Boston Criminal Defense Lawyer Blog

According to The Salem News, Maureen Fogwell, 57, from North Hampton New Hampshire was arrested as she drove away from the Salem Massachusetts Courthouse last week following her arraignment for driving under the influence of alcohol as a second offense. After spending a week in the women's prison in Framingham, Ms. Fogwell admitted to the offenses and was sentenced to a 60 day mandatory minimum sentence for driving after her license was suspended for an OUI related offense. The judge also imposed a a six-month jail sentence which he suspended for two years. During this probationary term she must enter and complete a two week in patient alcohol program.

In Massachusetts, failing to complete terms of probation may result in a defendant receiving a notice of surrender and a surrender hearing occurs. During this type of hearing the probation officer must produce reliable evidence that the probationer violated the terms of his or her probation. In the event that an individual is found to have violated the terms of his or her probation, the penalty can be the maximum sentence that can be imposed for a conviction of the crime. In this case, Ms. Fogwell could face up to two and one half years in jail if she does not successfully complete probation.

In Massachusetts, the prosecution must prove that a defendant was driving a motor vehicle, on a public way and was under the influence to secure a conviction. An experienced defense attorney is necessary to review the particular facts of an individual's case to determine how to proceed at trial. Depending on the circumstances of the case it may be appropriate to demonstrate that the defendant was not driving, that the road was not a "public way" i.e., that the public did not have a right of access and that he or she was not under the influence. In the event that a defendant was arrested as the result of a roadblock, made statements or was in a motor vehicle that was searched, there may be grounds to file a motion to suppress evidence and/or statements.

Continue reading " Woman Arrested In Salem Massachusetts When She Drove Away From Court Following Her Arraignment For DUI Second Offense " »

The Salem News reports that James Chouinard of Peabody Massachusetts was arrested and charged with three counts of assault by means of a dangerous weapon. According to reports, the police responded to an apartment located in Peabody Massachusetts after Chouinard's sister requested that he be "checked on." Apparently, he called his sister and informed her that he "took" a lot of pills. When the police arrived, the authorities claim that Chouinard would not let them in and waved a sword at them. He was charged with three counts of assault by means of a dangerous weapon. The Salem News reported that he was transported to the Salem Hospital for a psychiatric evaluation.

In Massachusetts, assault by means of a dangerous weapon is a felony. See, M.G.L. Chapter 265 section 13A. If a defendant is convicted for assault by means of a dangerous weapon in the Superior Court, he or she can receive a sentence of up to five years in state prison. If he is convicted in a district court he or she faces up to two and one half years in jail.

To prove this offense, the government must prove an assault and that it was committed with the use of a dangerous weapon. The prosecution can prove that the defendant's actions was an attempted battery or was an immediately threatened battery. Under the first theory, the Commonwealth must prove that the defendant intended to commit a battery and came reasonably close to doing it. Under this theory of assault, it is not necessary for the Assistant District Attorney to prove tht the victim was put in fear or was even aware of the attempted battery. The second form of assault is commonly referred to as a "threatened battery." Here, the prosecutor must prove that the defendant intended to put the victim in fear of an imminent battery and committed an act which the victim reasonably perceived as an imminently threatening battery.

The aggravating element in this crime is that the assault was committed with a dangerous weapon. The dangerous weapon does not have to be a gun, knife or other item that is commonly believed to be a weapon. Any object can be a weapon if it has the apparent ability to inflict harm. Cigarette lighters, shoes, and even a pencil may be considered a dangerous weapon in the appropriate circumstances.

If you are charged with simple assault, assault by means of a dangerous weapon, assault and battery by means of a dangerous weapon or any violent offense it is imperative that you contact an experienced defense attorney as early as possible. In order to successfully defend against these types of crimes. It is important to have a trial attorney on your side early in the case.

Continue reading " Peabody Massachusetts Man Charged With Assault By Means Of A Dangerous Weapon " »

According to The Lawrence Eagle Tribune, the police responded to Woodland Avenue in Salem Massachusetts on a report of a domestic dispute. According to the paper, Jake Wells, 32 years old called the police and reported that his father, John Wells, threatened him with a chain saw. When the police arrived they saw the elder Wells on the front porch holding a chain saw that was running. John Wells initially refused to drop the "weapon" however, eventually succumbed and was placed in custody. The paper also reports that the son went after the police and was also arrested. The elder is free on bail and junior will be summonsed to the District Court.

