Domestic violence cases tend to be very different than DUIs or theft cases because there are many more gray area’s and with heightened emotion among the involved parties, it makes each case very unique.
Interviewer: It seems like domestic violence cases have become a little more prevalent. Have you seen an increase in cases over the years?
Matthew Gunter: When I was with the state attorney’s office, there was a good period of time that I was the intake attorney for the misdemeanor domestic violence cases, meaning I was the attorney that saw all the incoming police reports.
I had to sit down with all of the victims and witnesses in every case. After taking their statements, asking them what they would like to see done, and doing a little fact finding myself, I was the one tasked with the decision of either filing charges or not filing charges. If I did file charges, I was tasked with coming up with a plea resolution. I would then assign the case to another attorney.
I have a lot of experience with domestic violence and how it works from not only the victim’s perspective but also from the accused.
Domestic violence cases are a lot different than DUIs or theft cases because I find that there’s a lot more gray area and there’s a lot more emotion involved with the parties, which makes each case very unique. In a DUI case, you’re dealing with witnesses that are officers and there’s significantly less emotion when they make an arrest.
Interviewer: Is there a typical demographic or age for the accused or the victim of a domestic violence dispute?
Matthew Gunter: Not particularly. I’ve seen husband/wife situation. I’ve seen brother/sister situations where they argue and it turns physical. It’s important to note that domestic violence encompasses any type of family relationship and some sort of violence, so that could be obviously blood relations or it could be through marriage. If you have two neighbors that argue and get violent, that’s not domestic violence. That’s just regular battery or assault. When you have, for example, a husband and wife situation that turns physical, then that’s when it’s domestic violence-related battery.
As far as anything that stands out, be it race, ethnicity or age, I’ve seen it all.
Interviewer: What are some common misconceptions that people have about domestic violence cases?
Matthew Gunter: One of the biggest misconceptions is the role of the state attorney’s office in deciding whether to charge the accused individual or not. You’ll have a victim who doesn’t want to press charges because they think that will get the case dropped.
What they don’t realize is that the state attorney has the final say on whether to press charges or not. When you have an incident, the victim has the right to have their voice heard. The going practice in the State of Florida is for the state attorney’s office to bring that victim in and get some more information from them, and then at the end of that meeting, determine whether the victim would like to see charges filed or not, and if so, what type of resolution they would like to see: jail, counseling, et cetera.
So you have individuals who believe if they don’t show up for these meetings with the state attorney’s office or if they’re not cooperative, that the state is just going to have to dismiss it, and that’s not necessarily the case.
The opposite of that misconception is that when victims in a domestic violence incident want to press charges, they think that the state will automatically agree. That’s not always the outcome because the state attorney’s office may not have enough evidence to proceed forward on a domestic violence case. No matter how adamant a victim is about charges being filed, the state attorney’s office still has to review all the facts and evidence and determine whether it’s a viable case to proceed forward on.
Interviewer: What sort of evidence is needed to prosecute a domestic violence case?
Matthew Gunter: As a prosecutor, I discovered that there’s a lot of evidence you can go after in domestic violence cases. First and foremost is a 911 call. A lot of times, I would read a report and think that it sounded very, very serious – like the victim was in fear for their life. But when I listen to the 911 call, I would find that the lady is very calm. It doesn’t really match what she’s reporting later on to the officer, so that’s a huge thing that we always like to listen to as defense attorneys and as a former prosecutor. We want to see, how the victim sounds in the 911 call.Sometimes we can hear conversations or yelling in the background that can either help or hurt a case.
Another very valuable piece of evidence is injuries. If a person is alleging that they were punched in the facebut they have no marks, then that hurts their credibility somewhat. We look for bruises; anything to show that there was some sort of physical altercation can prove or disprove a case. It’s important to note that on scene, an officer may not see injuries on a person and then a few days later, bruises will appear, so it’s very important that that evidence be collected. Whether you’re the accused saying it was self-defense or the victim, you want to document any and all injuries.
