Articles Posted in Assault and Battery

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The Lowell Sun reports that forty year old Shawn Kelley has been charged with assault with intent to murder and assault and battery relating to an incident that occurred on Tuesday, September 6th during the evening. It has been alleged that a woman reported the incident the following morning claiming that Kelley choked and threatened her. Following his arraignment in Lowell District Court, Judge Thomas Brennan ordered that Kelley be held on $10,000 cash bail. In the event that the bail is posted, Brennan ordered that Kelley have a mental health and a substance abuse evaluation, refrain from abusing the victim and have no access to weapons. A probable cause hearing is set for October 6th.

Massachusetts General Laws Chapter 265 section 13A provides that the punishment for a defendant convicted for assault or assault and battery is up to two and one half years in prison or by a fine of not more than one-thousand dollars. The charges of assault and assault and battery are considered felonies because the potential penalty in this case is a “house of correction” or “jail” sentence. When a potential sentence that a defendant can receive includes a state prison commitment, the charge is considered a felony.
In order to be convicted of assault and battery the Commonwealth must prove beyond a reasonable doubt that there was an intentional and unjustified touching, however slight, on another OR that a defendant intentionally engaged in wanton or grossly negligent conduct that cause injury to another person. Thus, the charge of assault and battery is often described as having two “branches,” the “intentional” branch and the “wanton” or “negligent” branch. The government can prove their case by establishing either theory. The crime of simple assault can also be committed in one of two ways. One can be convicted of assault by “attempting a battery” on another or by putting another person in fear of an immediately threatened battery. Relative to the “attempted battery” type of offense, it is not necessary for the “victim” be put in fear.

Although all of the facts of this case are not known at this time, it appears that the reason for the delayed reporting should be investigated for the defense. Furthermore, while the case is still “new” it may be appropriate for the defense team to employ an investigator to determine whether there are any witnesses to the alleged incident other than the defendant and the complaining witness.

Depending on the circumstances of the case, it will be important to establish if there is a viable claim of self-defense, defense of another, accident, misidentification or that the incident simply did not happen. Relative to a claim of self-defense or defense of another, the Commonwealth has the burden to prove its case beyond a reasonable doubt and then to prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.

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A Haverhill Massachusetts man, Michael Donnelly, was arrested and charged with assault and battery at 3:15 in the morning, released and rearrested for the same offense at 11 a.m.. According to The Lawrence Eagle Tribune the police were called to the Haverhill home twice in a short time span because of a fight with his girlfriend and a “violent outburst.” Donnelly appeared in the Haverhill District Court where the Assistant District Attorney requested that he be held on $3,000.00 cash bail. Judge Stephen Abany declined to set the bail that high but held the defendant on $450.00 cash bail. The Tribune reported that the defendant claimed that the disagreement stemmed from the fact that he wanted to end the relationship with the complaining witness.

Although all of the facts of the case are not known at this time, in these types of cases there are many ways that an experienced Boston area defense attorney can build a defense. One area that must always be examined is whether a defense of self-defense or defense of another is viable. In the event that there was an altercation in which both parties sustained injuries, a self-defense theory must be explored. In the event that self-defense or defense or another is presented during a trial, the Commonwealth must not only prove beyond a reasonable doubt the assault and battery but must also prove beyond a reasonable doubt that the defendant did not act in self-defense or in defense of another.

These types of cases are often referred as “domestic violence” cases. In addition to facing criminal charges, a defendant may also have to oppose the issuance of a restraining order. In situations where the parties have a “substantial dating relationship,” are family members or roommates a complainant may apply for a “209A” restraining order. In the event that the plaintiff can establish that a defendant’s actions put him or her in reasonable apprehension of immediate physical harm a judge may grant the order. Keeping in mind that at the time an initial order is granted a judge only hears one side of the story, the order often issues at the outset. Typically, a return date is given and at that time the defendant or opposing party will have the opportunity to present his or her side of the story. A defendant opposing a 209A restraining order MUST be mindful that anything he or she states during the civil restraining order hearing may be used against him or her during the criminal prosecution. Thus, depending on the circumstances, it may not always be wise for the defendant to speak in open court but have an experienced domestic violence lawyer speak on his or her behalf.

