Clerk Magistrate Hearing, Assault and Battery MGL c 265 § 13a, complaint not issued.

• Steven Topazio wrote this June 12, 2019 at 8:10 pm

The client, a 51-year-old security guard, was accused of assault and battery and received a summons to appear in front of a Clerk Magistrate for a hearing to decide whether a criminal complaint should issue.  The client who hired Attorney Topazio, reported that he was out celebrating and became intoxicated.  That in an intoxicated state he himself was assaulted and robbed.  That as part of being robbed, he sustained a head injury and laceration on his head.  According to police, the client entered an MBTA station and punched an inspector who approached the defendant.  At the Magistrate hearing, Attorney Topazio presented a case which characterized his client as being victim of a violent crime who mistakenly believed that he was acting in self-defense.  That his client was vulnerable due to his intoxicated state and out of fear and confusion confused the inspector for one of the people who had just attacked his client.  Attorney Topazio presented the case as one where a person is confronted with the fight-or-flight response which is a stress related physiological reaction that occurs in response to a perceived harmful event, attack, or threat to survival.  The Clerk Magistrate, in balancing the equities, found probable cause to issue the criminal complaint but held process, under the circumstances, with the complainant’s consent.