Assault and Battery Causing Serious Injury in Massachusetts

January 14, 2015

beer-glass-1252046-m.jpgUnder Massachusetts law, anyone who commits assault or assault and battery may be punished by imprisonment for not more than two and a half years in a house of correction or with a fine of not more than $1,000. However, a defendant can be punished by up to five years in state prison or in the house of correction or by a fine of up to $5,000, or both a fine and imprisonment, when he or she commits assault and battery causing serious bodily injury.

Serious bodily injury includes those injuries that result in permanent disfigurement, the loss or impairment of a bodily function, limb, or organ, or the substantial risk that the victim will die. In a 2014 case, Commonwealth v. Rainey, a Massachusetts appellate court considered the conviction of a defendant convicted of assault and battery causing serious injury. He had appealed, arguing there was insufficient evidence of serious bodily injury for the conviction and that the Commonwealth had failed to prove there was an absence of self-defense beyond a reasonable doubt.

The appellate court explained that a reasonable jury could have interpreted what happened as follows. Three female friends arrived by car to a party. At the party they met a male they knew (Donald Gammon, the victim) who had been drinking and was holding a beer can. They walked towards the party and passed a group that included the defendant. The defendant gave one of the victim's friends the middle finger as they passed by.

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Sexual Assault of an Uber Passenger in Boston

January 1, 2015

autobahn-2-1185580-m.jpgRecently, a 46-year-old Uber driver was accused of sexually assaulting a passenger in Boston. Uber customers use an app to arrange and pay for rides with drivers who are nearby. The driver pled not guilty to all charges, which included rape and kidnapping. The incident allegedly occurred on December 6, when the woman called an Uber car to take her home after a night spent with friends.

Once the woman was in the car, the driver allegedly said she would need to pay with cash and drove her to an ATM. Once she returned to the car, he drove to a secluded area, jumped into the back seat, and allegedly struck, strangled, and sexually assaulted her. Boston police have stated that they are investigating three other indecent assault allegations related to women using ride-for-hire services.

Rape is a felony charge described in Massachusetts General Laws Chapter 265 Section 22(b). It is taken very seriously in Massachusetts. To secure a conviction in a rape case, the Commonwealth will need to prove beyond a reasonable doubt that the defendant engaged in sexual intercourse with the alleged victim and that the defendant used force or otherwise compelled the victim to submit against his or her will. "Sexual intercourse" means that there was penetration, but it doesn't have to be significant. Even finger penetration or the use of a foreign object can satisfy this requirement. "Force" is usually defined as a threat of bodily injury, but it doesn't always mean physical force. Sexual assault, in contrast to rape, is more broadly defined as any sexual activity that is coerced, forced, or unwanted.

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Receiving Stolen Property in Massachusetts

December 15, 2014

bicycle-1443880-m.jpgIn the recent appellate decision of Commonwealth v. Hernandez, a defendant appealed from a conviction for receiving stolen property. The case arose when the defendant was riding a bicycle down the street, pulling another bicycle along with him. The police stopped him and asked what he was doing. The defendant offered two explanations for having a second bicycle. He also consented to the officers searching the duffel bag he wore on his back.

The duffel bag contained a package of Proactiv with a label addressed to Thomas Shepard. The defendant claimed he found the bike and the box nearby, and he offered to return them both. The officers arrested him on the grounds that he gave conflicting accounts of the objects and was carrying something that was addressed to someone else.

At a bench trial, the owner of the Proactiv, Thomas Shepard, testified that he hadn't changed the address on his Proactiv shipments when he moved and hadn't realized he was missing a package until the prosecutor contacted him. The defendant moved for a required finding of not guilty when the state closed its case, but his motion was denied. He was convicted.

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Drug Crimes in School Zones in Massachusetts

December 1, 2014

apple-on-the-desk-1428611-m-2.jpgIn the recent case Commonwealth v. Thompson, a Massachusetts court considered the conviction of a man charged with selling cocaine in a school zone. While the man's appeal was pending, the statute related to school zone drug crimes was amended to reduce the radius of the area that is considered a "school zone." Previously the radius was 1,000 feet, and while the appeal was pending it became 300 feet. An appellate panel ruled initially that the amendment wouldn't apply retroactively and rejected the defendant's arguments.

