Assault Crimes/Violence

Published on: June 3, 2016

Intentional Assault and Battery in Massachusetts

In Commonwealth v. Romero, a Massachusetts defendant appealed from a conviction arising from M.G. L. c. 265, § 13A(a), which covers assault and battery. The defendant argued that the judge improperly denied her motion for a required finding of not guilty and had given incorrect jury instructions regarding the elements of the crime and the burden of proof.

The case arose when the defendant became angry over a dispute between her daughter and the victim’s son. The victim was a woman who lived across the street with her husband. In 2010, the defendant and her husband argued with the victim and her husband. It escalated into a physical confrontation in the victim’s hallway. The victim wasn’t injured, and the defendant, her husband, and two other men left the house. However, minutes later, the defendant came back into the victim’s house with a machete and tried to kick the victim’s five-year-old son. The victim’s husband punched the defendant to protect the son. The victim felt somebody pull her hair and push her down. The husband pushed the defendant off his wife.

The defendant’s husband then came back with the two other men and attacked the husband. Later, the victim’s daughter testified she saw the defendant and her mother fight. The defendant was convicted at trial.

Published on: March 17, 2016

Witness Violates Sequestration Order in Massachusetts Assault and Battery Trial

by Patrick J. Murphy, Esq.

In Commonwealth v. Bonsu, the defendant was convicted of assault and battery with a dangerous weapon for using a stick on the victim. The defendant argued that the judge shouldn’t have admitted hearsay evidence and unfairly excluded rebuttal testimony by her husband on the issue of bias, creating a risk of miscarriage of justice.

During trial, the victim of the defendant’s assault with a stick testified that neighbors ran outside during their fight shouting “Stop hitting her.” The appellate court found the judge had not erred in admitting these statements because the prosecution was entitled to tell the jury everything that happened. They were not offered as hearsay—to show the victim was in distress—but to explain what caused the assault to stop.

The judge had instructed the jury that it couldn’t conclude the statement was actually made based only on the victim’s testimony. The court added that, even assuming the statements were inadmissible, there was no prejudice, since the testimony was cumulative to an eyewitness’s testimony. The eyewitness had testified that she called 911 because she saw the defendant beating the victim with a tire iron and told the defendant to get off the victim.

Published on: February 4, 2016

Offensive Battery in Massachusetts

by Patrick J. Murphy, Esq.

In Commonwealth v. Messina, a Massachusetts appeals court considered a case involving charges of offensive battery. Under G. L. c. 265, § 13A, the Commonwealth is required to prove beyond a reasonable doubt that the defendant intentionally touched a victim, without justification or excuse, and this touching occurred without the consent of the victim.

Offensiveness is an element, but it is established by proving lack of consent, not by showing a particular harm to the victim. Proof that there was no consent doesn’t require a victim to explicitly state nonconsent by screaming, asking for help, or even asking the defendant to leave her alone.

The case arose when a 24-year-old victim was working for an animal rescue organization. One morning, while in her work uniform and hat, she left her cell phone in her locker and drove to a grocery store to buy some work items. It was crowded, and she lined up to pay with six or seven people in line before her. Her friend was working at the service desk. The defendant was a stranger who came about one foot from her and stared at her hat. He had the smell of alcohol on his breath. He said hello and asked her questions about where she worked. He walked away to pay at a different register.

Published on: November 4, 2015

Aiding and Abetting in Massachusetts

by Patrick J. Murphy, Esq.

Somebody can be found guilty of a criminal offense even if he or she didn’t actually commit the crime but aided and abetted the perpetrator of the offense in a “joint venture.” You can be guilty if you intentionally act with another to commit a crime in order to bring it about and make it succeed. In some cases, statements made by someone in a joint venture are used to convict his or her partner.

In Commonwealth v. DiGregorio, the defendant was found guilty of home invasion, kidnapping, assault, and battery by means of a dangerous weapon. On appeal, he claimed that the judge had improperly admitted statements between two friends, these statements didn’t fall under any exceptions to the hearsay rule, and they were therefore inadmissible.