Another very valuable piece of evidence actually comes much later, after the arrest. When someone isarrested and they’re in jail, one of the first people they call would be a friend or family or even the victim. All of those calls are always monitored and recorded at the jail and a lot of times as a prosecutor, I would get jail calls where the accused would call up the victim and start apologizing for hitting them. Right then and there, you have a confession. That’s always an important piece of evidence for both sides.
It’s tough to stress to an arrestee not to speak about the case over the jail phones because we’re usually not involved in the case at that point.
Interviewer: What are some things that would help a defendant’s case?
Matthew Gunter: Anytime a defendant in a domestic violence case claims self-defense, we need everything that we can to prove that. When we hearthe 911 call, we listen for any arguing in the background that would show maybe the victim was the instigator or the primary aggressor. We always need photos of a defendant’s injuries, because if we can show that the injuries are defensive in nature and came from the alleged victim, then that also helps a self-defense argument.
In a recent trial that I had, a huge aspect of the self-defense argument was that the officer did a very poor job investigating and it came out at trial that the investigator only took photographs of the female and her injuries and didn’t take any photographs of my client. When we asked him on the stand why he did not do a thorough investigation, he said he honestly didn’t have an excuse for that and he should have done a more thorough investigation. That really sunk the state’s case at that point because it made it look like they were trying to hide something.
Interviewer: What are some of the mistakes that clients make during the process that they may not be aware of, but something that you inform them of?
Matthew Gunter: Early on, a mistake that that individual can make is not asserting their right to have an attorney present. A lot of times when an officer responds to a home or any type of domestic violence incident, someone is going to have to be arrested because an officer is not going to take that chance and leave and both parties are still there, and then have to show up later on for something worse or even a death.
It’s always important to assert your right to remain silent or have an attorney present during any type of questioning because you don’t want to say something even so minute that the officer’s going to end up arresting you. A lot of times an officer will say, “Tell me what happened,” and there will be an admission in the form of, “We got into it together,” or “We were arguing and she hit me first.” That’s totally going to hurt their case if they say the wrong thing. Its best that they have an attorney speak on their behalf.
Another problem that a lot of defendants can have is reaching out to the victim after the incident occurred because emotions are high. You might have a client that’s trying to apologize or work things out, whereas that victim may not want to have any part of that and then turns that text message or voicemail over as evidence to the state attorney’s office.
Interviewer: What if the victim tries to contact the accused via text message, for example? Should they contact them back and what would happen if they did?
Matthew Gunter: When someone gets arrested for domestic violence, more often than not, the judge is going to tell the accused not to contact the victim. If they do contact the victim in any way, that could be a violation of their bond and they would be subject to a possible arrest and their bond could be revoked entirely.
You have a judge saying the accused cannot contact the victim and that’s essentially a one-way street. It can pose problems in a sense that the victim can reach out to the defendant all they want. They can text the defendant saying, “Ha ha, you got arrested,” or the opposite, and say, “I miss you so much. I’m sorry this all happened. I want to be back together,” and that’s totally legal. However, once the defendant texts back saying something like, “I miss you too,” that’s a violation. They’re subject to arrest.
As a prosecutor and as a defense attorney, that communication from the victim to the defendant could weaken the case, meaning if a defense attorney finds out that the victim is still contacting the defendant, then we use that information to indicate that maybe she’s not fearful of him. If she’s not fearful of him, then maybe when she was speaking with the officers, she was embellishing or exaggerating her fear at that point. If someone was in fear of that person, then why are they reaching out to them now?
Interviewer: With regard to social media, like Facebook, for instance, would that have the same implication?
Matthew Gunter: Yes. It could be text, phone, Twitter, Facebook – any type of direct contact.
Interviewer: I don’t know if there have been cases like this already, but I could imagine a case where someone may post something on Facebook related to the incident, and that becoming an issue in the case.
Matthew Gunter: You raise a very interesting aspect of domestic violence cases and injunction type cases because when a judge tells you not to have direct contact with an individual, we know that texting, for example, is off limits. However, when you have an individual on Facebook who makes a posts or status, that’s not directed at anybody. That’s making a general announcement.
