Articles Posted in Assault Crimes

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securicam-1243585-300x228In Commonwealth v. O’Neal, the Appeals Court reversed the denial of the defendant’s motion for a new trial on an indictment charging him with assault and battery by means of a dangerous weapon, because the Commonwealth failed to preserve a videotape of the incident.

The background was as follows. Police officers responded to reports of an altercation outside a bar. At the scene, the defendant “was yelling at” some other people. He was “unsteady on his feet, smelled of alcohol, and had slurred speech. Concluding that the defendant was intoxicated, the officers placed him into protective custody … and transported him to the police station…. Once at the station garage, the defendant was unwilling or unable to exit the cruiser. The officers therefore pulled him out of the vehicle, and placed him on the ground after he could not, or would not, stand. At that point, the officers radioed their supervisors inside the station for assistance, and they were brought a restraint chair to transport the defendant to the booking area. A restraint chair is designed to immobilize unruly detainees. It has a seat that is tilted so that … the person sitting there is lying back at an angle with his knees elevated above his hips. The chair has straps to be used to hold in place a detainee’s wrists, ankles, lap and shoulders. In this instance, however, the officers did not use the available straps to secure the defendant…. Instead, after placing him in the chair with his hands handcuffed behind his back, they left him that way for the trip into the station. According to the defendant, who testified at trial, this meant that his entire weight fell on his handcuffed wrists, causing him ‘excruciating pain.’…. The failure of the police to secure the defendant in the restraint chair appears to be at odds with a written policy that emerged only in postconviction discovery…. At least at one point during the trip from the garage to the booking area, the defendant’s [unsecured] foot … was hanging off the side of the chair,” thus “imped[ing] the movement of the chair…. [In response,] the police officers tilted the restraint chair back in order to keep [it] moving…. The defendant described the tilting of the chair as a sudden jerking that caused him to flail in it. He admitted that his foot came into contact with one of the officers, but he characterized it as an accidental ‘knee-jerk reaction’ to the sudden tilting of the chair. The officers described it as a … deliberate [and forceful] kick to the … stomach,” which the officer who was struck described as painful. On the basis of the alleged kick, the defendant was indicted for assault and battery by means of a dangerous weapon, a shod foot. Continue reading →

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speedway-1198194-300x199In Commonwealth v. Manha, the Supreme Judicial Court affirmed the defendant’s conviction of assault with a dangerous weapon. The SJC specifically ruled that the judge properly denied the defendant’s motion to suppress evidence seized by the police after stopping the defendant’s vehicle pursuant to a 911 call from a motorist reporting a road rage incident.

The basic facts were as follows. “According to the 911 caller, an individual in another motor vehicle had pointed a gun at her as she traveled southbound on Route 93 in Boston. She described the gunman as a white male in his forties who was wearing glasses. She further provided a description of his vehicle, a gray Jeep Cherokee, along with its registration number, location, and direction of travel. Based on this information,” which was disseminated by radio, a state trooper located the Jeep and stopped it. Other troopers arrived at the scene and the defendant was removed from the vehicle. “A patfrisk of [his] person revealed no weapons.” The police then performed a protective sweep of the interior of the Jeep, in the course of which they found a black case. Upon opening the case, they discovered “a pellet gun in the shape of a hand gun.” After the return of the indictment against the defendant, he filed a motion to suppress the pellet gun, claiming “that the police lacked probable cause to stop him.”

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big-brother-is-wa-1550805-300x225In a recent decision, Commonwealth v. Connolly, the Appeals Court ruled that testimony from a police officer describing a video that he watched, but that the Commonwealth failed to produce in discovery, should not have been admitted.  In reversing the defendant’s conviction of assault and battery under G. L. c. 265, § 13A, the Court ruled that the Commonwealth (1) failed to authenticate the contents of the videotape and (2) failed to lay a sufficient foundation for admission of the officer’s identification testimony.

