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According to an article in the MetroWest Daily News, a Littleton man was recently arrested for assaulting his step-brother. The article states that the defendant was arrested in Ashland following a family argument. The defendant and his step-mother reportedly got into a verbal argument. During the argument, the defendant yelled at the step-mother. The defendant’s step-brother, who  allegedly suffers from developmental disorders, was present and reportedly became angry with the defendant for raising his voice. The step-brother then allegedly grabbed his belt, making motions as if he was going to hit the defendant. It was at this point that the defendant allegedly struck the step-brother. Following the incident, the defendant called the police. Once officers arrived, they spoke to the defendant who reportedly acknowledged that he hit the step-brother a total of five times. The defendant was subsequently charged with assault and battery on an elderly or disabled person.

To prove that the defendant committed an assault and battery on an elderly or disabled person under G. L. c. 265, § 13K, the Commonwealth would have to show the following beyond a reasonable doubt: (1) that the defendant touched the alleged victim, without having any right or excuse for doing so; (2) that the defendant intended to touch the alleged victim; (3) that the touching was either likely to cause bodily harm to the alleged victim, or was done without his (her) consent; and (4) that the alleged victim was either elderly (over sixty years old) or disabled (a person with a permanent or long-term physical or mental impairment that prevents or restricts the individual’s ability to provide for his own care or protection). Continue reading →

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balance-1172786In a recent case, Doe, Sex Offender Registry Board No. 380316 v. Sex Offender Registry Board, the Supreme Judicial Court changed the standard of proof applicable to classification determinations by the Sex Offender Registry Board (SORB), discarding the existing “preponderance of the evidence” standard in favor of the more stringent “clear and convincing evidence” standard.

Doe was convicted of indecent assault and battery on a child under fourteen. Following the conviction, SORB determined, by a preponderance of the evidence, that Doe should be classified as a level two sex offender. Doe appealed SORB’s decision to the Superior Court, which affirmed the classification level, applying the same standard: preponderance of the evidence. The SJC vacated that affirmation, however, and, pursuant to due process considerations, changed the standard or proof from a “preponderance of the evidence” to “clear and convincing” evidence, which is a higher level of proof. The SJC explained that subsequent to its establishment of the preponderance of the evidence standard for classifying sex offenders in Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998), “amendments to the sex offender registry law and other developments” have rendered the preponderance standard inadequate to protect sex offenders against the risk of erroneous over classification by SORB. The Court noted that “[o]n balance, … [the] legislative changes have more often imposed extra burdens on registered offenders than provided them with additional protections. More offenses are now subject to a registration requirement. Sex offenders face increasingly stringent affirmative reporting requirements, and the penalties for failing to meet those requirements are harsher.” The SJC went on to state that “[t]he sex offender registry law in its current form … calls for extensive dissemination of … registry information. Both level two and level three sex offenders’ information is now posted on the Internet…. Consequences of such public dissemination may include housing and employment discrimination, harassment, and assault.” Moreover, although “[a] convicted sex offender’s risk classification now has far greater consequences than were present when [the Court] decided Doe No. 972 over seventeen years ago,” “there is reason to question whether SORB’s … classification guidelines [which have not been updated since 2001] continue to reflect accurately” the current state of scientific “scholarship regarding statutory factors that concern risk assessment.” Continue reading →

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gavel-1238036The Appeals Court recently issued a new decision, Commonwealth v. Everett, which clarifies the trial court’s ability to dismiss a valid criminal complaint. In Everett, a Boston Municipal Court judge dismissed a legally valid criminal complaint against the defendant, which charged him with operating a motor vehicle after his license had been revoked, subsequent offense. The dismissal was over the Commonwealth’s objection. In dismissing the complaint, “the judge essentially articulated his view that the prosecution of this defendant would not be desirable, where the defendant had taken the steps necessary to get his license reinstated and was in need of a license to obtain employment.” In reviewing the trial court judge’s decision, however, the Appeals Court stated that “‘the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor.’” The Court added that the “governing principle [here] is that the decision whether or not to prosecute the complaint rests within the sole discretion of the executive branch.”

On appeal, the defendant “assert[ed] [that] the judge erred only in failing to hold a hearing pursuant to Commonwealth v. Brandano, 359 Mass. 332, 337 (1971), prior to dismissing the matter and requested that the case be remanded for a Brandano-type hearing. Under Brandano, a judge was permitted to “dismiss criminal complaints over the Commonwealth’s objection in ‘the interests of public justice’ pursuant to the procedure outlined in … [the case].’” This procedure, commonly referred to as a Brandano motion or hearing, became a familiar practice, especially within the Juvenile, District, and Boston Municipal Court departments.” Some years after the issuance of Brandano, however, the Legislature replaced the Brandano procedure with a statutory alternative for cases arising in the Boston Municipal, District, and Juvenile Court departments, which is laid out under G.L. c.278, §18. Under this statute, which governs the disposition of cases in District and Municipal Court, a dismissal “in the interests of public justice” is not an available option, unless such a dismissal is done in conjunction with the proffer of a guilty plea or an admission to sufficient facts with a request for a continuance without a finding. Continue reading →