Based on these facts it appears that the John Wells will likely face charges of assault by means of a dangerous weapon, assault and battery on a police officer and resisting arrest. His son will likely face assault and battery on a police officer and resisting arrest. As in most cases where the police respond to a home on a report of "domestic violence," it is also likely that the parties will be informed of their rights to apply for a restraining order.

The authority for the issuance of restraining orders is derived from M.G.L. ch. 209A §3. Not just anyone can apply to the District Court for a restraining order to issue. The parties must be a "family" or "household member" and the applicant must feel that he or she is abused. Family or household members are people who are or were married to one another, people who are or were residing in the same household, are or were related by blood or marriage, have a child together or who are or were in a substantive dating or engagement relationship. “Abuse” has been defined as attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm and causing someone to engage in sexual relations involuntarily by force, threat or duress.

Continue reading " Salem Massachusetts Father and Son Arrests Stem From A Domestic Dispute " »

According to The Lowell Sun, the police are searching for Dennis King, 25 years old, from South Lowell Massachusetts for shooting a pregnant woman who was inside of her Lowell apartment. Although the police have not released the victim's name, the paper reports that the police responded to reports of gunfire and found the woman inside of her apartment. The pregnant woman was shot in the chest and the right shoulder. According to reports, there is an arrest warrant for King who faces three counts of armed assault with intent to murder and aggravated assault. It is believed that the gun has not been recovered by the police. The woman and the unborn child are currently listed as in stable condition in a Boston Massachusetts hospital.

The Sun also reports that King was arrested in January and charged with driving with a suspended license and giving a false name and Social Security number to police. According to reports, King has also previously been arrested for domestic assault and battery.

If you have been charged with a violent crime including assault and battery, assault and battery by means of a dangerous weapon, possession of a firearm or any crime related to domestic violence, including violating a restraining order, it is imperative that you contact an experienced Massachusetts defense attorney as soon as possible. Convictions for violent crimes can result in incarceration for up to life or twenty years in prison. Convcitions for certain possession of firearm offenses may result in a minimum mandatory sentence of eighteen months. Depending on the circumstances, such as if the gun is loaded, a defendant may face two consecutive eighteen month mandatory minimum sentences. Developing a defense of mistaken identify or filing appropriate pretrial motions to suppress or dismiss are steps that must be taken early on in a case.

Continue reading " Lowell Massachusetts Man Sought In The Shooting Of A Pregnant Woman " »

A Lawrence Massachusetts man was arrested last week and charged with two counts of assault and battery on a child under fourteen and assault and battery on a child under fourteen years old and assault and battery by means of a dangerous weapon. According to The Lawrence Eagle Tribune, the police allege that Amaruys Guzman of Lawrence beat his nine year old son and his ten year old daughter with a phone charger chord.

According to reports, the police were called to a South Lawrence East School to investigate a child abuse complaint. Apparently, the two siblings fought over a toy car that the brother returned with from a local park and claimed that it was given to him by a friend. His sister told him that he had to return the toy. The children were struck with the wire cord after the stepmother called their father home to deal with the situation.

In Massachusetts, the charge of assault and battery is a misdemeanor and if convicted, a defendant can face up to two and one half years in jail. However, the crime of assault and battery upon a child that causes bodily injury is a felony and if convicted a defendant faces up to five years in state prison or up to two and one half years in jail. The crime of assault and battery by means of a dangerous weapon is also a felony with the potential penalty of up to ten years in state prison or up to two and one half years in jail. These types of crimes are considered violent crimes against a person.

If you are charged with any type of assault and battery in Massachusetts, you must contact an experienced defense attorney as early as possible. Depending on the facts of the case, the defenses of self-defense and defense of another are often viable defenses. Also, depending on the circumstances, an experienced Massachusetts trial attorney can demonstrate that a defendant was improperly identified as the perpetrator. This is commonly referred to as a "case of mistaken identification."

Continue reading " Lawrence Massachusetts Man Charged With Assault And Battery On His Children " »

According to The Lawrence Eagle Tribune, the FBI is alleging that Dr. Paul D. Weinstein used OxyContin prescriptions to entice a woman to buy his Lexis SUV. The paper reported that he offered to provide Oxycontin prescritions to the woman and an undercover government informant who was posing to broker the deal. The undercover agent recenty filed an affidavit in the U.S. District Court. Court papers allege that Weinstein made thousands of dollars selling illegal oxycodone prescriptions from his office in Lawrence, Massachusetts.