It’s like being in a public forum and posting something up on a billboard. You’re not reaching out to them personally. It’s a new area of concern that is being raised in court: whether that’s a form of direct contact or not.
Interviewer: Right. If the case has not been finalized but they’re demonizing the accused on Facebook, the accused may go back and say, “Whatever this person is saying is not true” and then get in trouble for contacting the victim. Why someone would do that and make it public is beyond me, but I can imagine it still happens.
Matthew Gunter: Let’s look at an example. This is an exact situation I had when I was at the state attorney’s office. Someone was arrested for threats of violence and we got the police report and the facts. The facts were that this individual was making posts on Facebook that they were going to do harm to somebody. The way that it was done was, this individual was making threats on a friend’s page, saying, “I’m going to smack this person next time I see them.”
The threat was actually posted on a third party’s Facebook page and we had to determine whether that was a threat, and so under the law, by reading the statutes, a threat has to be made personally to that person or to a family member of that person. Since this was a third party, simply just a mutual friend, it didn’t count. Under the statute, it was not a threat, so that was a case ultimately that we had to close out. The victim understandably was upset that the state could not go forward
Interviewer: What determines whether something is a first or second degree? Could you explain that?
Matthew Gunter: First and foremost, when you have battery or assault, those are going to be misdemeanors. Those are punishable by up to a year of jail or a year of probation. Generally speaking, if someone’s convicted of those offenses, they’re going to have certain domestic violence classes as part of probation, such as how to deal with anger or how to prevent controlling people.
The anger management classes focus on controlling your own anger, particularly your impulse anger. There’s a difference between getting annoyed after being cut off on the road, and getting “road rage.” Often in domestic violence cases, the accused will have been constantly controlling where their spouse is hanging out, who she’s talking to, what she’s doing at all times. Usually in misdemeanor resolutions, the defendant is required to take those types of classes.
Battery with great bodily injury, battery with strangulation – those are felonies. Anytime someone has a prior battery conviction, a second battery can be filed as a felony even though there’s no grave bodily injury. It can be up-charged as a felony because it’s a second offense.
Another interesting aspect of domestic violence that many people are aware of is domestic violence encompasses stalking, threats, and violations of injunctions.
Interviewer: Does that include trespassing too?
Matthew Gunter: Trespassing, while it’s still a misdemeanor, involves two individuals who are not related. When they are, for example, a spouse or someone who’s been trespassed from a residence, that wouldn’t be classified as domestic. It’s just a regular trespass charge.
Interviewer: Tell me about injunctions.
Matthew Gunter: They are civil in nature, however, when someone violates a civil injunction, it could be charged as a crime. A violation of injunction would be a misdemeanor, but to get an injunction, it takes an individual getting a petition and filling it out and alleging, in the petition, why they feel they’re in fear of harm or stalking, and they need to state with specific facts why they feel that they’re in danger or why they want the courts to grant the injunction. That’s where the petitioner would indicate previous incidents, previous arrests, phone calls or threats made, things of that nature. At that point, the petition is sent to a judge and the judge will review it without a hearing.
The judge will determine whether to grant it temporarily or not. If the judge grants it temporarily, then it gets set for a final hearing, meaning both parties will come in and argue why it should or should not be granted. If the judge makes that initial decision that there’s not enough in the petition to warrant a temporary injunction, he may dismiss it outright for inefficient grounds or he may just not grant it temporarily, but still set it for a hearing later on. That’s the route that the injunction goes. At Katz & Phillips, we represent individuals who want to file petitions as well as individuals who are having injunctions filed against them.
Interviewer: You mentioned some of the penalties that happen. What does that look like when someone is being background checked for a job and has a domestic violence-related charge, even if it was dismissed?
Matthew Gunter: Domestic violence charges, even if you’re not convicted or if it’s dismissed, have that stigma about it – that you’re a malicious person, that you’re violent – and what employers may not realize is that someone could be arrested for domestic violence battery for spitting in their spouse’s face. It’s a very weak case, but I’ve seen those types of arrests because technically, that’s still battery under the law.
