Recently in Assaults/Violence Category

Jail Assault Charges Against Aaron Hernandez?

February 27, 2014

Hernandez.jpgThe Sheriff of Bristol County announced yesterday that former Patriot tight end, Aaron Hernandez, was involved in a fight with another inmate on Tuesday. The sheriff only said that there was a brief altercation in an area where inmates are not supposed to contact each other; neither man was injured; and an investigation is underway. Later "news" outlet TMZ, citing "sources extremely familiar with the situation," said that Hernandez was unrestrained, the other man was wearing handcuffs. In addition, TMZ said that the other inmate had been "talking smack" to Hernandez. It remains to be seen if these factual allegations have any merit at all.

Today's Sun Chronicle reports that the sheriff will likely file charges. Against whom? Will the sheriff bring charges against Hernandez, the other man, or both of them? There are many other questions that I expect will be answered after the full investigation. Here are some that come to my mind as a criminal defense attorney.

What will the charges be? Assault and battery? Assault and battery with a dangerous weapon such as a shod foot or handcuffs? Will the second man agree to press charges? Will Hernandez agree to press charges? If neither agrees to testify, where will the evidence of a fight come from? A video recording? Is a security video sufficient to prove the elements of what ever is charged? Don't they each have a Fifth Amendment right against self incrimination which would dissuade them from testifying against each other? Under these circumstances does the sheriff really want the media circus and expense involved with transporting these two to the New Bedford District Court?

It is interesting to speculate why these two men were in a restricted area together, but that has very little relevance to the potential criminal charges. The question will be whether either or both committed some type of assault that is provable in court.

If the charge is misdemeanor assault and battery, whoever is charged should be given an opportunity for a hearing before a magistrate to determine if there is probable cause to issue a criminal complaint. This is where the real potential evidence will be unveiled, whether it be witness testimony, video recordings, or both.

In my experience, inmates are reluctant to testify against other inmates. If they do, they are not treated well by the population when they return to custody. Moreover, I would be somewhat surprised to learn that either Hernandez or the other man even reported the fight to corrections officers. In jail, that also falls into the so-called "rat" category.

I fully expect that a video recording exists, since most places inside of jails are monitored with cameras. So, lets assume that the video will be the evidence. Try to imagine, however, a trial where no witness testifies as to what really occurred, and all the evidence comes from a video screen. And remember, it is illegal for these recordings to include audio, so in this situation there will be no evidence of words spoken before or after the altercation. Is such a video likely to provide proof beyond a reasonable doubt? I suppose that we shall see, but if the parties are not interested, why bother? I think we can safely assume that not all jailhouse violence results in criminal charges. This case however, involves a celebrity, and that can change everything.

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Husband and Wife Charged with Assault and Battery with Dangerous Weapons (Rolls of Quarters)

Temp 018.JPGThe Walpole Police were called to the Main Street Shopping Center last Tuesday on a report of a melee outside of Supreme Pizza. According to the Walpole Times, Chris and Yvonnem Antonopoulos parked outside the pizza place and made insulting gestures through the glass from the sidewalk outside. The target of their gesticulations appears to have been the shop's owner. Their motive appears to be revenge. Apparently, the owner had previously given them a "letter of disinvite," banning them from the restaurant.

The Times does not report the owner's reasons for banning the couple from his establishment, but proprietors may forbid anyone they wish to forbid from their private property. A "letter of disinvite" is simply written evidence that property owners oppose another's presence and have made their wishes known to the target of their opposition. This is an essential element of the criminal charge of trespass.

It appears that Mr. and Mrs. Antonopoulos knew this and were abiding by the letter by staying on the sidewalk. Oddly enough, while they were avoiding the possibility of a misdemeanor trespass charge, they were each squeezing a roll of quarters in their fists for defense in a fight against the owner should he come outside. And come outside he did.

