Articles Posted in Assault & Battery

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On Sunday, January 25, 2015, TD, a 38 year old male mental health counselor, was arrested by the Methuen Police and charged with two counts of Assault & Battery on his wife. One of the counts alleged that TD had strangled his wife. On Monday, January 26, 2015 TD was brought to Lawrence District Court and was ordered detained (held without bail). A full detention hearing was scheduled for Friday, January 30, 2015. TD’s family contacted Attorney Robert Lewin from North Andover. Attorney Lewin obtained the papers in TD’s case from the Court and then went to the jail in Middleton to meet with TD. TD’s family retained Attorney Lewin and Attorney Lewin prepared a presentation for the Judge for the detention hearing. Attorney Lewin also met with the Assistant District Attorney assigned to the case.
Ever since the Jared Remy case (he killed his girlfriend while out on release in a domestic abuse case) the Courts have gotten much stricter in these cases. Pre-trial detention used to be very rare in these cases, now it is commonplace.
On January 30, 2015 TD was brought to court and a detention hearing was held. An agreement was reached between Attorney Lewin and the DA’s Office that TD could be released but that until the case was finished he could not go home and had to wear a GPS device. TD was released and went to live with a friend in Haverhill. The case was continued to February 13, 2015. On that date Attorney Lewin petitioned the Court to allow TD to go back home and to remove the GPS device. After a full contested hearing the Judge granted Attorney Lewin’s request and ordered that TD could go back home and that the GPS device could be removed. The case was set down for jury trial on March 30, 2015. Attorney Lewin met with TD’s wife and she signed a marital affidavit stating that she would not testify against her husband. On March 30, 2015 TD and his wife and Attorney Lewin appeared in Lawrence District Court. The case was called for trial. Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin told the Judge that TD”s wife was present in court and wished to exercise her marital privilege. The Judge had a discussion with TD’s wife and the Judge accepted her exercise of her marital privilege. The DA said the state could not go forward. Attorney Lewin then moved that the case be dismissed. The judge then ordered the case dismissed. This was significant for TD as a conviction or an admission of guilt of any type that he had strangled his wife would have cost him his job and potentially would have landed him in jail. TD (and his wife) left the Court arm in arm and happy that this ordeal was behind them.

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CN, a 15 year old boy in the 9th grade at a local well to do Essex County high school, was in a dating relationship with 14 year old girl. In the fall of 2014 CN and the girl were “making out” According to the girl, CN stated that it would be fun to have rough sex and he scratched her on the back and hit her three times in the stomach. She told him to stop and she says that he did not. About one month after this incident the girl stated that she and CN had sexual intercourse. Word of this was spread to the school authorities who in turn notified the police. The police interviewed CN. CN told the police that he had never gotten physical with the girl and that the scratches had been an accident when he held her too tight. The police re-interviewed the girl. She stuck to her story and showed the police photographs of the injuries she allegedly sustained from CN. In addition she told the police that when she and CN would make out he would call her names like slut. Lastly the girl showed the police text messages from other girls stating that CN did the same things to them.

The police filed an application for a juvenile complaint for assault and battery against CN in the Essex County Juvenile Court. CN’s parents retained Attorney Robert Lewin from North Andover to represent CN. The application for complaint was scheduled for a hearing by the Clerk-Magistrate of the Juvenile Court. Attorney Lewin immediately contacted the police prosecutor and the coordinator of the Juvenile Diversion Program and advocated for CN’s case to be “diverted” out of the Criminal/Juvenile Justice System. The Essex County District Attorney’s Office runs a Juvenile Diversion Program. The purpose of the program is to allow a juvenile – in an appropriate case – to avoid having a criminal/juvenile record. If a juvenile is accepted into the Juvenile Diversion Program, the Juvenile Court Proceedings are suspended, no arraignment tales place, and no criminal/juvenile record is created. Upon successful completion of the Juvenile Diversion Program the criminal/juvenile charges are dismissed without any arraignment having taken place and no criminal/juvenile record is created. Because of the nature of the allegations made by the girl the police were hesitant to recommend diversion and actually wanted CN to be prosecuted in juvenile court for the alleged assault and battery. Attorney Lewin explained to CN and his parents that the case had to be prepared as if it were going to go to trial, but at the same time efforts to get the case diverted would continue. Attorney Lewin had several meetings with the police prosecutor and the Juvenile Diversion coordinator and advocated zealously for the case to be diverted.

