Articles Posted in Assault and Battery By Means Of A Dangerous Weapon

Heat of Passion

Consider the following hypothetical scenario: A jealous man comes home from a business trip early and finds his wife in bed with someone else. Gripped by betrayal and rage, the jealous man attacks the other man, beating him severely. The jealous husband does considerably more harm to the other man than is reasonable in this situation. The wife, in a panic, calls the police. Once the police arrive, the jealous husband is arrested, the other man is hospitalized, and the wife is left shaken and scared. Continue Reading

The Lawrence Eagle Tribune reports that police in Haverhill are seeking the help of the public in identifying two suspects who allegedly robbed an unarmed pedestrian at gunpoint. The victim, a 34-year-old man, was robbed of $80 dollars in cash, his credit cards and some other personal papers shortly after 5:00pm on a Monday while walking along Chick Avenue in the Mount Washington area. One of the suspects is described as a young adult, with a distinctive teardrop tattoo under his left eye, while the other suspect, the one who held the gun, is described as having a reddish-brown beard. Both men are over six feet tall. Police are asking that anyone with information about the suspects or the robbery to contact them immediately.  Continue Reading

The Lawrence Eagle Tribune has reported that Lawrence Police Officer William Green shot a man who is accused of beating another male with a baseball bat in a Lawrence alley. The Tribune reports that while Green was doing a paid detail at the Club Copa he became alerted to a disturbance in a nearby alley. Upon investigation, Green observed a male beating another male with a baseball bat. According to the report of District Attorney Blodgett’s office, Officer Green gave reported verbal commands for the assailant to stop. The bat yielding assailant, later identified as Jose Concepcion of Lawrence, apparently failed to stop and Green shot him twice. This put an end to the beating and both participants landed in the hospital. Concepcion was taken to Lawrence General Hospital and the other male was taken to a Boston Hospital. According to a press release from Blodgett’s office, per department policy, Green has been placed on paid administrative leave. The Massachusetts State Police and The Essex County District Attorney’s Office is continuing to investigate the incident.

The facts of this case raise some very interesting and often litigated legal issues. A defense that is often asserted, when identification of a perpetrator is not an issue, is self-defense or defense of another. Although all of the facts of this case are clearly not available at this time, this may or may not be a viable defense. It is always the burden on the Commonwealth to prove its case beyond a reasonable doubt. Once a defendant asserts a claim of self-defense or defense of another the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. In Massachusetts an individual has an obligation to retreat if possible and can only use as much force as reasonable to defend oneself. Generally speaking, a gun or knife would be considered excessive force if an individual was fighting an unarmed person. However, every case is fact specific. Critical factors to be considered if you believe that this type of defense may apply to your case are whether a defendant was out numbered, what type of weapon was used (if any) and the size of the parties involved.

Based on the facts of this case it appears that the individual that used the bat on the male in the alley can be charged with a number of offenses ranging from assault and battery, assault and battery with a dangerous weapon to assault with intent to murder (armed). In the event that the person is charged with just assault and battery and assault and battery by means of a dangerous weapon the case may remain in the District Court. The advantage of this is that a District Court Judge can only sentence up to two and one half years in the house of correction. However, if the case is indicted and the case is in Superior Court he will face the possibility of a state prison sentence. The maximum sentence for armed assault with a dangerous weapon is twenty years. The decision of what Court that this case will be litigated in will probably be made after a thorough investigation into the circumstances surrounding the attack and the background of the involved parties. Based on my experience, I would expect that the Essex County District Attorney’s Office will present the case to a Grand Jury and indictments will be returned against the individual that struck the male with the bat.

Continue Reading

A twenty-eight year old Salem Massachusetts man, Michael Marino, will spend the next six years behind bars after pleading guilty to stabbing his mother’s former boyfriend seven times. According to The Salem News, Paul Goodwin told the Superior Court Judge that this situation was the most “horrifying thing in [his] life.” Goodwin wanted Marino to be sentenced to the maximum of thirty-five years, twenty years for the count of assault with intent to murder and fifteen years for count of assault and battery causing serious bodily injury. The prosecutor described the incident as a “brutal attack” and requested that the defendant be sentenced to a seven to ten year sentence. Superior Court Judge David Lowy imposed a six year sentence followed by a probation term when Marino is released from prison. Marino was ordered to participate in drug and alcohol counseling and attend an anger management class during his probationary period.

According to reports, the victim explained to the Judge that the defendant sliced his throat and then opened up his belly “like a fish.” Apparently, Goodwin, [who had previously received a restraining order against his former girlfriend and mother of the defendant, Brault] went to Brault’s mother’s house after she had been kicked out. As Goodwin and Brault were speaking, Brault received a phone call from her son, Marino who appeared at the scene. An altercation ensued that left Goodwin with lacerations to his liver, lung and diaphragm and fighting for his life. Defense counsel explained that his client did not land the first blow and was not sure what to expect when he arrived at the scene. Counsel further explained that Marino was under the influence of Klonepin and alcohol. The struggle landed Marino in jail and Goodwin in the hospital.

In many cases where a defendant is charged with a violent crime there are a number of defenses to pursue. Obviously, the type of defense that is mounted depends on the facts of the case. For example, if a defendant was not identified at the scene and the accuser and the defendant are unknown to one another, a defense of misidentification should be evaluated. That type of defense would not make sense in a case such as this because the parties knew each other.

Although all of the facts of this case are not known, it appears that if the case went to trial a viable defense would be that Marino acted in self-defense. In cases in which a defendant claims self-defense the Commonwealth must prove that beyond a reasonable doubt that an assault and battery by means of a dangerous weapon occurred AND must prove beyond a reasonable doubt that the defendant did NOT act in self-defense. However, in cases of self-defense and individual has the obligation to retreat if possible and can only use as much force as is necessary to defend oneself. Thus, the fact that Marino introduced a knife into the struggle could be problematic to the claim of self-defense. In these types of cases the size of the individuals involved in the altercation can be important as a slighter person may need to use more force to protect himself from a bigger, stronger person.

Continue Reading