Articles Posted in Assault and Battery

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The drama for the Men’s World Cup has not been limited to the win and loss columns or to the untimely exit of the United States Men’s team. Soccer sensation and Uruguay’s marquee player Luis Suarez was fined $100,000.00 and banned from the sport for four months for biting the ear of Italian Defender Giorgio Chiellini. This raises an interesting issue of whether this type of conduct warrants criminal prosecution.

Assault and Battery Defense in Massachusetts

Assault and Battery Defense in Massachusetts

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The Lawrence Eagle Tribune reports that a Methuen man is being sought by authorities for charges stemming from an incident that allegedly began in Lawrence, MA. According to the Tribune, the thirty year old man reportedly jumped into the minivan of an unsuspecting woman and held a gun to her stomach while threatening her family. The woman was taken to a hotel in Salem New Hampshire where she was allegedly assaulted and beaten until she lost consciousness. After regaining consciousness, the woman called the police and a search expanding over two states has begun to locate the alleged perpetrator. The woman’s stolen van was later located in Andover and she was treated at a hospital for injuries sustained during the incident. According to the Tribune warrants have issued from Salem and the suspect faces charges for kidnapping, attempted second degree murder, kidnapping, threats, violation of a protective order and unauthorized use of a motor vehicle.

Although all of the facts of this case are not known at this time, it appears that he parties may have known one another because on of the charges is violation of a protective order. Assuming that the alleged victim was the complainant on the restraining order then it appears that the pair was known to each other.

In Massachusetts there are two types of Restraining Orders that a complainant can requests. One is referred to as a M.G.L. 209A Restraining Order and the other is a M.G.L. 258E order. In order to qualify for a 209A restraining order the parties must be related, married, roommates or have been in a substantial dating relationship. In order for a judge to issue an order the complainant must demonstrate that the defendant engaged in conduct that created a situation in which he or she was in reasonable apprehension of immediate physical harm. In most circumstances the defendant is not present during the initial issuance of the order and a date (usually within two weeks) is set for another hearing. During this time span the defendant should be served with the temporary order and informed of the new date for the extension hearing. The defendant can fight the extension of the order at this time.

The M.G.L. 258E or “Harassment Prevention Order”is available for parties who are not related, dating, married or have been roommates. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.

It is important to realize that the issuance of this type of order is a civil order however, any violation of the order can result in being charged with the crime of violating a restraining order. Furthermore, although a restraining order is a civil order it can have collateral consequences such as handing over firearm (which could effect employment) and visitation or custody of minor children. If you have been served with either type of restraining order you should contact an experienced attorney immediately.

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The Lawrence Eagle Tribune reports that two twenty-one year old men, Rodney McCray of Haverhill MA and Roberto Hilerio of Boston continue to be held without bail facing charges of assault and battery by means of a dangerous weapon, assault and battery causing serious bodily injury, intimidation of a witness and disorderly conduct. The incident occurred over labor day weekend when Jesse Downs was allegedly attacked from behind on a street in Lawrence, MA. According to reports, Down’s girlfriend was coincidentally passing by the location and saw him speaking to police and emergency personnel. Downs was taken to the hospital where he has remained since the incident.

Defending assault and battery cases in Massachusetts requires an attorney that is thorough, skillful and has a knowledge of the law. Attorney McCarthy routinely successfully defends individuals charged with assault and battery, assault and battery by means of a dangerous weapon and other assault type crimes. A critical aspect of any case is to begin witness interviews and investigations promptly before memories fade or potential witnesses disappear.

Depending on the circumstances of a case, defenses range from misidentification to self-defense to defense of another. If a strategy of misidentification is employed the factors that are stressed through cross-examination of the Commonwealth witnesses are the witnesses lack of opportunity to observe the perpetrator such as poor lighting conditions, a stressful situation and the fact that the alleged victim and or witnesses did not know the person identified as the culprit prior to this case. Furthermore, the factors surrounding any identification of the defendant as the perpetrator must be examined to determine and expose any type of suggestive identification by the police or other witnesses. For example, if a witness identified the defendant through a photo-array an experienced defense attorney should request a copy of the array to make sure that the defendant’s picture was not suspiciously different from all of the other photographs. Similarly, the attorney should determine what was said to any identifying witness prior to the photo array being shown to anyone. If the police made comments indicating that the perpetrator is in the photo book or looks like a particular picture that information must be exposed. Interviewing any witness that made an identification is very important when defending this types of cases.

Relative to self defense cases, witness interviews are again crucial. Once the defense has presented a legitimate claim of self-defense or defense of another then the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self defense or in defense of another. This is in addition to the Commonwealth’s burden of proving the elements beyond a reasonable doubt.