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fist-1488296According to an article in the MetroWest Daily News, a thirty-two year old Milford man got into a physical altercation with his eighteen year old niece earlier this week. The article states that the niece had been kicked out of her mother’s house and was staying at her grandmother’s house. At some point during her stay, the niece began yelling at her grandmother and her uncle, who was present during the argument, stepped between the two in an attempt to diffuse the situation. According to the uncle, the niece punched him twice in the face and he then reportedly punched her once. The niece allegedly had a broken nose as a result of the incident. It’s not clear whether the uncle had any injuries. Police arrived on scene and arrested the uncle, charging him with domestic assault and battery. The niece was summonsed to court on the same charges that same day.   Continue reading →

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police-car-1515955According to an article in the MetroWest Daily News, a twenty-three year old Groton woman was recently charged with attacking her boyfriend. According to the article, the defendant was traveling in a car with her boyfriend on the Mass Pike. The boyfriend was talking on the phone with another woman and was planning on driving to this other woman’s house. The defendant allegedly became angry about the fact that the boyfriend was speaking with the other woman, grabbed the boyfriend’s cell phone, and threw it in the back seat of the car. The defendant then allegedly slapped her boyfriend in the face and hit him repeatedly. The boyfriend reportedly began hitting the defendant back and bit her left pinky finger. The boyfriend claimed that he struck the defendant in self-defense because he was traveling at approximately 55-60 miles per hour and was concerned he might crash. The boyfriend ultimately pulled over and state police troopers found the couple, both with visible marks and scratches on their faces and arms, standing around the car in the breakdown lane at roughly 1:48 a.m. The defendant admitted to police that she started the fight. The boyfriend, however, denied biting the defendant’s finger. The defendant was arrested and subsequently charged with assault and battery.

Fortunately for the defendant, there do appear to be some questions as to whether the Commonwealth will be able to prove the case against her. Although the boyfriend was not arrested and the article indicates that he was “acting in self-defense,” he could still be criminally charged for assaulting the defendant.  Specifically, the fact that he may have been acting in self-defense and could therefore raise that issue as a defense at trial does not mean that the he could not be criminally charged and potentially prosecuted for his conduct.  In light of the fact that he could potentially face criminal charges, he may decline to testify and choose to exercise his Fifth Amendment privilege, which states that a person cannot be compelled to testify if his testimony is potentially incriminating and/or could result in criminal prosecution.  The privilege is not limited to circumstances in which the Commonwealth has specifically sought charges or indicated that it intends to do so – a person can assert his Fifth Amendment privilege as long as he could face criminal charges, regardless of whether he actually will. Continue reading →

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stacked-denim-jeans-16-1056359According to an article in the MetroWest Daily News, a Woburn woman was arrested on larceny and drug charges this past week at the Marshalls located at Shoppers World. The store security officers were allegedly familiar with the woman because she had been involved in thefts at both Marshalls and TJ Maxx on various dates in November of this year. These thefts reportedly consisted of the woman taking several pairs of jeans from the shelves and bringing them into the dressing room. Once in the dressing room, the woman would reportedly remove the security tags and bring the items to the help desk to return them. She allegedly used the gift cards that she got for the returns to purchase other items in the store. According to the article, the woman got more than $1,000 worth of gift cards. Police officers reportedly identified the woman from surveillance footage and obtained a warrant for her arrest. When the woman returned to Marshalls after the issuance of the warrant, store security alerted police, who then came to the store to make the arrest. After arriving, police reportedly confronted the woman and asked for her name, which she provided. When the officers told her that there was a warrant for her arrest, the woman allegedly claimed that the warrant was for her sister, not her. The woman then reportedly attempted to give a different name but was ultimately arrested. While effectuating the arrest, the woman reportedly resisted, flailing her arms. She also allegedly dropped a small plastic bag on the ground and attempted to kick it away. The officers recovered the bag and found that it contained a substance that they believed to be heroin. The officers also found two additional bags of what they believed to be heroin in the woman’s purse, as well as $500 in cash. As a result, the woman was charge with possession with intent to distribute heroin, resisting arrest, and five counts of larceny under $250.

Although the woman is facing serious charges, she does appear to have at least some defenses – specifically, she may well have an argument that she did not have the requisite intent to sell the drugs. To prove the woman guilty of possession with intent to distribute under G. L. c. 94C § 32, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the substance in question was in fact heroin; (2) that the defendant possessed some perceptible amount of that heroin with the intent to distribute it to another person; and (3) that the defendant did so knowingly or intentionally. Continue reading →

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mouth-1437756According to an article in the MetroWest Daily News, a Framingham man allegedly attacked his ex-girlfriend after he found out that she was dating someone new. The article states that the man and the alleged victim were romantically involved but that the relationship had ended. According to the article, the man reportedly appeared at the alleged victim’s workplace (Shopper’s World) and asked to speak with her. They then drove away in the alleged victim’s car. After some period of time, the alleged victim dropped the man off and went to the police station. Once there, she claimed that she was the victim of a domestic assault. Specifically, the alleged victim told the police that she and her ex-boyfriend had gotten into an argument when he found out that she was dating someone else. The alleged victim claimed that the man grabbed her by the throat and choked her. The police then approached the man, who was outside a convenience store, and arrested him based on the alleged victim’s allegations. The man was subsequently charged with strangulation.