The case arose while the police were patrolling in Cambridge. They watched from an unmarked vehicle as two people sat on the curb next to the parking lot of a convenience store. They were familiar with the parking lot from previous investigations of drug crimes. The two people counted change and were glancing around. The woman stood up and made a call at a pay phone. Soon after, she hung up and came back to the curb. In 10 minutes, the defendant approached on his bike. He didn't stop but said something to the woman. The woman followed the defendant quickly.

They stopped at a nearby house. They had an exchange that appeared to involve the passing of something between their hands. This happened about 500 feet from the school. The woman continued to pace and returned to the man at the curb. She and the man hurried away, and the defendant got back on his bike and rode off. The detectives pulled into the driveway and approached the house where the man and woman were. The man had a plastic baggie of crack cocaine in his hands, and he dropped it over a nearby fence to drop it.

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New Types of Domestic Violence Crimes in Massachusetts

November 17, 2014

wedding-rings---african-american-1384053-m.jpgAs discussed in prior blog posts, Massachusetts Governor Deval Patrick signed Senate Bill 2334 in August. The bill created new criminal charges related to domestic violence. It amends chapter 265 to create two new crimes: assault and battery on household members as well as suffocation and strangulation.

Under the new bill, a conviction for first-time assault or assault and battery on a "family or household member" may result in a sentence of two and a half years of imprisonment in the house of correction and a fine of up to $5,000. Family and household members are those people who are married, those who have a child together, and those who are engaged or in a "substantive dating relationship." The court must also order a convicted defendant to complete a certified batterer's intervention program, unless it makes written findings that show good cause why this requirement need not be met.

The bill also created a new crime of strangulation or suffocation of any other individual and aggravated strangulation. In the past, strangulation or suffocation could be charged as either felony attempted murder or as simple assault and battery. The new law recognizes that in domestic violence contexts, one partner may strangle the other not to kill the victim, but in order to exert dominance and cause pain and panic that can be used to control the victim. The person committing the strangulation is trying to torture the victim, rather than attempt to murder him or her. However a prosecutor's only alternative to charging attempted murder was to charge "simple assault and battery." This is only a misdemeanor, rather than a felony.

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Impact of New Domestic Violence Law on Massachusetts Dangerousness Hearings

November 3, 2014

playing-with-daddy-838397-m.jpgAs we previously noted on this blog, in August, Governor Patrick signed the "Act Relative to Domestic Violence," which changes the law with regard to many aspects of domestic abuse cases. Since it was an emergency act, the provisions took immediate effect. In Massachusetts, domestic violence includes not only physical acts but also attempts to create fear of imminent serious physical harm or rape between family or household members. Family and household members, for purposes of evaluating whether domestic violence is involved, include people who are married or living together, who are related by blood or marriage, who have children together, or who have dated or are dating.

One of the significant changes introduced by the new law involves what is called a "dangerousness hearing," authorized by Section 58A. This hearing is usually requested by a prosecutor during the arraignment and heard 3-7 days later.

Traditionally, at the dangerousness hearing the prosecutor would present evidence to show the defendant presented an imminent danger to the community and there were no less restrictive means than imprisonment that would ensure the community remained safe. The defense attorney would be able to respond by presenting evidence that there were less restrictive methods than imprisonment to make sure the community is safe. This meant that the defense attorney would summon witnesses, such as the victim who may not have wanted a spouse to stay incarcerated, to contest the prosecutor's claim that holding the defendant without bail was appropriate.

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New Domestic Violence Law Affects Massachusetts Arraignments

October 15, 2014

hand-srb-1-1108004-m.jpgIn Massachusetts, domestic violence is a crime that includes not only physical harm but also attempts to cause physical harm, triggering fear of imminent serious physical harm or involuntary sexual relations between family or household members. Family and household members include people who are married, are living together, are related by blood or marriage, have children together, or are dating or have dated. In August 2014, Massachusetts Governor Patrick signed a new emergency law known as "Act Relative to Domestic Violence," which changes the arraignment, bail, detention, and criminal penalties in domestic violence cases. The impact on arraignment is especially significant.

Generally in Massachusetts, a defendant is entitled to a prompt arraignment under Mass. R. Crim. P. 7(a)(1) and a 1996 case known as Commonwealth v. Rosario. Under the former, an arrested defendant is to be brought for arraignment before the court if it is in session already, but if it is not, the defendant is to be brought for arraignment at the next session. Any defendant who receives a summons or has been arrested but is released will be ordered to appear before the court on a certain date.