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The Lawrence Eagle Tribune reports that a local couple has been charged with a laundry list of charges as the result of an altercation following a local couples dinner at a Danvers restaurant. According to reports, Matthew and Joanna Kotowski left an area dining establishment and headed home when a motorist drove up behind the pair and sandwiched himself between the couple. Matthew, upset by the driving of the motorist, followed the car. Apparently the driver approached Kotowski’s car and began yelling at him. At this point the accounts of what happened vary. The unruly motorist claims that Kotowski pointed a loaded firearm at him; Kotowski claims that he was acting in self-defense and pulled the gun out and put it on his lap to calm the motorist down. Eventually, the police arrested Kotowski at his home and charged him with assault and battery with a dangerous weapon and two counts of improper storage of a handgun. The police searched Kotowski’s home and recovered a shotgun and two handguns in the home. Mrs. Kotowski was apparently so upset that the motorist was not charged that she returned to his establishment and will be summonsed to Court for hearings relative to the charges of being a disorderly person and assault and battery. Mr. Kotowski was arraigned in the Newburyport District Court and released on $5,000.00 cash bail. He is scheduled to be back in court on January 4, 2012 for a pre-trial conference.

Although all of the facts are not known at this time, there are a number of defenses to be considered based on this fact pattern. At the outset, an experienced Massachusetts defense attorney should engage the services of an investigator to return to the scene and determine whether there are witnesses that support the defendant’s claim of self-defense. In most circumstances, any investigation should be done sooner rather than later so that the memory of a witness is fresh and clear. Interviewing potential witnesses promptly can be the difference between mounting a successful or an unsuccessful defense.

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According to The Lowell Sun, following his arraignment in the Middlesex County Superior Court, a Lowell Massachusetts man, Neil Sylvester was ordered to be held on $25,000.00 cash bail after being being charged with assault and battery, stalking (a subsequent offense) violating a restraining order, (four counts), and three counts of witness intimidation. Sylvester, who was already in jail for stalking his former girlfriend, thought it was a good idea to send her metal rods from his hand to demonstrate his lover for her. Apparently, his former flame did not like the present and contacted the authorities. Sylvester found himself facing criminal charges for his ill advised behavior.

In Massachusetts, Massachusetts General Laws Chapter 265 Section 43 indicates that an individual can be charged with stalking if he or she willfully and maliciously engages in a “. . . knowing pattern of of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury. . . ” In the event that a defendant is found guilty of stalking he or she can be sentenced to up to five years in state prison or by imprisonment in the house of correction for not more than two years. The crime of stalking is a felony because a potential sentence is a state prison sentence.

The charge of violating a restraining order is a misdemeanor because the potential penalty is house of correction sentence. In Massachusetts, a restraining order is a civil order however, in the event that an individual is charged with violating the order a criminal charge can issue. There are currently two types of restraining orders that an individual can apply for in Massachusetts. The more “traditional” order is referred to as a “209 A” restraining order. In order for someone to apply for that type of court order the parties must be related, married, roommates or have been involved in a substantial dating relationship. In order to get that type of order an applicant must initially convince a judge that he or she is in reasonable fear of immediate physical harm from the defendant. Typically, a temporary order is issued by a judge and a further hearing date is set so that the defendant can appear to oppose the order if he or she choses to do so.

The other type of order is called a 258 E Harassment Prevention Order. There is not requirement that the parties be involved in any type of personal relationship for this type of order to issue. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1)”3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment. The first paragraph is the most common paragraph that a plaintiff proceeds under.

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The Lawrence Eagle Tribune reported that Daniel Linnell III of Danvers will spend the next eighteen months on probation for hitting his son in a movie theatre last August. After the manager received complaints, the defendant was arrested at the Danvers theatre and charged with assault and battery. According to the paper, witness saw the frustrated father hit his four year old son on the head causing his drink to fly from his hand. In the Salem District Court, Linnell’s defense attorney asserted that the father swung at the child to prevent him from hitting him in the groin.

As in most situations, there were two sides to this story. On one hand, the father, defendant, claimed that he was just protecting himself from his child. On the other hand, on the day of trial two witnesses appeared prepared to testify that they saw Linnell strike the child, however, did not see the child hit him in the groin. Apparently, concerned with what the outcome would be, the father opted to accept responsibility and have his case continued without a finding for eighteen months. As long as Linnell completes an anger management course, does not get rearrested, enrolls in career counseling and does not abuse children the case will be dismissed. Thus, the defendant avoided the possibility of a conviction if the case had gone to trial.

If you have been charged with any crime in Massachusetts it is imperative that you have an experienced Boston area attorney on your side. Investigating a case early on and evaluating all of the evidence is critical in the early stages of a case. Depending on the circumstances, a defense attorney can file discovery motions, motions to suppress evidence, motions to suppress evidence and motions to dismiss.

