Articles Posted in Assault Crimes

A Framingham man was arrested at approximately 3:30 pm on Tuesday and charged with two counts of assault and battery and one count of assault and battery with a dangerous weapon, according to an article in the Metro West Daily News. Police reportedly found him walking on Beaver Park Road shortly after they were called to a Second Street home for a report of an assault.

The 49 year-old man is accused of throwing his girlfriend against a washing machine, slapping her, and choking her 21 year-old daughter. The man’s girlfriend, 47, allegedly sustained a minor lower back injury from being thrown into the washing machine.

The man was allegedly arguing with his girlfriend about the amount of medication he has been taking when he became angry and violent. When the girlfriend’s daughter tried to intervene, the man reportedly began choking her before letting her go and leaving. Police stated that thegirlfriend had a bruise on her back and the daughter had marks on her neck.

The man pleaded not guilty at his arraignment on Wednesday at the Framingham District Court. He was released without bail and is due back in court on November 28 for a pretrial conference
The man is facing serious charges. Assault and battery are misdemeanor offenses that often do not lead to incarceration. However, assault and battery with a dangerous weapon is felony that may lead to jail time. The article does not specify whether the man has been charged with intentional assault and battery with a dangerous weapon or if he is charged with reckless assault and battery with a dangerous weapon. What the prosecution will need to prove depends on whether the charge is reckless or intentional.

If he is charged with intentional assault and battery with a dangerous weapon, prosecutors will have to prove that he touched the victim, intended to touch the alleged victim, and that the touching was done with a dangerous weapon. The dangerous weapon in this case is the washing machine. Massachusetts considers many different objects to be dangerous weapons. However, they do not have to prove that he intended to cause injury to the victim. If his charge is reckless assault and battery with a dangerous weapon, prosecutors will have to prove that he caused injury to the alleged victim–which was serious enough to interfere with the alleged victim’s health or comfort, that the bodily injury was done with a dangerous weapon, and that he acted in a reckless manner. Negligent conduct is not enough; the person charged must have acted in a way that the law considers reckless. In other words, the prosecutors have to prove that the person charged knew or should have known that their conduct was very likely to cause substantial harm. However, they do not need to prove that he intended to harm or strike the alleged victim. The main difference between the two charges is that intentional assault and battery with a dangerous weapon requires prosecutors to prove that the defendant intended to touch the alleged victim. In this case, the man is likely facing intentional assault and battery with a dangerous weapon.

Often, when a person is facing charges of assault and battery or assault and battery with a dangerous weapon, he or she will use self-defense as a legal defense against the charge. The man would likely face difficulties using this defense unless he can establish that he felt threatened by his girlfriend and/or her daughter.

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I read a disturbing article in the MetroWest Daily News recently. According to the article, which was written by Norman Miller, two young people from Ashland were arraigned on Monday in Framingham District Court and charged with assault and battery with a dangerous weapon, larceny over $250, threatening to commit a crime and conspiracy. In addition, one of the young men was charged with home invasion, armed robbery and possession of a counterfeit note. His co-defendant was also individually charged with accessory to armed robbery, and several drug charges. Both of the defendants are apparently 17 years old.

This article caught my eye because the facts, and subsequent charges, are very serious and both of the defendants are so young. According to the article, the defendants entered a home in Ashland on Friday, May 18, wearing masks and armed with fake guns. Upon entering the home, the defendants encountered a 16 year old who lived there and pointed their fake guns at him. They then demanded cash and marijuana from the 16 year old victim, who turned over $90 in cash and his cell phone. The victim apparently recognized one of the defendants, which helped police track them down.

These young men face some extremely serious charges, including home invasion and armed robbery. Armed robbery while masked, which would seem to apply here, has a minimum penalty of 5 years, see G.L. 265 § 17. In order to establish that these defendants are guilty of armed robbery, the prosecution must show that the defendant was armed with a dangerous weapon, that the defendant made a threat to the victim or hurt the victim and that the defendant stole an item from the victim’s control. In the present case, one of the issues will be whether the weapon allegedly used qualifies as a “dangerous weapon” under Massachusetts law.

Home invasion is governed by G.L. 265 § 18C and carries a minimum penalty of 20 years in state prison. The elements of home invasion are, essentially, that the prosecution must prove that the defendant entered someone’s home, knowing that someone was inside the home, armed with a dangerous weapon and that the defendant used force (or threatened to use force) against someone inside the home. Again, a conviction in this particular case will depend, among other factors, on whether the weapon allegedly used is a “dangerous weapon” under the law.