However, under the new law, if you are charged with a crime involving domestic abuse or strangulation, you are prevented from being released within six hours of being arrested, unless the judge sets bail in open court. The six-hour period is considered a "cooling off" period during which the situation can be de-escalated and the victim gets time to look for safety.

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Control or Possession of Explosive Device in Massachusetts

October 2, 2014

explosion-683283-m.jpgHomemade bombs are illegal in Massachusetts and elsewhere. Anybody convicted of control or possession of an explosive device faces the possibility of fines and imprisonment of either up to 2 1/2 years in the house of corrections or between 10-20 years in the state prison. In the recent case of Commonwealth v. Huacon, the defendant was charged with malicious burning of property, malicious explosion, control or possession of an incendiary device, and violating a restraining order. The case arose during the defendant's and victim's romantic relationship, which lasted about two years before the events at issue.

The victim lived with her family. The victim invited the defendant into her house, where they got in a fight. The victim's mother asked the defendant to leave, but he wouldn't. She went downstairs, and the defendant followed her.

He got a knife and told the family he would kill everyone and burn the house down. About 30 minutes later, three police officers arrived, took the knife, and arrested the defendant. Later, a restraining order was obtained. Nonetheless, the defendant called the victim at work.

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Assault and Battery on a Massachusetts Pregnant Woman

September 16, 2014

untitled-1316035-m-2.jpgIn the recent case of Commonwealth v. Jenkins, the defendant was convicted of assault and battery with a dangerous weapon and aggravated assault and battery on a pregnant woman. The case arose when the pregnant victim confronted the defendant, who was her boyfriend and the father of her unborn child, about his possible infidelity. During the argument, she ran outside in fear, letting the door close behind her, but she came back in because she was underdressed for the cold weather. The defendant let her come back inside when she said she wanted to get her stuff.

The defendant was on the phone at the time, but he told her she was dead. He grabbed her by the neck and pushed her into the wall and then to the ground, making it so she couldn't breathe. He struck her and kicked her all over with his boots, claiming he would "stomp" out the child. She passed out. He told her to look up abortion providers and call to make an appointment.

When he walked out of the room for a moment, she grabbed her keys and ran out the door. He chased her outside and kept beating her until she honked the car horn for long enough that he went back inside. The victim called 911. An ambulance took her to the hospital, and she later went to the police station. Photos were taken of her bruises and injuries.

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Cocaine Trafficking in Boston

September 3, 2014

red-apartment-building-1361653-m.jpgIn a recent Massachusetts appellate case (Commonwealth v. Freddy Baez), a Massachusetts defendant appealed from a conviction for trafficking in cocaine. The case arose when the police were conducting surveillance of the defendant's address while investigating drug crimes. They saw the defendant leave his house and followed him to another part of Boston, where he picked up his eventual codefendant.

The defendant stopped briefly elsewhere and then went to pick up the defendant's mother. After that, he changed lanes without signaling, and the police pulled over his car for an infraction. The police asked for identification. The defendant gave the officers identification, but the codefendant provided a fake driver's license. The codefendant was arrested for the fake license and a default warrant for cocaine trafficking.

The police searched the car and found thousands of dollars in the glove compartment. The defendant was cited for the infraction, but he and his mother were allowed to go.

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Carrying a Firearm Without a License in Massachusetts

August 18, 2014

pistol-1329265-m.jpgMassachusetts gun laws are some of the strictest in the nation. Handgun owners must be licensed to buy firearms and ammunition and to carry them. A police officer must have reasonable suspicion to stop you for carrying a handgun without a license. What is reasonable suspicion?

In a recent appellate decision, a Massachusetts appellate court considered a situation in which two police officers tried to stop and question a defendant suspected of illegal activity. At the time, one of the officers had served in the department for 9 years and had been trained to identify those carrying concealed firearms. Part of the training was that an unlicensed carrier is less likely to use a holster and more likely to adjust the weapon inside his clothes. Another characteristic is head movements in multiple directions in order to determine if the weapon is being detected.

On the night in question, the officer was on an overnight shift, in the passenger seat of an unmarked patrol car. The neighborhood was home to three or four gangs and the officer had previously responded to gunfire incidents there. At 12:30 a.m. the officer and his partner saw the defendant walking with his hand inside his pocket. The defendant was adjusting an object. When he saw the patrol car, he looked surprised. The officer asked to speak with him. The defendant looked away and kept his right hand inside his pants. He turned the corner and started jogging.

