Articles Posted in Assault & Battery

WK, a 50 year old engineer and his wife, lived in Andover. One Saturday evening in February 2013, after a night of dining out and drinking, WK and Mrs. K returned home. An argument ensued. According to the Police Reports WK punched his wife in the face giving her a swollen, black eye. The police reports further indicated that WK stuck his thumbs into his wife’s mouth and she bit down hard on his thumb breaking the skin. She grabbed a phone in an attempt to call 911; he grabbed the phone from her. She ran to the garage in her nightgown and bathrobe, got in the car, and fled to the Police Station. At the station, color photos were taken of her face and eye. Mrs. K gave a complete statement of what happened. The police were dispatched to the family home. WK was arrested and charged with Assault & Battery, Witness Intimidation, and Threat to Murder. According to the police report she told police he threatened to murder her. Also according to the police report when asked to give his version of what had occurred WK told police he “bashed” his wife. WK was held without bail over the weekend at the Middleton Jail. On Monday morning he was brought to Lawrence District Court and arraigned and released. He was ordered not to abuse his wife. The case was continued for a pre-trial hearing.

WK retained Attorney Robert Lewin. As often happens in these cases, as time passed Mrs. K decided she would not testify against her husband and she executed a marital affidavit that Attorney Lewin prepared. The parties appeared in Lawrence District Court for the pre-trial hearing and the Judge, after speaking with Mrs. K, accepted her exercise of her marital privilege and excused her from testifying. The D.A.’s Office refused to dismissed the case and the case was set down for trial.

On Wednesday, June 26, 2013 WK and Attorney Lewin appeared in Lawrence District Court ready for trial. Mrs. K was not present. Two Andover police were present. Attorney Lewin prepared a Motion in Limine to Exclude all statements made by the wife to the police at the police station. Attorney Lewin also prepared a Motion in Limine to Exclude the Photo the police had of Mrs. K. The basis for excluding the statements made by the wife to the police was that the statements were hearsay and that the statements were not “spontaneous utterances” (an exception to the hearsay rule). To the great surprise of the Defense the DA’s Office did not object to the Motion to exclude Mrs. K’s statements to the police. (The particular judge who was hearing the case would most likely have denied the Motion and would have allowed the statements into evidence; it was an unforeseen break in the case when the DA did not oppose the Motion.) The Assistant DA did object to the Motion seeking to exclude the photograph. Attorney Lewin argued that there was no way the Commonwealth could prove – given the witnesses on the State’s witness list – that the woman in the picture was the Defendant’s wife. Remember, Mrs. K was not present at the trial. The police were not allowed to testify as to ANY statements Mrs. K made to the police (including for example her name, address, and the fact that she was married to Mr. K). There was no witness who had knowledge (independent of what Mrs. K had said to the police) that the woman in the picture was Mrs. K. The Judge reserved a ruling on the Motion to Exclude the photo. A jury was chosen and sworn. The DA finally realized that the Commonwealth’s case had fallen apart and the Commonwealth said they could not go forward. Attorney Lewin immediately moved that all the charges be dismissed with prejudice. A dismissal with prejudice means the case can NOT be brought again. The Judge ordered all three charges dismissed with prejudice.

On a Friday night in February, 2013 RW, a 25 year old cop from Maine, and his girlfriend came to Boston for an evening on the town. They visited several bars and by the end of the night RW was quite drunk. At about 1:15AM on Saturday morning RW found himself under arrest for Assault & Battery on his girlfriend. RW retained Attorney Robert Lewin. Attorney Lewin obtained a copy of the Boston Police 911 Call Recording. of RW’s girlfriend’s call to the police. On the recording she is crying and in a panic. She tells the police that RW grabbed her by the throat and pushed her head against a wall. In the background RW can be heard shouting andf swearing at her. The recording was awful. The 911 operator kept the girlfriend on the line and within 2 minutes the Boston Police arrived in person on the scene and arrested RW.

RW made no statements to the police. He was booked and subsequently released. He went home and took pictures of his neck and right hand. His neck had scratches on it and his right hand hand bite marks on it. The police report stated that the girlfriend had no visible injuries.This put the case in a very different light. The photographs and the injuries to RW raised the issue that the girlfriend had assaulted RW and thus the girlfriend had a Fifth Amendment right not to incriminate herself and thus not to testify.

On Friday, May 3, 2013 RW and Attorney Lewin appeared in the Boston Municipal Court, Central Division (Downtown Boston). The case was called and RW and Attorney Lewin answered ready for trial. The girlfriend did not appear at Court. Attorney Lewin moved to dismiss the case and Judge ordered the case dismissed. RW was fortunate that he had taken the pictures of his injuries.

On December 4, 2012 PS (a 35 year old electrician) was at home in Reading. An on-again off-again girl friend called him and asked him to come over for a visit. PS does not drive (and that is another story – he has a license but chooses not to drive) so the girlfriend (also age 35) drove over to PS’s house, picked him up, and drove him over to her house in Wakefield. Since their last visit he had broken off the relationship with her and had begun seeing another woman; nevertheless, he went over to her house that night hoping he might get lucky. The girlfriend wanted to talk about their relationship and wanted to know if he had “been cheating on her”. Words got exchanged between them.

