BY JULIE MANGANIS
---- — SALEM — Prosecutors say there’s no way Daniel Rodriguez didn’t know he was dragging his former girlfriend down a Salem street before running her over one afternoon in December 2011.
She was screaming, and so was a witness, prosecutor Greg Friedholm aid. Her foot was trapped inside the open door by a seat belt.
But Rodriguez’s lawyer is hoping to convince a Salem Superior Court judge that there’s no way the grand jury that indicted Rodriguez, 23, would be able to infer what he knew based on what they were told.
Rodriguez, of Jamaica Plain, is facing four counts of assault and battery with a dangerous weapon (the rented car he was driving that day) in the incident, which took place on North and Federal streets in Salem. The woman, who had broken up with Rodriguez, had agreed to get into his car to talk, only to be assaulted, prosecutors allege. The woman suffered a broken elbow and road rash.
Mark Schmidt yesterday urged Judge John Lu to dismiss the two most serious counts against his client, the ones that carry a potential state prison term, saying Rodriguez had no idea his former girlfriend was dangling from the passenger side of the car when he drove away following an argument.
The law, argued Schmidt, requires that in order to prove a case of assault and battery with a dangerous weapon, a jury must find that a defendant acted recklessly, willfully or wantonly.
But, he argued, “there’s no clear evidence ... he knew that she was stuck to the car.” And since driving, even accelerating, is not necessarily a “reckless” activity, the defense lawyer suggested, that required element cannot be proven.
Rodriguez, his lawyer said, had already stopped once before, then drove away, thinking she was out of the car.
Friedholm argued that while there’s no dispute over the legal standard, it would have been perfectly reasonable for the grand jury to conclude that Rodriguez knew his former girlfriend was being dragged.
Not only did the victim scream, Friedholm argued, but a bystander, a local doctor who had been out for a walk on Federal Street, also screamed at him to stop more than once, the first time when she saw Rodriguez beating the young woman in the car and then as he drove away with the door open and the victim hanging out.
Friedholm also pointed to testimony by the doctor, who told grand jurors that Rodriguez “put the pedal to the floor” when he pulled away.
A second witness testified that he could hear the victim’s screams from down the street, the prosecutor said.
Friedholm also pointed to a recent decision that supports his case, that of the man known as “Clark Rockefeller,” the impostor convicted of kidnapping his daughter. The Appeals Court last fall upheld the conviction of Christian Karl Gerhartsreiter, including a count of assault and battery based on the fact that a social worker who tried to stop him from fleeing with his daughter was dragged alongside an SUV.
Schmidt suggested that the difference in that case is that Gerhartsreiter knew the woman was holding onto the SUV when he ordered the driver to go.
The judge did not rule on the motion yesterday but did question the defense lawyer about one page of the grand jury transcript, pointing out a section where “they seem to be saying your client stopped, saw that her foot was stuck, saw all of the people around and then kept driving.”
Last fall, Rodriguez tried unsuccessfully to persuade another judge, David Lowy, to accept a guilty plea in the case in exchange for a house of correction term. Friedholm, the prosecutor, was looking for prison time. Lowy, during a hearing in November, expressed frustration at the two very different views of the case he was being presented with, quipping, “It feels like I’m watching two different movies.”
Schmidt said Rodriguez did not want to be forced to admit to something — dragging the woman — that he says he didn’t intend to do.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at firstname.lastname@example.org or on Twitter @SNJulieManganis.