On December 10, 2014 CN and his parents and Attorney Lewin appeared in Lawrence Juvenile Court. Attorney Lewin had had CN enroll in counseling with an adolescent counselor prior to the court date and Attorney Lewin had secured a favorable report from the counselor. At the hearing the Police were still somewhat reluctant to wholeheartedly endorse diversion, but they did not oppose it. The Clerk-Magistrate said she would recommend the case for diversion, but that the Diversion Coordinator would have the final say as to whether the case would be accepted into the diversion program. Because there was an allegation of boyfriend/girlfriend abuse everyone in the “court system” was reluctant to let the case go into diversion. Ultimately the Diversion Coordinator agreed that CN would be a good candidate for diversion and the case was accepted for diversion. CN is in the diversion program now and is doing well. The diversion program is designed to run for four to six months. It typically includes the Juvenile writing a letter on better decision making and – in a case of domestic violence – it almost always includes a program of counseling on teen dating violence.

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On September 16, 2014, GN, a 57 year old man from Wilmington, was accused of assaulting a female neighbor. The neighbor’s 11 year old son had been playing ball in the street in front of GN’s house; the boy claimed that the ball went under the bushes directly in front of GN’s house and that before the boy could retrieve the ball GN came out of the house, picked the ball up, and put it in his pocket. The boy went home and told his mother. The mother came down to GN’s house and rang the bell. GN came to the door and the neighbor demanded that he return the ball. GN denied that he had the ball and said he did not know what she was talking about. The neighbor walked away from the door and as she walked down the driveway she grabbed GN’s granddaughter’s tricycle and shouted to GN you’ll get the trike back when I get the ball back.GN bolted from the front door and according to the neighbor grabbed the tricycle and then shoved her. The neighbor called the police and the police responded. GN denied shoving the neighbor; he admitted to grabbing the tricycle. The neighbor applied for a criminal complaint against GN and GN received a notice of a complaint hearing from Woburn District Court. GN retained Attorney Robert Lewin. Attorney Lewin immediately advised GN to apply for a criminal complaint against the neighbor for larceny (stealing the tricycle) in order to “level the playing field”. GN followed Attorney Lewin’s advice. The Clerk-Magistrate at Woburn District Court sent the neighbor a notice for a hearing against her for larceny. The two hearings were scheduled for the same time. In Massachusetts a person has a right to use reasonable, non-deadly, force to protect their property and to prevent it from being stolen. On October 24, 2019 the hearing took place. The Clerk-Magistrate heard both sides. Attorney Lewin had photos of the scene and had GN, his wife, and his daughter testify. Attorney Lewin had made a copy of the relevant law (that a person has right to use reasonable, non deadly, force to prevent their property from being stolen) for the Clerk-Magistrate. The Clerk-Magistrate found no probable cause to issue a criminal complaint against GN. GN walked out of Woburn Court having no criminal record and no criminal complaint to defend against.

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On July 14, 2014, JC, a 46 year old housewife from Tewksbury got drunk. When her husband got home from work she attacked him ripping his shirt off and throwing things at him. He called 911. The police responded. Photographs were taken by the police of the husband and of his torn shirt. JC was arrested. This was her second arrest for assaulting her husband. In 2013 she had been arrested and charged with domestic assault & battery by means of a dangerous weapon. In the 2013 case JC retained Attorney Robert Lewin and Attorney Lewin was successful in getting that case dismissed. Following her arrest she was brought to the Tewksbury Police Station; she was booked and held for court. JC again retained Attorney Robert Lewin. JC was arraigned and released and her case continued for a pre-trial hearing. Attorney Lewin met with JC’s husband and he agreed to exercise his marital privilege. In Massachusetts a spouse (husband or wife) may refuse to testify against their spouse at a criminal trial. The marital privilege only applies to testifying at a criminal trial. JC and Attorney Lewin appeared at Lowell District Court for the pre-trial hearing. JC’s husband was present at the pre-trial hearing and was prepared to exercise his marital privilege at the pre-trial hearing. The Judge ruled that the privilege could only be exercised at the trial and the case was continued to October 3, 2014 for trial.
On October 3, 2014 JC and Attorney Lewin appeared at Lowell District Court; the case was called and Attorney Lewin answered ready for trial. JC’s husband was present and was called forward. He exercised his marital privilege and the privilege was accepted by the trial judge (who happened to be the same judge who had refused to accept the privilege at the pre-trial hearing). The Assistant District Attorney stated that without the husband’s testimony the Commonwealth did not have sufficient evidence to prosecute the case and the case was dismissed. In this case there was a recording of the 911 call made by JC’s husband to the Tewksbury Police Department. In that recording the husband tells the police that he had been attacked by his wife, that she had ripped his shirt off, and that this had happened before. Normally speaking, 911 recordings are not admissible; they are hearsay evidence. One of the exceptions to the hearsay rule is that if the 911 call contains an excited utterance or if the statements made to the police are made for the purpose of quelling an ongoing emergency situation or for the purpose of determining if a person is in need of medical care then the contents of the 911 call are admissible at trial and can be used as evidence against the accused. Attorney Lewin prepared a lengthy and detailed Motion to Exclude the contents of the 911 Recording. The District Attorney agreed with Attorney Lewin’s analysis of the law and thus the Commonwealth did not go forward with the trial. JC was very fortunate that her husband did not want to go forward and she was fortunate that Attorney Lewin was able to convince the DA that the contents of the 911 call would not be admitted at trial; for the second time she walked out of the Lowell District Courthouse a free woman.

