Commonwealth v. French
462 Mass. 41
Mass.2012Background
- French, Kimble were indicted for aggravated rape with joint venture as sole aggravating factor; Bing tried first and convicted; French and Kimble tried together; French convicted and Kimble acquitted.
- Jury instructed that conviction required principal liability; no instruction that Bing could be a joint venturer due to insufficient evidence; no lesser offense instruction requested by either side.
- DNA evidence showed French on one condom; Kimble excluded; Bing matched on one condom; victim DNA present on condoms; condition of victim explained by intoxication.
- Kimble testified that victim had sex with all three men; he described alleged sequence of events and consent issues; defendant contested joint venture theory through evidence and testimony.
- Appeals Court remanded after Medeiros; this court vacates aggravated rape conviction but lets stand the lesser included offense of rape, remanding for resentencing on rape.
- Case tried before Zanetti decision; procedural posture included Rule 25 (b)(2) considerations and posttrial motions on reduction of verdicts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Medeiros applies to render the aggravated rape verdict impossible | French | French | Yes; Medeiros governs and requires vacating aggravated rape conviction. |
| What remedy is appropriate when verdicts are inconsistent due to joint-venture element | Commonwealth | French | Remand for resentencing on rape; vacate aggravated rape conviction. |
| Whether appellate reduction of conviction on lesser offense is authorized without express jury instruction | Commonwealth | French | Appellate authority to reduce to rape affirmed; due process not violated. |
| Whether the defendant’s due process rights were violated by absence of lesser offense instruction at trial | Commonwealth | French | No due process violation; notice and indictment allowed for rape as lesser included offense. |
Key Cases Cited
- Commonwealth v. Medeiros, 456 Mass. 52 (2010) (extends rule of consistency to aggravated rape joint-venture element)
- Commonwealth v. Benesch, 290 Mass. 125 (1935) (cannot convict conspiracy when only one conspirator involved)
- Commonwealth v. Franks, 365 Mass. 74 (1974) (remand when verdicts could not be tied to proper lesser offense without trial change)
- Commonwealth v. Dixon, 34 Mass. App. Ct. 653 (1993) (remedy by reducing verdict on lesser offense when appropriate)
- Commonwealth v. Lawless, 103 Mass. 425 (1869) (early example of reducing conviction to lesser included offense)
- Commonwealth v. Reid, 29 Mass. App. Ct. 537 (1990) (indicates verdicts imply lesser offense supported by indictment)
- Commonwealth v. Sherry, 386 Mass. 682 (1982) (statutory lesser included offense well charged in indictment)