Commonwealth v. Rodriguez (Lawyers Weekly No. 11-020-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-1569 Appeals Court COMMONWEALTH vs. JUAN CARLOS RODRIGUEZ. No. 16-P-1569. Suffolk. November 3, 2017. – February 20, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Controlled Substances. Evidence, Field Drug Test, Scientific test, Indictment. Indictment found and returned in the Superior Court Department on August 5, 2009. The case was tried before Linda E. Giles, J. Edward Crane for the defendant. Cailin M. Campbell, Assistant District Attorney, for the Commonwealth. MASSING, J. In yet another case affected by the wrongdoing of former State chemist Annie Dookhan, see generally Commonwealth v. Scott, 467 Mass. 336 (2013); Bridgeman v. District Attorney for the Suffolk Dist., 476 Mass. 298 (2017) (Bridgeman), we must reverse a defendant’s conviction of trafficking in heroin. See G. L. c. 94C, § 32E(c). In an effort to cure the taint from Dookhan’s association with the case as primary chemist, a police officer testified that he performed a field test of the substance seized from the defendant, which proved that the substance was heroin. The testimony was admitted, over the defendant’s objection, without establishing the scientific reliability of the field test. We conclude that the admission of this evidence was prejudicial error and that the defendant is entitled to a new trial. Background. We recite the basic facts as the jury could have found them, reserving other facts for later discussion. On April 27, 2009, officers of the Boston police department’s drug control unit went to the housing development where the defendant, Juan Carlos Rodriguez, lived to execute three search warrants: one for the defendant’s apartment, one for his motor vehicle, and one for his person. Once inside the defendant’s apartment, the officers used a key recovered from the defendant’s motor vehicle to open a locked bedroom door. In the bedroom’s closet, the police found a total of $ 13,270, a digital scale, and a small pouch that contained nine individually wrapped packages, or “fingers,”[1] of a substance that resembled sidewalk chalk. A search of the defendant’s person yielded two similar packages. Officer Robert England took the eleven packages to the police station and conducted a field test using a NarcoPouch 924 test kit manufactured by Safariland. The NarcoPouch 924 test kit is a small, sealed rubber pouch that contains three glass vials filled with chemical solutions. England unsealed […]
Rodriguez v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 11-099-17)
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 16-P-942 Appeals Court RAQUEL RODRIGUEZ[1] vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY. No. 16-P-942. Suffolk. April 7, 2017. – July 31, 2017. Present: Grainger, Sullivan, & Kinder, JJ.[2] Massachusetts Bay Transportation Authority, Contract. Railroad. Contract, What constitutes, Offer and acceptance. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on November 10, 2015. A motion to dismiss was heard by Mitchell H. Kaplan, J. Thomas G. Shapiro (Robert Richardson & Edward C. Cumbo also present) for the plaintiff. David S. Mackey (Christina S. Marshall also present) for the defendant. KINDER, J. In this case we address whether a public transportation authority breaches a contract with its commuter rail customers when extraordinary winter storms interrupt the service schedule. For the reasons that follow, we conclude that in the circumstances presented here, it does not. Accordingly we affirm the judgment of dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a breach of contract claim. On April 22, 2015, the plaintiff, Raquel Rodriguez, brought this action against the Massachusetts Bay Transportation Authority (MBTA) and its commuter rail operator, Keolis Commuter Services, LLC (Keolis), on behalf of a putative class of purchasers of monthly rail passes in January, February, and March, 2015. The complaint alleged that the MBTA commuter rail service suffered severe delays and cancellations during the record-setting snowstorms of 2015. Rodriguez claimed that these service disruptions were in breach of the MBTA’s implied contract “to provide timely, reliable commuter rail service . . . for January, February and March of 2015.” In a comprehensive written decision, a Superior Court judge allowed the MBTA’s motion to dismiss. Among other things, the judge concluded that even if the MBTA had some form of contractual obligation to its monthly pass holders, “the complaint fails to allege an essential element of a breach of contract claim: an agreement between the parties on a material term of the contract at issue.” This appeal followed.[3] Background. We summarize the allegations in the operative complaint and the items appearing in the record of the case. See Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The MBTA is charged by statute with providing commuter rail and subway service in eastern Massachusetts. G. L. c. 161A, §§ 1 and 2. The MBTA provides service […]
