Abuse-Related Offenses

Domestic Violence Conviction Affirmed despite Questions about Victim’s Credibility and Effective Assistance of Counsel

Published on: March 15, 2023 | by Patrick J. Murphy, Esq.

Domestic violence crimes are commonly charged in Massachusetts, and their prosecution often relies on the testimony of an alleged crime victim. It is more common in domestic violence cases for a victim to change their story as the case progresses. Victims regularly will recant the accusations made against their domestic partner in an effort to prevent the prosecution from going forward. State prosecutors are familiar with this pattern and work to secure enough evidence to support a conviction, even if the victim stops cooperating before a trial. A man recently convicted of domestic violence offenses appealed his conviction, arguing that the inconsistent testimony by the victim did not support the verdict.

The defendant in the recently decided case married the victim in 2009, and the parties were divorced in 2017. According to the facts discussed in the appellate opinion, the victim routinely suffered both physical and sexual abuse by the defendant throughout their relationship, and such abuse was sporadically and partially reported to authorities. Prior to 2015, the victim would make reports about the alleged abuse by the defendant but would then later recant her testimony, even submitting affidavits (drafted by the defendant or his attorney) requesting that the charges be dropped. In 2015, after the victim reported particularly serious injuries caused by the defendant, the current charges were brought.

The defendant stood trial on several charges, including aggravated assault, rape, sexual assault, and witness intimidation. After a trial in which the victim testified, he was convicted of several charges, while he was acquitted of other charges. The defendant appealed his convictions to the Massachusetts Appeals Court, arguing that there was insufficient evidence to support his conviction and that his trial counsel was ineffective. The defendant specifically argued that his attorney should have made several objections to evidence, jury instructions, and the prosecutor’s closing argument at trial. The appellate court found that the defendant’s contentions had some merit; however, the court ultimately affirmed his convictions as the evidence was substantial and any mistakes by his trial attorney were not serious enough to change the outcome of the trial. As a result of the appellate decision, the defendant will be required to serve his sentence.

Massachusetts Court Explains the Difference Between “Attempted” and “Threatened” Battery

Published on: September 1, 2018 | by Patrick J. Murphy, Esq.

In a recent Massachusetts criminal law appellate opinion, a state court discussed the difference between the two types of battery, attempted and threatened, and whether the latter requires a finding that the victims were aware of the defendant’s conduct. Ultimately, the court concluded that a threatened battery does require that the victim be aware of the defendant’s conduct, and reversed two of the defendant’s four convictions on that theory.

The Facts of the Case

The defendant was charged with four counts of assault for allegedly using his vehicle to intentionally crash into another vehicle containing his ex-girlfriend, her new boyfriend, and two other passengers.

The two rear-seat passengers testified that they got in the car, everything seemed fine, and then the next thing they knew they had been hit by another vehicle. They both believed they had been struck by a drunk driver. The two front seat passengers saw the defendant’s car approaching, although only one of them was able to make out the defendant as the driver.

Assault and Battery on a Pregnant Woman in Massachusetts

Published on: January 3, 2018 | by Patrick J. Murphy, Esq.

In a recent Massachusetts appellate decision, the defendant was convicted of assault and battery with a deadly weapon on a pregnant person, as well as ordinary assault and battery on a pregnant woman and a violation of an abuse prevention order. He argued on appeal that the prosecutor’s misstatements warranted granting a new trial.

This Massachusetts assault case arose when the defendant began dating the victim, who was pregnant by about three or four months. They argued while staying at a friend’s. The victim tried to stop the conversation, and in response, the defendant punched her face. He stole her handbag, including the money and a cell phone chip that were in it.

Later, while they were staying at a hotel with another couple, the defendant left. When he got back, he found her showering and accused her of being unfaithful. He tried to argue with her and closed the bathroom door. The victim asked him to open the door. He opened it and punched her in the face, and he pinned her to the wall. Later, he let her leave the bathroom. Security was called, and they came and took him out of the room.

Credibility of the Victim in a Massachusetts Indecent Assault Case

Published on: May 19, 2015 | by Patrick J. Murphy, Esq.