Anytime someone has a domestic violence charge or arrest on their record, it appears to me that those individuals are looked at with even more scrutiny than an individual who possibly could have been arrested for a felony marijuana charge. Where one person’s a felon for marijuana, they’re not looked at as badly as someone who is arrested for a domestic violence case.
Interviewer: If it’s dismissed, could it be expunged or sealed at a certain point?
Matthew Gunter: It would qualify for a seal or expungement depending on the disposition.
Interviewer: If someone does get convicted and the record is not sealed, that’s going to be on the record during a background check, correct?
Matthew Gunter: That’s correct. If someone is convicted of any offense, when the court convicts them, it’s not eligible to be sealed or expunged.
Interviewer: Let’s say someone was a parent. If the case did not involve a child at all, but they have a child, will the parenting rights still be taken away from that person?
Matthew Gunter: That’s a separate issue that’s not controlled by the criminal courts. That would be something that would be taken up with Department of Children and Families, DCF, and they may get involved. They may do their own investigation and determine whether the child is in danger because of the incident, but the prosecutor has no power over the decisions of the DCF.
Interviewer: If someone was involved in a domestic violence case, and still there are no children involved, but there were children present, can the police officer question the child without consent?
Matthew Gunter: It’s a very interesting question. A lot of times, officers will question them and, depending on the age, they may want to have another officer present, to avoid a one-on-one type of questioning. I’ve seen many cases, though, where a child is present, maybe as a witness, and an officer will take them aside and ask them what happened. It’s always unfortunate when children are party to a case like that and I think on both sides, be it the prosecution or defense, those are the types of cases that are very delicate, and if we can resolve them without getting children involved and reliving that incident, we always strive to do that.
Interviewer: If someone is charged with domestic violence, is it possible that they could still get custody of a child later on down the line?
Matthew Gunter: If you’re referring to a scenario where there’s a domestic violence situation between a husband and wife and they have a child, and ultimately they know that they’re going to be getting a dissolution of marriage, then in the dissolution of marriage trial, they can definitely bring up that incident. A civil judge may want to hear if one party believes that the other party is putting the child in danger or should not be left alone with the child because of anger issues. The judge may take into account that an individual was convicted of a domestic violence case, and rule appropriately when it comes to time-sharing with the child.
Interviewer: When you say dissolution of marriage, is that similar to an actual divorce hearing or is there another term for that?
Matthew Gunter: It’s the same thing. The legal term for divorce would be a dissolution of marriage.
Interviewer: Is there a particular domestic violence case that would be one of your favorite victories, or something that kind of stands out from the rest?
Matthew Gunter: It’s in regards to the self-defense case that I mentioned earlier. It was a boyfriend/girlfriend altercation at the home and the girlfriend admittedly had been drinking and they started fighting. At some point during the scuffle, it made its way outside and the defendant, our client, ended up having to hold his girlfriend down in the grass facedown, in an MMA type of move.
He held her there for quite some time until she calmed down and the police showed up. This was a situation where the officer took photographs of her and she understandably had scuffmarks on her face but not necessarily any bruising or anything. The officers took photographs of the marks. The state introduced photographs of her face and they looked terrible. The injuries looked very bad.
What the state didn’t mention to the jury was that the photograph was so instant from the time of when they showed up that she didn’t have a chance to wipe the dirt off her face. The way that the state presented it, and what the jury believed, was that those were bruises. We were able to get photographs after she cleaned her face and there were very minimal abrasions. There were just scuffmarks from the grass and no bruises whatsoever.
Immediately the jury started to drop the credibility of the officer and the state attorney office.When it was our case in chief, we presented photographs from our client that his girlfriend used keys to cut his eye above his eyebrow. That’s what had prompted him to hold her down until she was calm.