For a defendant who is charged with assault and battery, the most common defenses are self-defense, defense of another and misidentification. Based on the available information in the Linnell case, it appears that a viable defense would have been self-defense. In the event that a case of self-defense or a defense of another is assorted, the Commonwealth must not only prove the case beyond a reasonable doubt but they also must prove that the defendant did not act in self-defense beyond a reasonable doubt.

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According to The Lawrence Eagle Tribune, Dominique Hans from Salem boarded a school bus this past February in an effort to prevent her disabled child from continuing to be hit on the way to school. According to the paper, Hans approached the bus driver in an effort to explain that her child was getting hit by one of the passengers. When the bus driver apparently ignored her, she walked down the aisle and asked the child why she hit her son. It appears that she did not want the boy to sit next to her so she hit him. Hand eventually faced a charge of assault and battery in the Salem District Court.

In Salem District Court both sides offered their version of the events and proposed, what they believed to be, appropriate punishment. The Commonwealth requested that a guilty finding enter and the defendant be placed on eighteen months supervised probation and that she write a letter of apology. The defense proposed that the case be continued without a finding for one year and then dismissed if the defendant successfully completes probation. The defense emphasized the defendant’s impressive law abiding background and explained that the defendant was protecting her child from being hit on the bus. Apparently, the concerned mother and defendant feared that if the hitting continued her son could suffer hearing loss. The judge ultimately sided with the defendant and continued the case without finding the defendant guilty and ordered that she apologize to the passenger on the bus.

In order to prove assault and battery in Massachusetts the Commonwealth has to prove beyond a reasonable doubt that the defendant committed an intentional unconsented to touching on another person. If you or a family member has been charged with assault and battery it is important that you have an experiences Massachusetts defense lawyer on your side. Depending on the circumstances of the case a defense of self-defense, defense of another or a claim that the incident just did not happen can be developed and presented at trial.

Often times a criminal charge of domestic assault and battery often accompanies a request by the complainant for a civil 209A restraining order. If you have been served with a 209A restraining order or would like to seek a 209A restraining order against a relative, spouse, roommate or someone with whom you have been involved in a substantial dating relationship with — it is important that you contact an Massachusetts attorney to make sure that you understand the appropriate standard that has to be met. Although a 209A restraining order is a civil order–it is often recommended that a defense be presented because if the complainant alleges that there is a violation then a criminal charge can issue. The best way to avoid this from happening is to prevent the order from issuing in the first place!

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According to The Lowell Sun, thirty six year ol Shawn Price from Lowell MA is charged with a number of criminal offenses including domestic assault and battery, assault and battery, illegal possession of a firearm, unlawful possession of ammunition, improper storage of a firearm and intimidation of a witness. It was reported that the police were dispatched to a Lowell address where Price’s girlfriend alleged that Price punched her, struck her with a coffee cup and coffee maker in an unprovoked attack. Following a bail hearing in the Lowell District Court Judge Barbara Pearson ordered that the defendant be held on $1,500.00 bail. The defendant pleaded not guilty.

According to reports, when the police responded to the alleged domestic violence, Price’s girlfriend claimed that Price had fled. The girlfriend alleged that while Price was in the bedroom using a cell phone he attacked her by grabbing her around the neck then dragging her by the hair. Price then threw the phone in the toilet so that his girlfriend could not call for help. This conduct must be the basis for the intimidation of a witness charge. The witness was apparently hysterical and had visible bumps and bruises. The witness did not seek medical attention and did not receive a restraining order against her boyfriend.

This type of case is often categorized as a “domestic abuse case.” In many situations, however, not in this case, the witness may apply for and receive a temporary 209A restraining order. Initially a “temporary 209A restraining order” is issued by a District Court Judge. In order for such an order to issue the complaining witness must allege facts indicating that he or she was placed in reasonable apprehension of immediate physical harm by the conduct of the defendant. In most cases, a complainant applies for this in a local district courthouse and fills out an affidavit in support of the restraining order. If it is an “emergency” and the courthouse is closed, often a clerk magistrate will call a judge that is “on call.” If the criteria is met, a temporary order may issue. For the order to have legal impact, it must be served on the defendant or he or she must be made aware of the specific conditions of the order. Following this initial order, a court hearing is scheduled approximately ten days from the issuance of the order. The defendant and the complaining witness are expected to show up. If neither party appears in court the order expires by “operation of law” at four o’clock in the afternoon.