It is not clear that a fake gun is itself a dangerous weapon. Massachusetts law provides that if an object is not inherently dangerous, it still may count as a dangerous weapon if it is used as a weapon or in a potentially dangerous manner. (The classic example is a foot with a shoe on it, not typically considered a dangerous weapon, however it can be considered so if it is used to kick someone.) If the fake gun used in the incident was a pellet gun or a bb gun, then it seems there is a better argument that it was an inherently dangerous weapon. In a case like this, where the defendants are so young, it would seem unlikely that they would be sent to state prison. However, they face very serious charges from an incident that was probably very alarming to the victim. In my experience as an assault and battery defense attorney, I know that the prosecutors will take this case very seriously.

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An interesting incident in Wayland recently caught my attention in the Metrowest Daily News.

According to the article, a Wayland man is going to face criminal charges in Framingham District Court for assault and battery with a dangerous weapon. The circumstances leading up to those charges as described by the article are peculiar. Allegedly a group of town residents went to a pond located behind the man’s home to look at some wildlife with flashlights. According to those residents while they were at the pond the man fired a pellet gun in their direction. One of the individuals who was among the residents visiting the pond indicated that she could hear a pellet strike a tree close to her.

Police eventually confronted the man about the accusation, and as a result have seized the pellet gun they believe was involved. Police publicly stated they are seeking assault and battery with a dangerous weapon charges against the man. Those charges will be heard in the Framingham District Court.

I found this case so interesting because the police are quoted in the article as saying that the man has never had any trouble with the law in the past. It is extremely unusual to see a gentleman of the man’ss age be charged with a crime for the first time at age 73.

Unfortunately for the man, the first charge he ever faces is a serious one. Assault and battery with a dangerous weapon is a felony under Massachusetts law. The charge can be indicted and tried in Superior Court where the maximum penalty is 10 years in state prison. Because the charges against the man are the first he has ever faced, it is extremely unlikely prosecutors would seek jail time in his case.

If the reports concerning the man’s lack of prior trouble with the law are accurate he may even be able to get the case disposed of relatively quickly in a manner that will protect his criminal record from any convictions, and assure he will not be threatened with any severe punishments. Whether or not he can obtain such a disposition will be determined in large part on how prosecutors handle the matter, and the path his attorney chooses to defend him.

Currently, the man isn’t helping his case by speaking with the reporter that contacted him for this story. Whenever someone is charged with a crime I always recommend to clients that they do not discuss the case with the police, or with the media. Neither the police nor the media are looking out for the best interests of those they interview in cases like this. The police are looking to build a case to file charges or close their investigation. The media is just looking for a good quote to make a better story. People generally don’t realize that anything they say to the media can be used against them as evidence in their case.

This man, and anyone else charged with a crime or under investigation, is better served by declining to make any comment on their case to both the police and the media, and let an experienced criminal defense lawyer coordinate their response to the charges.

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The Boston Herald reports on an interesting case that came out of Boston last week. Three young women who self identify as lesbians were arrested and charged with a hate crime for allegedly assaulting a gay man at the Forest Hills T station in Jamaica Plain.

The whole incident supposedly started when the man bumped the women with a back pack when they were all in a stair well. Prosecutors allege the confrontation developed into an all out assault with all three women repeatedly punching and kicking the victim. Prosecutors told the court that the victim suffered a broken nose as a result of the altercation. He told the police that during the assault the women called him insulting homophobic slurs and he believed the attack was motivated by his sexual orientation.

Prosecutors likely used a charge called assault and battery with the intent to intimidate as the criminal offense in this case. This offense is part of the Massachusetts hate crimes laws outlined in Massachusetts General Laws Chapter 265 Section 39. This statute makes it a crime to assault someone with the intent to intimidate them because of their race, color, religion, national origin, sexual orientation or disability. If there is an injury from the assault a defendant can face a penalty of up to 5 years in state prison.

Absent from the statute is any limitation on charging someone from one race or sexual orientation with an attack on someone from that same group. Although the young women in this case have the same sexual orientation as the alleged victim, it will not guarantee they won’t be convicted. If a prosecutor can convince a jury beyond a reasonable doubt that the motivation behind the attack was to intimidate the victim because he was gay they may be able to obtain a conviction.

Although a conviction is possible in this case it will be difficult to obtain. The article states the reason for the confrontation was contact made with a backpack in the stairwell. If the jury believes the reason for the fight was the backpack, and that the name calling was simply a part of the fight they will have to find the women not guilty of the hate crime. Proving that an attack was motivated by race is easier in situations where the Ku Klux Klan or other hate groups are involved. However, in a situation like this where both the alleged attacker and the alleged victim are both members of the LGBT community it will be difficult to prove that any slurs said during the attack were part of an effort to intimidate rather than words spoken out of anger during a confrontation.

