Commonwealth v. Benitez (Lawyers Weekly No. 10-049-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑10773 COMMONWEALTH vs. JOSE BENITEZ.[1] Middlesex. November 9, 2012. ‑ March 18, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, & Gants, JJ. Homicide. Felony‑Murder Rule. Robbery. Accessory and Principal. Joint Enterprise. Evidence, Joint venturer, Prior misconduct, Statement of codefendant, Testimony before grand jury, Third‑party culprit. Practice, Criminal, Capital case, Instructions to jury, Duplicative convictions. Grand Jury. Indictments found and returned in the Superior Court Department on September 15, 2005. The cases were tried before Frances A. McIntyre, J. Jeffrey L. Baler for the defendant. Robert J. Bender, Assistant District Attorney (Elizabeth Dunigan, Assistant District Attorney, with him) for the Commonwealth. BOTSFORD, J. In 2008, the defendant, with his codefendant, William Santos,[2] was tried by a jury in the Superior Court on charges of felony-murder in the first degree and armed robbery. The jury found the defendant and Santos guilty of both crimes. The defendant appeals from his convictions. His principal claims are that the evidence of his participation in a joint venture with Santos to rob the victim was insufficient to support his convictions; the trial judge erroneously admitted evidence of a prior bad act of Santos at their joint trial, causing prejudice to the defendant; and the judge should have instructed the jury on the elements of felony-murder in the second degree. For the reasons discussed below, we affirm the defendant’s conviction of felony-murder in the first degree, and decline to exercise our power pursuant to G. L. c. 278, § 33E, to order a new trial or enter a verdict of a lesser degree of guilt. Because it is duplicative of the murder conviction, we vacate the conviction of armed robbery and remand to the Superior Court for dismissal of that indictment. Background. The facts, as the jury could have found them, are generously described in Commonwealth v. Santos, 463 Mass. 273, 274-281 (2012) (Santos). We summarize them, and refer to additional facts in our discussion of the defendant’s claims. At around 5:30 P.M. on July 26, 2005, the victim, Luis Daniel Rodriguez, was shot outside the Red Cross building on Pawtucket Street in Lowell, adjacent to the apartment building where he resided. The victim died as a result of a single gunshot wound to the chest. The defendant knew the victim, had purchased heroin from him […]