Articles Posted in Assault & Battery on a Household Member

On Saturday, October 6, 2018, ST, a 54 year old father of two children was at his home in Chelmsford. ST and his 17 year old son got into an argument and the son claimed that his father had grabbed the son by the throat. ST’s daughter called 911 and the police came to the house and arrested ST. ST’s wife was present as well. On Sunday, ST contacted Attorney Robert Lewin from North Andover. After speaking with Attorney Lewin ST retained Attorney Lewin. On Tuesday, October 9, 2018 ST and Attorney Lewin appeared in Lowell District Court for ST’s arraignment. Attorney Lewin secured ST’s release on personal recognizance and the case was continued to November 8, 2018 for a pre-trial hearing. Attorney Lewin spoke with ST’s wife and son. Attorney Lewin was able to obtain written statements from ST’s wife that ST’s son had actually struck ST prior to ST’s pushing the son away. In addition ST’s son signed a statement saying that he (the son) had touched the father first.

Attorney Lewin explained to ST that the DA’s Office would not agree to dismiss the case at the pre-trial hearing but that the case would have to be set down for trial. Attorney Lewin provided the written statements by the wife and son to the District Attorney. On November 8, 2018 ST and Attorney Lewin appeared at Lowell District Court for the pre-trial hearing. The DA offered a general continuance of the case coupled with a dismissal. A general continuance is where the case is continued to another date (typically 6 months) and at the end of that period of time the case gets dismissed. A general continuance is typically a good result because there is no admission of guilt and there is no finding of guilt. It is a dismissal that takes a little time to get there. Attorney Lewin (and ST) felt strongly that the case could be outright won if taken to trial. ST turned down the offer of a general continuance and the case was set down for trial on December 3, 2018.

On Monday, December 3, 2018 ST and Attorney Lewin appeared in Lowell District Court in the Trial Session. The case was called and Attorney Lewin answered that the Defense was present and ready for trial. The DA stood up and said that they were not ready. Attorney Lewin moved that the case be dismissed. The Judge presiding in the Courtroom granted Attorney Lewin’s Motion and ordered the case dismissed.

On May 20, 2018 NU, a 31 year old pest control worker, was arrested in Andover for assaulting his sister by alleging throwing her to the ground during an alcohol fueled argument. The was his third arrest for assault and battery in the last two years. Attorney Robert Lewin from North Andover had represented NU in the first two cases. One ended in a finding of not guilty and the second was dismissed. NU again consulted with and retained Attorney Lewin to represent him in this case. It was NU’s claim that his sister in an unprovoked attack had sucker punched NU in the mouth cutting his lip open and that in self-defense he had pushed her away from him. The sister called 911 and NU was arrested and charged.

The sister admitted to the police that she had punched NU in the mouth but she told the police that she had done that to defend herself. It was very apparent to Attorney Lewin that the sister had a valid Fifth Amendment claim not to testify – if she wanted to exercise it. Attorney Lewin advised NU that NU had every right to apply for a criminal complaint against his sister to level the playing field. NU did not want to press a criminal charge against his sister; however, the sister was informed that she herself had exposure to a charge being brought against her and  that she had a right not to testify against her brother.

On June 25, 2018 NU and Attorney Lewin appeared in Lawrence District Court for a pre-trial hearing. Attorney Lewin explained to the DA that the sister had a valid Fifth Amendment claim and would probably exercise the claim. As is their usual custom the DA refused to dismiss the case at the pre-trial hearing. The case was continued for trial to Tuesday, August 21, 2018.

On November 30, 2017, SO, a 32 year old pipe-fitter from Methuen, MA, got into an argument with his live-in girlfriend. She began to break things in their apartment and then she attacked him. HE called 911 and asked that she be removed from the apartment. The Methuen police responded quickly to the apartment. According to the police report she told the police that SO had grabbed her by the throat and dragged her out of one room and into the kitchen where he proceeded to hold her down on the floor. When he finally let her up, the police report continues, he blocked her way in the apartment. SO told the police that she had smashed a picture frame and he denied ever grabbing her or holding her down. The police arrested SO and charged him with one count of Domestic Assault & Battery. On December 1, 2017 SO was arraigned in Lawrence District Court and his case was continued to January 19, 2018 for a pre-trial hearing.