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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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According to The Salem News, a twenty-five year old off duty firefighter was found not guilty of assault and battery following a jury-waived trial in Salem District Court. The charges stemmed from a Halloween party last fall that left a Danvers man in a pool of blood at the bottom of a set of stairs with injuries to his face and hip. According to the paper, the trial focused on exactly how the Danvers resident sustained the injuries. The Commonwealth presented witnesses alleging that the defendant punched the intoxicated guest and pushed him down twelve stairs in front of the party house. The defendant and other witnesses testified that the party-goer was inadvertently sent down the stairs by another guest. The District Court judge concluded that there was reasonable doubt as to whether the defendant committed the assault and found the firefighter not guilty.

In Massachusetts, in order to be found guilty of assault and battery the Commonwealth must prove beyond a reasonable doubt that a defendant intentionally committed an unconsented to touching on another person or the intentional doing of a wanton or grossly negligent act causing personal injury to another. Assault and battery by means of reckless, wanton and willful conduct requires actual physical injury as necessary element of required proof. When a client is accused of assault and battery or any violent crime it is important to investigate and develop a defense early in the case. The option to consider in a case where there was contact between the parties is whether a defendant acted in self-defense or in defense of another. Once that type of defense is asserted at trial, the Commonwealth must prove beyond a reasonable doubt that a defendant did not act in self defense or in defense of another. Another possibility, as was the case here, is for the defendant to deny that he or she was the perpetrator.

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A Salem Massachusetts teenager is being held in the Essex County jail where he will remain for up to ninety days without the possibility of being released on bail, following a “dangerousness hearing” in the Salem Superior Court. According to The Salem News, eighteen year old Michael Ehlert was held following testimony from a seventeen year old special needs student who described what the judge called a “fairly vicious beating.” According to the paper, Judge John Lu stated that he believed that it is “reasonable” to believe that Ehlert might follow through on his threat to slit the throat of the complaining witness and have his mother sexually assaulted if he is released. Testimony of this alleged intimidation was a factor Lu relied on in concluding that there were no terms of release that would protect the safety of the boy, his mother or the public at large.

The witness testified that after he left his house to buy cigarettes at the store, Ehlert and a co-defendant dragged him into a Marblehead cemetery and beat him. Defense counsel highlighted inconsistencies between the teenager’s initial statement to the police and his “official” version given nine days after the incident. Despite pressing by counsel, the witness maintained that the relationship between Ehlert and himself was limited to interaction at the town’s skateboard park with mutual friends. Ehlert and eighteen year old Michael “Tampa” Leoni are facing charges that include robbery, assault and battery, and witness intimidation. Ehlert’s twenty-two year old brother is facing a charge of witness intimidation. It is alleged that the made phone calls to the witness following Michael Ehlert’s arrest.

Based on the facts in this case it appears that a thorough pre-trial investigation must be conducted to determine the motive for the complaining witness to change his story. Massachusetts General Laws 268 § 13B states that the crime of witness intimidation requires proof that (1) an individual was a witness in a stage of a criminal proceeding, and that the defendant (2) willfully endeavored or tried to influence the witness, (3) did so by means of intimidation, force, or threats of force, or the offering of inducements, and (4) did so with the specific intent of influencing the witness. Based on Massachusetts case law, it is not necessary that charges be lodged at the time of any alleged intimidation. “Any stage of a criminal proceeding” may encompass actions committed by a defendant before the police was called or the alleged crime was reported. For example, the authorities often charge a defendant with “intimidation of a witness” when a complainant alleges that the defendant took his or her phone in an effort to prevent the reporting of a crime.

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Actor Charlie Sheen has been arrested and charged with menacing a deadly weapon, second-degree felony assault and criminal mischief. According to The Aspen Daily News, upon conviction, felony menacing usually carries a potential sentencing range of one to three years in prison, and second-degree assault usually carries a range of two to six years in prison. Criminal mischief in Colorado does not include a mandatory minimum prison sentence upon conviction.

Sheen’s arrested was prompted by a 911 call to the police from his wife Brooke Mueller. According to reports, an argument began when Meuller informed Sheen that she wanted a divorce and custody of their twin boys. Mueller claimed that Sheen grabbed her by the upper neck and threatened her with a knife. It has been reported that Mueller had high levels of alcohol in her system at the time she made the report. As we all know, there are two sides to every story. Sheen denies his wife’s allegations. This type of case is categorized as a case of “domestic violence.” When police are called to a residence because of an allegation of “domestic abuse” usually one of the parties is arrested and it is usually the man.

