ENDNOTES
[1] Under Massachusetts law, autopsy reports are not public records. M.G.L. ch. 38, sec. 2. Pursuant to the regulations of the medical examiner, only the medical examiner has authority to release the autopsy report. 505 CMR 1.00-1.09. As a result, the report of autopsy and the medical examiner’s file will not be part of the public records release from the District Attorney’s Office.
[2] Under the public records law all requests for the release of public records are treated the same. No consideration is given to the identity of the requester. A Guide to the Massachusetts Public Records Law, p. 6, 43 (Feb. 2022) (“[T]he purpose of the request has no bearing on the public status of the record. All requestors must be treated the same with respect to the response to their requests.”) When a record is released in response to a public record request it is a public record and it must also be released to everyone who makes a request for the same record. Because of this, the law provides for the withholding or redaction of certain types of materials or information. Id. at p. 10, 15 (“Where exempt information is intertwined with non-exempt information, the non-exempt portions are subject to disclosure once the exempt portions are deleted.”)
[3] “The district attorney or his law enforcement representative shall direct and control the investigation of the death and shall coordinate the investigation with the office of the chief medical examiner and the police department within whose jurisdiction the death occurred.” MGL ch. 38, sec. 4
[4] “(A)rrest shall be the preferred response whenever officers…have probable cause to believe that a person has committed a felony” such as “Assault and Battery by means of a Dangerous Weapon” or “has committed a misdemeanor involving abuse” namely “Assault and Battery on a Family or Household Member.” See “Domestic Violence Law Enforcement Guidelines”, The Commonwealth of Massachusetts Executive Office of Public Safety, p. 27 (2017); See also M.G.L. c.209A, s. 6.
[5] “A crime punishable by death or imprisonment in the state prison is a felony.” M.G.L. c.274, s.1. An Assault and Battery by Means of a Dangerous Weapon is a felony because it carries a potential penalty of “imprisonment in the state prison for not more than 10 years.” M.G.L. c.265, s.15A(b).
[6] The elements of Assault and Battery by Means of a Dangerous Weapon are as follows: (1) That the defendant touched the person of [the alleged victim]; (2) That the defendant intended to touch [the alleged victim]; and (3): That the touching was done with a dangerous weapon. See Instruction 6.300, “Criminal Model Jury Instructions for Use in District Court,” Revised December, 2019.
[7] “An item that is normally used for innocent purposes can become a dangerous weapon if it is used in a dangerous or potentially dangerous fashion.” See Instruction 6.300.
[8] “Domestic Violence Law Enforcement Guidelines” at. P. 27.
[9] The elements of Assault and Battery on a Family or Household member are as follows: (1) That the defendant touched the person of [the alleged victim] ; (2) That the defendant intended to touch [the alleged victim]; (3) That the touching was either likely to cause bodily harm to [the alleged victim] , or was offensive; and (4) That the defendant and [the alleged victim] were family or household members at the time of the offense. See Instruction 6.275, “Criminal Model Jury Instructions for Use in District Court,” Revised June, 2019. A family or household member includes “(p)ersons who are or have been in a substantive dating…relationship.” “Domestic Violence Law Enforcement Guidelines” at 9.
[10] The law encourages all of us to come to the aid of each other when that is necessary. Therefore, a person may use reasonable force when that is necessary to help another person, if it reasonably appears that the person being aided is in a situation where the law would allow that person to act in self-defense.. The elements of defense of another are: “An actor is justified in using force against another to protect a third person when (a) a reasonable person in the actor’s position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.” Commonwealth v. Young, 461 Mass. 198, 208 (2012), quoting Commonwealth v. Martin, 369 Mass. 640, 649 (1976). “The reasonableness of the belief may depend in part on the relationships among the persons involved.” Martin at 649. “(T)he circumstances must be viewed from the perspective of the intervening [person], not of the third party.” Young at 209.
[11] See Commonwealth v. Mejia, 407 Mass. 493, 496 (1990) (self-defense). See also Commonwealth v. Johnson, 412 Mass. at 370-373 (1992) (defense of another).
