Articles Posted in Domestic Violence Crimes

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text-message-1472714In Commonwealth v. Mulgrave, the Supreme Judicial Court held for the first time that a text message could constitute an excited utterance under Massachusetts law. An excited utterance is an exception to the rule prohibiting the admission of hearsay. A statement qualifies as an excited utterance if it: (1) follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer; and (2) the statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought. The rationale that justifies this hearsay exception is that a person who has witnessed a shocking or traumatic event tends to speak what comes spontaneously to mind, without energy or disposition to invent lies so the statement may be deemed trustworthy for as long as the stress of the startling event continues. The court considers the following factors in determining the admissibility of a statement as an excited utterance: (1) the degree of excitement displayed by the declarant; (2) whether the statements are made at the scene of the traumatic event or elsewhere; (3) the temporal closeness of the statement to the act it explains; and (4) the degree of spontaneity, including whether the statements was volunteered by the declarant without the prompting of a question. Although the SJC has routinely ruled that written statements do no qualify as excited utterances given the fact that a written statement is generally not “spontaneous,” as it requires at least some reflective thought, the Court chipped away at this rule in the Mulgrave decision.

The facts of the case are as follows: the defendant and the victim in the case were married, but their relationship was deteriorating. During a heated argument between the two, the victim sent a text message to her son stating that “[the defendant] is threatening to kill me I am scared he said if I pick up the phone he will kill me.’” Six minutes after the victim sent the text message, she telephoned 911 and reported that the defendant was stabbing her. A few minutes after that, she was found barely breathing and lying in a pool of blood. She ultimately succumbed to her injuries. At trial, the Commonwealth sought to introduce the victim’s text message as evidence against the defendant. Continue reading →

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fist-1488296In August of 2014, the Massachusetts state legislature passed An Act Relative to Domestic Violence, which was signed into law by then Governor Deval Patrick shortly thereafter. The Act made various changes to the state’s domestic violence laws. Among other modifications, the Act created a first offense domestic violence assault and battery charge, established a domestic violence offender registry, and provided education for judges and prosecutors about cycles of abuse. As to the domestic violence offender registry, the law states that, pursuant to G.L. c.276, §56A, “every case in which a person is arrested and charged with a crime against the person or property, if the Commonwealth alleges that domestic abuse occurred ‘immediately prior to or in conjunction with’ the charged crime, the Commonwealth is to file a written statement that it does so allege, the judge is to make a written ruling that the Commonwealth does so allege, and the Commonwealth’s written statement is then to be entered into the Statewide domestic violence record keeping system (DVRS).” The law states that the “DVRS is a registry of sorts, established by the commissioner of probation …, [which] includes … [computerized] records of the issuance of and any violations of criminal or civil restraining or protective orders…. Records in the DVRS are available only to law enforcement and ‘judges considering petitions or complaints’ for restraining and protective orders.” The new law does not, however, lay out the legal requirements for a judge to issue such written ruling; the statute is silent as to the standard of proof, evidentiary standard, and/or factors the court should consider when making its decision. In light of the lack of clarity, there have been questions as to how to implement this portion of the statute.

In a recent decision issued by the Supreme Judicial Court: Commonwealth v. Dos Santos, the trial judge grappled with the domestic violence offender registry requirements and ultimately asked the Appeals Court for guidance. Specifically, under the Massachusetts Rules of Criminal Procedure Rule 34, a trial court judge may report a question of law to the Appeals Court if the trial judge determines the issue so important or doubtful as to require the decision of the Appeals Court.

In the Dos Santos case, the defendant was arrested for pushing his wife in the context of their marital difficulties. The defendant was charged with assault and battery on a family member. At his arraignment, prior to his release on conditions, “the Commonwealth submitted a preliminary written statement pursuant to §56A, alleging that domestic abuse occurred immediately prior to or in conjunction with the defendant’s charged offense.” The judge, however, declined to make a written ruling that domestic abuse was alleged out of concern that the statutory language violated constitutional principles of due process and separation of powers and instead reported the question pursuant to Rule 34. Continue reading →

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sad-snot-nosed-kid-1062449-mAccording to an article in the MetroWest Daily News, a Framingham man, was arrested after physically disciplining his son. The child, who is seven years old, bit one his teachers at his school. Following the incident, the defendant, the child’s father, reportedly destroyed the child’s video game system. The child’s mother tried to intervene and prevent the defendant from breaking the system. When she did so, however, the defendant reportedly hit her and shoved her away. He then reportedly hit his son and kicked him twice in his buttocks. Approximately two hours after the alleged incident, the defendant presented himself at the police station. While there, he acknowledged that he had hit his son twice in the rear, but denied kicking him. As a result of the incident, the defendant was charged with (1) assault and battery with a dangerous weapon (shod foot); (2) assault and battery on a child; (3) domestic assault and battery; and (4) malicious destruction of property over $250.