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Commonwealth v. Rodriguez (Lawyers Weekly No. 10-021-17)
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-12093 COMMONWEALTH vs. BRANDON RODRIGUEZ. Bristol. October 5, 2016. – February 1, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Receiving Stolen Goods. Larceny. Constitutional Law, Double jeopardy. Practice, Criminal, Dismissal, Double jeopardy, Collateral estoppel. Due Process of Law, Collateral estoppel, Prosecutorial vindictiveness. Estoppel. Collateral Estoppel. Judicial Estoppel. Complaint received and sworn to in the New Bedford Division of the District Court Department on July 24, 2013. A motion to dismiss was heard by Lisa F. Edmonds, J. The Supreme Judicial Court granted an application for direct appellate review. Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth. Timothy St. Lawrence for the defendant. BUDD, J. In this case we consider whether an acquittal on a charge of receipt of stolen property bars a subsequent prosecution for larceny of the same property. We conclude that principles of double jeopardy are not a bar to such action and that the successive prosecutions here do not violate the equitable principles that must be considered in such cases. Background and procedure. 1. The Commonwealth’s allegations.[1] In 2012, the defendant went to his friend’s house. While the friend searched for his cellular telephone, he discovered the defendant in his mother’s bedroom, standing in front of her jewelry box. A drawer in the jewelry box was open. The defendant claimed he had been petting the friend’s dog, who was in the bedroom. The defendant asked his friend if he wanted the defendant “to shake [his] pockets out,” but the friend declined. The next day, the friend’s mother discovered that a family ring was missing. Later, her daughter saw a photograph online of the defendant in which he was wearing the ring on a chain around his neck. The receipt of stolen property charge. The Commonwealth initially sought a complaint in the New Bedford Division of the District Court Department against the defendant on the charges of both larceny in excess of $ 250 and receipt of stolen property, pursuant to G. L. c. 266, §§ 30 (1) and 60, respectively. Apparently, because the friend was unavailable at the time, the Commonwealth was unable to present the factual evidence necessary to establish probable cause of larceny by the defendant. As a result, the clerk-magistrate issued […]
Commonwealth v. Rodriguez (Lawyers Weekly No. 11-132-16)
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 15-P-131 Appeals Court COMMONWEALTH vs. CARLOS RODRIGUEZ. No. 15-P-131. Hampden. March 18, 2016. – September 22, 2016. Present: Milkey, Agnes, & Maldonado, JJ. Assault and Battery. Evidence, Spontaneous utterance, Hearsay, Unavailable witness. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Hearsay, Confrontation of witnesses. Witness, Unavailability. Complaint received and sworn to in the Springfield Division of the District Court Department on March 7, 2014. A motion in limine was heard by Robert A. Gordon, J., and the case was tried before William P. Hadley, J. Anders Smith for the defendant. Thomas R. Worger (Amal Bala, Assistant District Attorney, with him) for the Commonwealth. AGNES, J. The defendant, Carlos Rodriguez, was convicted on August 14, 2014, of assault and battery following a two-day jury trial. He was sentenced to a term of six months in a house of correction. The Commonwealth’s case was based principally on the testimony of West Springfield police Officer Paulina Hannah, the second officer to respond to the scene of a domestic violence incident. She testified to certain statements made to her by the victim, who did not testify at the trial. On appeal, the defendant argues that the trial judge improperly admitted those statements because