According to reports, during February and March of 2009 Weinstein sold the prescriptions to an undercover agent and a confidential informant. As the result of the execution of a search warrant the authorities retrieved evidence from his office. Weinstein faces up to 20 years in federal prison to be followed by up to three years of supervised release and a $1 million fine if convicted. He is due back in court on May 7th.

If you are charged with the distribution of a controlled substance the penalties are harsh. For example, the charge of distribution or intent to distribute a controlled substance in a school zone or in a park calls for a mandatory jail sentence of two years in prison. In addition to the count of distribution or intent to distribute a defendant faces and on and after sentence on the "school zone" violation. An experienced Massachusetts defense attorney will often file a motion to suppress physical evidence and a motion to suppress statements as a first line of defense in cases where a search warrant has been executed and where a defendant has made inculpatory statements without being given his or her "Miranda Warnings." If the police confiscated illegal substances and drugs from your person, motor vehicle or home a motion to suppress is often filed in appropriate circumstances. If you are charged with a violation of the Massachsuetts drug laws, an experienced Massachusetts trial attorney will often argue that the government did not have reasonable suspicion to conduct a threshold inquiry of a defendant and lacked probable cause to conduct a search.

Continue reading " Doctor Accused of Selling OxyContin From His Office In Lawrence Massachusetts " »

According to The Salem News, Rafael Lugo, 21 years old from Salem Massachusetts has been charged with six counts of assault and battery and five counts of assault and battery with a dangerous weapon. A warrant for Lugo's arrest issued after police said some students at Salem High School witnessed him repeatedly slam his girlfriend's head into the steering wheel of a car as she held their 1-year-old daughter. Coincidentally, on the day of his arraignment for these charges, Lugo was also due in court for a pretrial hearing that related to a previous domestic abuse case involving the same parties. It has been reported that the teenage victim, a special needs student at the school, and her mother are both saying, "It's not that big a deal," according to Lugo's attorney.

Despite the fact that the court did not issue a restraining order due to the fact that the victim claimed that she was not in fear of Lugo, the judge revoked his bail in the pending case and set additional bail of $5,000 on the new charges. Additionally, the Salem News reported that the police filed a report with the Department of Children and Families. Lugo's next scheduled court date is May 11th.

As with all cases, there are two sides to every story. The News reported that Lugo's attorney maintained that his client, who was previously slashed on the face at a nightclub said the incident on Wednesday was provoked by the woman biting him on the face, near where he was stabbed.

In this case, as in many cases of assault and battery, it appears that a reasonable defense would be self defense. In Massachusetts an individual can assert self defense and the government must the elements of assault and battery beyond a reasonable doubt AND prove beyond a reasonable doubt that a defendant did not act in self defense.
For the defendant to have acted in self-defense, he or she must have reasonably believed that he or she was being attacked or was immediately about to be attacked, and that his or her personal safety was in immediate danger; and he or she must have done everything that was reasonable in the circumstances to avoid physical combat before resorting to force. Furthermore, for the defendant to have acted in self-defense, he or she must have used no more force than was reasonably necessary in the circumstances to defend himself or herself.
These elements also apply when a defendant is claiming that he or she was acting to defend another person.

Every case must be looked at individually to determine what type of strategy should be applied. Also, when preparing for trial an experienced Massachusetts defense attorney will also check to see if there was an application for a restraining order filed and what the victim alleged on the affidavit.

Continue reading " Salem Massachusetts Man Charged With Domestic Assault and Battery " »

According to The Lawrence Eagle Tribune, police executed a search warrant inside a Haverhill Massachusetts apartment and found illegal controlled subtances and a big surprise --- an alligator. According to the police, following the raid on a High Street apartment in Haverhill they arrested Daniel Tiberio, 20 and William Morris, 40. The pair was charged with trafficking in cocaine and conspiracy to violate drug laws.

It was reported that the police found an alligator that was fed mice and rats. According to an Animal Control Officer the reptile, which was two feet long when it was discovered, could grow to be as large as thirteen feet. The animal was transported to an animal shelter.

In Massachusetts, in order to legally enter the home the police must have had a valid search warrant. In these circumstances, the police would have to present facts establishing probable cause for a clerk magistrate to issue a warrant. There are different types of warrants that a clerk may issue. For example, in certain situations the warrant may allow for any person present to be searched and/or indicate that the police do not have to knock before entering the premises. This type of warrant is commonly referred to as a "no knock" warrant.

