Commonwealth v. Rodriguez (Lawyers Weekly No. 11-022-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 11‑P‑1315 Appeals Court COMMONWEALTH vs. EDUARDO RODRIGUEZ. No. 11‑P‑1315. Suffolk. October 1, 2012. ‑ February 7, 2013. Present: Cypher, Katzmann, & Milkey, JJ. Rape. Kidnapping. Indecent Assault and Battery. Due Process of Law, Indictment placed on file. Constitutional Law, Double jeopardy. Practice, Criminal, Indictment placed on file, Instructions to jury, Double jeopardy. Statute, Construction. Indictments found and returned in the Superior Court Department on March 15, 2007. The cases were tried before Peter M. Lauriat, J. Kathleen M. O’Connell for the defendant. Mark Tohme (Janis DiLoreto Noble & Tara B. Burdmen, Assistant District Attorneys, with him) for the Commonwealth. MILKEY, J. After a jury trial in Superior Court, the defendant was found guilty of rape aggravated by kidnapping, G. L. c. 265, § 22(a); kidnapping aggravated by sexual assault, G. L. c. 265, § 26, third par.; and indecent assault and battery, G. L. c. 265, § 13H. The judge sentenced him on the aggravated rape and indecent assault and battery charges, and placed the indictment for aggravated kidnapping on file over the defendant’s objection. The defendant’s appellate arguments relate chiefly to the filed indictment. He argues, inter alia, that the jury instruction setting forth the elements of aggravated kidnapping was erroneous. We agree and conclude that the guilty verdict on that charge must be set aside. We otherwise affirm the judgments. Background. The Commonwealth’s chief witness was the victim, Jane Smith (a pseudonym), who was an eighteen year old high school senior at the time of the rape. Smith testified that as she was walking to school on the morning of February 14, 2007, she was accosted by the defendant, who told her that he had a knife in his pocket and that if she tried to run or scream, he would kill her. The defendant led Smith into a stairwell in a building on Tremont Street, where he rubbed his hand between her legs over her jeans, licked her breast, and raped her twice. Smith also testified that before he let her go, the defendant stole some money, her cellular telephone, and her jewelry. The Commonwealth’s position throughout the proceedings was that the aggravated kidnapping charge required proof that the defendant kidnapped Smith and sexually assaulted her, but not that he was armed during the crime. The judge’s instructions to the jury on that […]