Articles Posted in Assault & Battery

On January 4, 2014 LW, a Chinese national in the US on a work visa, was arrested at his home in Malden after his wife, also a Chinese national, called the Malden Police to report that he had shoved her and slapped her on the face. He was arraigned on the charge of domestic assault & battery in Malden Court on January 6, 2014 and his case was continued to February 11, 2014 for a pre-trial hearing. LW met with and retained Attorney Robert Lewin. Attorney Lewin explained how reluctant the Middlesex County DA’s Office was to dismiss domestic assault & battery cases. Attorney Lewin spoke at length with LW’s wife; she indicated that she did not want to testify against her husband and that she wanted the case dismissed. Attorney Lewin prepared a marital affidavit which LW’s wife signed. Attorney Lewin obtained an English translation of their Chinese marriage certificate. Attorney Lewin met with the Assistant DA and presented the Marital Affidavit to the Assistant DA and put LW’s wife in contact with the Assistant DA. On February 11, 2014 Attorney Lewin and LW and LW’s wife appeared in Malden District Court. Attorney Lewin explained to the Judge that LW’s wife was present in the court and that she did not want to testify against her husband. The Judge read the marital affidavit that Attorney Lewin had prepared that LW’s wife had signed. The Judge then questioned LW’s wife to make sure that she was not being forced into not testifying against her husband. The Assistant DA then relented and agreed to dismiss the case at the pre-trial hearing. As with many of these cases, the case was won in the preparation. The result of a dismissal was critical for LW because had he been convicted or even had his case been continued without a finding then he would have been subject to deportation back to China. Needless to say he was happy with the result and he was happy that it was obtained so quickly.

On March 14, 2014, MR, a 39 year old woman and her husband, were in the waiting room of a psychologist’s office in North Andover. They were getting divorced and were litigating in the Probate Court who was going to get custody of their 9 year old daughter. The Probate Court judge had appointed the psychologist to investigate the issue of custody. On March 14, 2014 the psychologist wanted to speak to their daughter and then to MR and her husband. While the psychologist was speaking to their daughter MR went to use the bathroom. When she exited the bathroom MR claimed that her husband (a Doctor) pushed her to the floor. The Husband claimed that MR had stepped on his foot and then in a very controlled manner fell to the floor. He claimed he never touched her. When MR landed on the floor she screamed. The psychologist came out of his office. The psychologist, MR, and her husband all called 911. The police came. The police charged BOTH MR and her husband with domestic assault. The husband wanted for both MR and himself to exercise their marital privilege and not testify against each other and have both cases dismissed. MR refused. MR retained Attorney Robert Lewin. Attorney Lewin reviewed the police reports and felt strongly that the case against MR was very weak and that MR should go to trial. MR had had the presence of mind to take pictures of a cut on her elbow and a bruise on her leg that she had sustained when her husband threw her to the floor. Attorney Lewin made color enlargements of the photos. On July 29, 2014 the case against MR went to jury trial in Lawrence District Court. Attorney Lewin had thoroughly prepared MR for her testifying at her trial. MR was concerned that her husband was a “convincing talker” and “made a nice appearance”. Attorney Lewin told MR, not to worry about her husband that Attorney Lewin would deal with his “slickness” on cross examination. The trial began; the Husband testified and Attorney Lewin through cross examination was able to show that the husband was an angry man. The jury saw it. MR testified and followed all the lessons that Attorney Lewin had given her: she looked at the jury when she testified, she was polite but firm, she answered her questions with precision and confidence. The jury went out to deliberate at 12:47 PM; seven minutes later we were all back in the court room. The Jury had reached their verdict. MR was found NOT guilty. MR was thrilled. Attorney Lewin has been practicing criminal law since 1971. In 43 years of practice this was the quickest verdict that Attorney Lewin has had. As a Judge in Lawrence District Court said to Attorney Robert Lewin recently in another jury trial that ended with a not guilty verdict, “Bob, you still got your fastball”.