One may wonder why he did not simply call the police. But, the taunts had their desired effect and the pizza man came out and engaged Mr. Antonopoulos in combat. The two went to the pavement followed by Mrs. Antonopoulos who allegedly bit the victim's leg. To make matters worse for the husband and wife team, a 71-year-old man came out to attempt to break up the rumble and Mrs. Antonopoulos allegedly attacked him for his efforts.

The couple drove away leaving the "battered" victims behind. They drove towards the center of town and and were apprehended adjacent to the police station. Since there was no investigation of Operating Under the Influence, we may rule out alcohol as a factor in the couple's decision making.

To be fair, it would be very interesting to know why the shop owner banned them. Was it justified or not? Did they have good reasons to be upset? In addition, the pizza man and his helper apparently agreed to do battle with them, but did not get charged. The article says that the police determined from witness accounts that the Antonopouloses were the instigators. But they never attacked. Its like saying: "he started it by calling me names."

As it stands the couple must defend themselves in the Wrentham District Court against charges of Assault and Battery, Assault and Battery with a Dangerous Weapon, Assault and Battery upon a Person older than 60 years, Disorderly Conduct, and Disturbing the Peace.

I'm not too sure if holding a roll of quarters gives you more punching power, but the Assault and Battery with a Dangerous Weapon charge under these circumstances raises an interesting question. Since this charge requires proof that the accused battered another with a dangerous weapon, it requires proof that the weapon actually touched the victim. If the Antonopouloses had their fingers wrapped around the rolls of quarters and those weapons never actually made contact with the victims, can the charge be sustained? This is an important issue because this charge is a felony.

It should also be noted that the charge of Assault and Battery upon a person over the age of 60 years is also a felony with a possible state prison sentence of 3 years. I doubt very much if the couple in this case will be facing incarceration, but they surely would be well advised to seek experienced criminal defense counsel.

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Reports Vary Wildly About Incident Involving Injured Off-Duty Quincy Police Officer

September 25, 2012

Cuffs4.jpgQuincy Police arrested three people on Saturday as a result of their confrontation with an off-duty uniformed Quincy Police officer. Three news agencies described the incident differently. Boston.com gave the most details reporting that as off-duty officer was driving near Independence Avenue and President Avenue he saw "several people standing around, one of whom was holding a baseball bat in a confrontational manner." The officer approached and the man took his bat and left in his car.

That, however, was not the end of this story. Someone yelled that another man had a knife and the officer told that man to put his hands on his head. The man did so but "then became combative," so the officer "took him to the ground" and handcuffed him. Yet another man attempted to pick up a jacket on the ground near the officer, the officer told him to stop approaching, and then struggled to arrest him. A woman "attempted to interfere [and] when she did not back off" the officer sprayed her with pepper spray and then arrested her.

The arrests were as follows: Stephen Guest and Jessica Duggan - Disorderly Conduct and Resisting Arrest. Stephen Pellegrine - Disorderly Conduct.

If the officer saw a man threatening another person with a bat, an investigation is not only justified, it is required. But what happened next? The situation appeared to be de-fused with the departure of the bat-wielding man. Is it grounds to ask someone to put his hands on his head because someone else said he had a knife? Having a knife is not always a crime. Was the officer going to search him? Or was he actually going to put hand-cuffs on him? Perhaps the man with his hands on his head was justified in being concerned (if not combative). Did the police find a knife on that man? Apparently not.

What about the man trying to retrieve his jacket? What's wrong with that, whether or not it was near the officer? The officer could have stepped away a little, or the officer could have handed the man his jacket. In fact, by picking it up the officer could have assessed its weight to determine the possible presence of a weapon. Was a weapon found in that jacket? Apparently not.

