[{"_1":2,"_87":-5,"_88":-5},"loaderData",{"_3":4,"_26":27},"root",{"_5":6,"_17":10,"_18":19,"_20":21,"_22":10,"_23":-5,"_24":-5,"_25":10},"user",{"_7":8,"_9":10,"_11":10,"_12":-5,"_13":-5,"_14":15,"_16":-5},"roles",[],"isAuthenticated",false,"isPremium","planName","subscriptionStatus","featureFlags",{},"insightsBudget","isDevelopmentHost","userPreferences",{},"recaptchaSiteKey","6LcvOJcUAAAAAHsB-gPGfGktcRlKpH7OTIU_dMTD","isImpersonating","impersonation","affiliateStatus","isFreedomPortal","routes/v2/article/layout",{"_28":29,"_30":31},"notFound",true,"relatedArticles",[32,75],{"_33":34,"_35":36,"_37":38,"_39":40,"_41":42,"_43":44,"_45":46,"_47":48,"_49":50,"_51":52,"_53":54,"_55":56,"_57":58,"_59":60,"_61":62,"_63":64,"_65":66,"_67":68,"_69":70,"_71":72,"_73":56,"_74":56},"mediaId",6213499,"mediaKeyId","3676546-46b0ac6912eddda029ab77d7c6d4fbc0","parentId",3676546,"title","Appeals court hears dispute over whether pointing gun and saying \"I'll ******* shoot you\" proved imminent threat","audioSeconds",943,"startMs",93000,"endMs",1036000,"viewUrl","/Search/View?dp=1&key=3676546-46b0ac6912eddda029ab77d7c6d4fbc0&start=93&end=1036","thumbnailUrl","https://assets.pipeline.soar.com/3676546-46b0ac6912eddda029ab77d7c6d4fbc0/thumbnail_93000.jpg","articleUrl","/articles/6213499/Massachusetts/Appeals-court-hears-dispute-over-whether-pointing-gun-and-saying-Ill-shoot-you-proved-imminent-threat","mediaUrl","https://secure.pipeline.soar.com/6213499-dd8fc2cc23e1bd4368277ca4218332a0/orig.mp4?Expires=1771119289&Signature=D8zgbxjNcfdvWY5aW3uzyYTDvnfEPbWIcG6sBrKBFXHLUpJwOWcl0CWOfmxV2uKnEfV7QepUxihqD8Y7MWntOqHoztmrbNnF08TwWWCmfosicxBEaJpGCc4fowz~WNhu9Ypwm0HWzQytrHnQ9souO4DHXcgvfq-X8ZZr-8-9nmLmh~gdOLUYuI4X2yenDHd6hBxEgtyvTOI367GN7q15YAfDCzBdfGt5sNLl1LA~BaBl1~ZpOyui6soTnQZKUexDxcGrDLtd4IVmbTuah4ym-jRoisXrVGtzUJTEhuy7CprboeSyIJUFikpczEaMq09fxzPNSef22qB~QIVH0t3Xvw__&Key-Pair-Id=KUT5TJCACFTXG","author","","date","2025-06-05T14:26:16Z","article","An Appeals Court panel of Justice Mead, Justice Ditkoff and Justice Hirschvang heard oral argument in case 24P699, Commonwealth v. Fagan, on the sufficiency of the evidence for an assault-by-means-of-a-dangerous-weapon conviction and a related ineffective-assistance claim.

Stephen Goldman, counsel for the Fagans, told the panel that the Commonwealth did not prove beyond a reasonable doubt that the defendant had the intent to place the alleged victim in imminent fear of a battery or that a reasonable person would have apprehended imminent harm. Goldman described the incident as a “glorified road rage” episode occurring in daylight at a gas station and argued that, in that context, it was not reasonable to infer the gun would be fired. “It's not reasonable to think that that person is actually gonna pull the trigger under those circumstances,” Goldman said.

Goldman focused on three arguments: (1) the context of an ordinary road‑rage encounter made an actual shooting unlikely; (2) the defendant’s words—variously described in the transcript as “I'll ******* kill you” or “I'll ******* shoot you”—should be read as a future or conditional statement rather than an immediate present threat; and (3) the alleged victim’s conduct after the incident (Goldman noted the victim “did not duck, did not scream, did not floor it and get out of there”) showed disbelief rather than apprehension, undermining the objective-standard inquiry about reasonable apprehension.

Assistant District Attorney Dylan Punch, arguing for Middlesex County and the Commonwealth, said the combination of a firearm “pointed directly at the victim's face” and the statement “I'll ******* shoot you” removed temporal uncertainty and supported a finding of imminent apprehension. “Having a firearm pointed directly at your face is fairly strong evidence that someone is imminently going to shoot you,” Punch said, noting the victim testified he was “waiting to see whether or not the defendant was going to shoot me.”

On the ineffective-assistance issue, Goldman argued trial counsel failed to present an argument now raised on appeal and failed to develop a record showing whether a misdemeanor plea had been offered and, if so, whether it was communicated to the defendant. Punch replied there is no affidavit or other record evidence showing a plea offer existed and that the lower court properly denied a hearing on the ineffective-assistance motion because the papers did not present a substantial issue.

The justices interrupted at points to question counsel about the grammatical framing of threatened language, what a reasonable person would perceive and whether the victim’s on-scene reactions mattered to the objective standard. After argument the panel said it would take the case under advisement.

