Articles Posted in Assault and Battery By Means Of A Dangerous Weapon


Heat of Passion

Consider the following hypothetical scenario: A jealous man comes home from a business trip early and finds his wife in bed with someone else. Gripped by betrayal and rage, the jealous man attacks the other man, beating him severely. The jealous husband does considerably more harm to the other man than is reasonable in this situation. The wife, in a panic, calls the police. Once the police arrive, the jealous husband is arrested, the other man is hospitalized, and the wife is left shaken and scared. Continue Reading

The Lawrence Eagle Tribune reports that police in Haverhill are seeking the help of the public in identifying two suspects who allegedly robbed an unarmed pedestrian at gunpoint. The victim, a 34-year-old man, was robbed of $80 dollars in cash, his credit cards and some other personal papers shortly after 5:00pm on a Monday while walking along Chick Avenue in the Mount Washington area. One of the suspects is described as a young adult, with a distinctive teardrop tattoo under his left eye, while the other suspect, the one who held the gun, is described as having a reddish-brown beard. Both men are over six feet tall. Police are asking that anyone with information about the suspects or the robbery to contact them immediately. Massachusetts Armed Robbery Defense Attorney Continue Reading

The Lawrence Eagle Tribune has reported that Lawrence Police Officer William Green shot a man who is accused of beating another male with a baseball bat in a Lawrence alley. The Tribune reports that while Green was doing a paid detail at the Club Copa he became alerted to a disturbance in a nearby alley. Upon investigation, Green observed a male beating another male with a baseball bat. According to the report of District Attorney Blodgett’s office, Officer Green gave reported verbal commands for the assailant to stop. The bat yielding assailant, later identified as Jose Concepcion of Lawrence, apparently failed to stop and Green shot him twice. This put an end to the beating and both participants landed in the hospital. Concepcion was taken to Lawrence General Hospital and the other male was taken to a Boston Hospital. According to a press release from Blodgett’s office, per department policy, Green has been placed on paid administrative leave. The Massachusetts State Police and The Essex County District Attorney’s Office is continuing to investigate the incident.

The facts of this case raise some very interesting and often litigated legal issues. A defense that is often asserted, when identification of a perpetrator is not an issue, is self-defense or defense of another. Although all of the facts of this case are clearly not available at this time, this may or may not be a viable defense. It is always the burden on the Commonwealth to prove its case beyond a reasonable doubt. Once a defendant asserts a claim of self-defense or defense of another the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. In Massachusetts an individual has an obligation to retreat if possible and can only use as much force as reasonable to defend oneself. Generally speaking, a gun or knife would be considered excessive force if an individual was fighting an unarmed person. However, every case is fact specific. Critical factors to be considered if you believe that this type of defense may apply to your case are whether a defendant was out numbered, what type of weapon was used (if any) and the size of the parties involved.

Based on the facts of this case it appears that the individual that used the bat on the male in the alley can be charged with a number of offenses ranging from assault and battery, assault and battery with a dangerous weapon to assault with intent to murder (armed). In the event that the person is charged with just assault and battery and assault and battery by means of a dangerous weapon the case may remain in the District Court. The advantage of this is that a District Court Judge can only sentence up to two and one half years in the house of correction. However, if the case is indicted and the case is in Superior Court he will face the possibility of a state prison sentence. The maximum sentence for armed assault with a dangerous weapon is twenty years. The decision of what Court that this case will be litigated in will probably be made after a thorough investigation into the circumstances surrounding the attack and the background of the involved parties. Based on my experience, I would expect that the Essex County District Attorney’s Office will present the case to a Grand Jury and indictments will be returned against the individual that struck the male with the bat.

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A twenty-eight year old Salem Massachusetts man, Michael Marino, will spend the next six years behind bars after pleading guilty to stabbing his mother’s former boyfriend seven times. According to The Salem News, Paul Goodwin told the Superior Court Judge that this situation was the most “horrifying thing in [his] life.” Goodwin wanted Marino to be sentenced to the maximum of thirty-five years, twenty years for the count of assault with intent to murder and fifteen years for count of assault and battery causing serious bodily injury. The prosecutor described the incident as a “brutal attack” and requested that the defendant be sentenced to a seven to ten year sentence. Superior Court Judge David Lowy imposed a six year sentence followed by a probation term when Marino is released from prison. Marino was ordered to participate in drug and alcohol counseling and attend an anger management class during his probationary period.

