the Defendant not to contact his girlfriend. After obtaining the RO, the girlfriend went to the Police Station with the RO paperwork. The police officer stated that he called the Defendant, on a recorded line, and advised him of the RO and the provision, which prohibited him from contacting his girlfriend. The next day, the girlfriend went to the police station to report that the Defendant called her phone in violation of the RO. As a result of this one phone call to the girlfriend, Defendant was charged with Violation of an Abuse Prevention Order (G.L. c. 209A.). When the Defendant returned to Massachusetts, Attorney Patrick J. Noonan opposed the issuance of the RO and cross-examined the girlfriend. Although the RO was extended, Attorney Noonan obtained valuable evidence on his cross-examination of the girlfriend, which he sought to introduce at the criminal trial.

Result: At trial, Attorney Patrick J. Noonan moved to introduce evidence that the Police entrapped the Defendant into committing the crime. Specifically, the police induced the Defendant to call his girlfriend, which was a violation of the RO. A hearing was held to determine whether the trial judge would allow Attorney Noonan to introduce his entrapment evidence. Attorney Noonan offered the following evidence of entrapment: First, at the RO hearing, Attorney Noonan elicited testimony from the girlfriend where she testified, under oath, that the Police instructed her to call and text the Defendant, which would induce a response from the Defendant, which the police could use to charge him with the crime of violating the RO. In particular, the girlfriend testified that the police officer stood right next to her and was telling her exactly what to say to the Defendant. The police officer was telling exactly what to say in her text messages to the Defendant. The police officer told her to make it sound like she the police were not telling her what to say. Clearly, the police were instructing the girlfriend and were using her as a tool to entrap the Defendant into calling her back. Second, Attorney Noonan obtained a Court Order for the girlfriend’s phone records, which contained overwhelming evidence that the police were using the girlfriend to the entrap the Defendant. Specifically, the phone records showed that the girlfriend and police exchanged 21 phone calls and they spoke for a total of 90 minutes. The phone records showed that the police would call the girlfriend, and right after she spoke to the police, the girlfriend would call the Defendant. Third, Attorney Noonan introduced evidence that the girlfriend had contacted the Defendant a total of 44 times by phone, text, and e-mail – but the Defendant did not take the bait and call her back. It was only after the girlfriend’s persistent and relentless onslaught of communications to the defendant, at the instruction of police, that the Defendant finally caved in and took the bait and called her back. Even when the girlfriend went into court to modify the RO to permit the Defendant to contact her, the Defendant still didn’t contact her. Finally, Attorney Noonan discovered that the police officer did not call the Defendant on a recorded line to advise him of the RO, even though the officer wrote in his report that he recorded the call with the Defendant. The District Attorney’s Office objected to Attorney Noonan’s proposed entrapment evidence but, after a hearing, the trial judge ruled that the entrapment evidence would come in at trial. The District Attorney’s Office then dismissed the case.