As previously discussed in part 1 of this blog series, if children are present when police come to your home in response to a domestic assault and battery report, they will report the instance of the domestic assault to the Department of Children and Families (DCF) by submitting a 51A report of potential child abuse and neglect, as there is a concern that there may be child abuse in the home as well.
Any close living situation may eventually cause agitation and strife between those people living together. And in some cases, the situation reaches a boiling point and people start to lash out, sometimes even violently. When violence occurs within the home, it is considered domestic assault. In the middle of a heated moment, it can be hard to keep sight of the fact that you love your family members or your children.
A twenty-one year old man faces serious assault and battery charges on the three-year child of his girlfriend. According to the Salem News, Christopher Declid pleaded not guilty in the Salem District Court to a charge of domestic assault and battery causing serious bodily injury after Declid’s sister called the police to report abuse. The police responded to an Extended Stay America in Danvers midafternoon and found the child alone in the corner on a mattress. Apparently, the other family members went out and the child was left behind because he was “bad.” Declid and his girlfriend, mother of the child, both face child abandonment charges. Continue reading
What is Domestic Assault and Battery?
Assault is the threat of violence, and battery involves unlawful physical violence or intentional touching of another person that was nonconsensual. When assault and battery occurs in the home or in a domestic situation between those in a familial relationship, it is referred to as domestic assault and battery in Massachusetts. Domestic disputes can and often do arise between significant others, family members and those who live together. There does not have to by any physical injury for a charge of assault and battery to be lodged against another person. Continue reading
In many Massachusetts criminal cases, particularly domestic violence cases, a witness asserts a privilege not to testify at a trial. The most common privileges that are asserted are the marital privilege and the privilege against self-incrimination. Simply stated, in most circumstances the government cannot force a spouse to testify against his or her spouse–this is referred to as the marital privilege. Also, a witness cannot be forced to testify if some of the testimony will incriminate him or her.
If the Commonwealth plans to go to trial and cannot call this witness it may try to call a witness that heard the person make the statement that incriminates the client. In this situation the trial attorney must file a motion to exclude the statement of the witness who is reiterating what a non-testifying witness stated. This is generally done as a “Motion In Limine” filed prior to trial. Depending on the court, this can be done on a date prior to the trial date or immediately before trial. One of the seminole cases in this area is Commonwealth v. Gonsalves, 445 Mass. 1 (2005).
Although recently acquitted of first-degree murder, George Zimmerman has not been able to stay out of the police log or the public eye and was recently involved in an alleged case of domestic assault. The Washington Times reported that back in early September, 2013, Zimmerman’s wife accused him of stealing items, including a large flat screen television valued at over $2,000 and furniture, from the home the couple previously resided in. The former Zimmerman residence is owned by the wife’s parents. Apparently, things went down hill for the happy couple after she filed for divorce. The estranged Mrs. Zimmerman accused her husband of becoming violent during an argument, threatening her with a gun and smashing an i-pod.
This type of incident that occurs between family members is often referred to by law enforcement as a case of Domestic Violence. In this case, it appears that the police investigated the allegations of Mrs. Zimmerman and although George was initially taken into police custody he is not facing any criminal charges. According to the Washington Times, Mrs. Zimmerman recanted her initial story.
In Massachusetts, cases of domestic violence are taken very seriously by the police and the District Attorney’s office. It is the usual course that following a call to the police for any type of assault or argument to a home, someone will be arrested. The authorities preferred method of response in these situations is to separate the fighting parties, even if the complainant does not wish to have anyone arrested. In their minds this will avoid a tragedy of having someone severely injured or killed after they leave the scene.
In Zimmerman’s case, Mrs. Zimmerman made very serious allegations. Threatening an individual with a gun is the crime of assault with a dangerous weapon and stealing the described property is the crime of malicious destruction of property over $250.00. Both of these crimes are felonies and are punishable by possible state prison sentence.
It is not unusual for a spouse or family member to decide not to pursue charges against a defendant after an arrest has been made. Unfortunately for them, it is not their decision. Once there is an arrest the complaining witness is not a “party” to the case but a witness. The case is captioned Commonwealth v. Defendant, thus the final decision relative to how a case will proceed is up the the prosecutor NOT the victim.
In Massachusetts, the prosecution cannot force a spouse to testify against his or her spouse, unless certain conditions are present such as the safety of the children. In the event the the only two people that were present during the incident was a husband and wife and there is NO other evidence the exercise of the marital privilege can often result in the dismissal or nolle pross of the criminal case. However, it is important to note that this privilege can only technically be exercised on a trial date and not for a motions hearing or a grand jury presentment–as these are not considered “trials.” Furthermore, there is no privilege that prevents a mother or father from testifying against a child or a sibling from testifying against a sibling. The only privilege relates to the marital privilege and often the court will require that a marriage certificate be presented to the court.