According to the police report PS punched her and knocked her to the ground. Another woman who lived upstairs came down when she heard the argument/fight and according to the police report PS punched her in the face. The neighbor called 911 and the police responded. PS got arrested and charged with Assault and Battery on both women. The girlfriend got charged with assault and battery on PS (PS had scratches on his neck which fortunately the police had photographed) and assault and battery on a police officer and disorderly conduct. The neighbor didn’t get charged with anything. PS denied assaulting either woman.

PS retained Attorney Robert Lewin. Attorney Lewin obtained the criminal record of the girlfriend; the neighbor had no record. Attorney Lewin went over all the facts of the case closely with PS and thoroughly prepared PS for both direct examination and cross examination. PS’s case was set down for trial on April 25, 2013 in Malden Court. On April 24, 2013 Attorney Lewin spoke with the girlfriend’s lawyer and it became clear that the girlfriend was going to exercise her Fifth Amendment privilege against self-incrimination and refuse to testify. On April 25, 2013 PS and Attorney Lewin appeared in Malden Court and answered ready for trial. Attorney Lewin informed the Judge that the girlfriend was going to exercise her Fifth Amendment right not to testify. The neighbor – who was also named as a victim – failed to appear. When the case was called the DA told the judge they could not go forward. Attorney Lewin asked the Judge to dismiss the case for lack of prosecution. The Judge granted the motion and both counts of Assault and Battery against PS were dismissed.

Wednesday, April 17, 2013 was a busy day for Attorney Robert Lewin. At 9:00 AM Attorney Lewin appeared in Malden District Court representing DB, a 50 year old man charged with Assault and Battery on his wife. As happens in many cases of alleged domestic assault and battery, by the time of the pre-trial hearing in this case Mrs. B decided she did not want to testify against her husband. Mrs. B spoke with Attorney Lewin and Attorney Lewin prepared a “marital affidavit” in which Mrs. B swore that if called as a witness against her husband she would exercise her “marital privilege” and refuse to testify. In Massachusetts husbands and wives have a privilege not to testify against each other in a criminal trial.

The DA’s Office was unwilling to dismiss the case at the pre-trial hearing and a trial date of April 17, 2013 was set. On April 17, 2013 Attorney Lewin, DB and Mrs. B appeared in Malden Court. The case was called and Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin told the Judge that Mrs. B was present in the courtroom and was prepared to exercise her marital privilege. The Judge called Mrs. B forward and made inquiry of her as to whether she wished to testify or not and whether or not anyone had forced or coerced her into exercising her marital privilege. Mrs. B said she did not want to testify and no one had forced or coerced her into exercising her marital privilege. The Judge then accepted her exercise of her marital privilege. The DA said they could not go forward; Attorney Lewin moved to dismiss the case and the Judge ordered the case dismissed for lack of prosecution.

Attorney Lewin then left Malden Court and drove over to Cambridge District Court (now located in Medford just off Wellington Circle). HK, a 34 year old Egyptian national, was accused of Assault & Battery, Assault and Battery with a dangerous weapon (a headboard of a bed), Intimidation of a Witness, and Threat to Commit a Crime. According to the police reports HK and his 25 year old girl friend had gotten into a heated argument; it was alleged that HK got on top of his girlfriend and pushed her head into the headboard of a bed, took her cellphone, and threatened to kill her. According to the police report as she called 911 he fled the apartment. He was apprehended outside the apartment in his car. The girlfriend decided she did not want to see HK prosecuted; however, because they were not married she did not have a “marital privilege” and the government could force her to testify. In the police report there was an indication that the girlfriend had “pushed” HK; there was also a claim that the girlfriend had kicked HK.

