Articles Posted in Assault Crimes

In Commonwealth v. Abubardar, the Supreme Judicial Court reversed the defendant’s conviction of assault and battery (as a lesser included offense of attempted murder), because the judge failed to instruct the jury on the use of non-deadly force in self-defense.

The background was as follows. On the basis of an altercation between the defendant and the complainant inside a parked van, the defendant was charged with attempted murder. At the trial, “[t]he defendant testified that the complainant instigated the events by hitting and scratching him, and he was ‘just sitting there,’ ‘trying to hold [the complainant] and contain her … so [he] could get away.’ The complainant testified that the defendant threatened and choked her; the defendant claimed he only pushed her away. When a passerby saw the altercation and knocked on the van window, the defendant pushed the complainant and she opened the door and fled. At the defendant’s request and over the Commonwealth’s objection, the judge gave an instruction on self-defense. Although the instruction was in its essence a deadly force instruction, it was not identified in that way: the jury was instructed on ‘proper self-defense’ as a general concept. Based on the instruction, the jury would have understood that ‘the defendant did not act in proper self-defense if [the Commonwealth] prove[d] … that the defendant did not actually believe that he was in immediate danger of death or serious bodily harm.’ On the evidence at trial, to be sure, the jury could have concluded that the defendant did not believe he was in ‘immediate danger of death or serious bodily harm’ during the altercation, and so,” in accordance with the instruction that was given, “the defendant could not have acted in ‘proper self-defense.’” The defendant did not object to the judge’s instruction. He was convicted of assault and battery as a lesser included offense. On appeal, the defendant contended “that he used only nondeadly force rather than deadly force to defend himself against the complainant,” such that the judge should have instructed the jury on the use of nondeadly force in self-defense.

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The United State Supreme Court issued a recent decision – Stokeling v. United States – weighing in on predicate offenses under the federal Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(i).  In its decision, the Court ruled that that even if Stokeling’s prior robbery conviction in Florida involved a minimal use of force, it qualified as a predicate “violent felony” under the Act, thereby justifying an enhanced sentence on Stokeling’s burglary conviction in the present case.

The background was as follows. In the course of investigating a burglary, Miami police officers searched the defendant’s backpack and found a firearm and ammunition. “Stokeling had previously been convicted of three felonies — home invasion, kidnapping, and robbery.” He pleaded guilty in federal [District Court] to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U. S. C. §922(g)(1). The probation office recommended that [he] be sentenced as an armed career criminal under ACCA, which provides that a person who violates §922(g) and who has three previous convictions for a violent felony “shall be imprisoned for a minimum of 15 years. §924(e).” ACCA, in its “elements clause,” defines violent felony as “any crime … that has as an element the use, attempted use, or threatened use of physical force against the person of another.” The District Court ruled that Stokeling did not qualify for an enhanced sentence under ACCA, but the Eleventh Circuit reversed that ruling. Stokeling appealed and sought certiorari. Continue reading →

In Commonwealth v. Rosa (http://www.socialaw.com/services/slip-opinions/slip-opinion-details/commonwealth-vs.-michael-c.-rosa), the Appeals Court ruled that the evidence at the defendant’s bench trial — on a criminal complaint charging him with assault and battery by means of a dangerous weapon (shod foot) –“was sufficient to support the judge’s finding that at least one of the parental discipline defense prongs was disproved beyond a reasonable doubt.”

The background was as follows. The defendant entered a CVS store with the victim, his five year old daughter. At some point, the victim began to run around the store; she “was laughing and hiding from the defendant.” In response, the defendant yelled and cursed at her. Later, as the defendant stood in the checkout line, “he saw his daughter by the front doors, hiding near the metal detectors. He did not pursue her, and she approached him.” When she “grabbed his legs,” “[h]e shoved her in her chest with his hand, causing her to take a step or two to regain her balance.” He “warned his daughter to stay away from him, telling her, ‘[G]et the fuck away from me. Trust me, you don’t want to fucking be near me right now.’ His daughter came toward him again. In response, the defendant lifted his foot and kicked his daughter in the chest, knocking her to the ground.” After the defendant completed his purchase, he and the victim left the store. A “CVS employee called the police to report the incident, and two police officers stopped the defendant shortly thereafter.” When they “asked him why he had kicked his daughter,” he “answered, ‘I don’t raise pussies,’” by which he meant “that he did not want to raise his children to be victims of bullying.” At his trial on a charge of assault and battery by means of a dangerous weapon (shod foot), the defendant invoked the affirmative defense that his “conduct was protected by the parental privilege defense.” Continue reading →