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On July 19, 2014 SI, a 46 year old letter carrier from Malden, asked his 16 year old son to get ready for bed. SI and his son got into an argument. The son told SI to go f__k himself. The son alleged that SI then struck the son across the forehead pushing the son into the wall. SI’s wife got between the two of them. SI’s daughter called 911. SI left the house. The police responded. The police took statements from SI’s son, daughter, and wife. The police applied for a criminal complaint against SI for assault & battery. The police also notified DCF (the Department of Children & Families); DCF came to the house and took statements from everyone, including SI. SI denied striking his son in the forehead. DCF was told that the son (who was 2″ taller than his father and 20 pounds heavier) got up in his father’s face and was screaming at his father. SI put his open palms against the son’s chest and simply pushed the son back from SI’s face. The DCF decided to UNsupport the allegation of abuse that had been made against SI. SI retained Attorney Robert Lewin to represent him at the hearing on the criminal complaint.
Prior to the hearing Attorney Lewin met face to face with the Malden Police Prosecutor. Attorney Lewin gave the police prosecutor a copy of the decision from the Department of Children & Families showing their determination NOT to support an allegation of abuse. In addition Attorney Lewin gave the police prosecutor a copy of a statement Attorney Lewin had taken from SI’s wife wherein she corroborated SI’s version of what had occurred. On September 16, 2014 Attorney Lewin, SI and SI’s wife appeared at Malden District Court for the hearing. Attorney Lewin had SI’s wife testify. After hearing the testimony of SI’s wife the Clerk-Magistrate DISMISSED the application for criminal complaint. As a result of this disposition SI was not charged with a criminal offense, no criminal complaint was issued against him, he was not arrested, and no criminal record was created. It was as if it did not happen. SI and his wife left the court pleased with the outcome of the case.
As in most criminal cases, preparation and communication are most important. Attorney Lewin had both SI and his wife prepared for the court hearing. Attorney Lewin had communicated fully with the Police Prosecutor before the hearing. “All the ducks were lined up” before SI and Attorney Lewin walked into the hearing room.

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On September 24, 2013 AC, a 33 year old female living in Malden with her 32 year old boyfriend (JR), learned that JR was using drugs. JR was sleeping. AC went into the bedroom and proceeded to wake JR up. This is where the stories diverge. According to the Malden Police Reports JR told the police that AC was standing over the bed with a large kitchen knife in her hand when she woke him up. When he saw the knife he ran to the bathroom and locked the bathroom door behind him. At that point AC began “stabbing” the door with the knife actually making a large hole in the door. AC then decided to run from the apartment. She left but then decided to go back. JR called 911. AC and JR struggled when she tried to get back in. The Malden Police responded to the scene and spoke to both JR and AC. The police arrested AC and charged her with Assault by Means of a Dangerous Weapon (the knife). There was a third party present in the apartment when all this happened, a girlfriend of AC. The girlfriend told the police that JR and AC had argued first and that JR had struck AC in the mouth causing her mouth to bleed and that he had also grabbed her arms causing her arms to bruise; it was only after JR had attacked AC that AC went into the kitchen and got the knife.

AC was arraigned on a felony charge of Assault by Means of a Dangerous Weapon. AC retained Attorney Robert Lewin. In order to level the playing field Attorney Lewin had AC apply for a criminal complaint against JR for Assault and Battery (the punch to the mouth and the grabbing of her arms) as well as an abuse prevention order. A criminal complaint was issued against JR and an abuse prevention order was entered against JR. This greatly leveled the playing field and gave AC leverage to defend against the Felony Assault charge. AC had a high powered job with a high tech firm in the medical field and a felony conviction would destroy her career.