SO met with and retained Attorney Robert Lewin from North Andover. It was obvious to Attorney Lewin that the girlfriend had a Fifth Amendment Privilege not to testify. She had committed at least two crimes: smashing the picture frame (malicious destruction to property) and assault and battery (she had struck him). Attorney Lewin met with the girlfriend and explained the workings of the Fifth Amendment Privilege. She told Attorney Lewin that she did not want to testify and would exercise her privilege. Attorney Lewin then went and met with the Assistant District Attorney. As is their custom, the DA’s Office refused to commit to dismissing the case at the pre-trial hearing on January 19, 2018. The DA always prefers to continue a domestic assault & battery case to the trial date. Their hope is that the complainant (the girlfriend in this case) will have a change of mind and will decide to testify.

On January 19, 2018 SO, Attorney Lewin, and the girl-friend appeared in the pre-trial session at Lawrence District Court. Attorney Lewin told the Judge that the complaining witness was present in the Courtroom and that she had a valid claim of a Fifth Amendment Privilege and that she wished to exercise her Fifth Amendment Privilege. The Judge appointed a lawyer to speak with the complaining witness. The District Attorney objected. The DA pointed out that the case was not on for trial but was scheduled for pre-trial; the DA pointed out that the complaining witness could change her mind between the date of the pre-trial and the trial date. Attorney Lewin argued that the complaining witness had taken the day off from work to come to court, that the complaining witness was resolute that she did not want to testify and that she would exercise her Fifth Amendment privilege. Attorney Lewin argued that it would be a waste or everyone’s time and resources to make everyone come back to court on a later date to do what could be done on January 19. The Judge agreed with Attorney Lewin. The Judge accepted the girlfriend’s exercise of her Fifth Amendment Privilege and the Judge then asked the DA if they could go forward with the case without the testimony of the girlfriend. The DA reported they could not. The Judge then ordered the case dismissed.

On August 9, 2017 UL, a 36 year old building contractor from Andover, was at home with his wife and children. The kids were asleep and UL and his wife got into an argument. UL’s wife was sitting on a couch in the family room of their home. UL, a very large and strong man, picked up the TV controller and threw it. The controller hit a window behind where UL’s wife was sitting and caused the window to smash. UL’s wife picked up the phone and dialed 911. The police responded. UL admitted throwing the controller. According to the police report UL told the police that he threw the controller at his wife. The police arrested UL and he was brought to the station. The police charged UL with Assault by means of a dangerous weapon (a felony). He was brought to Lawrence District Court the next morning. He was arraigned and released. His case was continued for a pre-trial hearing to September 25, 2017.

UL contacted and retained Attorney Robert Lewin from North Andover, MA. It became apparent to Attorney Lewin that UL had never intended to strike his wife with the controller. It also became apparent that he did not throw the controller at his wife nor did he ever intend to put her fear of being hit by the controller. A close look at the physical evidence showed that UL’s wife was sitting to the far left of the couch in the family room. UL was standing relatively close to his wife at the time he threw the controller. The controller broke a window to the right of the couch. It became clear that the controller was not thrown at her or towards her.

On September 25, 2017 Attorney Lewin and UL went to Lawrence District Court for the pre-trial hearing. Attorney Lewin spoke with the Assistant District Attorney about the case and showed her the physical evidence and how the physical evidence did not line up with any intent to hit his wife or to place her in fear of being hit. September 25, 2017 was a pre-trial court date, not a trial date. It is most unusual for the District Attorney’s Office to agree  to dismiss a domestic assault case at pre-trial. They almost always wait for the trial date. In this case however, the Commonwealth’s evidence showed that UL had not intended to hit his wife or put her in fear of being hit. The DA agreed to dismiss the case. The case was called and UL and Attorney Lewin went before the Judge. Attorney Lewin explained to the Judge that he and the Assistant District Attorney had conferenced the case and that based on the evidence the Commonwealth would be requesting a dismissal. The DA agreed and the Judge ordered the case dismissed.

