Articles Posted in Domestic Violence Crimes

In Commonwealth v. Mulgrave, the Supreme Judicial Court held for the first time that a text message could constitute an excited utterance under Massachusetts law. An excited utterance is an exception to the rule prohibiting the admission of hearsay. A statement qualifies as an excited utterance if it: (1) follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer; and (2) the statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought. The rationale that justifies this hearsay exception is that a person who has witnessed a shocking or traumatic event tends to speak what comes spontaneously to mind, without energy or disposition to invent lies so the statement may be deemed trustworthy for as long as the stress of the startling event continues. The court considers the following factors in determining the admissibility of a statement as an excited utterance: (1) the degree of excitement displayed by the declarant; (2) whether the statements are made at the scene of the traumatic event or elsewhere; (3) the temporal closeness of the statement to the act it explains; and (4) the degree of spontaneity, including whether the statements was volunteered by the declarant without the prompting of a question. Although the SJC has routinely ruled that written statements do no qualify as excited utterances given the fact that a written statement is generally not “spontaneous,” as it requires at least some reflective thought, the Court chipped away at this rule in the Mulgrave decision.

The facts of the case are as follows: the defendant and the victim in the case were married, but their relationship was deteriorating. During a heated argument between the two, the victim sent a text message to her son stating that “[the defendant] is threatening to kill me I am scared he said if I pick up the phone he will kill me.’” Six minutes after the victim sent the text message, she telephoned 911 and reported that the defendant was stabbing her. A few minutes after that, she was found barely breathing and lying in a pool of blood. She ultimately succumbed to her injuries. At trial, the Commonwealth sought to introduce the victim’s text message as evidence against the defendant. Continue reading →

In August of 2014, the Massachusetts state legislature passed An Act Relative to Domestic Violence, which was signed into law by then Governor Deval Patrick shortly thereafter. The Act made various changes to the state’s domestic violence laws. Among other modifications, the Act created a first offense domestic violence assault and battery charge, established a domestic violence offender registry, and provided education for judges and prosecutors about cycles of abuse. As to the domestic violence offender registry, the law states that, pursuant to G.L. c.276, §56A, “every case in which a person is arrested and charged with a crime against the person or property, if the Commonwealth alleges that domestic abuse occurred ‘immediately prior to or in conjunction with’ the charged crime, the Commonwealth is to file a written statement that it does so allege, the judge is to make a written ruling that the Commonwealth does so allege, and the Commonwealth’s written statement is then to be entered into the Statewide domestic violence record keeping system (DVRS).” The law states that the “DVRS is a registry of sorts, established by the commissioner of probation …, [which] includes … [computerized] records of the issuance of and any violations of criminal or civil restraining or protective orders…. Records in the DVRS are available only to law enforcement and ‘judges considering petitions or complaints’ for restraining and protective orders.” The new law does not, however, lay out the legal requirements for a judge to issue such written ruling; the statute is silent as to the standard of proof, evidentiary standard, and/or factors the court should consider when making its decision. In light of the lack of clarity, there have been questions as to how to implement this portion of the statute.

In a recent decision issued by the Supreme Judicial Court: Commonwealth v. Dos Santos, the trial judge grappled with the domestic violence offender registry requirements and ultimately asked the Appeals Court for guidance. Specifically, under the Massachusetts Rules of Criminal Procedure Rule 34, a trial court judge may report a question of law to the Appeals Court if the trial judge determines the issue so important or doubtful as to require the decision of the Appeals Court.

In the Dos Santos case, the defendant was arrested for pushing his wife in the context of their marital difficulties. The defendant was charged with assault and battery on a family member. At his arraignment, prior to his release on conditions, “the Commonwealth submitted a preliminary written statement pursuant to §56A, alleging that domestic abuse occurred immediately prior to or in conjunction with the defendant’s charged offense.” The judge, however, declined to make a written ruling that domestic abuse was alleged out of concern that the statutory language violated constitutional principles of due process and separation of powers and instead reported the question pursuant to Rule 34. Continue reading →

This past April, domestic violence legislation was proposed at the statehouse. Both the House and the Senate proposed somewhat different versions of the law, and this past week, a conference committee reconciled the two versions of the bill (SB1892 and H4037). Both the House and the Senate then passed the reconciled version – S2334 – into law. While the bill must still be signed by the governor before it actually becomes law, he is apparently expected to approve it shortly.

The legislation, formally named An Act Relative to Domestic Violence – creates a first offense domestic violence assault and battery charge, establishes a domestic violence offender registry, and provides education for judges and prosecutors about cycles of abuse. Though not every proposed new domestic violence offense, nor all suggested increases in fines/assessments for abuse victims or programs, were included in this compromised bill, most of the significant provisions of each version were incorporated.

