Witness Intimidation is a common charge that will often accompany a domestic assault and battery charge in Massachusetts.  In the case of Commonwealth vs. Jeffrey S. Wheeler, it was alleged that the charge was against the Judge and not a specific person.

The defendant was convicted of two counts of intimidation in violation of G. L. c. 268, § 13B (intimidation statute). The defendant placed a telephone call to case specialist in the Newburyport Division of the District Court Department clerk’s office and stated that he was going to go rogue on a judge, that the judge was not “going to be a Judge anymore,” and that “it was going to appear on the TV.” The defendant mentioned the name of someone he said was involved in a court case and said that he was going to serve the judge with paperwork, but the case specialist believed it sounded like he was going to “take things into his own hands and do it himself.” 

The Judge was made aware of the defendant’s telephone call to the clerk’s office and was immediately escorted to her office under the protection of a State trooper. The Judge was escorted home by State police at the end of the day.  The Judge was shocked by the threat because the defendant’s name “did not resonate” with her. 

Domestic Assault and Battery case in Massachusetts can be proven even if the victim does not wish to testify.  As a Massachusetts Criminal Defense Lawyer, these cases involve important questions of Constitutional law and the right of confrontation.  The right to confront an accuser in court is one of the most important right to ensure a fair trial and justice in court.  The Massachusetts Appeals Court recently decided a case addressing the 6th Amendment right of confrontation in a domestic assault  and battery case.  The Appeals Court addressed this issue in Commonwealth v. Roy Rand decided in June of 2020.

What guidance did the Appeals Court provide as to when a 911 call is admissible in evidence at trial?  

The Appeals Court stated that the Court engages in a two step inquiry to determine when an out of court statement can be admitted:  

How are Massachusetts Domestic Assault and Battery Cases prosecuted without the cooperation of the victim?  The case of Commonwealth v. Roy Rand, decided by the Massachusetts Appeals Court on June 29, 2020 demonstrates how even without the victim testifying, prosecutors in Massachusetts can secure a conviction of domestic assault and battery.  The key piece of evidence is the 911 call which can come into evidence, despite the fact that you will not have the opportunity to cross examine the victim if the Court defines the call as non-testimonial.  The Rand cases discusses what makes a statement admissible under this rule and under the Sixth Amendment to the United States Constitution.  

BACKGROUND OF THE RAND CASE

The defendant was charged with Strangulation and Domestic Assault and Battery.  The case was indicted and brought to the Superior Court.  This means that the incident must have been particularly vicious and or the defendant had a bad record as most Strangulation cases would stay in district court.  

The Massachusetts Appeals Courts defined the crime of Strangulation in a recent decision.  This is a felony offense which can be charged in a domestic assault and battery case.  In the recent Massachusetts Appeals Court decision in Commonwealth v. Rogers, Mass. App. Ct., No. 19-P-229, slip op. at December 31, 2019, the court reviewed a domestic assault and battery conviction and ruled that although there were not facts in evidence that the victim could not breathe during strangulation, there was sufficient evidence to infer that the defendant’s intentional grabbing of the victim’s neck interfered with the victim’s breathing, thus neck grabbing is strangulation.

This case involves a couple that had been dating for ten years and starts in Bourne, Massachusetts after a 911 call to police in 2018.  During that 911 call, the victim told dispatch that she had been “assaulted” by the defendant.   When police arrived at the couple’s home and spoke to the victim, police noticed marks on the victim’s neck and scratches on her chest.  Police took photos of the injuries and the photos were later used as evidence at trial.  During the trial, the victim testified that the defendant had grabbed her by the sweatshirt with one hand and around the neck with his other hand. The victim also stated that the defendant, while applying pressure to her neck, stood her up from the couch and threw her onto the floor.  The victim also told the jury that when the defendant had his hand around her neck, she felt pain and almost “peed [her] pants.”  When the defendant released his hand from her neck she coughed.  The trial ended in the defendant being convicted for strangulation.

The defendant appealed the conviction on the basis that there was insufficient evidence to support a strangulation conviction.  The defendant claimed that the evidence did not suggest that he touched the victim’s throat or neck, and further contended that there was no basis to conclude that his conduct interrupted the victim’s breathing. The defendant also challenged the inconsistencies in the victim’s statements.   During her testimony, the victim initially said that the defendant had his hand around her jaw line.  At other times in her testimony, the victim referred to the defendant having his hand on her “throat” and “neck.”  The trial record indicated that the victim had demonstrated the location of the defendant’s hand to the jury.

Video tape evidence in the domestic assault and battery incident involving Ray Rice became public today showing him punching his then fiancee in the face in an elevator. The release of the video caused the NFL to issue an indefinite suspension and also resulted in his release by the Baltimore Ravens. Players in the NFL via Twitter expressed outrage saying he should be banned from the NFL for life.

Prosecutor in Massachusetts domestic assault and battery charges are looking for video tape evidence to prosecutor domestic cases as it is prevalent in public places and even as a result of iPhone or cell phone cameras. In some cases, a Massachusetts Criminal Defense Lawyer may be able to content that video tape evidence does not show the complete picture. In this case, it would be a difficult argument to make as the video shows the couple both inside and outside of the elevator.

In a case involving a bar room fight, captured on video in part, a defendant may be able to claim that the video fails to show some act prior to the incident raising an issue of self defense. In this case, the video evidence would be difficult to overcome for a defense lawyer and may have allow the prosecution to proceed even if the criminal case was not resolved. The video in the Rice case would leave no room for interpretation, while it does not have sound, it does not appear it was anything other than an unprovoked an violent punch by Rice.

Massachusetts Governor Deval Patrick recently signed into law a new senate act on domestic violence and sexual assaults. The legislation, known as Senate Bill 2334 – An Act relative to domestic violence, creates new criminal charges for domestic violence, requires the convening of special executive teams to investigate the causes and consequences of domestic violence across the state, and requires that funding be set aside for training state officers on handling domestic disputes.

Assault and Battery on Household Members

Section 26 of the Senate bill amended chapter 265 of the Massachusetts General Laws by creating several new criminal charges where none previously existed. For example, an assault or an assault and battery on a family or household member is now punishable by imprisonment in the house of correction for up to 2 ½ years and a fine of $5000. This sentence applies only to first time offenders; subsequent offenders are punishable by up to 5 years imprisonment in state prison.

One of the most common charges when a defendant is charged with a domestic assault and battery in Westborough, Massachusetts, is that the charge will also be accompanied by a charge of Witness Intimidation. The Massachusetts Appelals Court recently addressed the issue of what constitutes witness intimidation in the case of Commonwealth v. Rosario, decided on May 22, 2013. The case can be found by visiting the social law library website.

In the Rosario case, the defendant was facing charges of assault and battery with a dangerous weapon and four months after this incident confronted victim in the hallway of the courthouse. This encounter led to the additional charges of intimidation of a witness and threat to commit murder. Following a jury trial, the defendant was convicted of witness intimidation.

On appeal, the defendant concedes that the evidence was sufficient for the jury to find that he threatened the victim and that victim was to be a witness against him in a criminal proceeding. He claims that this motion for a required finding of not guilty should have been allowed because the Commonwealth failed to establish that he possessed requisite intent “to impede, obstruct, delay, harm, punish or otherwise interfere” with a criminal proceeding.