According to reports, the victim explained to the Judge that the defendant sliced his throat and then opened up his belly “like a fish.” Apparently, Goodwin, [who had previously received a restraining order against his former girlfriend and mother of the defendant, Brault] went to Brault’s mother’s house after she had been kicked out. As Goodwin and Brault were speaking, Brault received a phone call from her son, Marino who appeared at the scene. An altercation ensued that left Goodwin with lacerations to his liver, lung and diaphragm and fighting for his life. Defense counsel explained that his client did not land the first blow and was not sure what to expect when he arrived at the scene. Counsel further explained that Marino was under the influence of Klonepin and alcohol. The struggle landed Marino in jail and Goodwin in the hospital.

In many cases where a defendant is charged with a violent crime there are a number of defenses to pursue. Obviously, the type of defense that is mounted depends on the facts of the case. For example, if a defendant was not identified at the scene and the accuser and the defendant are unknown to one another, a defense of misidentification should be evaluated. That type of defense would not make sense in a case such as this because the parties knew each other.

Although all of the facts of this case are not known, it appears that if the case went to trial a viable defense would be that Marino acted in self-defense. In cases in which a defendant claims self-defense the Commonwealth must prove that beyond a reasonable doubt that an assault and battery by means of a dangerous weapon occurred AND must prove beyond a reasonable doubt that the defendant did NOT act in self-defense. However, in cases of self-defense and individual has the obligation to retreat if possible and can only use as much force as is necessary to defend oneself. Thus, the fact that Marino introduced a knife into the struggle could be problematic to the claim of self-defense. In these types of cases the size of the individuals involved in the altercation can be important as a slighter person may need to use more force to protect himself from a bigger, stronger person.

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A thirty-eight year old Haverhill Massachusetts woman, Dorothy Driscoll, will enjoy the summer at MCI Framingham following her conviction for assault and battery by means of a dangerous weapon and shoplifting as the result of an incident at the Family Dollar Store located in New Hampshire. According to The Lawrence Eagle Tribune, Driscoll threw hot coffee in the face of an assistant store manager after attempting to steal several items from the store. Driscoll apparently admitted splashing the coffee in the employees face when she was confronted shortly after the incident. The Tribune reports that Driscoll punched a store clerk before she left the store leaving the items behind. Neither employee was seriously injured. Driscoll pleaded guilty in the Haverhill District Court and Judge Stephen Abany sentenced her to five months in jail. She received credit for twenty-nine days she served awaiting disposition.

In Massachusetts, the crime of assault and battery by means of a dangerous weapon is a felony. A felony is any crime where a defendant faces the possibility of serving a state prison sentence upon conviction. However, even though a defendant may face the potential of receiving a state prison sentence, there is often a jail or house of correction alternative. In addition to proving the elements for assault and battery, the Commonwealth must also prove beyond a reasonable doubt that the crime was committed with a “dangerous weapon” to prove the crime of assault and battery by means of a dangerous weapon. A dangerous weapon includes more than items that would routinely be considered dangerous such as a knife or a gun. A dangerous weapon can be an ordinary item that is used in a dangerous manner. For example, a cigarette that is used to burn a person or a shoe that is used to kick a person would be considered a dangerous weapons in Massachusetts.

Depending on the facts of the case, viable defenses to a charge of assault and battery and/or assault and battery by means of a dangerous weapon include misidentification or self-defense or defense of another. In the event that a defendant asserts the defense of self-defense or defense of another, the burden is on the Commonwealth to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.

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The Lawrence Eagle Tribune reports that a Lawrence Massachusetts man faces a minimum mandatory sentence of 10 years in state prison if convicted of charges stemming from a drug bust. Marcelo Perez, 48, of 210 Lawrence St., was charged with drug crimes including two counts of trafficking cocaine, two counts of unlawful possession of a handgun, two counts of unlawful possession of ammunition and possession of a dangerous weapon.

Three local authorities worked together focusing on suspected drug activity in the Dunkin’ Donuts parking lot on Main Street in Haverhill Massachusetts. Reports indicate that when he was arrested Perez had loaded .38 caliber pistol and 305 grams of cocaine in his jacket. With the assistance of the Tewksbury K9 unit, police discovered a hidden compartment in the back floor of Perez’s jeep. It has been reported that the authorties seized an additional 30.7 grams of cocaine another loaded handgun, a box of ammunition and a digital scale. Police estimated the street value of the cocaine at $6,500.