The prosecution theory must be that the men that were arrested were, in their individual capacities, acting in a disorderly manner and one of them (Guest) resisted being arrested for that charge. Ms. Duggan may have resisted her own arrest or interfered with the arrest of one of the men. In any event, in order to prove Resisting Arrest, there must be evidence that A) a person used or threatened to use force or violence against the arresting officer or B) a person used any other means that created a risk of injury to the officer. It is difficult to tell from this article whether the actions of these three reached that level. A lone officer, however, in a group of allegedly agitated individuals will be given wide leeway with regard to his decisions as to how to resolve the situation.

It is interesting to read other accounts of the story. The Patriot Ledger wrote that three people attacked the officer from behind as he attempted to break up a fight. WHDH.com reported that the officer stopped to talk to a man and a woman engaged in an argument and "several people emerged from a nearby home possibly with baseball bats." This article was entitled "3 arrested for possibly attacking Quincy officer."

Hopefully the truth will come out in the Quincy District Court cases. Each of the arrested would be well advised to obtain experienced defense counsel.

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Assault and Battery with a Dangerous Weapon (Weed Whacker) in Neighborhood Dispute Results in Arrest

September 13, 2012

weed whacker.jpgLast Sunday afternoon Mr. Robert Tiernan was using his weed whacker along a fence between his property and his neighbor's. According to the Medford Transcript, the man next door came outside along with his wife and a friend. They were "looking at the garden that is close to the shared fence . . . and asked [Tiernan] to stop for a few minutes, but he refused." What happened next will be the subject of several cases headed for Somerville District Court.

Tiernan told the police that after he refused to pause his weed whacker, one man threw a beer bottle at him. The bottle hit him and spilled beer all over his pants. His foot then got caught in the bottom of the fence, he lost his balance and his control of the weed whacker. He said that if anyone got whacked, it was an accident. The police observed injuries to the woman's arm.

The others told the police that Tiernan got argumentative when asked to stop. They said that he not only used the tool to shoot rocks and dirt at them, but he swung it over the fence and injured the woman.

When the police arrived they found Tiernan on the ground surrounded by three men. He was covered in blood, his shirt had been ripped off, he had bruises on his torso, and he had a cut over his eye that looked like it needed stitches.

The men claimed that after Tiernan committed the Assault and Battery with the whacker, one of them did hit him with a beer bottle, and then Tiernan started to walk away. They all approached him "fearing that he was going to flee." The three men then claimed that Tiernan attacked them and that he was injured as they defended themselves.

The police only arrested Tiernan on charges of Assault and Battery with a Dangerous Weapon. They will, however, be filing Assault and Battery charges against the other men in the Somerville District Court. They seized the weed whacker as evidence.

A few questions: Why couldn't the neighbors wait until Tiernan finished his work? Couldn't they have "looked at the garden" a little later? Did Tiernan's refusal to shut off the machine justify the man's hitting him with a beer bottle? Why didn't the police arrest that man for felony Assault and Battery with a Dangerous Weapon? After all he admitted it, even though he claimed he was defending himself from the swinging garden tool. If a fence separated the parties couldn't they all have just stepped back? Why was anyone close enough Tiernan to be in range of the the dirt and pebbles that got whipped up? For that matter, why was anyone close enough to be in range of the weed whacker at all? Did the three men really need to detain Tiernan? Did they think he would flee and never be found by the police? He lived next door. And did the three men really need to defend themselves from Tiernan? Did they follow him into his own yard? How big were these three and how old?

What was really going on there? Perhaps there was some previous "bad blood" between these people? Surely the presence of beer explains some of it.

In any event, Tiernan will be facing felony Assault and Battery with a Dangerous Weapon Charges. The other three will likely have a hearing before a Clerk Magistrate to determine if Complaints will issue against them at all. If cooler heads don't prevail in the early going, this could be a long feud, in court and out.

They would all benefit with the assistance seasoned criminal defense attorneys to see to their individual best interests.

