Posts tagged "1107915"

Commonwealth v. Lopez (Lawyers Weekly No. 11-079-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   13-P-1730                                       Appeals Court   COMMONWEALTH vs. DANIEL LEE LOPEZ.     No. 13-P-1730. Essex.     November 10, 2014. – July 29, 2015.   Present:  Rubin, Brown, & Maldonado, JJ. Homicide.  Felony-Murder Rule.  Robbery.  Practice, Criminal, Required finding, Instructions to jury, Lesser included offense.  Evidence, Consciousness of guilt, Identification, Testimony before grand jury.  Grand Jury.  Witness.       Indictments found and returned in the Superior Court Department on October 2, 2009, and February 28, 2011.   After review by this court, 80 Mass. App. Ct. 390 (2011), the cases were tried before David Lowy, J.     Amy M. Belger for the defendant. David F. O’Sullivan, Assistant District Attorney, for the Commonwealth.     RUBIN, J.  The defendant was indicted on charges of first degree murder and unarmed robbery.  After the trial court allowed a motion to dismiss so much of the murder indictment as was grounded on a theory of felony-murder, the Commonwealth appealed.  We reversed that order, see Commonwealth v. Lopez, 80 Mass. App. Ct. 390 (2011) (Lopez I), and reinstated the indictment.  An additional indictment was then brought against the defendant, charging manslaughter.  On remand, after a jury trial, the defendant was acquitted of felony-murder, and was convicted of involuntary manslaughter on a theory of wanton and reckless conduct, and of unarmed robbery.  On the involuntary manslaughter charge, he was sentenced to fifteen to eighteen years in State prison, and on the unarmed robbery charge he was sentenced to a subsequent five years of probation.  He now appeals.  We address each issue presented in turn. 1.  Sufficiency of the evidence.  The defendant argues first that the evidence was insufficient on the charge of involuntary manslaughter.  The defendant’s argument is that the conduct that formed the basis of his involuntary manslaughter conviction (a single punch to the victim’s head) did not “involve[] a high degree of likelihood that substantial harm [would] result to another.”  Commonwealth v. Welansky, 316 Mass. 383, 399 (1944) (internal citations omitted).  This argument is difficult to maintain in light of our prior decision in Lopez I.  We need not rehearse in detail the facts that the jury might have found viewing the evidence in the light most favorable to the Commonwealth, as they turned out to be essentially the same as those outlined in Lopez I, where the court examined the evidence before the grand […]

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Posted by Massachusetts Legal Resources - July 29, 2015 at 10:48 pm

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