they did not fall within any exception to the hearsay rule, and they violated his independent constitutional right under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights to confront the witnesses against him. We agree with the judges[1] below that the statements in question made by the victim to Officer Hannah were admissible as excited utterances. However, we agree with the defendant that those initial statements were testimonial, and thus were subject to the confrontation clause. Finally, we conclude that despite the testimonial character of those statements, the defendant’s confrontation rights were not violated and the statements were properly admitted, because the victim was unavailable to testify at trial and the defendant had an adequate prior opportunity to cross-examine her at a pretrial dangerousness hearing. Background. Prior to trial, the defendant filed a motion in limine to exclude all of the statements made by the victim to the first police officer at the scene, Officer Robert Wise, and to Officer Hannah. Following an evidentiary hearing, at which both officers […]
Commonwealth v. Rodriguez (Lawyers Weekly No. 10-160-15)
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 SJC-11814 COMMONWEALTH vs. ELIVETTE RODRIGUEZ. Bristol. March 5, 2015. – September 22, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Marijuana. Threshold Police Inquiry. Search and Seizure, Threshold police inquiry, Reasonable suspicion. Constitutional Law, Investigatory stop, Reasonable suspicion. Complaint received and sworn to in the New Bedford Division of the District Court Department on April 27, 2012. A pretrial motion to suppress evidence was heard by Joseph I. Macy, J. An application for leave to prosecute an interlocutory appeal was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. John L. Calcagni, III, for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth. BOTSFORD, J. This case, in which the defendant appeals from the denial of her motion to suppress, centers on a motor vehicle stop based on a police officer’s detection of an odor of burnt marijuana coming from the vehicle. It requires us to evaluate further the impact of G. L. c. 94C, §§ 32L-32N, inserted by St. 2008, c. 387, §§ 2-4, which decriminalized possession of one ounce or less of marijuana. For the reasons discussed hereafter, we conclude that at least in a stop such as this one, where there was at best reasonable suspicion to believe that a civil marijuana infraction was occurring, but not probable cause, the stop was impermissible. Accordingly, the order denying the defendant’s motion to suppress must be reversed. 1. Background. To provide context, we summarize the evidence presented at the hearing on the defendant’s motion to suppress.[1] On the evening of April 26, 2012, Detective Daniel Amaral of the New Bedford police department was driving an unmarked police cruiser assisting a narcotics surveillance team of police officers when he came upon a motor vehicle that he had stopped once before. During the earlier stop, Amaral had arrested the woman who normally drove that vehicle for heroin possession. He knew that the surveillance team was interested in the vehicle because of its connection to the earlier drug-related arrest. Accordingly, he followed the vehicle and thereafter received instruction from the […]
Rodriguez v. City of Somerville (Lawyers Weekly No. 10-124-15)
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 SJC-11767 EDGAR RODRIGUEZ[1] vs. CITY OF SOMERVILLE. July 20, 2015. Massachusetts Tort Claims Act. Moot Question. Practice, Civil, Moot case, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal. Governmental Immunity. Municipal Corporations, Governmental immunity, Liability for tort. Notice, Claim under Massachusetts Tort Claims Act. After the plaintiff, Edgar Rodriguez acting on behalf of his minor son Rodrigo, commenced this negligence action against the city of Somerville (city), the city filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), claiming that the plaintiff failed to meet the presentment requirements set forth in the Massachusetts Tort Claims Act (Act). See G. L. c. 258, § 4. A judge in the Superior Court denied the motion, concluding that the letter satisfied the statutory requirements. The city appealed, and in doing so argued that the appeal, which was interlocutory, was proper pursuant to the doctrine of present execution. The Appeals Court concluded that the