Articles Posted in Domestic Violence

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wedding ringsIn Commonwealth v. Jones, the appellate court considered a case in which the defendant was convicted of violating M.G.L. c. 265, § 13M, assault and battery on a family member. In 2015, the defendant and his wife were at home. The wife was using the husband’s cell phone to get some information for him, and she saw that he’d been texting with a woman. When she mentioned it to the husband, he got angry. They went to dinner for their anniversary and returned to their bedroom afterward.

The husband lay down, but the wife watched television. She saw that the husband’s cell phone was receiving text messages and that it kept beeping. The text message said, “I made money.” She woke up her husband to ask about the text, and the defendant jumped up and grabbed her neck with his hands, squeezing. Later at trial, the wife testified that this was common for him—jumping out of bed and getting verbally abusive. She went to a dollar store nearby and called her mom. The defendant called her and asked that she come home.

The wife told him she didn’t like the texts she’d seen and asked for an explanation. She called 911. An officer came to her at the dollar store, and another officer went to the defendant’s home. The husband was charged, and the wife testified against him, explaining that he’d sometimes gotten violent with her, sending her to the floor.

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depressed-girl-1429979.jpgUnder 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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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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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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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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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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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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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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1307593_mobile_phone_in_hand.jpgIt happens all the time. A couple gets into a spat and someone calls the police to complain or a neighbor or passerby dials 911 because they hear an argument, some screaming or a loud noise and think that domestic abuse is involved. If the police or an ambulance is requested, the authorities will come to your home to carefully investigate whether some wrongdoing has occurred. The police always aggressively handle 911 emergency calls and there is a built-in presumption that some violence has taken place. Even if there is a change of heart by the person that dialed 911 the police are mandated to make an arrest and the prosecution will pursue the case with vigor. When the police call you back after an accidental 911 call or hang up they will come to investigate even if you are clear in telling them that nothing has happened and it was just an argument. The call cannot be cancelled and the police must come to the location of the call to speak with the parties involved and they will often arrest someone, usually the male party.

Under the law, the police shall arrest any person the law officer witnesses or has probable cause to believe has violated a restraining order or no-contact order or judgment. Even when there is no such order under Massachusetts law an “arrest shall be the preferred response” where an officer suspects domestic assault and battery even when there is a lack of physical evidence. When the 911 call is made the legal troubles usually begin in earnest. Indeed it has often been said the decent into hell begins when someone calls 911, even when you are innocent or where the other party was the first aggressor. The ramifications of the 911 call are wide and include the destruction of relationships, marriages and problems with family and children. In Massachusetts district court penalties for assault and battery include jail time of up to two and a half years in the house of correction. Conditions of any probation can also include a lengthy and costly batterer’s program, anger management classes or drug and alcohol abuse counseling. Some other problems that may result include the loss of a job with a conviction and your ability to exercise your Second Amendment rights to carry a firearm. Domestic assault cases are often reported in town police blotters causing unfair embarrassment and shame in the community.

Many times 911 calls are made on a Friday night or over the weekend when families are together. The courts are closed and the person arrested will remain in police custody for days until the courts reopen. Fortunately, with the help of a competent and experienced Massachusetts criminal defense attorney, domestic assault cases that begin with a 911 can often be won prior to trial or at the trial stage. Changes in evidence law and other factors have also helped to level the playing field and allow for direct confrontation and cross examination of witnesses and alleged victims when the police are relying simply on a 911 tape to prove their case. So It is unwise and foolish to represent yourself in a domestic assault and battery case or enter into a plea bargain. You must contact an aggressive and knowledgeable 911 Massachusetts criminal defense lawyer right away in order to protect all of your legal rights.
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There is a distinction that is made under Massachusetts law between statutory disqualification and spousal privilege under G.L. Ch. 233, s. 20. The spousal disqualification applies in all actions, civil and criminal, and regardless of whether one of the spouses is a party or not; the spousal privilege applies only in criminal cases where the spouse is the defendant. The issue of spousal disqualification, sometimes confused with spousal privilege was raised recently in a federal case in Massachusetts, by the criminal defense lawyer for Patrice Tierney, the wife of U.S. Rep. John Tierney, who was convicted last year of assisting her brother in filing false tax returns. Patrice Tierney is a witness in the case. This case was highlighted in a Boston Herald article penned by reporter Laurel Sweet who contacted the Law Office of Patrick J. Murphy and interviewed Boston criminal defense attorney Patrick J. Murphy. Attorney Murphy has written about spousal privilege and disqualification issues in Massachusetts. In response to a specific question Attorney Murphy was quoted in the Boston Herald and he stated “[g]enerally, any communications between husband and wife would be covered.”

Mrs. Tierney was expected to be called as a witness in the current case against her brother, Daniel, but so far has refused to meet with government investigators who want to ask her about conversations she allegedly had with her husband, who has already denied any knowledge about his brother-in-law’s alleged illegal gambling and money laundering operation. The case is also interesting because Mr. Tierney is also a lawyer and the prosecutor wants to ask Mrs. Tierney whether she consulted with him about the legality of her brother’s alleged gambling activities. This raises the issue, if the conversation did occur, as to whether it would be covered by the attorney/client privilege.
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