The background was as follows. “[S]ome sort of incident occurred between the defendant and the victim [a woman named White] at an apartment building.” Officer Giardina was dispatched to the scene of the incident “where he spoke with both White and the defendant. He observed that White was ‘elderly.’…. The defendant told the officer that he had been in the community bathroom … and accidentally bumped White over when he opened the bathroom door. The officer did not arrest the defendant because ‘it appeared that it was an accident.’ About a month later, … Giardina returned to the apartment building and spoke again with the defendant. This time, the defendant admitted that he and White ‘had a small argument’ before going their separate ways. The defendant also admitted that he made contact with White twice: first, when he knocked her over with the bathroom door, and second, when he bumped into her in the hallway. According to the defendant’s description of this second incident, after he ‘walked down the hallway and came back,’ he ‘was turned around looking away from [White]’ when ‘she came up behind him’; at that point he ‘quickly turned around,’ ‘didn’t realize she was there,’ and ‘just threw his hands up to stop her and knocked her down.’ That same day, … Giardina met with [a man name] Crouse, who he ‘believe[d] … was one of the building supervisors.’ The officer testified, over the defendant’s objection, that Crouse showed him ‘video of the incident.’ [Giardina] then described the contents of the video, again over the defendant’s objection, as follows: ‘In the video you can see Mrs. White going to the bathroom door. The door swings open. You see Mrs. White go into the bathroom and then she comes out from the bathroom and you also see Mr. Connolly come out from the bathroom. They go their separate ways…. Mr. Connolly was walking away from the bathroom. Mrs. White was still by the bathroom door…. [I]t appears that they’re having some sort of shouting match. And then Mr. Connolly walks back towards Mrs. White and shoves her to the ground.’” In his appeal, the defendant argued “that the officer’s testimony should not have been admitted [1] because the Commonwealth failed to authenticate the video; and [2] [because] the officer’s identifications of the defendant and White constituted inadmissible lay opinion testimony.” Continue reading →

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old-car-door-handle-1412625According to an article in the MetroWest Daily News, a Framingham man was recently arrested in relation to an alleged road rage incident. The article states that the defendant believed that the alleged victim cut him off on Route 9 and that the defendant then began to follow the alleged victim, reportedly beeping his horn and tailgating. According to the alleged victim, the defendant exited his car at an intersection, approached the alleged victim’s car, and pulled the door open. The police apparently saw the defendant exit the car to “confront” the alleged victim. There is no indication, however, that that the police observed him yelling, opening the alleged victim’s door, or that the door was in fact open. The police did, however, observe the alleged victim’s car door handle in the defendant’s hand – the defendant indicated that it had fallen off. The defendant was subsequently arrested for assault, under G. L. c. 265, § 13A, and vandalizing property, under G. L. 266, § 126A.

An assault may be committed in one of two ways. It is either an attempted battery or an immediately threatened battery. A battery is a harmful or an unpermitted touching of another person, so an assault can be either an attempt to use some degree of physical force on another person, or it can be a demonstration of an apparent intent to use immediate force on another person. In this case, the defendant did not attempt to commit a battery, therefore the Commonwealth would have to proceed on the immediately threatened battery theory. For the Commonwealth to obtain a conviction for assault under this theory, it would have to prove the following beyond a reasonable doubt: (1) that the defendant intended to put the alleged victim in fear of an imminent battery; and (2) engaged in some conduct toward the alleged victim which the alleged victim reasonably perceived as imminently threatening a battery.

For the Commonwealth to obtain a conviction for vandalizing property, it would have to prove the following beyond a reasonable doubt: (1) that the defendant destroyed property; (2) that he did so intentionally; (3) that he did so willfully with malice, or wantonly; and (4) that the property was owned or possessed by someone other than the defendant. As to the second element, the Commonwealth must prove the defendant acted consciously and deliberately, rather than by accident or as the result of negligence. As to the third element, the Commonwealth must prove that the defendant acted willfully with malice, or wantonly.

A person acts willfully if he intends both the conduct and its harmful consequences. The act must be done with the intent that it have harmful consequences. A person acts with malice when acting out of cruelty, hostility, or revenge. To act with malice, one must act not only deliberately, but out of hostility toward the owner or person in possession of the property whoever that may be. A person acts wantonly by acting recklessly or with indifference to the fact that his conduct would probably cause substantial injury to, or destruction of, another’s property. The Commonwealth must prove that the defendant consciously disregarded, or was indifferent to, an immediate danger of substantial harm to another’s property. It is not enough for the Commonwealth to prove that the defendant acted negligently — that is, acted in a way that a reasonably careful person would not. Continue reading →

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residence-1226143According to an article in the MetroWest Daily News, a man broke into an apartment in Marlborough this past week and reportedly assaulted one of the residents.  The article states that the alleged victim was in his bedroom with headphones on when he heard a loud noise at the front door of the apartment.  When he walked into the living room to investigate, he found the defendant, whom he does not know, standing near the front door.  The defendant reportedly grabbed the alleged victim, threw him to the ground, sat on him, and proceeded to strangle him for about five seconds before the alleged victim could escape.  The defendant then left the apartment.

