PITTSFIELD, Mass. — The attorney representing a city police officer accused of assault and battery has taken aim at the witness's credibility.

 

Officer Michael McHugh is accused of assaulting a 54-year-old man while off duty on the evening of July 4, 2016.

 

The case is now eyed to go to trial in November but on Monday, attorney Timothy Shugrue argued for the case to be dismissed saying the victim's account of the night is untrustworthy because he was allegedly under the influence of alcohol and painkillers. 

 

Shugrue further contends that the district attorney's office distorted that aspect when presenting the case to a grand jury, which indicted the officer, and underplayed the threat the victim allegedly posed. 

 

"This whole case is based on one person," Shugrue said. 

 

McHugh, an 18-year veteran of the department, was involved in the incident at a neighbor's home. According to McHugh's police report from that night, he was contacted by Jason Labelle because the 54-year-old was "stalking his house." McHugh then joined Labelle and found the man nearby. McHugh reported that the man refused to get out of the vehicle and appeared to be searching for a weapon. At that point, McHugh pulled him from the vehicle and placed him under arrest for driving under the influence. 

 

An internal affairs investigation from the Police Department, however, contends that McHugh's police report was falsified and that he lied to officers. The internal affairs report claims McHugh used excessive force, allowed Labelle to kick the man, and then fabricated a story on how the victim was hurt.

 

Shugrue and Labelle's attorney Timothy Burke argued that the entire case should be thrown out because the state overlooked and didn't present exculpatory evidence to the grand jury. 

 

Burke claims that the victim was going through a divorce and had previously been threatening his ex-wife, who was at the Labelle home that night. He said the family was aware the man had a gun, ammunition, and was looking to buy a silencer. He said the individual had repeatedly been seen driving in the area and had been told he was not welcomed in there.

 

That had all been documented with the Police Department, Burke said, but the state hadn't clearly outlined that the man was a threat.

 

"He was a live threat," he said.

 

Shugrue argued that the alleged victim had a .066 blood alcohol content when tested at 3:23 in the morning. But that was hours after the incident; Shugrue said doctors have estimated that at the actual time of the event it would have been closer to a .16. Burke said the alleged victim also had oxycodone and suboxone in his system. 

 

Shugrue said the district attorney's office made little note of the intoxication factor and allowed the man to tell the grand jury that he was only in the area to see his grandchildren.

 

"This was a complete distortion of his whole motive for being there," he said.

 

District Attorney Paul Caccaviello, however, said all of that was "overwhelmingly presented" in a number of areas and documents and still the grand jury found enough reason to indict the pair. 

 

"The commonwealth is not presenting a distorted view of the evidence," he said. "The commonwealth left nothing out of this case."

 

He said the history between the parties could also be a motive behind the pair beating the man.

 

Caccaviello went on to say there is a video of the man purchasing alcohol from a local store that shows he had no injuries -- the internal affairs report said McHugh claimed that the injuries were from a prior incident -- and that medical records show the extent of the injuries. Caccaviello added that Labelle had said he gave the man "a whooping."

 

But Shugrue said there were no visible signs of an injury when police arrived and that the injuries could have happened elsewhere.

 

Judge John Agostini seemed to lean toward Caccaviello's argument, saying much of the evidence had been presented and legally it is assumed the grand jury had read through all of it. The blood alcohol content estimates are more complicated that Shugrue had presented, he said, because of body weight, what and when the man ate, and other factors. 

 

But Agostini wasn't ready to rule just yet. He asked for a number of exhibits to be presented before he makes a finding. 

 

The final pre-trial hearing is scheduled for Sept. 13 and should it go to trial, that is expected to be held in November. The case had been on the list for a September trial but Burke may have a schedule conflict. Caccaviello agreed to move it back two months just in case that conflict should arise.