In the nonbinding Massachusetts appellate case of Commonwealth v. Morris, the court considered a defendant’s conviction by jury for assault with intent to rape, assault and battery, and indecent assault and battery. He appealed on the grounds that the judge should not have allowed improper testimony about the demeanor of the victim and that the prosecutor’s closing argument improperly supported the government’s rebuttal witness.

The case arose when the victim was hitchhiking with three friends. The defendant picked them up, and the victim sat in the front seat. When the defendant came to the victim’s street, he drove to a street that was past her house, and when the victim asked that he stop the car, he refused. She opened the door and jumped out of the car as the defendant slowed down. The victim tried to run back to the main road, but the defendant knocked her down and sexually assaulted her.

The victim passed out and then heard someone yell that the cops were coming. The defendant left, but the victim memorized some of the numbers on the defendant’s license plate. When the police came, she gave them the details of the attack and a description of the defendant. The next morning, an officer took her and a friend to identify the defendant, which she did.
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Probation Violation in Massachusetts Domestic Assault Case

Published on: February 16, 2015 | by Patrick J. Murphy, Esq.

In Commonwealth v. Polito, a Massachusetts appellate court considered the case of a defendant found in violation of his probation. The case arose on an afternoon in August 2009, when a police officer responded to a report of domestic battery and assault. The officer saw that the victim was shaking and crying and her nose was flat and swollen. The victim told the officer that the defendant had gotten angry and beaten her with an object, broken a broom, hit her with it, and thrown a mug at her face. The mug broke her nose. The officer arrested the defendant, and on his way out he yelled that the incident was the victim’s fault. The victim suffered a broken nose and finger.

The defendant was indicted on two sets of indictments, and he pled guilty. With regard to the first set of indictments, the defendant was sentenced to 2 1/2 years in a house of corrections on three counts of assault and battery with a dangerous weapon, and one witness intimidation count. A portion of the sentence was to be served, with the balance suspended for 10 years with supervised probation. Two conditions of the probation were to undergo mental health evaluation and treatment and to have no contact with the victim. He also received 10 years of concurrent probation with the same conditions for criminal harassment and violating an abuse prevention order.

The defendant also pled guilty on the second set of indictments. For two counts of assault and battery on a public employee and disruption of court proceedings, he was sentenced to 10 years straight probation under the same conditions as the probation for the first set of indictments.
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Prior Bad Acts in Massachusetts Domestic Violence Cases

Published on: June 15, 2014 | by Patrick J. Murphy, Esq.

It 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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No Charges for Boston Firefighter’s Alleged Threats

Published on: March 6, 2013 | by Patrick J. Murphy, Esq.

Last month Boston Firefighter Kenneth Veiga, a 24 year veteran, was facing potential charges for threats he made against his department following a requirement that he see a predetermined physician in order to return from his paid leave.

Veiga allegedly told his commander that he was thinking about smashing a fire truck into a wall, and further that,”I am Army trained and have weapons and ammunitions (sic) in a storage locker. Dorner will be child’s play.” The reference to “Dorner” being that of the former LAPD officer Christopher Dorner who killed several people last month, resulting in a man hunt and standoff prior to killing himself earlier last month. Boston Police also said Veiga additionally stated that he was “upset with City Hall, Fire Department Headquarters, and the Firefighters Union Hall.”

It was reported this week that no charges will be filed in the case.

Under Massachusetts law, in order to be criminally liable for making a threat, the prosecution must prove that a person has done all of the following:

the defendant expressed intent to injure a victim and/or his or her property;
the defendant intended to convey this to his victim;
the injury or harm that was threatened, would be a crime if carried out; and
the threat was expressed in such a way as to give the victim reasonable fear or apprehension that the defendant had the intent and ability to carry out what was threatened.

Thus, comments made merely in jest or as an expression of frustration, may not rise to the standard required under criminal law. Additionally, it is important to keep in mind that in its case against a defendant, the government must prove each element beyond a reasonable doubt. Therefore, based on the limited information and evidence reported, it isn’t that surprising that the case was not pursued.
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MASSACHUSETTS ADOPTS TOUGH THREE STRIKES LAW KNOWN AS MELISSA’S BILL

Published on: August 31, 2012 | by Patrick J. Murphy, Esq.