The alleged victim’s roommate was also present, called the police and provided a description of the assailant.  When the police arrived on scene minutes later, they found the defendant directly outside the apartment complex.  The defendant told the police that he had just woken up and hadn’t seen or heard anything.  During further questioning, however, the defendant told the police the he had broken into the apartment, and that he had heard voices prior to the break in.  Specifically, the defendant stated that the voices had told him to break into that particular apartment and that many others had broken into it in the past.  He also told police he believed the National Security Agency was listening to all his conversations.  The defendant was charged with assault and battery, strangulation, vandalizing property and unarmed burglary and assault.

Given the defendant’s statements to police about the voices and the NSA, and his overall conduct, he appears to have some mental health issues that impacted his behavior and could therefore provide a defense to the charges.  Under Massachusetts law, before a defendant may be found guilty, the Commonwealth must prove beyond a reasonable doubt that he was sane – and therefore criminally responsible – when he engaged in the alleged conduct.  A person is lacking in criminal responsibility if he has a mental disease or defect, and as a result of that mental disease or defect is either: (1) substantially unable to appreciate the criminality — the wrongfulness — of his conduct; or (2) is substantially unable to conform his conduct to the requirements of the law.  In other words, a defendant’s mental condition must have been such that he was unable to realize that his behavior was wrong or was unable to make himself behave as the law requires.  Under the law, there is a presumption of sanity, but it is up to the Commonwealth to prove beyond a reasonable doubt both that the defendant committed the crime, and that the defendant was sane at the time of its commission. Continue reading →

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knife-1417852According to an article in the MetroWest Daily News, a thirty-seven year old woman was arrested after a knife fight in Framingham. The article states that the police went to Phelps Road and found “a small child walking around holding a large kitchen knife.” It is unclear what led the police to respond to that location, however, the officers took the knife from the child upon their arrival. Officers then attempted to question people in the area in an attempt to determine what happened. During the investigation, the police recovered several weapons from the area, including a miniature novelty bat and several other wooden objects that witnesses identified as being used in the fight. Additionally, while the officers were questioning witnesses, one woman ran up to another woman and started screaming at her. The police attempted to separate the two, but were unable to do so and ultimately ended up handcuffing the woman who had initiated the screaming. She made statements to the police, including admitting that she had brought the knife to the fight. She indicated that she had done so because “they” had hit her sixteen year old daughter. Officers then charged the woman with assault with a dangerous weapon.

For the Commonwealth to convict the woman of assault with a dangerous weapon under G. L. c. 265, § 15B(b), it would have to prove the following beyond a reasonable doubt: (1) that the woman intended to put a person in fear of an imminent battery; (2) that she engaged in some conduct toward that person which the person reasonably perceived as imminently threatening a battery; and (3) that the assault was done by means of a dangerous weapon. Continue reading →

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dutch-weed-1251539According to an article in the MetroWest Daily News, three men were arrested earlier this week and charged with robbery in Marlborough. The article states that the three defendants met the alleged victim outside a Burger King for the purpose of buying marijuana from him. When the alleged victim presented the drugs, the three defendants reportedly reached into their pockets and pretended to have weapons. One of the defendants then reportedly grabbed the marijuana from the alleged victim while the other two defendants allegedly pushed him and attempted to steal his cellular telephone. The defendants then reportedly drove off in a silver vehicle. The alleged victim called the police and provided them with a description of the vehicle and the license plate number. Officers stopped the car a short distance away. Inside the vehicle, the officers found a bag of marijuana. Following the stop, the alleged victim identified the three men in the car as the people that robbed him. The driver was charged with unarmed robbery, use of a motor vehicle without authority, and conspiracy to violate the drug laws. The other two defendants were charged with unarmed robbery, assault and battery, and conspiracy to violate the drug laws.

