Recently in Assault and Battery Category

August 4, 2014

Appeals Court Reverses Conviction Based on Insufficient Evidence that Knife was a 'Dangerous Weapon

Last month, the Massachusetts Appeals Court reversed a criminal defendant's conviction for carrying a dangerous weapon due to insufficient evidence that the knife he was carrying was the type of knife prohibited under the applicable statute.

In Commonwealth v. Higgins, the defendant was convicted of violating M.G.L. c. 269 §10(b), which makes it illegal for anyone to carry certain kinds of knives deemed to be dangerous weapons. This conviction came as somewhat of a surprise, as the jury failed to also convict the defendant of the aggravated assault and battery charge that was the centerpiece of the trial.

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May 19, 2014

Counsel's Failure to Raise Improper Expert Testimony Issue on Appeal Earns Defendant New Trial

Last week, the Massachusetts Appeals Court reversed the defendant's conviction in a sexual abuse case, based upon the improper expert testimony offered by the Commonwealth at trial, and the defendant's appellate lawyer's failure to raise that issue on the original appeal of the conviction.

In Commonwealth v. Aspen, the defendant was convicted of one count of rape of a child under sixteen, six counts of rape, two counts of indecent assault and battery, and one count of assault and battery, all in relation to accusations of sexual abuse made by the defendant's stepdaughter. At trial, over the objection of the defendant's trial attorney, the court permitted an expert witness to testify about general behavioral characteristics of sexually abused children in a manner that could have improperly suggested to the jury that the stepdaughter's testimony was credible.

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March 31, 2014

Appeals Court Reverses Shooting Conviction Based on Insufficient Evidence

In Commonwealth v. Lobo, the defendant was convicted of two counts of assault and battery by means of a dangerous weapon, after he was tried for the shootings of two brothers on Hancock Street in Brockton in 2005. At trial, the Commonwealth called only one eyewitness to testify. That witness, the victims' father, testified that he heard rapid gunshots fired while a white car was driving in front of him and his sons. He did not see a gun, a muzzle flash, or the faces of any of the people in the car. He was unable to say whether the gunshot sounds had come from the area of the white car, but assumed that they had.

The father further testified that when the white car drove away, he discovered that his sons had both been shot. He then heard the car return at a high speed and a car door open. He momentarily saw a male, who he later identified as the defendant, standing outside of the car. The father testified that he then heard two or three more shots fired, but he could not tell where those shots had come from. He never saw a gun in the defendant's possession.

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January 27, 2014

Ineffective Assistance of Counsel May Be Grounds for Withdrawal of Guilty Plea

Today, the Massachusetts Appeals Court issued its decision in Commonwealth v. Almonte, discussing the standard for a criminal defendant to withdraw his guilty plea on the grounds of ineffective assistance of counsel.

In 2005, the defendant was charged with one count of assault and battery by means of a dangerous weapon, and one count of assault and battery on a child causing injury, arising out of allegations that he had physically abused his minor daughter. Following plea discussions, the defendant and the Commonwealth agreed to plead guilty on both counts, with concurrent sentences of one-year of confinement, suspended for two years, upon certain probationary terms. The defendant and the Commonwealth submitted a "Tender of Plea" form, also known as the "green sheet," to the Lawrence District Court, outlining these terms.

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March 15, 2013

Criminal Case Shows Admission of Similar Prior Convictions Can be an Abuse of Discretion Entitling a Defendant to a New Trial

Sometimes it seems there is a fine line between when a similar prior criminal act is admissible or not admissible. However, when the trial judge gets it wrong, the admission is an abuse of discretion that entitles a defendant to a new trial. Commonwealth v. Vasso.

On May 25, 2010 at the MBTA station, the defendant allegedly pointed a knife at the victim, a sixth grader, and said "Where's my drug money?" The victim informed an MBTA police officer about the assault and identified his attacker as `Demetrios.' The next day, when the victim again saw `Demetrios' in the station, the victim told another MBTA police officer. 'Demetrios' was arrested and charged with assault by means of a dangerous weapon.

