Massachusetts Criminal Defense Attorney Blog
Although recently acquitted of first-degree murder, George Zimmerman has not been able to stay out of the police log or the public eye and was recently involved in an alleged case of domestic assault. The Washington Times reported that back in early September, 2013, Zimmerman’s wife accused him of stealing items, including a large flat screen television valued at over $2,000 and furniture, from the home the couple previously resided in. The former Zimmerman residence is owned by the wife’s parents. Apparently, things went down hill for the happy couple after she filed for divorce. The estranged Mrs. Zimmerman accused her husband of becoming violent during an argument, threatening her with a gun and smashing an i-pod.
This type of incident that occurs between family members is often referred to by law enforcement as a case of Domestic Violence. In this case, it appears that the police investigated the allegations of Mrs. Zimmerman and although George was initially taken into police custody he is not facing any criminal charges. According to the Washington Times, Mrs. Zimmerman recanted her initial story.
In Massachusetts, cases of domestic violence are taken very seriously by the police and the District Attorney’s office. It is the usual course that following a call to the police for any type of assault or argument to a home, someone will be arrested. The authorities preferred method of response in these situations is to separate the fighting parties, even if the complainant does not wish to have anyone arrested. In their minds this will avoid a tragedy of having someone severely injured or killed after they leave the scene.
In Zimmerman’s case, Mrs. Zimmerman made very serious allegations. Threatening an individual with a gun is the crime of assault with a dangerous weapon and stealing the described property is the crime of malicious destruction of property over $250.00. Both of these crimes are felonies and are punishable by possible state prison sentence.
It is not unusual for a spouse or family member to decide not to pursue charges against a defendant after an arrest has been made. Unfortunately for them, it is not their decision. Once there is an arrest the complaining witness is not a “party” to the case but a witness. The case is captioned Commonwealth v. Defendant, thus the final decision relative to how a case will proceed is up the the prosecutor NOT the victim.
In Massachusetts, the prosecution cannot force a spouse to testify against his or her spouse, unless certain conditions are present such as the safety of the children. In the event the the only two people that were present during the incident was a husband and wife and there is NO other evidence the exercise of the marital privilege can often result in the dismissal or nolle pross of the criminal case. However, it is important to note that this privilege can only technically be exercised on a trial date and not for a motions hearing or a grand jury presentment–as these are not considered “trials.” Furthermore, there is no privilege that prevents a mother or father from testifying against a child or a sibling from testifying against a sibling. The only privilege relates to the marital privilege and often the court will require that a marriage certificate be presented to the court.
The 911 call is closely examined in the event that a spouse exercises his or her privilege. The cases of Melendez-Diaz and Crawford counsels that a statement made out of course is hearsay and is inadmissible if it is testimonial and the witness was not previously subjected to cross examination. An exception to this principle in Massachusetts is if the police or 911 operator are responding to an “ongoing emergency” because the interview of the “victim” is not considered “testimonial.”
If you or a family member are facing a charge of domestic assault and battery you must have an experienced Massachusetts attorney on your side.