Published on:

Aggravated Assault and Kicking a Victim Down Steps in Massachusetts

stairsIn a recent Massachusetts aggravated assault case, the defendant was convicted of assault and battery by a dangerous weapon, assault and battery, and threatening. The case arose from the defendant allegedly kicking the victim multiple times with a closed-toe shoe while the victim was trying to go down a flight of stairs to get away from her. The kicks were such that the victim needed help from her boyfriend to avoid falling down.

Among other things, the defendant claimed that “dangerous weapon” as described in M.G. L. c. 265, ยง 15A(b) was unconstitutionally vague. A law is considered unconstitutionally vague if people with ordinary intelligence have to guess at what it means. When a law has been clarified by a court’s explanation, it withstands such a challenge. “Dangerous weapon” has a meaning that’s regularly applied, and dangerous weapons include objects designed and constructed to cause death or catastrophic injuries, as well as objects that aren’t dangerous per se but become dangerous based on how they’re used. Whether a weapon is dangerous within the law’s meaning is a question for the jury or fact-finding judge.

The appellate court reasoned that someone of usual intelligence would realize that using closed-toed shoes to kick someone multiple times as they went down the stairs was prohibited by the statute. It found no error on this point.

The defendant also made an equal protection argument, in which she stated there was no rational basis for distinguishing the kick of the defendant from a push of the finger. The appellate court found this claim lacked merit because the assault and battery law that prohibits the use of a dangerous weapon codifies the desire to punish the use of an instrument able to result in serious bodily harm.

The defendant also argued that it was an error for the lower court to deny her request for a new trial and post-conviction discovery. At trial, the Commonwealth had decided to call the victim’s boyfriend as a witness. He was also getting a divorce from the defendant. He was listed as a witness in the police report. On the first day, he was present and sworn in, but the prosecutor stated she wouldn’t call him. The next day, she said she would. The defendant objected. However, the defendant didn’t ask for a voir dire of the witness or a continuance.

In her motion for a new trial, the defendant argued that the prosecutor’s changed decision resulted in unfairness. She claimed that it was unfair because she didn’t have the opportunity to impeach the boyfriend with his criminal convictions.

The appellate court explained that even if the prosecution’s late decision to call him should be considered a late disclosure of evidence, there was no prejudice shown. If the defendant wanted to investigate his criminal record, a short delay would have been enough. However, the defendant didn’t even ask for a continuance or voir dire, which undermined her argument.

The defendant also appealed the decision to deny his request for post-conviction discovery of the witness’ criminal record. To win, he had to show it was reasonably likely that the discovery would result in evidence that possibly warranted a new trial. The appellate court found that the criminal record itself didn’t assist the claim of improperly withholding the criminal record. There was no support for the argument that the notes existed or that they would help him. For this and other reasons, the judgment was affirmed.

If you are charged in Massachusetts with an assault crime, contact the Law Office of Patrick J. Murphy today to discuss the criminal charges. Call us at 617-367-0450 or contact us through this website.

More Blog Posts:

Assault and Battery Causing Serious Injury in Massachusetts, Boston Criminal Defense Lawyer Blog, published January 14, 2015

Receiving Stolen Property in Massachusetts, Boston Criminal Defense Lawyer Blog, published December 15, 2014