Specifically, the bill includes the following changes to current law:

• Amends the bail statute to require that persons charged with a variety of enumerated domestic abuse offenses may not be admitted to bail for six hours after arrest and before a written determination has been made with respect to conditions of release to reasonably assure the safety of the alleged victim;
• Amends G. L. c. 276, § 58A dangerousness hearings to allow the hearings to be re-opened upon changed circumstances;
• Requires a reasonable attempt be made to notify abuse victims of a defendant’s release from detention on bail;
• Requires that police recruits, medical professionals, court personnel, district attorneys and assistant district attorneys all receive training relative to domestic and sexual violence;
• Expands the amount of CORI information that may be disseminated to include dangerousness hearings, requests for dangerousness hearings, and determinations of dangerousness;
• Establishes a Domestic Violence Fatality Review Team within the Executive Office of Public Safety (EOPS);
• Requires that the Probation Department maintain a Domestic Violence Record Keeping System and requires that EOPS, in coordination with the Community Justice and Mediation Center (CJAM), adopt regulations for the standardization of rules relative to disseminating an individual’s criminal and civil court history to district attorneys, assistant district attorneys, defense attorneys, and judges in certain proceedings;
• Authorizes eligible adults to possess self-defense (pepper) spray without a firearm identification card (which was previously required);
• Makes communications between police and alleged victims of domestic violence confidential;
• Prohibits visitation rights with a child for a parent who committed a rape, which resulted in the conception of that child, unless the child is old enough to choose to have contact with that parent;
• Establishes a separate Domestic and Sexual Violence Prevention and Victim Assistance Fund;
• Creates certain new offenses relative to assault and batteries on household and family members, and batteries involving suffocation/strangulation, as well as increasing certain domestic abuse penalties;
• Establishes domestic violence leave pursuant to which an employee may take 15 days of leave a year from work if the employee suffers from domestic violence.

Continue reading →

A new bill – S 853 – was unveiled at the statehouse last Tuesday.  The bill establishes new crimes related to domestic violence, new legal provisions to protect alleged victims, and new training for judges in relation to domestic violence cases.

Specifically, the bill creates a new charge for a first offense of domestic assault and battery, creating a classification system for criminal conduct that is alleged to have occurred in a domestic context.  Such classification means that those involved in the criminal justice system, including judges, prosecutors, and police, would potentially be in a position to track a defendant’s history of domestic charges.

Under the proposed law, a first domestic assault and battery offense would be punishable by up to 2.5 years in the county House of Correction and a $5,000 fine.  A second offense would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and a $10,000 fine.

The bill would also create new charges for strangulation and suffocation.  Currently, prosecutors classify strangulation as either an assault and battery, or attempted murder.  The new offenses would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and up to a $5,000 fine.  Under special circumstances, the penalties for strangulation and suffocation could increase to up to 10 years in state prison and a $10,000 fine.  Examples of such special circumstances include situations in which the alleged victim was pregnant, the alleged victim had a restraining order against the defendant, the alleged assault resulted in significant bodily harm to the alleged victim, or if the charges against the defendant were a second or subsequent offense – meaning that the defendant had been convicted of domestic charges in the past.

Additional proposed provisions of the bill include:

• Exclusion of domestic violence cases from resolution by an “accord and satisfaction,”  which is a statutory resolution of a criminal case (laid out under G. L. c. 276, § 55) that allows a defendant who is charged with an assault and battery or other misdemeanor to enter into a settlement (usually financial) with the alleged victim so that the alleged victim is “satisfied.”  The defendant can then file the agreement with the court and ask the judge to dismiss the charges.
• Addition of new charges for domestic assault near a courthouse, or with the intent to intimidate or prevent access to courts.
• Increasing the penalties for domestic violence against people who are elderly or disabled.
• Creation of a new state-level review team to investigate domestic violence-related fatalities and to help establish best practices to prevent domestic violence.
• Delaying bail for defendants charged with domestic violence offenses by six hours (to give alleged victims additional time to get assistance if they want it).
• Establishing up to 15 days of employment leave a year for alleged victims of domestic violence to deal with things like obtaining medical attention or attending court.
• Creation of a separate police log for alleged domestic violence complaints.
• Establishing fees for those convicted of domestic violence offenses, with the money going to a victim assistance fund.
• Requiring the trial court’s chief justice to provide bi-annual training to court personnel on domestic violence.
• Prohibiting the court from granting visitation rights to a parent convicted of rape without the child’s consent.

Continue reading →