doctrine of present execution does not apply and dismissed the appeal. See Rodriguez v. Somerville, 86 Mass. App. Ct. 1 (2014). The case is now before this court on further appellate review. Background. The essential background, as set forth in the Appeals Court’s decision, is as follows: “On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in [the city], was injured when a metal door frame fell off the front door of the school and struck him in the head. On May 11, 2011, an attorney representing the minor and his parent and next friend, Edgar Rodriguez, sent a letter to the mayor of [the city].” Id. at 2. The plaintiff maintains that the letter was meant to satisfy the presentment requirements of G. L. c. 258, § 4, and in his complaint filed on March 29, 2013, alleged that “[t]imely and proper presentment was made to [the city] pursuant to [G. L. c. 258, § 4].”[2] Discussion. 1. Mootness. We address, as an initial matter, the plaintiff’s motion to dismiss the city’s appeal to this court as moot. He argues that the presentment question is moot because the original pleadings in the case have been superseded by subsequent pleadings, filed while this appeal has been pending. Among other things, the plaintiff has filed an amended complaint; the city has, in turn, filed an amended answer; and additional […]
Rodriguez v. City of Somerville (Lawyers Weekly No. 11-077-14)
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‑1422 Appeals Court RODRIGO RODRIGUEZ[1] vs. CITY OF SOMERVILLE. No. 13-P-1422. Middlesex. May 5, 2014. – July 1, 2014. Present: Grasso, Grainger, & Milkey, JJ. Massachusetts Tort Claims Act. Practice, Civil, Presentment of claim under Massachusetts Tort Claims Act, Interlocutory appeal. Municipal Corporations, Governmental immunity, Liability for tort. Notice, Claim under Massachusetts Tort Claims Act. Civil action commenced in the Superior Court Department on March 29, 2013. A motion to dismiss was heard by Dennis J. Curran, J. Jason D. Grossfield, Assistant City Solicitor, for the defendant. Stephen M. Born for the plaintiff. GRASSO, J. In this appeal, we consider whether the doctrine of present execution applies to, and renders immediately appealable, the denial of a motion to dismiss that alleges inadequate presentment under the Massachusetts Tort Claims Act (Act). See G. L. c. 258, § 4, as amended through St. 1989, c. 161. We conclude that the doctrine of present execution does not apply in such circumstances. The presentment requirement imposed on a tort claimant under the Act is not an immunity from suit preserved to the public employer, such as is contained in other provisions of the Act. See G. L. c. 258, § 10. Rather, presentment is a condition precedent imposed on a claimant that may be waived by the public employer. Accordingly, we dismiss the appeal of the city of Somerville (city). Background. On April 14, 2011, Rodrigo Rodriguez, a second grade student at the Argenziano School in Somerville, was injured when a metal door frame fell off the front door of the school and struck him in the head. On May 11, 2011, an attorney representing the minor and his parent and next friend, Edgar Rodriguez, sent a letter to the mayor of Somerville,[2] the contents of which are discussed briefly below. On March 29, 2013, Edgar Rodriguez filed suit against the city on behalf of his son, alleging negligence. Among its other allegations, the complaint asserted that “[t]imely and proper presentment was made to City of Somerville pursuant to Massachusetts General Laws Chapter 258, section 4.” Prior to answering, the city moved to dismiss the complaint pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), alleging that the attorney’s letter was an insufficient presentment under the Act.[3] After hearing, a judge of the Superior Court denied the city’s motion, concluding that the attorney’s letter […]
Commonwealth v. Rodriguez (Lawyers Weekly No. 10-035-14)