It was recently reported on August 2, 2012, that Governor Deval Patrick signed new Massachusetts criminal law legislation that imposes harsh penalties for repeat violent criminal law offenders convicted in the Commonwealth. In doing so, Massachusetts now reportedly joins twenty-six additional states that have imposed strong habitual criminal offender laws. The new law takes away judicial discretion with respect to sentencing of repeat violent criminal offenders who have suffered convictions three times for certain enumerated violent crimes and makes these offenders ineligible for parole. In other words, repeat violent offenders now have to serve the full or maximum sentence with absolutely no chance for parole, probation, work release, furlough or reduction of sentence for good conduct while incarcerated.

The two previous convictions of a criminal defendant to be subject to the penalties imposed under the Massachusetts three-strikes law must have arisen out of distinct and separate incidents that must have occurred at different times. Also, these previous convictions must have carried sentences of at least three years each for the law to be applicable.

This law was sought by the father of Melissa Gosule, who was murdered by a convicted criminal who had been released early only after serving a two-year portion of a prison sentence and reportedly involved a history of twenty-seven prior felonies on his criminal record. Authorities argue that a tough three-strikes law may have avoided this and other similar, tragic losses of life.

In order to get that law passed there were certain concessions incorporated that actually decrease the mandatory minimum sentences for non-violent drug crimes for trafficking, distribution, manufacturing or possession with intent to distribute drugs such as marijuana, cocaine, heroin, morphine or opium. In some cases involving trafficking in cocaine or phenmetrazine, mandatory minimum sentences have been reduced by three years. Also, the weight requirements of certain narcotics to support a conviction for trafficking have actually increased making it more difficult for prosecutors to convict for trafficking cases.
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Massachusetts Police Officials Tap into Social Networking Sites to Catch Criminals

Published on: June 8, 2012 | by Patrick J. Murphy, Esq.

As evidenced by recent news coverage, high school college student crime is significant and is an evolving and expanding area of the law. With the advent of social networking sites such as Facebook, twitter, YouTube, etc., issues involving high school and college students have become widely publicized and come under intense scrutiny and criticism. The ever-evolving world of social networking websites has opened the lives of its users to the public, carrying with it certain advantages and disadvantages. This technological phenomenon, which has created links between different people and cultures of the world, has resulted in a need for the development of new laws to police people’s online actions. There are many issues arising from the use of social networking websites, such as privacy issues, internet scams and phishing, negative repercussions of website use in areas of business and employment, and the protection of children. For instance, high school students may now be held accountable for their actions on social networking sites, such as bullying other students, making threats against teachers and students, and posting inappropriate content or images. Similarly, on college campuses, students have been subject to punishment for partaking in illegal activities such as underage drinking, drug-related offenses, and sexual assaults on other students. Social networks can be a resourceful tool to market yourself or your business, reconnect with old friends, and even find romance; the important thing is to remember that these sites can be misused, and have damaging repercussions to high school and college students that may potentially affect their future. Criminal prosecution in court and expulsion or suspension from school or college can be expected when crimes are committed or exposed using social networking sites.

While many social networking sites have age restrictions in place to regulate their user base, it is quite simple to enter a fake birth date and gain access to these sites. The problem with young users is that they are not aware of the risks that these social networking sites create. Many young people share too much information online and do not realize that anyone with an Internet connection can view it, even pedophiles, employers, teachers, their school nemesis, and their parents. Even police departments have begun to integrate the use of social networking sites in investigations. The Boston Globe reports that police officials in half of fourteen departments surveyed admitted to using social networking websites to gather information when investigating crimes involving young people. This is the root of the problems now faced by an increasing number of high school and college age students.

USING SOCIAL NETWORKING SITES TO CATCH CRIMINALS
Social networking has also come under scrutiny due to the tendency of teen bullies to target teen victims on the sites. Bullying has become a serious and widespread issue in the United States, with the National Crime Prevention Council reporting that 43% of teens were the victim of bullying in the past year, and has called upon the sites to help prevent bullying and catch those committing the acts. For instance, videos of beatings and humiliation have been posted to the popular video hosting website YouTube, and have caused certain individuals to take their own lives due to the ridicule and embarrassment felt from the posts. The videos themselves have actually led police to the identification of the bully and introduced the video or posting as evidence against them in trial.
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