As luck would have it JR just could not stay away from AC. He quickly violated the Abuse Prevention Order twice and found himself locked up. On March 10, 2014 the charge against AC was scheduled for trial. AC and Attorney Lewin showed up in Malden Court and answered ready for trial. JR – because he had three outstanding criminal charges – exercised his fifth amendment privilege against self-incrimination and refused to testify. The case against AC was dismissed.

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On January 4, 2014 LW, a Chinese national in the US on a work visa, was arrested at his home in Malden after his wife, also a Chinese national, called the Malden Police to report that he had shoved her and slapped her on the face. He was arraigned on the charge of domestic assault & battery in Malden Court on January 6, 2014 and his case was continued to February 11, 2014 for a pre-trial hearing. LW met with and retained Attorney Robert Lewin. Attorney Lewin explained how reluctant the Middlesex County DA’s Office was to dismiss domestic assault & battery cases. Attorney Lewin spoke at length with LW’s wife; she indicated that she did not want to testify against her husband and that she wanted the case dismissed. Attorney Lewin prepared a marital affidavit which LW’s wife signed. Attorney Lewin obtained an English translation of their Chinese marriage certificate. Attorney Lewin met with the Assistant DA and presented the Marital Affidavit to the Assistant DA and put LW’s wife in contact with the Assistant DA. On February 11, 2014 Attorney Lewin and LW and LW’s wife appeared in Malden District Court. Attorney Lewin explained to the Judge that LW’s wife was present in the court and that she did not want to testify against her husband. The Judge read the marital affidavit that Attorney Lewin had prepared that LW’s wife had signed. The Judge then questioned LW’s wife to make sure that she was not being forced into not testifying against her husband. The Assistant DA then relented and agreed to dismiss the case at the pre-trial hearing. As with many of these cases, the case was won in the preparation. The result of a dismissal was critical for LW because had he been convicted or even had his case been continued without a finding then he would have been subject to deportation back to China. Needless to say he was happy with the result and he was happy that it was obtained so quickly.

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On March 14, 2014, MR, a 39 year old woman and her husband, were in the waiting room of a psychologist’s office in North Andover. They were getting divorced and were litigating in the Probate Court who was going to get custody of their 9 year old daughter. The Probate Court judge had appointed the psychologist to investigate the issue of custody. On March 14, 2014 the psychologist wanted to speak to their daughter and then to MR and her husband. While the psychologist was speaking to their daughter MR went to use the bathroom. When she exited the bathroom MR claimed that her husband (a Doctor) pushed her to the floor. The Husband claimed that MR had stepped on his foot and then in a very controlled manner fell to the floor. He claimed he never touched her. When MR landed on the floor she screamed. The psychologist came out of his office. The psychologist, MR, and her husband all called 911. The police came. The police charged BOTH MR and her husband with domestic assault. The husband wanted for both MR and himself to exercise their marital privilege and not testify against each other and have both cases dismissed. MR refused. MR retained Attorney Robert Lewin. Attorney Lewin reviewed the police reports and felt strongly that the case against MR was very weak and that MR should go to trial. MR had had the presence of mind to take pictures of a cut on her elbow and a bruise on her leg that she had sustained when her husband threw her to the floor. Attorney Lewin made color enlargements of the photos. On July 29, 2014 the case against MR went to jury trial in Lawrence District Court. Attorney Lewin had thoroughly prepared MR for her testifying at her trial. MR was concerned that her husband was a “convincing talker” and “made a nice appearance”. Attorney Lewin told MR, not to worry about her husband that Attorney Lewin would deal with his “slickness” on cross examination. The trial began; the Husband testified and Attorney Lewin through cross examination was able to show that the husband was an angry man. The jury saw it. MR testified and followed all the lessons that Attorney Lewin had given her: she looked at the jury when she testified, she was polite but firm, she answered her questions with precision and confidence. The jury went out to deliberate at 12:47 PM; seven minutes later we were all back in the court room. The Jury had reached their verdict. MR was found NOT guilty. MR was thrilled. Attorney Lewin has been practicing criminal law since 1971. In 43 years of practice this was the quickest verdict that Attorney Lewin has had. As a Judge in Lawrence District Court said to Attorney Robert Lewin recently in another jury trial that ended with a not guilty verdict, “Bob, you still got your fastball”.

