Articles Posted in Domestic Violence Crimes

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mobile-phone-in-hand-1307594-m-300x200The Appeals Court reversed the defendant’s conviction of domestic assault and battery on a family or household member in Commonwealth v. Wilson because the admission of testimonial out-of-court statements by the complainant, who did not testify at trial, violated the defendant’s right to confrontation.

The background was as follows. At the defendant’s trial, the complainant (the defendant’s wife) “assert[ed] spousal privilege and … decline[d] to testify.” In lieu of the wife’s testimony, the judge admitted a recording of a 911 call made by her and the testimony of a police officer (Barnes) who, in response to the 911 call, went to the marital home and spoke to her. During the 911 call, the defendant’s wife “stat[ed] that [the defendant] ‘choked [her] out,’ and that he said he would be back in fifteen minutes to kill her.” Barnes testified that when he spoke to the defendant’s wife, she reiterated “that the defendant left the premises and said that he would be back in fifteen minutes to kill her…. Barnes then testified, ‘I asked her to give me the rundown of exactly how it happened.’ He continued as follows: ‘[She said that] [h]er husband came home, and he was extremely upset … that he had seen a picture of her with a friend that he thought to be a drug addict. He accused her of being a drug addict…. He attempted to strangulate her and stick her head into a pill (sic) and suffocate her. He then went upstairs. He grabbed a handful of pills, tried to shove them down her throat, and said[,] ‘If you want to be a drug addict, I’m going to make you a drug addict.’” On appeal, the defendant argued that the judge erred in admitting his wife’s 911 call and Barnes’s testimony. Continue reading →

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suicide-blonde-4-1474465-194x300The Appeals Court vacated the dismissal of the plaintiff’s complaint that sought a G.L. c.209A abuse prevention order in M.G. v. G.A., because the trial court judge erroneously found that the parties’ conduct at the critical juncture did not constitute “sexual relations.”

The background was as follows. “[T]he plaintiff, M.G., filed a complaint for an abuse prevention order against the defendant, G.A., pursuant to G.L. c.209A…. An evidentiary hearing on the matter was … held…. Viewing the evidence in the light most favorable to the plaintiff, the judge could have found the following facts. The plaintiff and the defendant began dating in … 2012[] and purchased a condominium together by the end of 2013. In … 2015, the defendant moved out of the condominium, but the parties continued to have sexual relations. In December [of that year,] the defendant initiated a consensual sexual encounter with the plaintiff. The parties engaged in ‘genital-to-genital contact’ as well as ‘finger-to-genital contact.’ At some point during the sexual encounter, the plaintiff stated, ‘I’m done, I’m tired’ while the defendant was physically on top of her. She told the defendant at least twice that she ‘did not want to be doing this.’ The defendant stated ‘that he wanted to finish.’ The defendant then masturbated to ejaculation while remaining physically on top of the plaintiff.” At the close of the plaintiff’s case, the defendant moved for a directed finding that the evidence did not justify issuance of an abuse prevention order. “The judge allowed the motion [and dismissed the complaint], concluding that the plaintiff failed to prove that the defendant caused her to ‘engage involuntarily in sexual relations by force, threat or duress [G.L. c.209A, §1(c)],’” one of the predicates for issuance of an order, “because the parties were no longer engaging in sexual intercourse after the plaintiff said she was ‘done’ and ‘tired.’ Rather, the judge reasoned, ‘the most it could have been was an assault and battery at that point in time.’” On appeal, “[t]he plaintiff argue[d] … that the term ‘sexual relations’ as used in G.L. c.209A, §1, should not be so narrowly construed.” Continue reading →

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shhhh-1433634-225x300The Supreme Judicial Court ruled in Commonwealth v. Rosado that the Commonwealth had failed to prove, pursuant to the doctrine of forfeiture by wrongdoing, that the defendant forfeited his right to object to the admission of a witness’s out-of-court statements.