On February 3, 2013, JC, a 45 year old married woman, got into a heated argument with her husband. She had been drinking and eventually he ended up with a large bloody laceration to the back of his head. Some nick nacks got broken and a door got smashed. This was not one of her better nights. A call was made to the local police by JC’s daughter and JC got arrested and charged with Assault & Battery with a Dangerous Weapon (a felony) and Assault & Battery (a misdemeanor). The next morning JC appeared in Lowell District Court and was arraigned and released. Her case was continued for a pre-trial hearing to March 6, 2013. JC contacted Lewin & Lewin. JC does not drive so Attorney Robert Lewin made a house call to meet with JC and her Husband. Attorney Lewin explained the marital privilege to JC and her Husband and explained that if the Husband exercised his privilege not to testify against JC that it was possible the case would be dismissed. Every Husband and every Wife in Massachusetts has a privilege not to testify against their spouse at a criminal trial. This is called the marital privilege. JC retained Attorney Lewin. Attorney Lewin prepared and the Husband signed a marital privilege affidavit. Attorney Lewin contacted the District Attorney’s Office and sent them a copy of the Affidavit signed by the Husband. On March 6, 2013 JC and her Husband and Attorney Lewin appeared in Lowell District Court. Attorney Lewin gave the original marital affidavit to the Judge and explained the case to the Judge. Attorney Lewin told the Judge that the Husband was present in the Courtroom and wanted to exercise his marital privilege not to testify against his wife. The Judge asked the Husband if he wanted to refuse to testify against his wife and the Husband said yes. Attorney Lewin asked that the case be dismissed; the District Attorney objected stating that there was an independent witness (JC’s daughter) and that the Commonwealth could proceed with the case against JC without the Husband’s testimony. Attorney Lewin had previously interviewed the daughter and knew that she would testify that she was upstairs in her bedroom when the fight occurred and that she did not see any of the goings on between her mother and father. She heard loud shouting and that is what led her to call the police; but she did not see anything. The District Attorney asked that the case be continued for trial so that they could bring the daughter in. Attorney Lewin objected strenuously and told the Judge that the daughter had not seen anything and that her testimony would not help the Commonwealth prove the case against JC. Attorney Lewin suggested that the District Attorney call the daughter on the phone and speak to her (something they should have done earlier) so that the case could get resolved that day. The Judge agreed that that was a good idea. The District Attorney called the daughter and she confirmed that she had not seen anything, that she had been in her bedroom. The case was called again and the District Attorney filed a nolle prosequi. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth. JC and her husband walked out of the courtroom arm and arm and very happy. The case had been thoroughly prepared; the husband and the daughter had been interviewed at the start by Attorney Lewin and he knew what each of them was going to say.

SD, a computer engineer, and his wife, also a computer engineer, immigrated to the US from India. They are both permanent resident aliens. Tensions developed in the marriage and one night Mrs. D called 911 and the police responded. She told the police that SD had struck her and thrown things at her. The police arrested SD and he was charged with Assault & Battery and Assault & Battery with a Dangerous Weapon. These are both deportable offenses. SD contacted and interviewed a number of lawyers and after much negotiation SD retained Attorney Robert Lewin. Attorney Lewin spoke with Mrs. D and he explained the marital privilege to Mrs. D. Fortunately for SD his wife decided that she would not testify against him. Attorney Lewin prepared a marital affidavit for Mrs. D in which she exercised her marital privilege. Attorney Lewin then contacted the Assistant DA handling the case and gave him a copy of the affidavit. On Wednesday, February 13, 2013 SD and his wife and Attorney Robert Lewin appeared in Malden District Court for a pre-trial hearing. Attorney Lewin put the Assistant DA in contact with Mrs. D and she confirmed that she did not want to testify against her husband. The case was called and Attorney Lewin explained the situation to the Judge. The Judge questioned Mrs. D to make certain that her exercise of her marital privilege was done freely and voluntarily. Attorney Lewin then asked the Judge to dismiss the case; the Assistant DA did not oppose and the Judge ordered the criminal charges dismissed. The threat of deportation is now completely removed. SD and Mrs. D have some work to do if their marriage is going to be salvaged, but the criminal case is gone.

On September 29, 2012 LF left his home to find his 17 year old daughter who had run off in the middle of the night with two unknown men. He found her and attempted to get her to get in his car. She resisted. He called the police and got himself arrested for assault and battery on his daughter.He went to Court the next morning to get arraigned. He tried to explain what had happened and that it was he who had called the police. His daughter was present at Court and tried to speak on his behalf but the DA and the Judge would not hear any of it. LF was arraigned; he was told to get a lawyer; and he was told not to abuse his daughter. His case was continued to November 28. LF retained Attorney Robert Lewin. It appeared from the police reports that the daughter had in fact assaulted (kicked) her father. It became clear that the daughter had a Fifth Amendment right to remain silent. Counsel was obtained by the daughter. The daughter’s lawyer recognized that the Daughter could herself be prosecuted for Assault and Battery and that it was in the daughter’s best interest to exercise her Fifth Amendment right to remain silent. Attorney Lewin spoke with the Assistant District Attorney and explained the situation that the daughter would not testify against her father and that the daughter would exercise her valid Fifth Amendment privilege not to incriminate herself.Normally, the District Attorney’s Office refuses to dismiss these cases at the pre-trial and insists that everyone come back for the trial date.On November 28, 2012 LF and Attorney Lewin appeared in Lawrence District Court for a pre-trial hearing. Attorney Lewin explained the situation to the Judge. The Judge called the daughter and her lawyer forward. The Judge inquired of the daughter regarding her Fifth Amendment privilege. The Judge accepted the Daughter’s exercise of her Fifth Amendment privilege. Attorney Lewin moved the Judge to dismiss the case right then and not make everyone come back on a later trial date. The DA relented and the Judge ordered the case dismissed. Getting the case prepared well in advance and making certain that all the necessary persons were present at the pre-trial brought about this very favorable result.