One of the exceptions at issue was the joint venture exception to the hearsay rule. Under this rule, when joint criminal venturers make out-of-court statements against others, these statements are admissible if they are made while a criminal enterprise is pending and in order to further it. The judge must determine whether there was a criminal joint venture between the person making the statement and the defendant, but the judge doesn’t need to make a preliminary ruling that there was a joint venture. The evidence can come in, subject to a motion to strike at a later time if the prosecution doesn’t show there actually was a criminal enterprise. The judge needs to give a jury instruction informing the jury they can only consider the hearsay if they find there was a joint venture, based on all the other evidence except the hearsay statements.
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Published on: October 1, 2015

Threatening to Commit a Crime in Massachusetts

by Patrick J. Murphy, Esq.

Under Massachusetts General Laws, Chapter 275, Section 4, it is a crime to threaten to commit a crime against someone else. If the defendant is convicted, he can be punished by a fine of $100 or less, or by imprisonment for six months or less. In many cases, there are additional charges brought against someone prosecuted for threatening to commit a crime, such as assault and battery.

In Commonwealth v. Montoya, the court considered a case in which the defendant was convicted of assault, battery, and threatening to commit a crime. The crimes arose from a turbulent romantic relationship between the defendant and the victim. The victim lived with the defendant, their four-year-old son, and her daughter from an earlier relationship. The defendant accused the victim of infidelity, and this developed into a physical confrontation.

The victim ran from the apartment with the children and went to her aunt’s, where she called 911 to report domestic violence. She asked the police to hurry because the defendant was crazy and was using her car to chase her around the neighborhood. A police officer responded to the call and came to the victim’s apartment. The officer observed blood on the victim’s ear, scratches, and a bruise. The apartment was in disarray.
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Published on: July 1, 2015

Armed Assault with Intent to Murder in Massachusetts

by Patrick J. Murphy, Esq.

In Commonwealth v. Rivera, co-defendants were convicted of armed assault with intent to murder, armed robbery, assault and battery with a dangerous weapon, kidnapping, and armed carjacking. They appealed from their conviction. One claimed the judge showed racial bias during jury selection and that there was insufficient evidence to sustain a conviction for armed assault with intent to murder. The other challenged a jury instruction on eyewitness identification and remarks in the prosecutor’s closing argument.

The case arose when the defendants stopped the victim, a food delivery driver. They wanted a ride. One of the defendants sat in front while the other sat in back. The defendant in front showed the victim a gun and told him to drive them to various places. At a stop where one defendant’s friend lived, the other defendant grabbed him by the neck and beat him with the gun, pulling him into the back of the car. The other defendant moved into the driver’s seat. The victim heard the defendants say they would kill him and throw him in the lake.

The victim managed to get the back door open, but the defendant in the front seat got out and hit him with the gun. The defendant said he would kill him for staining his shorts. The defendants robbed the victim of about $1,400 plus his cell phone. The victim ran away and heard three gunshots. One of the defendants pointed a gun at him.
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Published on: May 19, 2015

Credibility of the Victim in a Massachusetts Indecent Assault Case

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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Published on: March 23, 2015

Victim’s State of Mind in Massachusetts Assault and Battery Cases

by Patrick J. Murphy, Esq.

In Commonwealth v. Parker, a defendant was convicted of assault and battery, plus indecent assault and battery, for non-consensually touching the victim. He appealed, arguing the evidence was insufficient to convict him.

The case arose during a time when the defendant and victim lived separately in a condominium building. In 2010, the victim sought a restraining order against a third party on an unrelated case. The defendant offered to go with her to court. The victim agreed, and they drove to court separately.

When they left court, the defendant grabbed her hand as they walked to her car, and then asked for a ride to his car. The defendant grabbed the victim and kissed her. The victim wiped her mouth, spat, asked him to stop, and asked him to leave her alone.
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Published on: February 16, 2015

Probation Violation in Massachusetts Domestic Assault Case

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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Published on: January 14, 2015

Assault and Battery Causing Serious Injury in Massachusetts

by Patrick J. Murphy, Esq.

Under 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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