WK, a 50 year old engineer and his wife, lived in Andover. One Saturday evening in February 2013, after a night of dining out and drinking, WK and Mrs. K returned home. An argument ensued. According to the Police Reports WK punched his wife in the face giving her a swollen, black eye. The police reports further indicated that WK stuck his thumbs into his wife’s mouth and she bit down hard on his thumb breaking the skin. She grabbed a phone in an attempt to call 911; he grabbed the phone from her. She ran to the garage in her nightgown and bathrobe, got in the car, and fled to the Police Station. At the station, color photos were taken of her face and eye. Mrs. K gave a complete statement of what happened. The police were dispatched to the family home. WK was arrested and charged with Assault & Battery, Witness Intimidation, and Threat to Murder. According to the police report she told police he threatened to murder her. Also according to the police report when asked to give his version of what had occurred WK told police he “bashed” his wife. WK was held without bail over the weekend at the Middleton Jail. On Monday morning he was brought to Lawrence District Court and arraigned and released. He was ordered not to abuse his wife. The case was continued for a pre-trial hearing.

WK retained Attorney Robert Lewin. As often happens in these cases, as time passed Mrs. K decided she would not testify against her husband and she executed a marital affidavit that Attorney Lewin prepared. The parties appeared in Lawrence District Court for the pre-trial hearing and the Judge, after speaking with Mrs. K, accepted her exercise of her marital privilege and excused her from testifying. The D.A.’s Office refused to dismissed the case and the case was set down for trial.

On Wednesday, June 26, 2013 WK and Attorney Lewin appeared in Lawrence District Court ready for trial. Mrs. K was not present. Two Andover police were present. Attorney Lewin prepared a Motion in Limine to Exclude all statements made by the wife to the police at the police station. Attorney Lewin also prepared a Motion in Limine to Exclude the Photo the police had of Mrs. K. The basis for excluding the statements made by the wife to the police was that the statements were hearsay and that the statements were not “spontaneous utterances” (an exception to the hearsay rule). To the great surprise of the Defense the DA’s Office did not object to the Motion to exclude Mrs. K’s statements to the police. (The particular judge who was hearing the case would most likely have denied the Motion and would have allowed the statements into evidence; it was an unforeseen break in the case when the DA did not oppose the Motion.) The Assistant DA did object to the Motion seeking to exclude the photograph. Attorney Lewin argued that there was no way the Commonwealth could prove – given the witnesses on the State’s witness list – that the woman in the picture was the Defendant’s wife. Remember, Mrs. K was not present at the trial. The police were not allowed to testify as to ANY statements Mrs. K made to the police (including for example her name, address, and the fact that she was married to Mr. K). There was no witness who had knowledge (independent of what Mrs. K had said to the police) that the woman in the picture was Mrs. K. The Judge reserved a ruling on the Motion to Exclude the photo. A jury was chosen and sworn. The DA finally realized that the Commonwealth’s case had fallen apart and the Commonwealth said they could not go forward. Attorney Lewin immediately moved that all the charges be dismissed with prejudice. A dismissal with prejudice means the case can NOT be brought again. The Judge ordered all three charges dismissed with prejudice.

On a Friday night in February, 2013 RW, a 25 year old cop from Maine, and his girlfriend came to Boston for an evening on the town. They visited several bars and by the end of the night RW was quite drunk. At about 1:15AM on Saturday morning RW found himself under arrest for Assault & Battery on his girlfriend. RW retained Attorney Robert Lewin. Attorney Lewin obtained a copy of the Boston Police 911 Call Recording. of RW’s girlfriend’s call to the police. On the recording she is crying and in a panic. She tells the police that RW grabbed her by the throat and pushed her head against a wall. In the background RW can be heard shouting andf swearing at her. The recording was awful. The 911 operator kept the girlfriend on the line and within 2 minutes the Boston Police arrived in person on the scene and arrested RW.

RW made no statements to the police. He was booked and subsequently released. He went home and took pictures of his neck and right hand. His neck had scratches on it and his right hand hand bite marks on it. The police report stated that the girlfriend had no visible injuries.This put the case in a very different light. The photographs and the injuries to RW raised the issue that the girlfriend had assaulted RW and thus the girlfriend had a Fifth Amendment right not to incriminate herself and thus not to testify.

On Friday, May 3, 2013 RW and Attorney Lewin appeared in the Boston Municipal Court, Central Division (Downtown Boston). The case was called and RW and Attorney Lewin answered ready for trial. The girlfriend did not appear at Court. Attorney Lewin moved to dismiss the case and Judge ordered the case dismissed. RW was fortunate that he had taken the pictures of his injuries.