The panel did not issue a decision at oral argument; the matter was submitted for decision following argument.","mediaType","Video","parentTitle","Oral Arguments, June 5, 2025, Meade, Ditkoff, Hershfang, JJ., presiding","oneSentenceSummary","An Appeals Court panel of Justice Mead, Justice Ditkoff and Justice Hirschvang heard oral argument in case 24P699, Commonwealth v. Fagan, on the sufficiency of the evidence for an assault-by-means-of-a-dangerous-weapon conviction and a related ineffective-assistance claim.","taxTitle","Judicial - Appeals Court Oral Arguments, Judicial, Massachusetts","taxId",66294,"location","Massachusetts","headline","shortSummary",{"_33":76,"_35":36,"_37":38,"_39":77,"_41":78,"_43":79,"_45":80,"_47":81,"_49":82,"_51":83,"_53":84,"_55":56,"_57":58,"_59":85,"_61":62,"_63":64,"_65":86,"_67":68,"_69":70,"_71":72,"_73":56,"_74":56},6213494,"Appeals court reviews claim that exclusion of late witnesses denied father due process in child-protection case",1840,1273000,3113000,"/Search/View?dp=1&key=3676546-46b0ac6912eddda029ab77d7c6d4fbc0&start=1273&end=3113","https://assets.pipeline.soar.com/3676546-46b0ac6912eddda029ab77d7c6d4fbc0/thumbnail_1273000.jpg","/articles/6213494/Massachusetts/Appeals-court-reviews-claim-that-exclusion-of-late-witnesses-denied-father-due-process-in-child-protection-case","https://secure.pipeline.soar.com/6213494-edb61bbead837ea19f201af727b1a3b6/orig.mp4?Expires=1771119289&Signature=Nl2Z1z6ccxr-TUtijlFMzC9h4em5BPFY3SfN2T-EObiurk4NXwHvZ~PyqMs1MGU7EgoEKb2wUI5U6Ru6W8BO1ElqBcV1aM74T5CA7hWw38ayzOpaHWqGncqBml~WI1wvuj2Ubog~caaHJRxEOwc-~CcOVZu4K657U65HvUmu~6pV0p9l6EYAnhUoWpqgCGbT9lkMth7rd8T2erk2ga3h-XZOIFQRMR~CueHzdNUMhIBV6~klnXtzDxbZRU1ovSz6gnQ8OZnyPph-0PBHMg4k34TYi1tOHsGXkL744fXkZPXEQ34KIujkQkXJp7B7W1B2nRevPjNEtPlA8MFymFinZQ__&Key-Pair-Id=KUT5TJCACFTXG","An Appeals Court panel of Justice Mead, Justice Ditkoff and Justice Hirschvang heard argument in 24P1017, Department of Children and Families v. father, on whether the juvenile-court judge abused his discretion by excluding witnesses the father sought to call after a late pretrial disclosure.

Deborah Dow, attorney for the father, told the panel that the trial judge’s refusal to allow the father’s witnesses to testify “completely eliminated the adversarial process” and that the exclusion was a presumptively unreliable breakdown of due process. Dow said the father’s late-filed pretrial memorandum listed multiple witnesses—she identified two particularly, a CASA worker and the father’s therapist—and that the court should have examined whether exclusion caused prejudice instead of imposing a wholesale evidentiary bar.

Aaron McCriss, counsel for the Department of Children and Families (DCF), said the late disclosures—more than 40 days after the pretrial memorandum deadline—prejudiced DCF and the child because DCF had no realistic opportunity to adjust motions in limine, to reframe its case in chief or to prepare cross‑examination. McCriss also argued the record does not show those witnesses would have offered testimony favorable to the father: CASA reports in the record appeared unfavorable, and the father did not submit affidavits or an offer of proof describing what live testimony would have said.

Christine Hamilton Kiros, counsel for the child, told the court the trial judge repeatedly gave the father and his counsel opportunities to explain the late disclosure and to file motions; the judge extended time for filings and repeatedly asked counsel to specify what the witnesses would add. Kiros said no offer of proof was made and that the judge reasonably concluded the proposed live testimony would have been cumulative of evidence already in the record.

The panel questioned counsel about (1) the timing of the pretrial disclosure, (2) the availability of lesser sanctions short of wholesale exclusion, and (3) whether the father had, on the record, articulated the specific prejudice he would suffer. Dow cited appellate authority including Brantley and related cases and said a complete exclusion was disproportionate because parents in care-and-protection proceedings risk losing custody without a full adversarial opportunity.

McCriss emphasized the extensive record of DCF involvement spanning roughly a decade, witnesses’ reports and prior arrests and court orders in 2021 and 2022 the department says showed ongoing concerns about the father’s behavior, and the absence of affidavits or offers of proof from the late-disclosed witnesses. The justices took the matter under advisement following argument; no decision was announced from the bench.

The court’s review focuses on whether the judge abused discretion in imposing exclusionary sanctions absent a showing that the excluded testimony would have changed the outcome or that the sanction was disproportionate.","In 24P1017, Department of Children and Families v. father, counsel for the father argued that the trial judge’s wholesale exclusion of late‑disclosed witnesses deprived the father of an adversarial process and required reversal; Department and child’s counsel said the father offered no offer of proof and the exclusion was a proportional sanction. ","actionData","errors"]

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Appeals court hears dispute over whether pointing gun and saying "I'll ******* shoot you" proved imminent threat

Appeals court reviews claim that exclusion of late witnesses denied father due process in child-protection case