Despite the fact that the defendant was charged with these offenses, he does appear to have a legitimate defense. In relation to the charges in which the defendant’s son is the alleged victim, the defendant can argue that he was simply using reasonable physical force to discipline his child. While the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, Massachusetts case law alludes to the ability of a parent, or one acting in position of a parent, to use physical force to discipline a child. For example, in Commonwealth v. Rubeck, the Supreme Judicial Court appears 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 is for the specific purpose of discipline, is conducted in a controlled manner rather than the result of an emotional outburst, and does not result in bruising or significant injury. Given the fact that it is undeniably inappropriate for a seven year old child to bite a teacher, 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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to-sign-a-contract-3-1221952-mThis past April, domestic violence legislation was proposed at the statehouse. Both the House and the Senate proposed somewhat different versions of the law, and this past week, a conference committee reconciled the two versions of the bill (SB1892 and H4037). Both the House and the Senate then passed the reconciled version – S2334 – into law. While the bill must still be signed by the governor before it actually becomes law, he is apparently expected to approve it shortly.

The legislation, formally named An Act Relative to Domestic Violence – creates a first offense domestic violence assault and battery charge, establishes a domestic violence offender registry, and provides education for judges and prosecutors about cycles of abuse. Though not every proposed new domestic violence offense, nor all suggested increases in fines/assessments for abuse victims or programs, were included in this compromised bill, most of the significant provisions of each version were incorporated.

Specifically, the bill includes the following changes to current law:

  • Amends the bail statute to require that persons charged with a variety of enumerated domestic abuse offenses may not be admitted to bail for six hours after arrest and before a written determination has been made with respect to conditions of release to reasonably assure the safety of the alleged victim;
  • Amends G. L. c. 276, § 58A dangerousness hearings to allow the hearings to be re-opened upon changed circumstances;
  • Requires a reasonable attempt be made to notify abuse victims of a defendant’s release from detention on bail;
  • Requires that police recruits, medical professionals, court personnel, district attorneys and assistant district attorneys all receive training relative to domestic and sexual violence;
  • Expands the amount of CORI information that may be disseminated to include dangerousness hearings, requests for dangerousness hearings, and determinations of dangerousness;
  • Establishes a Domestic Violence Fatality Review Team within the Executive Office of Public Safety (EOPS);
  • Requires that the Probation Department maintain a Domestic Violence Record Keeping System and requires that EOPS, in coordination with the Community Justice and Mediation Center (CJAM), adopt regulations for the standardization of rules relative to disseminating an individual’s criminal and civil court history to district attorneys, assistant district attorneys, defense attorneys, and judges in certain proceedings;
  • Authorizes eligible adults to possess self-defense (pepper) spray without a firearm identification card (which was previously required);
  • Makes communications between police and alleged victims of domestic violence confidential;
  • Prohibits visitation rights with a child for a parent who committed a rape, which resulted in the conception of that child, unless the child is old enough to choose to have contact with that parent;
  • Establishes a separate Domestic and Sexual Violence Prevention and Victim Assistance Fund;
  • Creates certain new offenses relative to assault and batteries on household and family members, and batteries involving suffocation/strangulation, as well as increasing certain domestic abuse penalties;
  • Establishes domestic violence leave pursuant to which an employee may take 15 days of leave a year from work if the employee suffers from domestic violence.

Continue reading →

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arguing-440262-mA new bill – S 853 – was unveiled at the statehouse last Tuesday.  The bill establishes new crimes related to domestic violence, new legal provisions to protect alleged victims, and new training for judges in relation to domestic violence cases.

Specifically, the bill creates a new charge for a first offense of domestic assault and battery, creating a classification system for criminal conduct that is alleged to have occurred in a domestic context.  Such classification means that those involved in the criminal justice system, including judges, prosecutors, and police, would potentially be in a position to track a defendant’s history of domestic charges.

Under the proposed law, a first domestic assault and battery offense would be punishable by up to 2.5 years in the county House of Correction and a $5,000 fine.  A second offense would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and a $10,000 fine.

The bill would also create new charges for strangulation and suffocation.  Currently, prosecutors classify strangulation as either an assault and battery, or attempted murder.  The new offenses would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and up to a $5,000 fine.  Under special circumstances, the penalties for strangulation and suffocation could increase to up to 10 years in state prison and a $10,000 fine.  Examples of such special circumstances include situations in which the alleged victim was pregnant, the alleged victim had a restraining order against the defendant, the alleged assault resulted in significant bodily harm to the alleged victim, or if the charges against the defendant were a second or subsequent offense – meaning that the defendant had been convicted of domestic charges in the past.

