A motion to dismiss charges of assault and battery and intimidating a witness against Terry Glenn is now pending in Wrentham District Court.
Glenn's attorney, Joseph Cataldo, filed the motion Wednesday morning alleging that there is not sufficient evidence to proceed with the case. As part of his filing, he included a signed, sworn affidavit from the alleged victim, Kimberly Combs, stating that she was never abused or threatened in any way.
"She doesn't believe those charges have any merit or that she was a victim of a crime," Cataldo said following a short pretrial hearing in which the case was set to continue Oct. 2 for discovery motions, at which time the motion to dismiss may also be argued.
"I don't think what Kimberly Combs told police on the night of Terry's arrest should have led to Terry's arrest," Cataldo added. "They had a family disagreement, but she was not physically pushed or physically abused in any way. She wasn't threatened. Clearly, there was no crime of assault and battery here. Her affidavit makes it explicitly clear that she did not want Terry Glenn arrested [on May 15], and she didn't believe any crimes were committed.
"I think the police made a decision [to arrest], and in today's climate when they hear somebody is upset, they err on the side of caution. So I understand why the police did it but I think they were mistaken. I don't think they should have arrested, but now that the matter has come into court, we look forward to having the matter dismissed as it properly should be."
Cataldo did confirm that Combs does not have the right to drop the charges in this case and that they can only be dropped by order of the court or by the District Attorney's office. This sworn affidavit does present the District Attorney with new evidence to consider.
"Now that they have an affidavit from Miss Combs, I'm hoping they'll take a second look at this thing and realize there were no crimes committed," Cataldo said. "It's not proper for the District Attorney's office to proceed with a case just to drag someone through the court system."
According to Dan Feeney, a spokesman for Norfolk County District Attorney William Keating, the case will proceed as scheduled.
"We are aware that the victim may now be making statements that could be construed as at odds with her earlier remarks. Nonetheless, because of events that occurred at the defendants home in May, the Commonwealth is proceeding with this prosecution."
Comb's sworn statement filed Wednesday starkly contrasts an unsigned statement written on an abuse prevention order the night of the alleged incident on May 15.
In that statement she claims that Glenn assaulted her on several occasions and punched her in the left eye back on April 28. She claims Glenn is verbally abusive and has a violent temper.
"To the best of my knowledge we have an unsigned statement. It would be typical for the police to provide that document to her. It is my understanding that the document was not signed by Kimberly Combs. The reasons we ask people to swear to things under oath and to sign things is to make sure that person realizes what they're saying is accurate and could have legal ramifications. Kimberly Combs has now done that and filed it with this court."
The motion to dismiss was not heard during Wednesday's pretrial hearing and may or may not be heard Oct. 2. On that date, the court will determine what evidence needs to be turned over by both the Commonwealth of Massachusetts and by Glenn's attorney.
If the motion to dismiss is denied, the next step after Oct. 2 would be a future date for more motions to be argued or a trial date could be set. Cataldo requested that Glenn be excused from the Oct. 2 court date, but presiding Judge Warren Powers denied that request since the Patriots will be in season and Glenn will be back in Massachusetts. That date falls on a Tuesday, an off day for all NFL players.