KD, a 50 year old electrician from Plaistow, NH, had been in an on again off again relationship with a woman from Pepperell, MA. She had a serious alcohol problem and every time he would break off the relationship she would do something crazy. On one occasion she reported to the police that he had sexually molested his 16 year old daughter who lived with him (he had legal custody). As a result of that report he was investigated by the police and the Department of Children & Families. He was completely cleared of those allegations. In the late fall of 2016 they broke up. On a night in February of 2017 she called him and told him that she had no food in the house and that she needed him to repair an electrical outlet for her. He told her he would come over to her apartment and that he would bring in Chinese food to eat and that he would fix the electrical outlet. KD went to her apartment (3rd floor walk-up) and brought  in a dinner of Chinese food and his electrical tools to fix the outlet. When he arived he put the food down on the table and went to fix the outlet. She had been drinking and she began to accuse him of sleeping with her sister and with whores. He picked up his tools and headed for the door. According to the police report she was standing in the doorway at the top of the flight of stairs from the third floor to the second floor when he shoved her down the stairs causing her to fall and break her ankle. The police report continued that he then stepped over her and left her there laying on the second floor landing with a broken ankle. A tenant on the second floor heard the noise and then came out onto the second floor landing and saw her laying on the floor in pain with a broken ankle. The police were called and responded to her apartment. The police took her statement and then called him and told him to report to the Pepperell Police Station. He refused. The police said they would get a warrant for his arrest.

The next morning KD went to Ayer District Court. He was booked in to Probation and then went into the Courtroom. She was present and had filed for an Abuse Prevention Order. After a lengthy hearing the judge denied her request for an Abuse Prevention Order. KD was arraigned. Bail was set at $2,500.00 which KD posted and the case was continued. KD then retained Attorney Robert Lewin of North Andover, MA to defend him in the Assault & Battery case.

In the meantime KD applied for a restraining order in NH against her. The order was granted and the girlfriend was served with the order. Thereafter she began calling him and texting him in violation of the order. As a result two criminal charges against her for Violating the Restraining Order were taken out in court in NH.

On April 27, 2017, WO, a 26 year old warehouse worker from Haverhill, MA was arrested and charged with Domestic Assault & Battery on his girlfriend. WO works second shift at a warehouse and he got home on April 27, 2017 from work at about midnight. His girlfriend (who is also the mother of his two children) was asleep as were the children. WO suspected that she had been communicating with an old boyfriend. WO took his girlfriend’s cell phone and began to read through her recent text messages. Sure enough WO found intimate text conversations between his girlfriend and her (former) boyfriend. According to the police report WO went into the bedroom and woke his girlfriend up and pulled her out of bed and then proceeded to literally physically “throw” her out of the house. She ran to a local convenient store down the street and called 911. The police responded and then went into the house and spoke with WO. According to the police report WO told the police that yes he had woken her up but that when he confronted her about the text messages she struck him in the face and then he told her she had to leave. He denied striking her; he denied physically “throwing” her out of the house. Needless to say the police arrested WO.

WO consulted with and retained Attorney Robert Lewin from North Andover. Attorney Lewin took a very detailed statement of the facts from WO. Attorney Lewin then set up an appointment to speak with WO’s girlfriend alone. She indicated to Attorney Lewin that she did not want to testify in the case against WO. Attorney Lewin explained that because she and WO were not married she did not have any spousal privilege to refuse to testify against WO; in other words that if she were called as a witness she could be forced to testify. Attorney Lewin also pointed out to the girlfriend that the police report stated that (according to WO) she had struck WO in the face. Attorney Lewin explained that this would provide her with a basis for exercising her Fifth Amendment privilege against self-incrimination.

WO’s case was set down for trial on August 22, 2017. Just before the trial date WO began to fear having a trial. He was afraid he would be convicted and sent to jail. Attorney Lewin explained that it was most unlikely that the case would go to trial because his girlfriend was going to exercise her Fifth Amendment privilege not to testify and Attorney Lewin was confident that the Judge would uphold the girlfriend’s exercise of the privilege. Attorney Lewin felt that without her testimony it would be very difficult for the state (the Commonwealth) to go forward.