Additional proposed provisions of the bill include:

  • Exclusion of domestic violence cases from resolution by an “accord and satisfaction,”  which is a statutory resolution of a criminal case (laid out under G. L. c. 276, § 55) that allows a defendant who is charged with an assault and battery or other misdemeanor to enter into a settlement (usually financial) with the alleged victim so that the alleged victim is “satisfied.”  The defendant can then file the agreement with the court and ask the judge to dismiss the charges.
  • Addition of new charges for domestic assault near a courthouse, or with the intent to intimidate or prevent access to courts.
  • Increasing the penalties for domestic violence against people who are elderly or disabled.
  • Creation of a new state-level review team to investigate domestic violence-related fatalities and to help establish best practices to prevent domestic violence.
  • Delaying bail for defendants charged with domestic violence offenses by six hours (to give alleged victims additional time to get assistance if they want it).
  • Establishing up to 15 days of employment leave a year for alleged victims of domestic violence to deal with things like obtaining medical attention or attending court.
  • Creation of a separate police log for alleged domestic violence complaints.
  • Establishing fees for those convicted of domestic violence offenses, with the money going to a victim assistance fund.
  • Requiring the trial court’s chief justice to provide bi-annual training to court personnel on domestic violence.
  • Prohibiting the court from granting visitation rights to a parent convicted of rape without the child’s consent.

Continue reading →

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kitchen-knives-1375677-mAccording to an article in the MetroWest Daily News, a Framingham man allegedly assaulted his daughter last week.  The article alleges that the defendant was drinking and physically attacked the daughter, including putting her in a headlock at one point.  The daughter then reportedly struck the defendant with a knife in both legs.  The defendant was ultimately charged with domestic assault and battery.

Although the daughter was not arrested and the article indicates that she was “acting in self-defense,” she could still be criminally charged for cutting her father.  Specifically, the fact that she may have been acting in self-defense and could therefore raise that issue as a defense at trial does not mean that the she could not be criminally charged and potentially prosecuted for her conduct.  In light of the fact that she could potentially face criminal charges, she may decline to testify and choose to exercise her Fifth Amendment privilege, which states that a person cannot be compelled to testify if her testimony is potentially incriminating and/or could result in criminal prosecution.  The privilege is not limited to circumstances in which the Commonwealth has specifically sought charges or indicated that it intends to do so – a person can assert her Fifth Amendment privilege as long as she could face criminal charges, regardless of whether she actually will. Continue reading →

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jailhouse-1-454800-m.jpgAccording to an article in the MetroWest Daily News, an Ashland man assaulted his girlfriend last week. The man was charged with one count of attempted murder, under G. L. c. 265, § 16, and one count of assault and battery, under G. L. c. 265, § 13A.

Although allegations of domestic violence are quite serious, there appear to be some significant issues with the Commonwealth’s case. According to the article, on the day of the alleged assault, the girlfriend actually broke into the man’s home, damaged his motorcycle, and threatened both the man and his roommate with a knife. The man then reported the break-in to the police, and it was only several days after he made his report that the girlfriend claimed that he had assaulted her. Specifically, the girlfriend claimed that she had gone to the man’s house to get her laptop and that he attempted to strangle her. She then claimed that she went into hiding for a few days before going to the police. The man’s boss, however, saw the girlfriend come to the man’s work to speak with him during the period she was supposedly in hiding, contradicting her explanation for the delayed reporting. Given the fact that the girlfriend had a motive to fabricate the assault in order to punish the man for reporting the break-in, in conjunction with the fact that there are several witnesses – the roommate and boss – who will undermine various pieces of the girlfriend’s story, the man appears to have a strong argument that the girlfriend is lying.

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gold-rings-2-1326034-s.jpgIn the early morning hours of October 10th, police responded to a Natick home for a reported assault. According to an article in the MetroWest Daily News, a woman called 911 in “hysteric[s].” The police arrived at the home shortly thereafter and spoke with her. She claimed that she and her husband had been having a verbal argument that had begun earlier that night and that her husband had blocked the door to their apartment, refusing to let her leave. There are no allegations that the husband physically harmed or threatened his wife, however, police arrested him on domestic violence charges, specifically charging him with kidnapping. At the husband’s subsequent arraignment in Framingham District Court, his defense attorney argued that the charge was excessive given the allegations in the case. She further argued that the wife had left the apartment twice during the course of the argument and then returned, contradicting the wife’s claims that the husband had prevented her from leaving.

To prove that the husband kidnapped his wife under the statute (G. L. c. 265, § 26) the Commonwealth would have to prove that he (1) acted without lawful authority; (2) forcibly or secretly confined or imprisoned his wife within the state of Massachusetts; and (3) committed these acts against his wife’s will.