The 911 call is closely examined in the event that a spouse exercises his or her privilege. The cases of Melendez-Diaz and Crawford counsels that a statement made out of course is hearsay and is inadmissible if it is testimonial and the witness was not previously subjected to cross examination. An exception to this principle in Massachusetts is if the police or 911 operator are responding to an “ongoing emergency” because the interview of the “victim” is not considered “testimonial.”
The Boston Globe recently reported that a six person jury sitting in Concord District Court convicted the former Waltham police chief of domestic assault and battery. The prosecution secured conviction despite the fact that the defendant’s wife testified that the defendant never attacked her. Based on newspaper reports, it appears that the Commonwealth introduced statements that the defendant’s wife made to a long time friend on the night of the incident indicating that the chief did strike her. Additionally, it seems that there was evidence from the medical records in which the wife stated that she was pushed and pulled. Thus, despite the fact that the “victim” did not testify for the prosecution, the defendant was still convicted.
Defending cases of alleged domestic abuse in Massachusetts requires knowledge of the law and skill. In this case, it appears that the Massachusetts Defense Attorney did a very good job as the chief was acquitted on charges of witness intimidation and threats made to his wife and one of her friends and Commonwealth witness. Thus, it appears that despite the presentation of a strong defense. the jury credited the testimony of the witness claiming that in the aftermath of the incident the victim stated that her husband struck her. The prosecution apparently argued that the victim’s stake in the defendant’s income and pension were motives for her to testify on behalf of her husband.
In Massachusetts a spouse cannot be forced to testify against his or her spouse. However, that does not mean that the Commonwealth will necessarily dismiss the charges. In courthouses across Massachusetts, including Concord, Lawrence and Lowell, the District Attorney’s office makes an assessment of the evidence independent of the spouse’s statements to determine whether to proceed to trial. This case of the Waltham police chief in the Concord District Court is an example of a case that went to trial even though the wife/victim did not want the case to go forward.
A collateral consequence of someone being charged with domestic assault and battery is that if a child was present the Department of Family Services will be notified and an investigation is conducted relative to the safety of the child or children. It is important for anyone charged with a crime to remember that any statements made to this agency are discoverable and could be used against him or her in the event that the case goes to trial. Similarly, in the event that one spouse gets a 209A restraining order and an evidentiary hearing takes place, it is important to remember that any statements made can be used in court during the trial.
The Lawrence Eagle Tribune reports that Haverhill Massachusetts Police Officer Victor Pellot was fired after facing criminal charges for stalking and harassment of his wife and her current boyfriend. According to the Tribune Pellot is appealing the decision to terminate his employment as a Haverhill Police Officer. The decision to fire Pellot followed an internal police investigation. Pellot was arrested by the State Police last February and currently faces charges in the Haverhill District Court for stalking and threats to commit a crime.
This genre of case is often referred to as a case of domestic violence in legal circles. In order for the Commonwealth to secure a conviction for the charge of stalking in Massachusetts it must prove beyond a reasonable doubt that over a period of time the defendant knowingly engaged in at least three incidents aimed at the complainant; that these acts would cause a reasonable person to suffer substantial emotional distress; that the person did become seriously annoyed or alarmed and that the defendant engaged in the complained of actions willfully and maliciously. This criminal charge is similar to the standard that must be met for a Massachusetts District Court judge to issue a M.G.L. ch. 258E Harassment Prevention Order.
It is not uncommon for 209A Restraining Orders to be issued against a defendant in a case of domestic violence. In order for a citizen to qualify for a Massachusetts 209A Restraining Order the parties must be family members, roommates or have been involved in a substantial dating relationship. The complainant must allege acts that would reasonably place a person in fear of immediate physical harm. Contrary to popular belief, it is not necessary that the complainant allege or prove actual physical harm–a threat of physical harm is enough for a district court judge to issue and extend an order.
The 209A order is different from the Harassment Prevention Order [M.G.L. 258E] in that the parties do not have to be related for the Harassment Prevention Order to be issued or extended. The most common ground for a person requesting this type of order is that the defendant engaged in conduct that constitutes stalking [described above].
In the event that a defendant has criminal charges lodge against him or her and is also facing a restraining order extension hearing, it is important to evaluate whether the defendant should testify. Although the restraining order proceedings are civil in nature, any statements made by the defendant can, and likely will be, used against him or her if the criminal case goes to trial. Often times it is prudent not to testify at the civl hearing so that a defendant does not unwittingly help the prosecution prove its case.
In the event that the restraining order is improperly issued and extended the recourse that a defendant has is to file a notice of appeal and the case will be transferred to the Massachusetts Appeals Court. It is important to keep in mind that this process can take about one year. If you are in a position in which it appears that the complaining party will reappear year after year to renew the order taking the case to the Appeals Court may be the only way to attain relief. Furthermore, in the event the Appeals Court or the Massachusetts Supreme Judicial Court holds that the order should not have been issued or extended the order will likely be vacated and will not appear on a background check.
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.