This was a very big gentleman. In fact, he did have MMA experience. That’s what prompted him to hold her down until she quit. At the end of that trial, our client was found not guilty. I attribute a lot of that to our work getting photographs of his injuries and to the cross examination of the officer about only taking photographs of her injuries, as well as embellishing a little bit by not indicating to the jury that that was dirt on her face and not a bruise.
Interviewer: Who called the police officers in that case?
Matthew Gunter: The male actually called the police and when the police arrived, her face was black in certain areas and the police listened, took her side of the story, and didn’t really want to listen to my client’s. They took photographs of her and of the ground where the scuffle occurred. They took photographs of the inside of the house where some stuff got knocked over. They said at the end of the day, there wereabout 20 photographs, but not one of my client’s face, and he had the worst of the injuries.
Interviewer: How long do domestic violence cases typically last or how long could they potentially last?
Matthew Gunter: Domestic violence cases don’t take too long. I think that normally early on, we know whether the parties are wanting to reconcile or work it out in the privacy of their own home, and if that’s the case, we usually facilitate a resolution that entails counseling or some sort of deferred prosecution, meaning counseling in exchange for dismissal or some sort of diversionary program otherwise.
If we find out early on that the victim does not want to work it out in private, then that’s when it could take a bit longer. We have to take depositions in certain cases and get the parties on record as to what exactly happened. We have to make sure we get the 911 call. That could take some time as well, getting that from the arresting agency.
Interviewer: In that particular case you mentioned, how long did that one last?
Matthew Gunter: That one lasted about four months from arrest to trial.
Interviewer: Are there situations where the accuser later on decides that they want to drop the case entirely?
Matthew Gunter: That can happen. There are times when a victim may have a change of heart and they have the ability to go to the prosecutor handling the case and change their mind and ask that their voice be heard. They could say they don’t want to testify or be a cooperative witness. That doesn’t mean they’re not going to show up. It just indicates to the prosecutor that they’d rather not testify if they don’t have to, and the prosecutor, at that point, has to decide whether they want to lower the offer quite a bit to get at least something, if not a conviction of battery. Alternately, the prosecutor may just feel that they trust that this is an isolated incident. They may just dismiss the case entirely.
Interviewer: To recap, explain the process from beginning to end after someone gets called in, they get arrested, and then contact you. From there, what happens?
Matthew Gunter: From there, what we do, if it’s very early on, like at the time of arrest, we obviously need to make sure that they get a bond and we get them out of jail without a GPS monitoring device. That could be very costly, so depending on the severity of the situation, we argue against that.
Once we get all the information regarding what’s been alleged, we can reach out to the victim. We have the right to contact the victim and find out what they want to do just as the state would like to speak with them. We determine whether they want to prosecute or not. If they don’t want to prosecute, then we facilitate getting sworn statements from the victim and provide it to the state attorney’s office.The statements basically indicate that the victimdoes not want to cooperate and that they don’t wish to testify against that individual or press charges.
If we reach out to the victim and they do want to press charges, then my next goal is to find out their preferred outcome. If my client is an individual you want to work things out with, possibly I can get my client into an anger management course or some sort of mental health evaluation and maybe that could get the alleged victim to come off their position a little bit.
In the situation where they’re out for jail and probation and a conviction, then there’s a lot more work involved and we have to get that photographic evidence and statements from the officers. We have to get our own photographs. We have to make sure that there aren’t any incriminating statements in jail calls and we have to get the 911 call as well.
Interviewer: Is there anything in particular that someone should be looking for if they’ve got a domestic violence case and they’re doing research on lawyers?
Matthew Gunter: When it comes to domestic violence cases, it’s more so just experience. If there’s an attorney that’s experienced in handling domestic violence cases and battery charges, then that goes a long way because they are familiar with the evidence that can help a case or hurt a case. One of the reasons why Katz & Phillips brought me on is my experience at the state attorney’s office in handling hundreds and hundreds of domestic violence cases and speaking with victims, understanding what it is that they want, comforting themabout resolving a situation because believe it or not, as a defense attorney, we can represent victims, too, and we have. We can represent a victim in getting them their rights heard. That’s very valuable.