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Quincy District Court to Hear Assault Charges from Weight Room Altercation

dumbbell.jpgCriminal charges were lodged against 44 year-old Timothy Dutcher on Thursday as a result of his confrontation with another man at a Braintree gym. According to Boston.com, Mr. Dutcher and an unnamed 27 year-old Quincy man were working out in a Braintree gym when Dutcher allegedly "became enraged" at the Quincy man.

Dutcher allegedly backed the "victim" into a corner, slapped him, and held two dumbbells over his head while verbally threatening him. The victim extricated himself and made tracks to a nearby gas station to call the police to report his humiliation. By the time the police got to the gym, however, Dutcher had left. They then went to Dutcher's home and arrested him. Based on the victim's narrative, the police charged Dutcher with Assault and Battery, Assault with a Dangerous Weapon, and Threats.

This is one of those cases that makes you wonder about the back story. What were these guys arguing about? Did the victim violate gym ethics by failing to rack his weights? Did the victim cut in on Dutcher's routine? Did they know each other? There must be witnesses. How big is the victim compared to Dutcher? Is there some code behind the word "enraged" as used in the article. Is someone implying "roid" rage? Why did the victim bother calling the police at all? There's the law and then there's just life. Apparently some people are just more prone to assume the victim role.

The charge of Assault with Dangerous Weapons (dumbbells) is a felony. If not for this allegation, there may not have been an arrest at all. If all of the charges were misdemeanors, Dutcher would have had a right to a Clerk's Hearing where all this could have been hashed out between the parties without the necessity of the criminal process. This would have been best in this circumstance.

As it stands, I expect that Dutcher made bail from the police station and was either arraigned on Friday or will be at some time in the near future. At arraignment, the judge may order him to stay away from both the victim and the gym while the case is pending. An experienced criminal defense attorney will obviously focus on avoiding convictions for any of these charges, especially the felony. Any conviction may involve a jail sentence, probation, fines, fees and further stay-away orders.

For better or for worse, the days of self-help after the bully kicks sand in your face are over.

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Brandishing Licensed Firearm Results in Arrest for Assault with Dangerous Weapon

Baretta 25 2.jpgThe Stoughton District Court will hear charges of Threats and Assault with a Dangerous Weapon against Frederick Baker of Raynham because another man told the police that Baker "pulled out" a pistol during an argument at a gas station. According to the PatriotLedger.com, Baker and the alleged victim were at a Mobil station in Stoughton at approximately 7:00 a.m. yestaerday when an argument started over the use of the pumps.

After their interaction, Baker drove away, but the alleged victim called the police and said that Baker pulled a small black handgun and threatened to blow his head off. The Canton Police stopped Baker on Route 138 and found him to be in possession of a .25 caliber Beretta, and a license to carry it. Baker explained that "he felt threatened." But, according to one officer, "the bottom line is the situation didn't warrant the level of force that he escalated to."

A license to carry a firearm comes with great responsibility and should inspire significant restraint. But these cases are never open and shut. If the reason for the licensed gun is personal safety, what good is it if you are not allowed to prepare for defensive use. The triviality of the argument that created the dangerous situation is irrelevant. The real question with regard to self-defense is whether, at the time the firearm was drawn, the person drawing it was in imminent fear of injury and believed he had no other recourse.

There are many other questions that need to be answered. What did the alleged victim say to Baker? Since it was an argument, we may assume that words were exchanged. Was there a threat towards Baker? Would there actually have been a physical altercation if not for the showing of the gun? Did the gun, in fact, diffuse a dangerous situation? Did the alleged victim have access to a weapon or appear to have such access? Was the alleged victim significantly larger than Baker. Was the alleged victim alone or did he have others with him?

Apparently Baker never aimed the weapon since the article twice says he just "pulled" it. To be convicted of Assault with a Dangerous Weapon in this circumstance, there must be proof beyond a reasonable doubt that Baker intended to put the victim in fear of an imminent battery and that Baker engaged in some conduct which the victim reasonably perceived as imminently threatening.