[12] “The proper standard for determining whether particular actions were justifiably undertaken in self-defense depends on the level of force he used on his victim and the circumstances that prompted those actions.” Commonwealth v. Pike, 428 Mass. 393, (1998). If deadly force was used then the deadly force standard should be applied. See Commonwealth v. Houston, 332 Mass. 687, 690 (1955).
[13] Where the identity of the first aggressor is in dispute, the accused may offer evidence of specific incidents of violence allegedly initiated by the victim, or a third party acting in concert with or to assist the victim, whether known or unknown to the accused, and the prosecution may rebut the same in reputation form only.” Mass.G.Evid. § 404(a)(2)(B) (2008-2009). Accord, Commonwealth v. Pring-Wilson, 448 Mass. 718, 863 N.E.2d 936 (2007); Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005). The alleged acts must be more probative than prejudicial. Admission of specific acts of violence is preferred over more general evidence of a victim’s reputation for violence. Adjutant, supra. Such evidence must be otherwise admissible under the rules of evidence, and the judge has discretion to limit additional cumulative evidence. Commonwealth v. Clemente, 452 Mass. 295, 306 & n.18, 893 N.E.2d 19, 32 & n.8 (2008)
[14] The investigation revealed additional prior violent acts of Mr. Harden that were not considered in the Bristol County District Attorney’s Office’s analysis as these acts may not be relevant under the law described in the preceding section in determining the first aggressor issue.
[15] In a recorded interview after Mr. Harden’s death, Mr. Harden’s girlfriend told investigators that the incident she reported to police was not the only instance where Mr. Harden had been abusive. She indicated that over the course of their two year relationship, Mr. Harden struck her with open and closed fists and threatened her with knives and a sword. She described how on one occasion Mr. Harden pushed the sword into her stomach causing a bruise and cuts to her fingers as she tried to remove it from her stomach. In another incident, Mr. Harden’s girlfriend described how Mr. Harden pushed her into the bathroom, causing an injury to her knee and leg. She further described how Mr. Harden “squeezed soap all over (her)” because he said she had a filthy mouth. These incidents were not reported to the police until after Mr. Harden’s death.
[16] Mr. Harden’s girlfriend told investigators that she knew that Mr. Harden could not leave his building due to the GPS bracelet restrictions. She further stated that she was afraid of Mr. Harden when he was “raged up” and that he would “definitely kill (her).” She stated that Mr. Harden had told her that he would kill her.
[17] Investigators recovered Mr. Harden’s password protected phone during a court authorized search of the apartment. Investigators have used all available forensically sound methods to access the phone. Because of the current capability of the forensic devices, we have not been able to unlock the phone at this time. Based on ongoing communications with the company who supplies one of our forensic devices, we anticipate they will develop the ability to forensically access this make and model of phone and that we will be able to access the data in the future.
[18] 120 Melville has a surveillance system for the exterior of the building. No known recordings exist of the interior of 120 Melville Street.
[19] Investigators can only reasonably conclude two shots were fired. Two spent shell casings were recovered in Mr. Harden’s bedroom, two live rounds were missing from the female officer’s service weapon, and two entry wounds were observed on Mr. Harden’s body by medical staff. There was no other evidence that a third shot was fired.
[20] Dr. Mourtzinos wrote that her examination of gunshot wounds “A” and “B” showed “no evidence of soot or gunpowder stippling…on the margins surrounding the entrance gunshot wound[s].” Mr. Harden was wearing a sweatshirt at the time of the incident. His sweatshirt was removed before he was loaded on the stretcher at the scene and it was later taken into evidence.
[21] The Postmortem Toxicology Report lists “None Detected” for Ethanol, Methanol, Isopropanol, Acetone, Amphetamine screen, Benzodiazepines screen, Buprenorphine screen, Cocaine screen, Fentanyl screen, Methamphetamine screen, and Opiates screen.
[22] OCME’s manner of death is a medical determination, not a legal determination concerning the use of force.