The background was as follows. “The defendant … is the former boy friend of the witness [Ortiz], and the father of her young daughter.” “Ortiz was a key witness for the prosecution” in the murder prosecution of a friend of the defendant (Mercado). “[T]he day before Mercado’s trial began, Ortiz was interviewed by two State police troopers regarding [Facebook] communications she had received from the defendant,” including statements calling her a “‘trifling bitch’” and “‘an undercover rat.’” Another posted message from the defendant “urged [Ortiz] not to testify against Mercado, and told her that she should lie to the police so that she would not have to testify. Ortiz stated that she had telephoned the defendant after she learned of these Facebook messages, and that he responded by threatening to hit her.” Ultimately, “Ortiz did testify at Mercado’s trial, but the jury” acquitted him. Subsequently, the defendant was indicted for intimidation of a witness (Ortiz), in violation of G.L. c.268, §13B. “[T]he Commonwealth moved in limine to admit in evidence Ortiz’s recorded interview with the State police troopers and her grand jury testimony under the doctrine of forfeiture by wrongdoing, in lieu of Ortiz’s testimony at the defendant’s trial.” Under that doctrine, “a defendant, by his or her wrongdoing, may … forfeit his or her right under art. 12 [of the Massachusetts Declaration of Rights] and our common-law rules of evidence to object to the admission of hearsay evidence.” In Commonwealthv. Edwards, 444 Mass. 526, 540 (2005), the Court “held that the Commonwealth must prove three elements by a preponderance of the evidence for forfeiture by wrongdoing to apply,” including that “‘the defendant acted with the intent to procure the witness’s unavailability.’” Continue reading →

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mobile-in-hand-1239462-300x200In Commonwealth v. Fragata, the Supreme Judicial Court ruled that the evidence was insufficient to support the defendant’s conviction of intimidating a witness under G.L. c.268, §13B(1)(c)(i).

The background was as follows. “[T]o convict the defendant of witness intimidation under [the statute], the Commonwealth had to prove that (1) a possible criminal violation occurred that would trigger a criminal investigation or proceeding; (2) the victim would likely be a witness or potential witness in that investigation or proceeding; (3) the defendant engaged in intimidating behavior, as defined in the statute, toward the victim; and (4) the defendant did so with the intent to impede or interfere with the investigation or proceeding, or in reckless disregard of the impact his conduct would have in impeding or interfering with that investigation or proceeding.” In this case, the defendant and the alleged victim, who were in romantic relationship, “hosted a small gathering in [their] apartment…. After their guests left, the defendant screamed at the victim and called her ‘nasty names.’ The victim began to cry and told the defendant that she was going to telephone 911. The defendant immediately took the victim’s cellular telephone from her and begged her not to call the police. The victim told the defendant that she wanted to leave and that she was still going to call 911. As soon as she ran to the door to get out and call 911, the defendant stood in front of the door; grabbed the victim by the arms, causing them to bruise; and pushed the victim aside, again begging her not to call 911. Then, while the victim was sitting on a couch, the defendant approached her, grabbed her throat, and started choking her, hitting her head against the wall. After that attack, the victim sat on the couch and cried; the defendant had told her that he would not let her leave and she did not feel free to do so. Finally, after about thirty to forty-five minutes, the victim was able to grab her cellular telephone, leave the apartment, and call 911 from across the street.” At the defendant’s trial for intimidation of a witness, “[t]he Commonwealth’s theory … was that the defendant violated §13B(1)(c)(i) by taking away the alleged victim’s cellular telephone to prevent her from calling 911 for help after he had verbally assaulted her.” On appeal, “the defendant contend[ed] … that the evidence was insufficient to sustain his conviction of witness intimidation under §13B(1)(c)(i), because no view of the evidence would have allowed the jury to conclude that he had committed any crime before he took the victim’s cellular telephone.” Continue reading →

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music-1453613According to an article in the MetroWest Daily News, Worcester police recently arrested a Framingham High School music teacher on domestic violence charges. According to a second article, the court also issued a restraining order against the defendant under G. L. c. 209A, § 7. The articles state that the defendant and the alleged victim became romantically involved in 2011, shortly after the alleged victim graduated from the high school, where she was one of the defendant’s students. The relationship last approximately five years. The incident in question reportedly occurred when the alleged victim went to the defendant’s home in Worcester to discuss their relationship. Specifically, the alleged victim confronted the defendant about being in a relationship with another woman. An argument ensued, during which the defendant allegedly refused to let the alleged victim leave. The alleged victim also claimed that during the argument, the defendant pushed her into a wall, cabinets, and a door, slammed a door on her arm, and pushed her child, whom she apparently brought with her, into a bush. The alleged victim also showed police bruises, which she claims were the result of the defendant’s assault.