Before trial, the defendant filed a motion in limine to exclude from evidence any prior bad acts including prior criminal convictions on grounds that they would have a chilling effect on his right to testify. The Commonwealth sought a ruling to admit thirteen prior criminal convictions obtained in nine separate cases. The judge then ruled that three prior convictions did not qualify for admission because they involved dispositions in which the defendant was placed on straight probation without a sentence. Another conviction did qualify for use for impeachment, but was excluded on the basis of an incorrect understanding of the law (a felony conviction in which no sentence was imposed, unlike a misdemeanor, is nonetheless available for impeachment). Three others were excluded because though they qualified for use under G. L. c. 233, § 21 (possession of a Class D controlled substance and possession of a Class B controlled substance), but the judge wanted to avoid the `cumulative [effect of] piling on so to speak.' The remaining six convictions involving crimes against the person were then admitted to impeach the defendant's credibility.

The defendant appealed.

In exercising discretion under G. L. c. 233, § 21, judges must consider the following factors: (1) whether the prior convictions are similar to the crime with which the defendant is charged, (2) whether the prior convictions are for crimes involving truthfulness, and (3) whether there are other prior convictions besides those that are similar that could be used for impeachment. However, even when a prior criminal conviction meets the factors, the judge must balance the danger of unfair prejudice against the probative value of the evidence for the purpose of impeachment. Commonwealth v. Drumgold, 423 Mass. at 249.

The judge's decision to admit these six convictions for impeachment in a case charging an aggravated assault in which there was a lack of any corroborative evidence apart from the testimony of the victim, and in which there were other prior convictions for drug offenses and property offenses that could have been used instead, was an abuse of discretion. In making decisions about the use of prior convictions, attention must be given to the `higher attendant risk that [the defendant] might improperly be convicted based on his reputation or his propensity to commit a crime.' Commonwealth v. Little, 453 Mass. at 774.

Judgment reversed.

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

December 14, 2012

Defendant Granted New Trial Based on Error in Jury Instructions - Boston Criminal Defense Attorneys Parker Scheer

The Massachusetts Supreme Judicial Court has granted a new trial to a defendant after finding there were errors in the jury instructions because of changes in judicial precedent. Commonwealth v. Rivera.

Defendant Rivera was facing charges of armed assault with intent to murder, assault and battery by means of a dangerous weapon, and assault and battery on a police officer. During his Superior Court trial in regards to his criminal responsibility, evidence was presented showing Rivera suffered from a controllable mental illness that could be activated by alcohol, and that on the night he was arrested he had voluntarily drank alcohol thereby activating his illness.

At the conclusion of the trial for this criminal case the judge gave the jury instructions that contained the following language:

1. [a] person is not criminally responsible for his conduct if he suffers from a mental disease or defect, and as a result of that mental disease or defect he lacks substantial capacity either to appreciate the criminality or wrongfulness of his conduct or to conform his conduct to the requirements of law.

2. alcoholism or drug addiction is not a mental disease or defect within the meaning of the test for lack of criminal responsibility.

3. intoxication caused by the voluntary consumption of alcohol or drugs cannot be a basis for concluding that the defendant lacked criminal responsibility, however if the defendant suffers from a mental disease or defect that is activated by the consumption of alcohol or drugs and that results in the lack of a substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, then the defendant is not criminally responsible.

Rivera was found guilty and sentenced to 12-15 years for the first charge, ten years of probation on the second charge, and 2 ½ years to run concurrently with the first charge. Rivera appealed the verdict.

After his trial but before his appeal was heard, the Massachusetts Supreme Judicial Court held that the jury instructions were inadequate because they did not expressly inform the jury that a defendant's mental disease or defect, solely and independently of the consumption of alcohol or drugs, may deprive the defendant of the substantial capacity to appreciate wrongfulness or to conform his conduct to the law.

The Massachusetts Supreme Judicial Court subsequently granted Rivera a new trial.

If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers.

November 9, 2012

Reindictment of Defendant not Barred by Double Jeopardy - Boston Criminal Defense Attorneys Parker Scheer

After a social occasion turned ugly, Ryan Marshall, along with some friends, beat up the victim, who later died as a result. Though Marshall's indictment alleged that he acted before the commission of the felony, at the trial, the judge instructed the jury that Marshall could be convicted if he aided in the commission of the murder of the victim, which was a felony.
On appeal, Marshall's conviction was reversed. Although the evidence at trial was sufficient to establish that the defendant had participated in the murderous assault, the evidence did not establish that Marshall had done any act before the assault.

