Commonwealth S Memorandum of Law in Opposition to Defendant S Motion to Dismiss

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, ss

DISTRICT COURT DEPARTMENT

LOWELL DIVISION

Docket No. 1111 CR 9999

COMMONWEALTH

SAMUEL ALTERIOS

Defendant

COMMONWEALTH’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

QUESTION PRESENTED

Whether the court should deny the defendant’s motion to dismiss for a charge of domestic assault and battery pursuant to Massachusetts General Laws Ch. 265, § 13M, when the police relied as sufficient probable cause for arrest on a statement made by the victim claiming she was the “boyfriend/girlfriend?”

FACTS

On September 19, 2014, the police arrested Samuel Alterios for an assault and battery. Upon arrival to the scene, the police found a woman who identified herself as Linda Baxter. Baxter, the victim of the incident, was discovered holding the right side of her face, where there was noticeable facial swelling. When police asked the victim about what occurred, she responded by stating that her boyfriend, Samuel Alterios, had beaten her up. The victim then provided police with Alterios’ probable whereabouts and his physical description.

Alterios and the victim were walking toward 240 Essex Street Lawrence, MA, while in the company of one Jane Dube, and an unidentified male. Along the way, Alterios called the victim a whore, prompting the victim to confront the defendant. Alterios asserted that the victim was having an affair with another man. Alterios then struck the victim in the face, threw her in the street, and fled the scene. Jane Dube, a member of the group and witness to the crime, corroborates the victim’s version of events.

The police found Alterios walking toward the likely location the victim stated to police. Alterios was placed under arrest for physically attacking his girlfriend, Linda Baxter. Alterios is being charged with domestic assault and battery under Massachusetts General Laws Ch. 265, § 13M.

ARGUMENT

THE COURT SHOULD DENY THE DEFENDANT’S MOTION TO DISMISS, AS THERE WAS PROBABLE CAUSE FOR THE ARREST.

The Commonwealth follows the long-standing rule held in Commonwealth v. McCarthy, which states, “At the very least, the grand jury must hear sufficient evidence to establish the identity of the accused, and probable cause to arrest him.” 385 Mass. 160, 163 (1982).

Therefore, the Commonwealth must only provide proof of Alterios’ identity, and that probable cause existed for his arrest. “Probable cause to arrest requires more than mere suspicion but something less than evidence sufficient to warrant a conviction.” Commonwealth v. Roman, 414 Mass. 642, 643 (1993). “The evidence before the grand jury must consist of reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.” Id.

In the instant case, the victim and girlfriend of the accused, Linda Baxter, identified Alterios as the one responsible for the abuse. The victim then offered the police information about Alterios’ likely location subsequent to the assault and battery, which ultimately led to his arrest. This information combined with the noticeable facial swelling on the victim, would warrant a reasonable person in believing Alterios committed the offense in question. The Commonwealth is not required to prove guilt beyond a reasonable doubt when claiming sufficient probable cause exists to hold Alterios for trial.

The court established a more recent rule that states, “The issuance of a complaint by a clerk-magistrate is not to be revisited by a further show cause hearing; the defendant's remedy is a motion to dismiss the complaint.” Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002).

DiBennadetto was a decision made after the Boston Municipal Court was holding further show cause hearings before the district judge that reviewed the clerk magistrate’s decision on probable cause. The court stated this practice was incorrect, and the Defendant’s sole remedy to challenge probable cause is a motion to dismiss. Id.

Therefore, a Defendant may only challenge probable cause with a motion to dismiss. The Commonwealth must only provide evidence containing the identity of the accused, and probable cause for the arrest, with probable cause to arrest being a lesser standard than beyond a reasonable doubt for conviction. McCarthy, 385 Mass. at 163; Roman, 414 Mass. at 643. Thus, the Defendant’s motion to dismiss must fail as the victim provided police with a statement claiming Alterios is responsible for the assault and battery.

THE COURT SHOULD DENY DEFENDANT’S MOTION TO DISMISS BECAUSE THE POLICE WERE AUTHORIZED TO ARREST ALTERIOS PURSUANT TO A VIOLATION OF MASSACHUSETTS GENERAL LAWS, CH. 265, §13M.

Massachusetts General Laws, Ch. 265, § 13M(a) provides, in relevant part:

“whoever commits an assault or assault and battery on a family or household member shall be punished by imprisonment in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000, or both such fine and imprisonment.”

As previously stated, the victim identified Alterios as the one responsible for the harm suffered. The victim must be a “family or household member” recognized or intended to be protected under the statute. The statute further provides, in relevant part: “for the purposes of this section, ‘family or household member’ shall mean persons who…are or have been ina substantive dating or engagement relationship. . ..” Massachusetts General Laws, Ch. 265, § 13M(c).

The statute in question is relatively new, and has yet to be applied in mandatory authority, therefore the long-standing law under Massachusetts General Laws, Ch. 209A may provide guidance.Massachusetts General Laws, Ch. 209A § 6 provides, in relevant part:

“when there are no vacate, restraining, or no-contact orders or judgments in effect,arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person: (a) has committed a felony; (b) has committed a misdemeanor involving abuse as defined in section one of this chapter; (c) has committed an assault and battery in violation ofsection thirteen A of chapter two hundred and sixty-five.

In the instant case, Alterios is accused of committing an assault and battery on upon Linda Baxter. The arresting officer had reasonably trustworthy information to arrest Alterios based upon the victim’s statements to police and the noticeable swelling on her face. Roman, 414 Mass. at 643. Moreover, not only is warrantless arrest allowed for an alleged domestic assault and battery, it is the legally preferred method. Thus, the court should find the arresting officer had sufficient probable cause to arrest Alterios.

Alterios And The Victim Were In A Substantive Dating Relationship. Massachusetts General Laws, Ch. 209A, § 1(e) provides the following factors for consideration when determining the existence of a substantive dating relationship:

(1) The length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.

Furthermore, a prior court held that a warrantless arrest pursuant to Massachusetts General Laws, Ch. 209A was valid when the victim appeared at the police station to report a domestic abuse caused by her boyfriend that occurred earlier that day. Richardson v. City of Boston, 53 Mass. App. Ct. 201, 202 (2001). The court found that the victim and the defendant were in a dating relationship for “several years.” Id. at 202.

Although there is no clear information available for how long the relationship lasted between Alterios and the victim, she affirmatively stated to police that Alterios was her boyfriend, and had “beaten her up.” There is no evidence that the relationship terminated prior to this date, nor is there evidence of how long the relationship lasted. The only evidence in existence is that the victim claims Alterios is her boyfriend, and Alterios suspected the victim was having an affair. The choice term of boyfriend suggests that the relationship was further along than mere dating. Rather, the label used by the victim suggests she and Alterios were quite familiar with each other. Thus, Linda Baxter is likely a person intended to be included under the new statute because she was in a substantive dating relationship with the Defendant.

Therefore, the police had sufficient probable cause and were authorized to arrest Alterios pursuant to a violation of Massachusetts General Laws, Ch. 265, § 13M.

CONCLUSION

For the foregoing reasons, the court should deny Defendant’s motion to dismiss.

Respectfully submitted

THE COMMONWEALTH,

DISTRICT ATTORNEY

Xxxxxx Yyyyyyyy

Assistant District Attorney

500 Federal Street

Andover, MA 01810

(978) 681 – 0800

DATED: FEBRUARY 17, 20___