If you have been charged with an offense as the result of the execution of a search warrant it is imperative that you contact an experienced defense attorney. The probable cause to issue the warrant and ultimately search the area must be within the four corners of the affidavit filed in support of the search warrant. In most circumstances, if a defendant challenges the affidavit, the government is limited to rely on the four corners of the affidavit to argue that there was sufficient information presented to the clerk to issue the warrant. Depending on the circumstances of the case an aggressive Massachusetts attorney can file a motion to suppress raising a number of issues including that the area searched was beyond the scope of the warrant, the apartment or home searched was the wrong home and the police did not have a valid reason to search every person present.

Continue reading " Haverhill Massachusetts Men Charged With Trafficking In Cocaine and Conspiracy " »

According to the Boston Herald, a Middlesex County Grand Jury has returned indictments charging former Melrose YMCA girl's basketball coach James Conner from North Reading Massachusetts with sexual assaults including rape and indecent assault and battery. The Herald reports that Middlesex District Attorney Gerry Leone maintains that Conner assaulted the victims over several years at his North Reading home. Conner is charged with raping two of his players and videotaping his sexual assaults with hidden cameras.

Conner posted $25,000 bail following his first arraignment in February. The court has not set a new date for arraignment relating to the new charges.

If Conner is convicted for rape he faces the potential of life in prison. In view of the fact that it is alleged that the victim is a "minor" Conner is likely charged with statutory rape. In those circumstances, consent is not a defense. Relative to the charge of indecent assault and battery on a person under fourteen, M.G.L. Chapter 265 section 13 B provides for a punishment in state prison for up to ten years. Additionally, relative to prosecution under this section, a child under the age of 14 years shall be deemed incapable of consenting to any conduct of the defendant for which such defendant is being prosecuted.

Continue reading " North Reading Massachusetts Girls Basketball Coach Indicted on Rape Charges " »

According to the Boston Globe, Wellesley Massachusetts native Margaret Greer's simple task of picking her husband up at Logan Airport turned ugly when she refused to move her Mercedes Benz from the bus lane. The Globe reported that Greer was told to move along as she waited for her husband at Logan Airport. Police say that she did not go quietly and ended up in East Boston District Court charged with assault and battery on a police officer, assault and battery by means of a dangerous weapon and failing to stop for a police officer.

Sergeant Danial Wildgrube approached Greer's car and told her she would have to move because she was obstructing traffic in a bus lane. According to Wildgrube after he made that request, Greer ignored him. A confrontation ensued where the police claim that Greer gunned her engine and sped off, clipping him with her side mirror and forcing him to leap out of the way.

Greer's account of the events is at odds with that of the police. At her arraignment, her attorney entered a plea of not guilty on her behalf. A preliminary hearing is set for May 13th. Greer's attorney maintained that she is, ". . . a highly respected member of the community and has pled not guilty to all allegations," The attorney maintained that, "There are two sides to every story, and we strongly contest the facts as presented by the Commonwealth and look forward to presenting our side of the story. It's very upsetting and traumatizing to her. . . . Anyone who has picked up or dropped off anyone at the airport may understand there's two sides to the story." Suffolk District Attorney Daniel F. Conley said: "If a trooper asks you to move your car from a bus lane, you do it. . . . The trooper gave her every opportunity to do the right thing and she blew it. Now she's looking at a felony charge."

The Boston Globe also reports that following this incident, an individual identifying herself as "Matron" appeared on Craigslist and described herself as "a middle aged lady driving a silver van" and explained that she had, "an altercation with a Mass State Cop outside terminal B around 8:15 pm. According to the Globe, she gave a description of events seeking witnesses to what she described as State Troopers trying to get through her door and banging on her car.
There is no definitive evidence that Greer used the alias Matron on Craigslist seeking witnesses.

This incident exemplifies the old adage that there are two sides to every story. In this type of situation, it appears that Greer may have a viable defense of necessity and possibly, self-defense. The defense of necessity is also known as the “competing harms” defense. Asserting the necessity defense, “exonerates one who commits a crime under the ‘pressure of circumstances' if the harm that would have resulted from compliance with the law ... exceeds the harm actually resulting from the defendant's violation of the law. At its root is an appreciation that there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value....” The Massachusetts Courts only allow this defense in limited situations. In those instances where the evidence is sufficient to raise the defense of necessity, the burden is on the Commonwealth to prove the absence of necessity beyond a reasonable doubt. Here, Greer may be able to argue that she was placed in fear by the Trooper's behavior, which she viewed as unreasonably aggressive, and her only option was to leave the area.

Continue reading " Wellesley Woman Charged With Assault and Battery On A Police Officer And Related Offenses In East Boston District Court " »