On December 4, 2012 PS (a 35 year old electrician) was at home in Reading. An on-again off-again girl friend called him and asked him to come over for a visit. PS does not drive (and that is another story – he has a license but chooses not to drive) so the girlfriend (also age 35) drove over to PS’s house, picked him up, and drove him over to her house in Wakefield. Since their last visit he had broken off the relationship with her and had begun seeing another woman; nevertheless, he went over to her house that night hoping he might get lucky. The girlfriend wanted to talk about their relationship and wanted to know if he had “been cheating on her”. Words got exchanged between them.

According to the police report PS punched her and knocked her to the ground. Another woman who lived upstairs came down when she heard the argument/fight and according to the police report PS punched her in the face. The neighbor called 911 and the police responded. PS got arrested and charged with Assault and Battery on both women. The girlfriend got charged with assault and battery on PS (PS had scratches on his neck which fortunately the police had photographed) and assault and battery on a police officer and disorderly conduct. The neighbor didn’t get charged with anything. PS denied assaulting either woman.

PS retained Attorney Robert Lewin. Attorney Lewin obtained the criminal record of the girlfriend; the neighbor had no record. Attorney Lewin went over all the facts of the case closely with PS and thoroughly prepared PS for both direct examination and cross examination. PS’s case was set down for trial on April 25, 2013 in Malden Court. On April 24, 2013 Attorney Lewin spoke with the girlfriend’s lawyer and it became clear that the girlfriend was going to exercise her Fifth Amendment privilege against self-incrimination and refuse to testify. On April 25, 2013 PS and Attorney Lewin appeared in Malden Court and answered ready for trial. Attorney Lewin informed the Judge that the girlfriend was going to exercise her Fifth Amendment right not to testify. The neighbor – who was also named as a victim – failed to appear. When the case was called the DA told the judge they could not go forward. Attorney Lewin asked the Judge to dismiss the case for lack of prosecution. The Judge granted the motion and both counts of Assault and Battery against PS were dismissed.

Wednesday, April 17, 2013 was a busy day for Attorney Robert Lewin. At 9:00 AM Attorney Lewin appeared in Malden District Court representing DB, a 50 year old man charged with Assault and Battery on his wife. As happens in many cases of alleged domestic assault and battery, by the time of the pre-trial hearing in this case Mrs. B decided she did not want to testify against her husband. Mrs. B spoke with Attorney Lewin and Attorney Lewin prepared a “marital affidavit” in which Mrs. B swore that if called as a witness against her husband she would exercise her “marital privilege” and refuse to testify. In Massachusetts husbands and wives have a privilege not to testify against each other in a criminal trial.

The DA’s Office was unwilling to dismiss the case at the pre-trial hearing and a trial date of April 17, 2013 was set. On April 17, 2013 Attorney Lewin, DB and Mrs. B appeared in Malden Court. The case was called and Attorney Lewin answered that the Defense was ready for trial. Attorney Lewin told the Judge that Mrs. B was present in the courtroom and was prepared to exercise her marital privilege. The Judge called Mrs. B forward and made inquiry of her as to whether she wished to testify or not and whether or not anyone had forced or coerced her into exercising her marital privilege. Mrs. B said she did not want to testify and no one had forced or coerced her into exercising her marital privilege. The Judge then accepted her exercise of her marital privilege. The DA said they could not go forward; Attorney Lewin moved to dismiss the case and the Judge ordered the case dismissed for lack of prosecution.

Attorney Lewin then left Malden Court and drove over to Cambridge District Court (now located in Medford just off Wellington Circle). HK, a 34 year old Egyptian national, was accused of Assault & Battery, Assault and Battery with a dangerous weapon (a headboard of a bed), Intimidation of a Witness, and Threat to Commit a Crime. According to the police reports HK and his 25 year old girl friend had gotten into a heated argument; it was alleged that HK got on top of his girlfriend and pushed her head into the headboard of a bed, took her cellphone, and threatened to kill her. According to the police report as she called 911 he fled the apartment. He was apprehended outside the apartment in his car. The girlfriend decided she did not want to see HK prosecuted; however, because they were not married she did not have a “marital privilege” and the government could force her to testify. In the police report there was an indication that the girlfriend had “pushed” HK; there was also a claim that the girlfriend had kicked HK.