To convict the man of strangulation, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the man applied substantial pressure to the alleged victim’s throat or neck; (2) that he interfered with the alleged victim’s normal breathing or circulation of blood without having any right or excuse for doing so; and (3) that the man did so intentionally. Continue reading →

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the-big-zipper-349829-mA number of different news outlets have reported that a 25 year-old man was stopped near the Boston Marathon finish line due to his suspicious behavior on April 15th, 2014, the one year anniversary of the Boston Marathon bombings.  According to the various news reports, passers-by told a police officer that they saw the man acting strangely, including walking barefoot down the middle of a street, veiled in black, in the rain.  The man was carrying a backpack and was also reportedly yelling “Boston Strong.”  When officers approached him and asked him what was in the backpack, he stated that he had a “non-explosive rice cooker,” which is the same type of device used to execute last year’s bombings.  Police determined that the bag’s contents were not explosive – in fact the rice cooker contained confetti.  In an abundance of caution, however, the police chose to destroy the backpack.  A second “suspicious” backpack also was found in the area.  Although reports originally indicated that both backpacks were left by the man, officers had actually determined that the second bag had been left behind by a reporter and was not dangerous.  It too was destroyed.

As the story broke, it came to light that the man has a lengthy history of bi-polar disorder and was off his medication.  He was reportedly on his way to an art performance of some kind when he was observed by the officers and stopped.  As a result of his conduct, the man was arraigned in the Boston Municipal Municipal Court on charges of threats, possession of a hoax explosive device, disturbing the peace, disturbing a public assembly, and disorderly conduct.

While everyone’s nerves are understandably on edge as the 2014 Marathon approaches, and the man’s conduct was legitimately concerning, it’s questionable as to whether the Commonwealth will be able to make the criminal charges against him stick.  One issue is whether the man was too mentally ill to be able to appreciate the nature of his conduct and therefore whether he could even form the requisite criminal intent.  As a result of this question, he could raise a lack of criminal responsibility defense.  Although such a defense is historically difficult to present, given the man’s history of mental illness and his undeniably odd conduct, it’s possible that he may succeed in doing so.

Continue reading →

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hand-emotion-3-1468947According to an article in the MetroWest Daily News, an Ashland woman was arrested earlier this year after allegedly threatening and assaulting a man. The article states that the woman and her boyfriend were staying at the alleged victim’s house in Framingham. The alleged victim reportedly noticed that his prescription Klonopin was missing and blamed the woman. The woman’s boyfriend then got into a fist fight with the alleged victim. During the fight, the woman allegedly went into the kitchen, grabbed a knife, and threatened to stab the alleged victim. She also reportedly threw a fan at him and hit him with it. The police were ultimately called and found three Klonopin pills in the woman’s purse. The woman was subsequently charged with assault and battery with a dangerous weapon (the fan), assault with a dangerous weapon (the knife), possession of Klonopin, and larceny under $250.

Although the charges against the woman are serious, she appears to have a strong defense to at least some of the allegations. Specifically, as to the assault charges, the woman may well be able to argue that she was acting in defense of another: her boyfriend. Massachusetts law allows people to come to the aid of each other when such action is necessary. Specifically, Massachusetts law allows a person to use reasonable force when it is necessary to do so to help another person. In other words, if it reasonably appears that the person being aided is in a situation where the law would allow him to act in self-defense himself, then a third party can lawfully come to his aid in his defense. The law states that if there is evidence that a defendant may have been coming to the aid of another person, then the defendant must be acquitted of the charges unless the Commonwealth proves at least one of the following to things beyond a reasonable doubt: (1) that a reasonable person in the defendant’s position would not have believed that her use of force was necessary in order to protect the third party; or (2) that to a reasonable person in the defendant’s position would not have believed that the third party was justified in using such force in his own self-defense. Continue reading →

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woman-walking-a-dog-27207-mAccording to an article in the MetroWest Daily News, a 23 year-old Framingham woman attacked a former co-worker in Wayland earlier this year. The defendant is a professional dog walker. The alleged victim in the case was reportedly a former employee of the company, but was laid off because of a broken ankle. Following her recovery, the alleged victim began walking dogs again, but not with the same company.

According to the article, the defendant encountered the alleged victim while both were on the job in the Loker Conservation. The defendant reportedly noticed that the alleged victim was walking two dogs that belonged to former company’s clients and became upset. The alleged victim specifically reported that she and the defendant got into a verbal exchange during which the defendant accused the alleged victim of depriving her of her livelihood by stealing clients. The two women then walked away from each other, but crossed paths again in the parking lot, where the defendant allegedly accused the woman of having “no morals” and then physically attacked her. The alleged victim claimed that the defendant punched her several times, scratched her, and then knocked her to the ground. The alleged victim also reported that, at one point, the defendant had her legs around the alleged victim’s neck, cutting off her airway. The alleged victim stated that the defendant flipped her over with her legs and kicked her body, including her recently broken ankle, several times. Continue reading →

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