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Larceny in Massachusetts

August 4, 2014

clothing-1336617-m.jpgIn Massachusetts, the type of charges that will be brought for stealing someone else's property (larceny) depends on the value of what you steal. If the property is worth less than $250, you will be charged with petty theft, but if the property is more than $250, you will be charged with grand theft. Larceny can include shoplifting from a department store or car theft. Generally, it involves theft without force. The punishment for grand theft is up to five years in prison plus fines of up to $25,000.

In Massachusetts, the Commonwealth can prosecute you for personally committing theft, but it can also prosecute you if there is no evidence of direct participation under a joint venture theory. Joint venture is a theory of criminal liability most often applied to drug cases, but it can also come up in a larceny case. The Commonwealth argues that (1) the defendant was present, (2) the defendant helped commit the crime, and (3) the defendant intended the crime to be carried out.

In the recent case of Commonwealth v. Vaillancourt, a Massachusetts court considered the appeal of a defendant convicted of larceny under $250. The Commonwealth had moved forward under two theories: principal liability and joint venture liability. The judge instructed the jury that they could convict the defendant either if she had personally committed larceny or if she had acted as a joint venturer.

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Duplicative OUI Charges in Massachusetts

July 15, 2014

the-last-drop-1083566-m.jpgIf you hurt someone while drunk driving in Massachusetts, you may be charged with multiple counts, some of which may seem quite similar. In a recent case, a Massachusetts defendant was convicted of (1) drunk driving (operating under the influence or OUI), (2) drunk driving that caused a serious bodily injury, (3) driving on a suspended license, (4) manslaughter by motor vehicle, and (5) motor vehicle homicide. The case arose because the defendant was driving drunk on the wrong side of an access road and crashed into a Saturn. A 17-year-old passenger in the Saturn was killed and the driver seriously injured.

A state police trooper later testified that when the crash happened, the defendant was driving at 55 mph in a 25-mph zone, and the defendant didn't try to avoid the crash. The defendant claimed he had drunk two 16-oz. mojitos and a vodka-Red Bull drink before the crash happened. The trooper also noted the defendant's slurred speech, glassy eyes, unsteadiness, and failure to pass a sobriety test. The trooper arrested the defendant.

During the booking process, blood ran from the defendant's ear, and he asked for medical assistance. Paramedics examined him. He agreed to a breathalyzer test with two measurements, and his blood alcohol level measured at .17 and .18. Next, he was taken to the hospital, where his blood alcohol level was measured at .15.

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Protective Sweeps in Massachusetts

July 8, 2014

my-mercedes-headlight-585163-m.jpgIn a recent case, a Boston Municipal Court granted the defendants' motion to suppress evidence based on a protective sweep. The sweep arose when a Massachusetts State Trooper ran a license plate check on a Mercedes. The car's owner had an active warrant for operating his car on a suspended license and other offenses.

The trooper activated his lights to stop the Mercedes, but he gave up the pursuit after the car sped away. Later, he verified the warrant was still active, but he learned that the man now had a valid license. He ran the license plate and went to the man's address in East Boston. He saw the Mercedes nearby and went to the apartment building to serve the warrant.

Several police officers waited at the back of the building, while three officers entered from the front. They knocked, claiming to be delivering pizza. A voice from inside the apartment stated the police couldn't enter without a warrant. The officer knocked and identified himself, but nobody responded. The police heard sounds of toilet flushing and a door that might have been opening to the outside. An officer kicked the front door open to stop the suspect's escape.

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Prior Bad Acts in Massachusetts Domestic Violence Cases

June 15, 2014

hole-447200-m.jpgIt is not uncommon for Massachusetts domestic violence cases to arise after multiple violent acts by the defendant. Some of these may be documented by the police. Others are only known to the two partners. Whether the judge will permit testimony about a defendant's previous treatment of his or her partner depends on the particular circumstances. Criminal evidence rules restrict an alleged victim's testimony and evidence on the subject of "prior bad acts" of the defendant, except for certain purposes.

In a recent case, a defendant appealed on the basis of a judge's instructions to the jury about prior bad acts. He was convicted of assault and battery of his girlfriend. The appellate court explained that the jury could have found particular facts that justified the judge's ruling.

The defendant and victim met in Seattle in 2010 and moved to Massachusetts the following year so that the defendant could pursue a graduate degree at MIT. After moving to Massachusetts, the two began arguing over the victim's relationship with a male friend. The defendant was verbally abusive and sometimes physically abusive as well. Once, the defendant pushed her into a wall, creating a hole about three feet across.

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