The evidence against the defendants appears to be strong at first glance. However, the case ultimately hinges on the alleged victim’s testimony – he is the only witness who will be able to testify to what happened in the parking lot – and there appear to be two potential problems with calling him as a witness. Continue reading →

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bed-1230897According to an article in the MetroWest Daily News, a teenager from Framingham allegedly assaulted his girlfriend this past week. The article states that the alleged victim accused the defendant of cheating on her at approximately 4am. After the accusation was made, the defendant reportedly began hitting and kicking the alleged victim, who claimed that she did not recall the number of punches and/or kicks because there were “too many” to count. The couple reportedly went back to bed after the defendant apologized. When they woke up again, the conversation resumed and the defendant allegedly dragged the alleged victim by the hair and spat in her face. The defendant also allegedly put his hands around the alleged victim’s neck and applied “slight pressure.” At some point after this second alleged assault, the alleged victim called the police and made a report. She claims that she was too afraid to call the police immediately. The defendant was charged with two domestic violence offenses: one count of assault and battery on a household or family member and one count of strangulation.

To convict the defendant of assault and battery on a household or family member under G. L. c. 265, § 13M, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant touched the alleged victim, without having any right or excuse for doing so; (2) that the defendant intended to touch the alleged victim; (3) that the touching was either likely to cause bodily harm to the alleged victim, or was done without her consent; and (4) that the defendant and the alleged victim are “household members.” Under the law, people are household members if they are or were married, they have a child in common, and/or they have been in a substantive dating or engagement relationship.

To convict the defendant of strangulation under G. L. c. 265, § 15D, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant applied substantial pressure on the throat or neck of the alleged victim; (2) that he interfered with the alleged victim’s normal breathing and/or circulation without having any right or excuse for doing so; and (3) that he did so intentionally. Continue reading →

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child-1437361According to an article in the MetroWest Daily News, a Holliston man was recently arrested for slapping his four year old son. The article states that the defendnt was on a supervised visit with his two children – the alleged victim and his older brother, who is seven years old. During the visit, the defendant reportedly slapped the four year old in the head because he refused to stay in his time out. The child apparently fell backwards as a result and hit his head on a doorframe, which caused a lump to form on his head. After this occurred, the defendant spoke with the children’s mother and relayed what had happened. As a result of the incident, the defendant was arrested for assault and battery causing injury to a child under fourteen.

For a jury to convict the defendant of assault and battery causing injury to a child under fourteen under G. L. c. 265, § 13J, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the alleged victim was under fourteen years of age; (2) that the defendant touched the person of the alleged victim, without having any right or excuse for doing so; (3) that the defendant intended to touch the alleged victim – in other words, that the defendant touched his son deliberately rather than accidentally; and (4) that the alleged victim suffered bodily injury.

A second way in which a person may be guilty of an assault and battery under the statute is if the person engaged in reckless rather than intentional conduct. In order to prove that the defendant is guilty under a theory of reckless conduct, the Commonwealth must prove three things beyond a reasonable doubt: (1) that the alleged victim was under fourteen years of age; (2) that the defendant intentionally engaged in actions which caused bodily injury to the alleged victim; and (3) that the defendant’s actions amounted to reckless conduct.

Under either theory, bodily injury is defined as a substantial impairment of the physical condition, including: a burn, a fracture of any bone, a subdural hematoma, any injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin, and/or any physical condition which substantially imperils a child’s health or welfare. Continue reading →

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According to an article in the MetroWest Daily News, a Littleton man was recently arrested for assaulting his step-brother. The article states that the defendant was arrested in Ashland following a family argument. The defendant and his step-mother reportedly got into a verbal argument. During the argument, the defendant yelled at the step-mother. The defendant’s step-brother, who  allegedly suffers from developmental disorders, was present and reportedly became angry with the defendant for raising his voice. The step-brother then allegedly grabbed his belt, making motions as if he was going to hit the defendant. It was at this point that the defendant allegedly struck the step-brother. Following the incident, the defendant called the police. Once officers arrived, they spoke to the defendant who reportedly acknowledged that he hit the step-brother a total of five times. The defendant was subsequently charged with assault and battery on an elderly or disabled person.

To prove that the defendant committed an assault and battery on an elderly or disabled person under G. L. c. 265, § 13K, the Commonwealth would have to show the following beyond a reasonable doubt: (1) that the defendant touched the alleged victim, without having any right or excuse for doing so; (2) that the defendant intended to touch the alleged victim; (3) that the touching was either likely to cause bodily harm to the alleged victim, or was done without his (her) consent; and (4) that the alleged victim was either elderly (over sixty years old) or disabled (a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his own care or protection). Continue reading →