The Appeals Court ruled in Commonwealth v. Sudler that the evidence was insufficient to support the defendant’s conviction of battery with intent to intimidate causing bodily injury, pursuant to G.L. c.265, §39(b) on the ground that the victim’s injury, “two cut fingers,” did not constitute “‘substantial impairment of the [victim’s] physical condition’ as required by the statute.”

The background was as follows. As the victim was walking toward a subway station in South Boston, “he heard a vehicle door slam, heard someone call him ‘faggot,’ and turned to see the defendant and the codefendant talking to him. The defendant continued to taunt the victim by calling him ‘faggot’…. As the defendant and the codefendant walked toward him, the victim noticed that the defendant held a knife in his hand…. The victim pulled out his own knife, an argument ensued, and the defendant ‘took a swing’ at the victim. The victim ‘jumped back’ and ‘took a swing back at [the defendant].’ The parties exchanged words” before separating. “[A]s the victim walked to the station he noticed” that blood was dripping from his hand and that he “‘was just losing a lot of blood.’ [He] … saw that two fingers of his hand had been cut. One cut was located on the victim’s left ring finger, which, according to his testimony, was ‘sliced … [f]rom nearly the top to the joint.’ The other cut was to the middle finger and went ‘from [the] side near the joint from the middle to the end, the corner.’” “Emergency medical services (EMS) … tended to the victim[,]” who “was upset because EMS did not offer him antibiotics or any other services. ‘All they did was basically [give him] a Band Aid.’” On appeal, “[t]he defendant contend[ed] that the evidence was insufficient to prove ‘bodily injury’ as defined under G.L. c.265, §39(b).” Continue reading →

In Commonwealth v. O’Neal, the Appeals Court reversed the denial of the defendant’s motion for a new trial on an indictment charging him with assault and battery by means of a dangerous weapon, because the Commonwealth failed to preserve a videotape of the incident.

The background was as follows. Police officers responded to reports of an altercation outside a bar. At the scene, the defendant “was yelling at” some other people. He was “unsteady on his feet, smelled of alcohol, and had slurred speech. Concluding that the defendant was intoxicated, the officers placed him into protective custody … and transported him to the police station…. Once at the station garage, the defendant was unwilling or unable to exit the cruiser. The officers therefore pulled him out of the vehicle, and placed him on the ground after he could not, or would not, stand. At that point, the officers radioed their supervisors inside the station for assistance, and they were brought a restraint chair to transport the defendant to the booking area. A restraint chair is designed to immobilize unruly detainees. It has a seat that is tilted so that … the person sitting there is lying back at an angle with his knees elevated above his hips. The chair has straps to be used to hold in place a detainee’s wrists, ankles, lap and shoulders. In this instance, however, the officers did not use the available straps to secure the defendant…. Instead, after placing him in the chair with his hands handcuffed behind his back, they left him that way for the trip into the station. According to the defendant, who testified at trial, this meant that his entire weight fell on his handcuffed wrists, causing him ‘excruciating pain.’…. The failure of the police to secure the defendant in the restraint chair appears to be at odds with a written policy that emerged only in postconviction discovery…. At least at one point during the trip from the garage to the booking area, the defendant’s [unsecured] foot … was hanging off the side of the chair,” thus “imped[ing] the movement of the chair…. [In response,] the police officers tilted the restraint chair back in order to keep [it] moving…. The defendant described the tilting of the chair as a sudden jerking that caused him to flail in it. He admitted that his foot came into contact with one of the officers, but he characterized it as an accidental ‘knee-jerk reaction’ to the sudden tilting of the chair. The officers described it as a … deliberate [and forceful] kick to the … stomach,” which the officer who was struck described as painful. On the basis of the alleged kick, the defendant was indicted for assault and battery by means of a dangerous weapon, a shod foot. Continue reading →