If you have been arrested and charged with a crime of domestic violence you must have an experienced Massachusetts defense lawyer on your side. In most circumstances, the police advise the complaining party of his or right to have a civil restraining order. The standard for the issuance of a restraining order is low. Although a restraining order is a civil order, criminal charges may issue if there an allegation that the restraining order has been violated.

If you have been charged in a case of “domestic violence,” developing a strategy and conducting a complete investigation must take place early. Based on the facts of the case it is often important to document and/or photograph any injuries to the defendant, interview witnesses and take pictures of the scene in order to mount a successful defense.

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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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The Lowell Sun reports that, a local teacher has been charged with assault by means of a dangerous weapon. The paper reports that the defendant allegedly intervened in a family fight between her husband and his brother who were in a heated argument. One of the individuals was reportedly holding his twenty two month old son at the time of the incident. The teacher plead not guilty in the Lowell District Court and was released on personal recognizance.

Although all of the facts are not known at this time, in these types of situations a defendant may have a viable claim of self defense or a claim of defense of another. In Massachusetts, a person is allowed to use reasonable force in self-defense when this is necessary to protect herself from physical harm. And therefore it is not a crime to strike at another person if this is done in reasonable self-defense. Similarly, an person can also use reasonable force to protect another from physical harm.
In Massachusetts, in addition to proving the elements of the crime beyond a reasonable doubt, the Commonwealth must also prove beyond a reasonable doubt that the defendant was not acting in self defense. In order to prevail the government must prove that one or more of the following three requirements are absent:

First: For the defendant to have acted in self-defense, she must have reasonably believed that she was being attacked or was immediately about to be attacked, and that her personal safety was in immediate danger; and
Second: For the defendant to have acted in self-defense, she must have done everything that was reasonable in the circumstances to avoid physical combat before resorting to force;
Third: For the defendant to have acted in self-defense, she must have used no more force than was reasonably necessary in the circumstances to defend herself.

When a case involves a fight between family members it is often categorized as a case of domestic violence. Often, the prosecutor and the police recommend that the alleged victim obtain a restraining order. If you have been served with a restraining order you should contact an attorney to try to prevent the extension of the order. Although a restraining order is a civil order, if the complainant reports a violation you can be charged with a criminal offense.

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Twenty-three year old Fidel Sena, from Peabody Massachusetts, has been arrested and charged with assault and battery by means of a dangerous weapon causing serious bodily injury on a fifty-three year old man. According to The Salem News, Salem police officers responded to a report relative to a fight involving the use of baseball bats. When the police arrived at the scene the fifty-three year old victim was lying on the ground. He was eventually transported to the Salem Hospital for treatment. A witness provided the police with a license plate number and description of the alleged perpetrator. According to reports, witnesses were brought to where the police pulled over the car and they identified Sena as the perpetrator.

In Massachusetts, in order for the Commonwealth to prove assault and battery it must prove that a defendant touched another person without consent. Assault and battery is considered a misdemeanor in Massachusetts because the maximum sentence is a commitment to jail or a house of correction and not state prison. However, the charge of assault and battery by means of a dangerous weapon is a felony because the potential punishment is a commitment to state prison.

If you have been charged with a crime in Massachusetts, you must have an experienced defense attorney on your side. Although all of the facts of this case are not known at this time, filing a motion to suppress the identification of the defendant may be appropriate because it appears that the police brought the witnesses to the suspect for a one on one show up identification. In these types of case, pre-trial motions requesting the circumstances surrounding the identification of the defendant as the perpetrator should be filed to determine the viability of filing motion to suppress the identification of the defendant as the perpetrator.

Additionally, if you have been charged with domestic assault and battery a qualified defense attorney is important to ensure that all of your rights are protected. In the event that a complaining witness applies for a restraining order and you are notified of a hearing relative to the issuance or extension of a restraining order, you must have an experienced Boston area domestic violence attorney on your side. You must be informed of all of your rights and options to avoid making statements and giving testimony at a restraining order hearing that may be used against you at trial or be the grounds for additional charges issuing against you.

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