Articles Posted in Self-Defense

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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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On September 7, 2011 an 82-year-old man allegedly shot and wounded a man and a woman from the second floor window of his home in Revere, Massachusetts. The elderly man was subsequently arraigned on serious criminal charges of assault with intent to murder and assault and battery with a dangerous weapon. However, despite the nature of the charges filed by police and the fact that he will be prosecuted, the judge released the man on personal recognizance (his promise to appear in court on all future dates). The incident was reported in the Boston Globe.

The facts of the case as alleged in the Revere police report suggest that the pair came to the defendant’s home earlier in an attempt to get in the home and that the defendant had called the police to report the incident. A window was allegedly broken during the incident by the woman. Presently, officials are still trying to determine if they will file charges against the pair under the circumstances. So how does the man get released just on his promise to appear back in court on such serious charges, especially where he allegedly said to the police that “he screwed up and shot them”? What does the law say about the use of deadly force under such circumstances?

Under M.G.L. c. 278 s. 8A, when someone is shot or killed by an occupant of a dwelling it is a defense that the occupant was in his home at the time of the offense and that he acted in the reasonable belief that the person(s) were about to inflict great bodily injury or death upon him or another person lawfully in the home, and that he used reasonable means to defend himself or the other person lawfully in the home. This is known as the “Castle Doctrine.” Under the law there is no duty on the occupant to retreat from such person(s) unlawfully in the dwelling. Although there are many other considerations under the bail statute in Massachusetts for a judge to consider in releasing a person accused of crime, I believe that the law of self-defense in the home was a controlling factor in the judge’s decision to release him simply on his promise to appear back in court when scheduled.
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If you have been charged with a crime of violence, such as assault and battery, in a Massachusetts court you may be entitled to raise the affirmative defense of self-defense to help win your case. In Massachusetts, a defendant is entitled to have a jury instructed on self-defense “if the evidence, viewed in its light most favorable to him is sufficient to raise the issue.” Commonwealth v. Harrington, 379 Mass. 446 (1980).

If there is evidence of self-defense the prosecutor must prove beyond a reasonable doubt that you did not act in self-defense. If the prosecutor has not proved beyond a reasonable doubt that you did not act in self-defense and that the force you used to defend yourself was not unreasonable and excessive, then the jury must find you not guilty of the crime charged. In other words, if the jury has a reasonable doubt whether or not you acted in self-defense and that the force you used was not unreasonable and excessive they must acquit you.

In order to determine the reasonableness of the force used by a defendant the jury can consider such matters as the size and strength of the alleged victim and the defendant, the type of weapons used, if any, by either party and whether or not there was a means of retreat or escape available to the defendant. Also, the jury can consider evidence of specific acts of violence or threats of violence perpetrated by the alleged victim if the defendant knew of any instances of violent acts or threats. Finally, the jury can consider evidence of the victim’s reputation as a violent individual if the defendant knew of such a reputation. Commonwealth v. Pidge, 400 Mass. 350, 353 (1987); Commonwealth v. Fontes, 396 Mass. 733, 735 (1986); Commonwealth v. Edmonds, 365 Mass. 496, 501 (1974).
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