In order to be able to apply for a 209 A restraining order the parties must be related, be roommates or be involved in a substantial dating relationship. However, if this criteria is not met a person may apply for a Harassment Prevention Order pursuant to Chapter 258E. In order to apply for this type of order it is not necessary that the parties be related, be roommates or have been in a substantial dating relationship. However, the standard for for the issuance of this order is different. The most common theory under which this type of order is sought is when a witness alleges that a defendant “harassed” him or her. The type of conduct that constitutes harassment is similar to that required for criminal harassment.
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A disagreement over a debt landed one neighbor in jail and the other crying and calling the police. According to The Danvers Herald, forty-four year old Jayniene McCarthy of Danvers barged into a neighbor’s apartment, kneeing a two-year old toddler before putting a knife to the boy’s mother’s throat and taking a wallet from the kitchen table. According to reports the front door of the victim’s apartment was kicked in and McCarthy faces charges including armed robbery, assault and battery on a child causing injury, breaking and entering, assault and battery to collect a loan and malicious destruction of property. The assailant allegedly took a knife from the dish rack and put it to the victim’s neck demanding repayment of a $100.00 loan. When the police arrived she was crying and the child had a bruise on his head. Both were evaluated at the hospital. According to the paper, the suspect allowed the police to search her apartment and the wallet was found in the suspect’s apartment.

Apparently, the defendant was held without bail pending a dangerousness hearing set for this Wednesday. The District Attorney’s Office files a request for a “dangerousnsess hearing” in the event that they believe that an individual is a danger to herself, himself, a particular individual or the community and there are no other reasonable means to ensure the safety of the public without having the defendant held in jail without bail. The prosecutor must also be able to present probable cause that the defendant committed the offense. In the event a judge finds that an individual fits this criteria he or she may be held without the opportunity to post bail.
Although all of the facts of this case are not known at this time, if the defendant does not have a record that is a positive factor that should be emphasized by a qualified defense attorney. In cases in which is is alleged that a defendant engaged in violent behavior which may concern a Judge, arguing that the defendant could routinely report to probation and abstain from alcohol and or drugs (if they were involved in the offense) may help an individual be able to be eligible for bail. If things are not looking good, it is sometimes a good idea to argue that the individual be placed on a “bracelet” and only allowed to go to work and other enumerated activities.

In this case, it appears that the defendant consented to the police entering her apartment and searching it. In Massachusetts the police must get a search warrant in order to search a person’s home. A few exceptions to that rule are if there are “exigent circumstances” or if a person in control of the premises “consents” to the search. “Consent” must be given freely and without coercion. An experienced defense lawyer will often file a motion to suppress evidence based on illegal entry, search of an apartment and seizure of evidence from a home in situations in which law enforcement did not get a warrant prior to entry and there was not exigency or consent. Whether an individual “consented” to a search is often the subject of litigation during a motion to suppress evidence.

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The Lowell Sun reports that forty year old Shawn Kelley has been charged with assault with intent to murder and assault and battery relating to an incident that occurred on Tuesday, September 6th during the evening. It has been alleged that a woman reported the incident the following morning claiming that Kelley choked and threatened her. Following his arraignment in Lowell District Court, Judge Thomas Brennan ordered that Kelley be held on $10,000 cash bail. In the event that the bail is posted, Brennan ordered that Kelley have a mental health and a substance abuse evaluation, refrain from abusing the victim and have no access to weapons. A probable cause hearing is set for October 6th.

Massachusetts General Laws Chapter 265 section 13A provides that the punishment for a defendant convicted for assault or assault and battery is up to two and one half years in prison or by a fine of not more than one-thousand dollars. The charges of assault and assault and battery are considered felonies because the potential penalty in this case is a “house of correction” or “jail” sentence. When a potential sentence that a defendant can receive includes a state prison commitment, the charge is considered a felony.
In order to be convicted of assault and battery the Commonwealth must prove beyond a reasonable doubt that there was an intentional and unjustified touching, however slight, on another OR that a defendant intentionally engaged in wanton or grossly negligent conduct that cause injury to another person. Thus, the charge of assault and battery is often described as having two “branches,” the “intentional” branch and the “wanton” or “negligent” branch. The government can prove their case by establishing either theory. The crime of simple assault can also be committed in one of two ways. One can be convicted of assault by “attempting a battery” on another or by putting another person in fear of an immediately threatened battery. Relative to the “attempted battery” type of offense, it is not necessary for the “victim” be put in fear.

Although all of the facts of this case are not known at this time, it appears that the reason for the delayed reporting should be investigated for the defense. Furthermore, while the case is still “new” it may be appropriate for the defense team to employ an investigator to determine whether there are any witnesses to the alleged incident other than the defendant and the complaining witness.

Depending on the circumstances of the case, it will be important to establish if there is a viable claim of self-defense, defense of another, accident, misidentification or that the incident simply did not happen. Relative to a claim of self-defense or defense of another, the Commonwealth has the burden to prove its case beyond a reasonable doubt and then to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.

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