When a grand jury re-indicted Marshall, Marshall moved to dismiss the indictment arguing that, because "murder is a form or a 'species' of lesser included offense to accessory before the fact to murder," a second prosecution was barred by double jeopardy.

"In general, a crime must be proved as charged and must be charged as proved." K.B. Smith, Criminal Practice and Procedure, supra at § 15.40, at 872. Although the proof of liability at trial, and the jury instructions that accompanied it, would have sufficed if the defendant had been indicted simply for the murder itself, they were at variance with the wording of the indictment. Nevertheless these errors were not fatal, and the court's prior decision holding them in error did not erect a double jeopardy bar to subsequent prosecution for the crime proved at the first trial. The Supreme Judicial Court remands the case for further proceedings. Ryan Marshall v. Commonwealth.

"If you or a family member has been charged with criminal activity, please contact Parker | Scheer LLP for a free consultation with one of our experienced Criminal Defense Lawyers."

May 17, 2012

Two Fights Reported Aboard MBTA Trains

Early Monday, more than a dozen teenagers were removed from an outbound MBTA train after "T" police received reports of a fight on board the Franklin line commuter rail. MBTA spokesman Joe Pesaturo stated that transit police responded to the Readville Station and removed the teenagers.

In a second incident, MBTA and Quincy police were called on reports of a fight at the Wollaston red line station. When police arrived at the station, they located two groups of males who admitted to being involved in an altercation. Reports indicated that neither group intended to press charges.

In addition to the fight, MBTA employees reported that a window on the red line car had been destroyed during the fight. Quincy Police detained a man, 28, of Abington, after he was identified as having broken the window by a witness.

The full article can be seen here.

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May 4, 2012

Men Suspected of Stabbing Cab Driver in Boston

Two men are being held on $10,000 bail after allegedly stabbing a cab driver near Washington and Lenox Streets in the South End after a failed robbery attempt. The men are being charged with armed assault with intent to rob, assault and battery with a dangerous weapon and unlawfully carrying a dangerous weapon.

Boston Police reported that the cab driver, 50, of Lynn, sustained life-threatening injuries after being stabbed several times following the failed robbery attempt. Police arrived to the scene around 1:22 a.m., after receiving a distress report of the stabbing.

The driver was rushed to Boston Medical Center as Boston Police attempted to track down the suspects. Police were able to quickly locate one of the suspects who had blood on his hands and face and was carrying a knife. The suspect then gave police a description of his accomplice who was then taken into custody.

To read the full article, click here.

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March 14, 2012

Red Line Attack Posted on YouTube

An attack that took place on the MBTA's Red Line was recorded and uploaded to YouTube by a passenger. In the video, a woman on the train begins yelling at a man who allegedly stepped on her dog while trying to sit down. The woman then threatens that she is going to hit the passenger before she gets off at her stop.

As the video continues, the woman continues threatening the man before she follows through and begins punching the man. The MBTA Transit Police have spoken to the man and he does not wish to press charges.

However, the woman in the video has turned herself in and will be summoned to appear in court. Police report the woman will be charged with assault and battery and disorderly conduct.

The full article can be seen here.

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December 28, 2011

Boston University Hockey Star Charged with Sexual Assault

A Boston University star hockey player, and New York Islanders draft pick, was arrested by Boston University police after allegedly assaulting a female student. Reports indicate the 21 year old student followed a young woman back to her room and forced his way in.

According to police, the female student told him to leave but he refused and began indecently kissing and groping her. He apparently left the room twice, but continued to return. The student called campus security after the third attempt.

The student hockey player was arrested by BUPD in the dorm's elevator and was reported to be intoxicated. The player was permanently removed from the team, where he was the leading scorer in Hockey East.

The full article can be seen here.

Attorney Tofani, of counsel to Parker|Scheer, LLP and an associate of the firm's criminal practice group, reflects:

The allegations that led to the serious charges that Corey Trivino currently faces out of the Brighton District Court provide an example how college students that are charged with crimes in the Commonwealth of Massachusetts face potential sanctions that exceed those that a non-student would face under similar circumstances.