The defendant testified at the restraining order hearing in his defense, stating that he and the alleged victim had already broken up and that he was in the process of moving in with a new girlfriend. The defendant was ultimately charged with one count of kidnapping, two counts of assault and battery on a family or household member, two counts of assault and battery with a dangerous weapon, one count of witness intimidation and one count of assault and battery. Continue reading →

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broom-shadow-1490808According to an article in the MetroWest Daily News, a Framingham man was recently arrested for assaulting his eight year old son.  The article states that the son had apparently gotten into a physical fight with another boy at the bus stop.  During the fight, the other boy apparently touched the son’s buttocks.  The son reported the incident to his mother and his father.  After the son told his parents what had happened, his father (the defendant) reportedly spanked the son and hit him on his backside with a broom handle.  According to the son, the defendant also slapped him in the face and neck.  The article indicates that the defendant was upset about the fact that the son had failed to report the other child’s inappropriate conduct to school officials – namely that the other child had touched the son’s backside.  The son did have visible injuries on his shoulders and neck as a result of the incident.  The son’s school principal reported the defendant’s conduct to the authorities and the police responded and photographed the son’s injuries.  As a result of the incident, the defendant was charged with domestic assault and battery with a dangerous weapon and domestic assault and battery.

Although the charges are serious, the defendant does appear to have a legitimate defense.  Specifically, the defendant can argue that he was simply using reasonable physical force to discipline his child.  Although the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, case law appears to indicate that a parent is authorized to use physical force to discipline a child under certain circumstances.  For example, in Commonwealth v. Rubeck, the Supreme Judicial Court seemed to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force was for the specific purpose of discipline, was conducted in a controlled manner rather than the result of an emotional outburst, and did not result in significant injury.  Since it is arguably inappropriate for an eight year old child to get into a physical altercation with another child, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

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questions-1151886According to an article in the MetroWest Daily News, a Framingham man was recently arrested on domestic violence charges.  The article states that the police responded to the defendant’s apartment at approximately 3pm last Sunday after receiving a call for a “possible domestic dispute.”  When they arrived, the police spoke to both the defendant and his girlfriend.  The girlfriend told police that she was afraid of the defendant and that the two of them had gotten into an argument.  She further stated that during the argument, the defendant had thrown a coffee mug at her, but missed.

The girlfriend also claimed that the defendant had assaulted her nearly a month prior while she was giving the defendant a ride to work.  On that occasion, the defendant allegedly grabbed a travel mug and threw it at the girlfriend and it hit her in the face.  The cup reportedly left a bruise, which the girlfriend later photographed.  During that earlier incident, the girlfriend reportedly tried to drive to the police station, but the defendant told her not to do so.  The girlfriend apparently did not make any further attempts to report the incident. As a result of the girlfriend’s allegations, the defendant was charged with assault and battery with a dangerous weapon in relation to the earlier alleged incident, and assault with a dangerous weapon in relation to the more recent one.  The defendant was also charged with two counts of witness intimidation – one because he reportedly called the girlfriend’s daughter from jail even though he had been ordered not to do so, and the second because of his alleged statement telling the girlfriend not to go to the police.

At the defendant’s arraignment, his attorney indicated that the defendant was about to break up with the girlfriend because she had taken a debit card from him and withdrawn money without his permission.  The attorney further stated that the allegations were fabricated to get the defendant in trouble.  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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fist-1488296According to an article in the MetroWest Daily News, a thirty-two year old Milford man got into a physical altercation with his eighteen year old niece earlier this week. The article states that the niece had been kicked out of her mother’s house and was staying at her grandmother’s house. At some point during her stay, the niece began yelling at her grandmother and her uncle, who was present during the argument, stepped between the two in an attempt to diffuse the situation. According to the uncle, the niece punched him twice in the face and he then reportedly punched her once. The niece allegedly had a broken nose as a result of the incident. It’s not clear whether the uncle had any injuries. Police arrived on scene and arrested the uncle, charging him with domestic assault and battery. The niece was summonsed to court on the same charges that same day.   Continue reading →

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mouth-1437756According to an article in the MetroWest Daily News, a Framingham man allegedly attacked his ex-girlfriend after he found out that she was dating someone new. The article states that the man and the alleged victim were romantically involved but that the relationship had ended. According to the article, the man reportedly appeared at the alleged victim’s workplace (Shopper’s World) and asked to speak with her. They then drove away in the alleged victim’s car. After some period of time, the alleged victim dropped the man off and went to the police station. Once there, she claimed that she was the victim of a domestic assault. Specifically, the alleged victim told the police that she and her ex-boyfriend had gotten into an argument when he found out that she was dating someone else. The alleged victim claimed that the man grabbed her by the throat and choked her. The police then approached the man, who was outside a convenience store, and arrested him based on the alleged victim’s allegations. The man was subsequently charged with strangulation.

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