Massachusetts Criminal Lawyer Blog
AL, a 31 year old technical advisor from Andover, and his wife DL, are in a difficult marriage. They have one child, a 2 year old daughter. On August 22, 2023, DL called the police and alleged that her husband had struck her and had taken her phone and thrown it into the woods. The police responded and arrested AL. AL was charged with Assault and Battery on Household Member and Witness Intimidation. AL met with and retained Attorney Robert Lewin from Andover.
Attorney Lewin obtained a copy of the 911 call. It was immediately apparent that the 911 call was made a significant time after the dispute between Al and DL and the call did not have the hallmarks of an excited utterance.
Attorney Lewin filed a Motion to Exclude the 911 call as evidence in the case on the grounds that it was not an excited utterance. The Motion was set down for a hearing on December 7, 2023. On December 7, 2023 AL and Attorney Lewin appeared in Lawrence District Court for a hearing on the Motion. The Motion was called for a hearing before the Judge and the Assistant District Attorney conceded that Attorney Lewin was correct and that the Commonwealth would not be using the 911 call as evidence. The case was set down for trial on February 5, 2024.
Several weeks after the December 7 court hearing, but before the February trial date, AL and his wife DL, got into an argument while driving in their car back to Andover from a trip to Maine. AL claimed that DL was striking him while he was driving and she claimed that he was striking her while she was trying to get their daughter out of the car. All this played out in the parking lot of the Andover PD. The police came out and ultimately charged both AL and DL with Assault and Battery on a Household Member. These charges were set up for a Clerk-Magistrate hearing on January 30, 2024. AL was a great risk of having his bail on the original case revoked and being locked up until his trial.
Attorney Lewin fully prepared AL for the Clerk-Magistrate hearing on the new case. Attorney Lewin learned that DL had retained a lawyer to represent her at the Clerk-Magistrate hearing. Attorney Lewin immediately called the Attorney for DL. The two lawyers agreed that it was in everyone’s best interest if AL and DL both exercised their marital privilege and refused to testify against one another. On January 30, 2024, AL and Attorney Lewin, and DL and her lawyer, appeared before the Clerk-Magistrate. The two lawyers stated to the Clerk-Magistrate that both clients were refusing to testify against the other. The two lawyers both requested that the Clerk-Magistrate not issue complaints. After some discussion, the Clerk-Magistrate continued the hearing for six months and ordered that if there were no further reports of any law violations with AL and DL, that on July 30, 2024 the applications for complaints against AL and DL would be dismissed.
Thereafter, on February 5, 2024, AL and Attorney Lewin appeared in Lawrence District Court for the trial on the original criminal charges. AL and Attorney Lewin were ready for the trial. AL had been fully prepared to testify by Attorney Lewin. The case was called and Attorney Lewin answered that the defense was ready for trial. DL was present with her Attorney and her Attorney informed the Court that DL would not testify against her husband. As stated above Attorney Lewin had already won the Motion to exclude the 911 call. The Commonwealth had no evidence to go forward with and they gave up. The Assistant District Attorney answered that the Commonwealth was not ready for trial. Attorney Lewin moved for dismissal of the charges and the Judge ordered the charges against AL dismissed.
AL and Attorney Lewin left the Courthouse with smiles on their faces.