The husband’s defense attorney has a number of arguments at her disposal. First of all – there appears to be a serious question as to whether he actually “confined” his wife. Given the fact that all homes are required to have two means of egress in the event of a fire, there was likely a back door that the wife could have left through had she actually wanted to get out of the apartment. Second, if the wife did in fact leave the home multiple times during the course of the argument, any claim that she was truly “confined” for the purposes of the statute is severely weakened.

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624824_restrained.jpgAccording to an article in the MetroWest Daily News, a Framingham woman was arrested Wednesday, December 19th at 11 p.m. after an alleged attack on her boyfriend. The boyfriend was also for allegedly shoving the woman.

Police charged the woman, with assault and battery with a dangerous weapon–a stool–burglary during the night with an armed assault, and malicious mischief causing more than $250 worth of damage.  The boyfriend was charged with assault and battery.

Police reportedly received two 911 calls around 8:30 p.m. after a fight at 7 Taylor St., Framingham. The woman reportedly told police that her boyfriend had assaulted her. Police arrested the boyfriend. He then reportedly told police about a violent attack on him committed by the woman, which another man allegedly witnessed.

The boyfriend was allegedly at his apartment drinking with a friend when his girlfriend came over. The woman allegedly thought that her boyfriend was cheating on her and reportedly arrived at his home screaming and forced her way into his apartment. She also reportedly knocked down a wall to his living room when he locked himself inside. The woman allegedly broke a television by throwing it on the floor, dumped a case of beer on the floor, and broke a stool over her boyfriend’s body.

The woman reportedly denied the boyfriend’s allegations and told police that she cut her finger when the boyfriend repeatedly shoved her. She also allegedly denied trashing the boyfriend’s apartment.

Both the woman and her boyfriend were reportedly released without bail. However, the boyfriend was reportedly taken into federal Immigration and Customs Enforcement custody because authorities had a detainer warrant for him. Both the woman and her boyfriend are both due back in court on January 11th for a pretrial conference.

The woman is facing serious felony charges, including assault and battery with a dangerous weapon and burglary with an armed assault. To prove the charge of burglary during the night with an assault, prosecutors will have to prove that the woman broke into a person’s house, entered the house, did so with the intent to commit a felony, either entered the home armed or became armed with a weapon while in the residence and assaulted someone, and that she did so in the nighttime. Prosecutors will have to prove each of these elements beyond a reasonable doubt. The woman is facing a mandatory minimum sentence of no less than 15 years if convicted of burglary with an armed assault. If she is able to get the armed assault during the burglary reduced to assault on someone occupying the residence, she is facing a minimum of 10 years for a first offense. If the woman has been convicted of a similar crime in the past, she is facing even harsher penalties.

The boyfriend is facing assault and battery, which is a misdemeanor charge; however, he is apparently facing immigration issues. A conviction can seriously impact a person’s immigration status.

Continue reading →

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hands.jpgA unique case from Framingham District Court came to my attention on Tuesday. According to an article in the MetroWest Daily News, an 84 year-old man from Holliston was arrested for an alleged attack on his 86 year-old wife. The article, written by Norman Miller, stated that Holliston police went to the man’s home early Sunday morning. The alleged victim had reportedly called 411 seeking police assistance. The 411 operator then called the Holliston police.

When they arrived at the home, police officers could hear a woman’s voice saying “stop.” The police entered the house and met the victim, who is blind and uses a walker for assistance. The alleged victim told police that her husband had been hitting her throughout the night and had tried to strangle her. According to the article, the husband spoke with police about the incident at the police station and admitted to hitting his wife and forcing her to stay seated in a chair by holding her neck. The husband allegedly told police that he committed the assault “because [his wife] wouldn’t stop talking.” He told them he lost his temper. The husband was charged with attempted murder, assault and battery on an elderly person and witness intimidation.

As a Holliston domestic violence attorney, I have represented clients charged with assault and battery in domestic violence type situations. Domestic violence cases present greater challenges than those assault and battery cases which take place between people who do not live together. This is because in a domestic violence case, victim and defendant most likely have a close family relationship. These cases may bring to light, in a very public setting, a couple or family’s private arguments or difficulties and can be emotionally painful for both victim and defendant. This particular case serves to highlight the difficulties facing those who care for the elderly and infirm, and how those stresses can build to a breaking point.

The husband is charged with assault and battery on a person over the age of 65. This is a special charge in the Commonwealth of Massachusetts based upon the age of the alleged victim. He is also charged with attempted murder, most likely based upon the allegation that he tried to strangle his wife. The case is unusual because of the age of both the alleged victim and defendant. In addition to the usual stresses of a domestic violence case, it appears that the husband provides care for his wife due to her age and condition. Since he was ordered to stay away from the house, it appears he will be unlikely to do that for the time being.

Continue reading →