So, we know that the victim claims to have seen the gun, and that the victim probably said that he was in fear. But was the victim really in fear and if so was that fear reasonable? I suppose that one important issue in this regard is whether Baker actually said that he would blow the victim's head off. The men had been in an argument. In arguments, like fights, both sides want to win. Perhaps the victim felt as if he had lost and was determined to have the last word by bringing the police into it and saying what was necessary.

Surely Baker's defense will address these issues and more. Aside from the criminal penalties, Baker's license to carry hangs in the balance.

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"Hazing" Related Arraignments for Three Young Men Postponed

honey1.jpgBrighton District Court postponed the "hazing" arraignments of three members of the Alpha Epsilon Pi fraternity last week. The new arraignment date is now June 27. On that day they will be joined by six more young men similarly charged. All of the potential defendants are between the ages of 19 and 22 years old.

According to boston.com, on April 9, 2012 the Boston Police received a noise complaint involving a house in Allston. Their investigation revealed five 19-year old Boston University students in the basement with their wrists bound together by tape. They were clad in underwear and had coffee grounds, honey, hot sauce, and fish sauce dripped on them.

On the second floor, the police found two men that they believed were pretending to sleep. Another young man tried to run away. These are the three men that were in court last week. It is unclear how prosecutors determined just what each of them did, but they were variously charged with violating Massachusetts General Laws chapter 269, section 17 and 18 -- "Hazing" and "Failure to Report Hazing."

Most people are familiar with the term hazing as it traditionally involves arguably bizarre initiation activities at college fraternities. In criminal law, however, when a statute makes certain activities criminal, that statute must specifically spell out just what behavior is punishable by law.

The Massachusetts Hazing Statute defines hazing as conduct involving initiation into a student organization, that willfully or recklessly endangers the physical or mental health of a person. The statute gives these examples. Whipping, beating, branding, forced calisthenics, exposure to weather, forced eating, forced drinking, and the catch-all: "other brutal treatment . . . which is likely to adversely affect physical health or which subjects the person to extreme mental stress, including extended deprivation of sleep or rest or extended isolation."

The statute goes on to specifically exclude "consent" as a defense. In other words, those being initiated may not come to the rescue of hazers by saying that they agreed to their treatment. One man in the Brighton case actually did come forward to say: "I didn't feel victimized at all because it was a rite of passage and a choice that all five of us made together, and we knew we could walk away from it at any time." This is in stark contrast with the prosecutor's description of the hijinks as "inhumane." When hazing makes the news, even minor incidents may get lumped together with some other real tragedies.

Where is the line between a rite of passage and "brutal treatment?" And how can physical activity be "forced" if one agrees to it? Think about wind sprints at a sports practice session or calisthenics at military boot camp . This is an unusual statute. It says that initiators may not force initiatees to do stressful things. And then it says that the consent of the initiatees is not a defense. This is contradictory. If the force makes it a crime how can one accused of the crime be prevented from using lack of force (consent) as a defense?

Furthermore, how is the prosecution going to prove that what the Boston Police found was an initiation ceremony unless someone told them it was? The statute requires this proof and a jury may not convict on speculation.

In any event, if this case actually goes to a trial, I supposed the main issue will be whether or not the accused men did anything that they should have known would put the others at risk of physical or mental harm. I question whether any jury would find that they took chances with the mental or physical health of the others by tying them up and pouring various condiments on them. This is especially true when each marinated man apparently agreed to it and had the option of walking away.

In reality, I suspect that the defendants with experienced defense counsel are negotiating something with the prosecution such as dismissal prior to their arraignments with certain conditions such as community service, etc. This would explain the postponed arraignments for the first three. These men are college students that wish to keep their records clean for their futures. If they are arraigned, then the charges will be entered on their permanent Massachusetts Board of Probation records, and may appear when future employers do background checks. Dismissing the cases prior to arraignment would avoid this.

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