Text DelSignore Law at 781-686-5924 with your name and what kind of charge you are texting regarding.The Massachusetts Court of Appeals decided a significant case for Massachusetts Domestic Assault and Battery Lawyers. In Commonwealth v. Belmer, decided October 14, 2010, the Massachusetts Appeals Court permitted an affidavit in support of a 209A restraining order to be used as substantive evidence. This ruling was critical because the victim originally claimed that the defendant, her husband, struck her 15 year old son, but recanted the testimony at trial. Her son was brought to the Boston Emergency Center where he was given stitches for his lip.
The mother wrote in her 209A, restraining order affidavit, that her son intervened when he heard her arguing with the defendant. According to the 209 affidavit, the defendant started a fight with the 15 year old boy. In addition to signing an affidavit, the mother testified as to what occurred between her son and husband at the 209A hearing.
At trial, the judge allowed the prosecutor to question the child’s mother regarding her 209A affidavit and testimony at the 209A hearing. At trial, the mother recanted her testimony claiming that the fight was purely verbal and that the defendant was talking with his hands and accidentally struck her son with his elbow. The mother claimed that her trial testimony differed from her affidavit because she was angry at the time she made the affidavit, about the fact of the defendant’s infidelity and that her son was injured.
The Commonwealth also admitted the medical records of the child at the Domestic Assault and Battery trial. The EMT records stated that the victim reported being struck. Additional medical records also recounted that the victim stated that his father struck him in the face with a closed fist.
The Commonwealth, relying on the case of Commonwealth v. Daye, 393 Mass. 55 (1984) argued that the prior inconsistent statements of the victim should come into evidence as substantive evidence. Under Daye, a prior inconsistent statement can be used as evidence of the criminal offense charged when the following criteria are met: First, the maker of the statement must be available for cross examination, the maker of the statement must have a memory of the prior statement and that statement must be the maker’s own words rather than a response to a questions, like a yes or no answer or other leading question. The Daye court further noted that the prior inconsistent statement cannot be the sole basis for the conviction but must be corroborated by some other evidence.
It appears that significant to the court’s decision in Belmer finding that the prior inconsistent statement was corroborated was the fact that the medical records were admitted into evidence without objection. Generally, medical records as to how an event, such as a domestic assault and battery would be inadmissible without the live testimony of the maker of the statement. It appears that the victim of the assault and battery never testified; accordingly, as a Massachusetts criminal defense lawyer, it appears as though the medical records should have been excluded from evidence as inadmissible hearsay. Had these records been excluded, it is difficult to see how the court would have found the corroboration rule satisfied.
The Belmer case is a significant case for defending domestic assaults in Massachusetts as it shows how the Commonwealth can proceed to trial even with a hostile witness. Accordingly, it is important to hire an experienced criminal defense lawyer to represent you in court and to fight your case at trial.
Attorney Michael DelSignore has defended clients throughout Massachusetts charged with domestic assault and battery, involving spouses, dating relationships and parent child relationships. Regardless of the type of assault and battery case, Attorney DelSignore can explain your defenses, prepare a defense to your case and assist you in resolving your case to your satisfaction. Call now for a free consultation, 508-455-4755, most calls are answered immediately.