If you have been charged with any drug crime in Massachusetts, it is imperative that you have an experienced defense attorney on your side. Most drug arrests stem from a search that has been conducted by the police. Attacking the legality of the search is often times the first step to a successful litigation of a drug offense. Depending on the circumstances of the case, this is done by filing a motion to suppress evidence seized from a defendant, his or her car and/or his or her home or apartment. Our Attorney has successfully litigated these types of motions. If the evidence is suppressed the government is left without a case.

Based on the recent Supreme Court decision of Melendez-Diaz v. Massachusetts, it is imperative that a qualified defense lawyer attack any drug certificate that the District Attorney attempts to introduce in order to establish that the seized substance is in fact an illegal drug. The Supreme Court has indicated that the Commonwealth cannot merely introduce a drug certificate to prove that a retrieved product is contraband. Based on this new case law, in most cases, the Commonwealth is required to produe a chemist that examined the item and determined that is was an illegal drug. The Courts and the District Attorneys’ offices are scrambling to try to get around this requirement. If you find yourself facing drug charges you must have an experienced Massachusetts criminal lawyer on your side to fight for all of your rights.

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A stop for what police believed would be a routine drunk driving arrest resulted in a Lawrence man, Silver Dubon, being arrested on outstanding warrants for threats, assault and battery and attempted murder. Dubon was initially pulled over on route 110 in Lawrence and charged with speeding, failure to use care in stopping, a marked lanes violation, driving without a license and operating under the influence of alcohol. According to The Lawrence Eagle Tribune, after the police determined the identity of the driver, he faced additional charges. Reports indicate that the outstanding warrants relate to a case of alleged domestic violence dating back to 2008. Although all of the facts of the case are not known at this time, the Tribune reports that over one year ago Dubon allegedly had an argument with his wife that escalated into a physical fight.

In Massachusetts operating under the influence of alcohol and assault and battery are considered misdemeanor offenses. Assault and battery by means of a dangerous weapon and attempted murder are felonies. A charge is a misdemeanor when the most that a defendant could be sentenced to is a committed sentence in jail or in the house of correction. If the potential penalty for a crime is committed time in state prison then the offense is considered a felony.

If you have been charged with a crime you should have an experienced Boston defense attorney on your side. If you are facing charges in Peabody, Lowell or Lawrence having a local defense lawyer on your side can make a big difference in the outcome of your case. In cases where a defendant is charged with “domestic violence” a 209 A civil restraining order is often sought by the complaining witness. Although the order itself is civil, a criminal charge may issue if there is an allegation of a violation of the order. Thus, preventing the issuance of the order by having an attorney present your side of the case is crucial.

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Angel Mejia, a Lawrence Police Detective, was arrested and charged with assault and battery on his sixteen year old daughter. According to The Lawrence Eagle Tribune, Mejia had a confrontation with his teenage daughter when he caught her attempting to sneak into the house at 5:45 a.m.. It is alleged that Mejia pushed his daughter onto the pavement, where she struck her face and suffered bruises and scrapes. It has been reported that the Detective also pushed her against the garage door and the refrigerator. This type of case is often categorized as a case of Domestic Violence and taken very seriously by prosecutors and the court system. Due to the fact that Mejia routinely works with prosecutors in the Lawrence District Court the case has been specially assigned to an Essex County Assistant District Attorney usually assigned to the Peabody District Court. The Detective was released and ordered to abide by any conditions ordered by the Department of Children and Family Services. Mejia is currently scheduled to return to court on December 21, 2009. The Tribune did not indicate whether the sixteen year sought a 209A restraining order against her father.

Based on the facts in this case, the defendant is likely charged with three counts of assault and battery by means of a dangerous weapon. If convicted for assault and battery by means of a dangerous weapon in Massachusetts, a defendant can be sentenced to up to two and one half years in jail on each count or up to ten years in state prison on each count. Here, the “dangerous weapons” would be the pavement, garage door and refrigerator. An object may qualify as “dangerous weapon,” within the meaning of statute either because it is dangerous per se, as an instrumentality designed and constructed to produce death or great bodily harm, or because it is used in dangerous fashion. Although a refrigerator, pavement or garage door are not “dangerous per se”, if they are used in a “dangerous fashion” they may be considered a dangerous weapon in Massachusetts. Some examples of objects that have been found to be dangerous weapons in Massachusetts that would not ordinarily be one are: pavement, sneakers, rings and a lighted cigarettes.

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