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On Friday, December 13, 2013, DL, a 44 year old truck driver from Dracut was delivering a load of crushed stone to a construction site in Andover. DL and the foreman at the construction site got into a heated argument about where the crushed stone was to be dropped. DL (well over six feet tall and well over 250 pounds) got down out of his truck and went chest to chest with the foreman. According to the police reports, the foreman began to turn away from DL and DL then punched the foreman in the face. According to the foreman DL then jumped on top of the foreman and beat him about the face. When questioned by the police DL told the police that the foreman had bumped DL in the chest and then cocked his arm back as if he was going to hit DL when DL in self-defense punched the foreman in the face. The Andover Police filed an application for a criminal complaint against DL for assault and battery. DL retained Attorney Robert Lewin.

Attorney Lewin told DL that he should apply for a criminal complaint against the foreman for assault and battery (the chest bump). Attorney Lewin told DL that this would level the playing field and might convince the foreman to drop the case. On April 10, 2014 DL and Attorney Lewin and the foreman and his lawyer and the Andover Prosecutor were all present in Lawrence District Court for the hearing on the cross complaints for assault and battery. The foreman had taken a pretty good beating and had photos of his face and a hospital report. Attorney Lewin took the foreman’s lawyer aside before the hearing and said that neither the foreman (who has a criminal record) nor DL should want criminal complaints to issue. Attorney Lewin suggested that if each of the two men refused to testify and agreed for no complaints to issue that it was very likely the clerk-magistrate would go along. The foreman’s lawyer said the foreman was adamant about going forward with the hearing. The hearing proceeded: the foreman came off as a wise guy; DL came off as sincere. The Clerk asked to hear first from Attorney Lewin. Attorney Lewin acknowledged that there was probable cause to issue the two complaints (one against each man) but it was in the best interest of both men to walk away from this fight with no criminal complaints. The foreman’s lawyer began to speak and the Clerk interrupted and told him that there was probable cause to issue complaints against both men. The Clerk asked if that was what the foreman really wanted. At that point the foreman and his lawyer talked and agreed that everything would be dismissed. Both applications for criminal complaints were then dismissed. Had DL not filed for a complaint against the foreman the complaint against DL would have been issued. As a result of the Clerk not issuing any complaints, DL does not have to return to court, he does not have to appear before a Judge, and he has no criminal record.

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On June 29, 2013 FW, a 41 year old Chinese woman threatened to kill her husband with a kitchen knife and struck him with her hands. He called 911 and the Reading police responded. Once the police arrived at the home it became readily apparent that FW was mentally ill and was experiencing a paranoid break with reality. Rather than arrest her the police submitted a Section 12 Petition (a mental health commitment petition) and brought her to Winchester Hospital, She was then transferred to a mental hospital where she remained in-patient for 44 days. She was diagnosed with paranoid schizophrenia. A regimen of medications was established and her condition improved markedly over the time she was in the hospital. The police filed an application for a criminal complaint for assault with a dangerous weapon (a felony) and for assault and battery to issue against FW in Woburn District Court. FW and her husband retained Attorney Robert Lewin. Attorney Lewin immediately had FW obtain copies of her hospital records. In addition Attorney Lewin obtained reports from FW’s mental health counselor. Attorney Lewin then reached out to the Reading Police and had a substantive discussion with the police about FW’s condition and her case. Attorney Lewin suggested to the police a resolution of the case that did not involve a criminal complaint being issued against FW at the hearing before the clerk-magistrate.The police agreed not to push for the issuance of a criminal complaint at the hearing before the Clerk-Magistrate. On March 18, 2014 Attorney Lewin and FW appeared before the Clerk-Magistrate at Woburn District Court. Attorney Lewin explained to the Clerk-Magistrate that he had spoken with the police ahead of time and the two sides were asking the Clerk not to issue the complaint. The Clerk wanted to see an updated report from FW’s counselor and Attorney Lewin had obtained a report the day before the hearing. Attorney Lewin gave the report to the Clerk who read it and then agree not to issue a criminal complaint against FW. The Clerk stated that if there are no reports of any law violations by FW over the next six months then on September 19, 2014 no one would have to return to court and the Application for Criminal Complaint would be dismissed and no charges would be issued against FW. As a result FW has no criminal record, was not charged, and did not have to appear in front of Judge. In these types of cases good communication between a criminal defense lawyer and the police prosecutor can be the difference between being prosecuted and not being prosecuted. Attorney Lewin’s five years as an Assistant District Attorney and his 39 years practicing criminal defense have given him the experience and know how to deal with all these situations. FW and her husband walked out of Woburn District Court very happy that FW was not charged.

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