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‑11462 COMMONWEALTH vs. GEORDANO RODRIGUEZ. March 5, 2014. Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Disclosure of evidence, Presumption. Practice, Criminal, Admission to sufficient facts to warrant finding, Plea, Conduct of government agents, Disclosure of evidence, Presumptions and burden of proof. Evidence, Guilty plea, Certificate of drug analysis, Disclosure of evidence, Exculpatory, Presumptions and burden of proof. In June, 2011, allegations of misconduct at the William A. Hinton State Laboratory Institute in the Jamaica Plain section of Boston surfaced regarding work performed by Annie Dookhan, a chemist who had been employed in the forensic drug laboratory (Hinton drug lab) since November, 2003. Based on investigations conducted by the Department of Public Health and the State police, Dookhan was indicted on multiple counts of evidence tampering and obstruction of justice, as well as on at least one count of perjury and one count of falsely claiming to hold a graduate degree, all relating to her handling and testing of samples at the Hinton drug lab. See Commonwealth v. Scott, ante , (2014); Commonwealth v. Charles, 466 Mass. 63, 64 (2013). Dookhan resigned from her position, effective March 9, 2012, and the Hinton drug lab was closed on August 30, 2012. The present case is one of several that has arisen as a consequence of the testing of drug evidence by Dookhan at that facility. We decide this appeal on the basis of our opinion today in Scott.[1] A criminal complaint issued from the Dorchester Division of the Boston Municipal Court Department charging the defendant, Geordano Rodriguez, with possession with intent to distribute a class A controlled substance (heroin), G. L. c. 94C, § 32 (a) (count I); commission of this offense within a school zone, G. L. c. 94C, § 32J (count II); and possession of a class D controlled substance (marijuana), G. L. c. 94C, § 34 (count III). The substances in the four plastic bags seized from the defendant were sent to the Hinton drug lab for testing, and they were determined to contain 5.19 grams of heroin. The first signature on the certificate of drug analysis, on the line labeled “Assistant Analysts,” was that of Dookhan. On January 10, 2006, the defendant tendered an admission to sufficient facts to warrant findings of guilty on counts I and III, conditioned on specific […]
Commonwealth v. Rodriguez (Lawyers Weekly No. 10-035-14)
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‑11462 COMMONWEALTH vs. GEORDANO RODRIGUEZ. March 5, 2014. Controlled Substances. Constitutional Law, Plea, Conduct of government agents. Due Process of Law, Plea, Disclosure of evidence, Presumption. Practice, Criminal, Admission to sufficient facts to warrant finding, Plea, Conduct of government agents, Disclosure of evidence, Presumptions and burden of proof. Evidence, Guilty plea, Certificate of drug analysis, Disclosure of evidence, Exculpatory, Presumptions and burden of proof. In June, 2011, allegations of misconduct at the William A. Hinton State Laboratory Institute in the Jamaica Plain section of Boston surfaced regarding work performed by Annie Dookhan, a chemist who had been employed in the forensic drug laboratory (Hinton drug lab) since November, 2003. Based on investigations conducted by the Department of Public Health and the State police, Dookhan was indicted on multiple counts of evidence tampering and obstruction of justice, as well as on at least one count of perjury and one count of falsely claiming to hold a graduate degree, all relating to her handling and testing of samples at the Hinton drug lab. See Commonwealth v. Scott, ante , (2014); Commonwealth v. Charles, 466 Mass. 63, 64 (2013). Dookhan resigned from her position, effective March 9, 2012, and the Hinton drug lab was closed on August 30, 2012. The present case is one of several that has arisen as a consequence of the testing of drug evidence by Dookhan at that facility. We decide this appeal on the basis of our opinion today in Scott.[1] A criminal complaint issued from the Dorchester Division of the Boston Municipal Court Department charging the defendant, Geordano Rodriguez, with possession with intent to distribute a class A controlled substance (heroin), G. L. c. 94C, § 32 (a) (count I); commission of this offense within a school zone, G. L. c. 94C, § 32J (count II); and possession of a class D controlled substance (marijuana), G. L. c. 94C, § 34 (count III). The substances in the four plastic bags seized from the defendant were sent to the Hinton drug lab for testing, and they were determined to contain 5.19 grams of heroin. The first signature on the certificate of drug analysis, on the line labeled “Assistant Analysts,” was that of Dookhan. On January 10, 2006, the defendant tendered an admission to sufficient facts to warrant findings of guilty on counts I and III, conditioned on specific […]
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 […]