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As a Massachusetts Criminal Defense Lawyer people often come to me with questions about hypothetical situations, wondering what their rights are if they are ever put in a position of danger. In Massachusetts our law does allow for a person to defend themselves if they are put in fear of an imminent attack from another. The legal level of force that a person can use to defend themselves from someone who is a threat is determined by what kind of threat the person faces. For example if you are walking down the street and get into a confrontation with someone, and that person draws a gun with the intent to shoot you the law would allow you to meet that deadly threat with deadly force of your own. You would be well within your rights to draw your own weapon and fire first in an attempt to save yourself from being shot and killed.

However most cases involve some sort of threat of force well below a gun being drawn. In those cases where deadly force is not threatened a person is only allowed to respond with non deadly force. For example, if someone were to take a swing at you it would be well within your rights to swing back, or to try to restrain the person and stop them from hitting you again.

Unfortunately, people who act reasonably in self defense end up facing criminal charges on a regular basis. When a person faces criminal charges for actions taken in self defense a jury can find them not guilty if their attorney is able to convince the jury they may have acted reasonably under the circumstances.

At trial there is never a burden on the defendant to prove that he or she acted in self defense, rather the prosecution must prove that a defendant did not act in self defense. One of the things a jury is instructed to take into account when considering self defense is whether or not the person had an opportunity to retreat rather than use force in their defense.

In Massachusetts if an incident occurs inside someone’s own home judge can order the jury not to consider whether or not there was an opportunity to retreat. This principle is often referred to as the “Castle Defense”. The idea is that a man’s home is his castle, and that no man should have to consider retreat from a tresapasser threatening great bodily injury or death in his own home. In Massachusetts this defense is statutory and flows from Section 278 Chapter 8A of the Massachusetts General Laws. As a result if someone is accused of a crime when they are in their own home, and the alleged victim was a tresspasser at the time of the alleged crime, a judge can instruct the jury on self defense and does not have to include language about the defendant not having an opportunity to retreat.

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This past week the news and internet have been abuzz with reports regarding a Massachusets college student charged with a crime as a result of an incident that allegedly occurred at Dean College in Franklin, MA. The Milford Daily News ran a report on the case, it also received coverage on the local WBZ television news. The college student, who is originally from New York, got into a confrontation with the alleged victim, who is also a student at the college. The confrontation allegedly started because the student believed the alleged victim had stolen an expensive pair of Nike Foamposite sneakers.

The student allegedly confronted the alleged victim and then punched him in the face. In the ensuing fight the student is accused of hitting the alleged victim several more times, including using the shoes at issue as a dangerous weapon by taking them off the alleged victim’s feet and hitting him with them. As a result the student was charged with both regular assault and battery, and assault and battery with a dangerous weapon. Police also alleged that the student took the sneakers after the assault and charged him with unarmed robbery as a result.

Immediately after the incident no action was taken by the police or the administration, but a portion of the incident was captured on video (warning graphic content) and later uploaded to the internet.

https://www.youtube.com/watch?v=Ipe-5tFVP4c

Once the footage received widespread attention the police investigated the incident, and the school immediately expelled the student and several others who can be seen in the video. The student now faces a very serious situation. Both unarmed robbery and assault and battery with a dangerous weapon are felonies that carry maximum penalties involving state prison. As a result of the ensuing high profile media coverage it is likely his case will receive the utmost attention and care from Norfolk County prosecutors.

One interesting aspect of this case is the charge of assault and battery with a dangerous weapon as a result of the student reportedly grabbing the alleged victim’s shoes and then striking the alleged victim with them. In Massachusetts there are two different kinds of dangerous weapons under our law. Some items are considered dangerous per se. Dangerous per se weapons are items that are designed to produce great bodily harm or death. (for example guns, certain knives, brass knuckles, etc) However any item can be considered a dangerous weapon if it is used in a manner that makes it capable of producing great bodily harm. These otherwise harmless items are referred to as dangerous as used weapons. (For a more detailed discussion of Massachusetts law on this topic read Commonwealth v. Appleby the case is a little graphic in the details, but skip to page 303 for the discussion on dangerous per se and dangerous as used)

Sneakers have been found to be dangerous weapons by higher courts in Massachusetts several times, so it is unlikely a legal challenge will get that charge dismissed prior to trial, however because the sneakers were not used to kick, but rather used in more of a smacking fashion it may be a viable issue at trial whether or not their use in this particular case was dangerous.

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