As the news article points out, Trivino was quickly removed from the Boston University hockey team's roster. Additionally, he was ordered by the Brighton District Court to stay away from Boston University housing and he was ordered to forfeit his Canadian passport. In other words, at the commencement of the criminal proceedings, Trivino was subject to independent sanctions from: 1) Brighton District Court; 2) United States Immigration and Customs Enforcement ('ICE'); 3) the Boston University hockey team; and, 4) the Boston University disciplinary board.

This is a common situation that college students charged with crimes often face: proceedings and possible sanctions from a number of different governing bodies, in addition to the courts of the Commonwealth. This is precisely why it is important to hire an experienced criminal defense attorney who can fight for the best interest of the college student before each governing body.

The university disciplinary board is a distinct entity from the court system, and generally operates independently. Depending on the particular policies of the specific university, the disciplinary board may communicate with the investigating police officers, if necessary, or may have no communication with any individuals beyond the student and the employees of the institution. Notwithstanding, a positive disposition in the courtroom often allows for a positive disposition before the respective university disciplinary board, and minimizes potential immigration consequences.

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September 26, 2011

Boston Police Urge Caution on the Esplanade

After a string of assaults on the Esplanade in Boston, police are continuing to search for the person that they believe is responsible for the attacks. In the wake of recent assaults city officials are urging residents, especially college students, to exercise increased caution while going through the park at night.

Boston law enforcement are urging people who are going through the park to 1) walk with a friend when possible, 2) carry a cell phone, 3) avoid poorly lit areas, 4) refrain from wearing headphones or earbuds, 5) and let someone know when you expect to arrive home. The city requests people remain calm yet vigilant.

Boston Police believe that the same suspect is behind three separate attacks on woman in the Esplanade in June 2007, July 2007, and July 2009, as well as an attack that took place in Joe Moakley Park in 2006. The suspect is a male, African American and between 5'8", and 5'10".

The full article can be seen here.

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September 23, 2011

Neighbor Finds East Boston Woman in Critical Condition

An Easton Boston woman was discovered outside her home Wednesday September 21 so savagely assaulted that she was unrecognizable. The neighbor who discovered her said she believed the woman was dead.

Boston Police reported that the victim was in her 20's, and was suffering from life-threatening injuries. Police have not yet determined if she was raped. According to reports, the neighbor was taking out her recycling around 7 a.m. when she discovered the victim lying on her side, naked, in a nearby lot.

The victim was transported to Massachusetts General Hospital. According to neighbors the victim lived in the East Boston area for around a year. Tricia Saint Andre, from East Boston, said that "their neighborhood is very quiet everyone looks out for each other," and that she was shocked by the news.

The full article can be seen here.

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August 19, 2011

Man shot during confrontation with Lowell Police

Lowell Police officers, who were investigating a report of domestic violence and assault and battery involving a woman and her son at their home, shot an armed man who was at the center of the conflict. Police officers arrived at the East Merrimack Street home in Lowell on Friday August 19th to discover the armed suspect at the scene, who they subsequently shot twice.

After the shooting, the man was flown by medical helicopter to a Boston Hospital for treatment. There is no report on his condition, but Lowell Police Captain Thomas Kennedy told reporters that because "the man was shot twice ... I imagine his injuries were quite serious."

According to Kennedy, the mother was not injured in the shooting but was brought to the hospital for observations. The identity of the armed man was not immediately known because public records did not have him listed as living in the house.

The full article can be seen here.

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August 8, 2011

Woman Assaults 2 Year Old Son on MBTA Bus

Riders on an MBTA bus refused to let a woman and her 2 year old child exit after witnessing the woman assault her young son by striking his face. MBTA Police arrived at the intersection of Warren and Brunswick Streets in Roxbury to discover a group of angry riders circling the woman and her child.

Reports indicate the police were able to separate 25 year old Erica Ryan and her child from the group, but not without difficulty. Witnesses on the bus told police they heard Ryan directing obscenities at the child when he wouldn't eat and then they saw her strike his face with a closed fist.

According to Suffolk Assistant District Attorney Esther Laine, a security camera on the bus captured Ryan punching her son in the face with enough force to cause his head to snap back in his stroller. The child was transported to Boston Medical Center for treatment.

The full article can be seen here.

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