A Cup of Joe | Does Planning the Murder of Wife Count as Attempted Murder?

This week’s case brings us up to Lockport in Niagara County, New York. The Lockport Locks and Erie Canal Cruises boat rides are offered on the Erie Canal, with one proceeding upward through the modern locks for a short cruise, and returning to pass downstream under two lift bridges and then returning to the docks. From November 15-17, Lockport will be hosting the New York Beer Festival at 6933 South Transit Road, South Lockport. It is about a 7-hour drive northwest from our Manhattan office and a 2 ½-hour drive due west from Syracuse.

This case is about an attempt to make man’s darkest desire come true.

 

ENTER:

Benito Lendof-Gonzalez, the husband (he is in jail); Michael Shepherd, Ben’s friend in jail; Kayleigh Schmidt, Benito’s wife; Corey Hildebrand, Benito’s mother-in-law.

 

BACKGROUND:

Benito was in jail at the time on charges of assault tied to a domestic violence incident in which he violently choked his wife, Kay, and put a knife to her throat, threatening to kill her. Ben and Mike were friends in jail. Mike was getting out of jail soon. Ben had a plan to get himself out soon, too. If Ben’s wife could not testify against him, there would be no case. Ben gave Mike some work. But the plan never panned out. And Benito was charged with Attempted Murder. The case went to trial.

 

DIRECT TESTIMONY OF MICHAEL SHEPHERD 

Q: Where did you meet Benito?

A: Niagara County Jail. We were real close, even though I was only there for a little while. His cell was right next to mine.

Q: Did you and Benito have a plan for when you were getting out of jail?

A: Yeah. He had a job for me to do: he wanted me to take out his old lady and her moms.

Q: Take out?

A: Yeah. Kill them. You know, poison them.

Q: Did Benito tell you why he wanted you to do this?

A: Yes, ma’am. They was going to testify against him in the case he was waiting around for. Without their testimony, he would just walk.

Q: Were you going to get anything in return for carrying out Benito’s work?

A: Yeah. I was going to get ownership of a mobile home Ben and his wife owned.

Q: Did Benito tell you how to kill his wife and her mother?

A: Yes, ma’am. He passed notes to me that he wrote.

Q: What were written on the notes that Ben passed to you?

A: The notes said that Ben wanted the two ladies killed by injecting them with cut heroin, and that Ben’s kids were to be taken from his wife’s house and given to Ben’s friend. The notes said the day he wanted me to do it and where he wanted me to do it.

Q: What else did the notes say?

A: There was like instructions on how to place things in the house, and on one note he drew a map to where I could find his friend who was taking the kids.

Q: Did he ever actually speak to you about the plans?

A: Yes, ma’am: in person after I was released on bail, and Ben made telephone calls to me and my old lady about the plan.

Q: And Benito promised to give a house in return for the killings.

A: I already said that, yeah.

Q: And what did you do to carry out the plan?

A: I tipped off the jail officers and cooperated with them in getting evidence against him including recorded phone-calls saying the murders had been carried out.

Q: How?

A: I spoke to investigators, let them to copy the notes and eventually gave them the original notes, made a deal with an assistant district attorney, and told Ben that the crimes had been committed.

Q: Did you do anything to effectuate the crimes?

A: I ain’t a murderer ma’am. I did not do anything. I was never gonna hurt these ladies.

 

CROSS-EXAMINATION OF MIKE BY BEN’S LAWYER

Q: Mr. Shepherd, you are a rat, aren’t you?

A: I am a hero. I saved those ladies. I wasn’t going to let those kids’ moms get iced just because Ben is scared to doing a little time. You are the rat for representing that scum, sir.

DIRECT TESTIMONY OF BENITO

Q: Did you plan the murders of your wife and mother-in-law?

A: (Laughs). No, man; come on. It was just a test.

Q: What test?

A: A test to see if I could trust Mike, that’s all. For some legitimate business I got lined up for life after jail, you know?  I wouldn’t leave my kids without a mom and grandmom.

THE AFTERMATH

Benito’s wife and her mother are safe.  They were actually never in danger. The question is this: Can you be guilty of Attempted Murder when the murder is never Attempted and just thought about?

In this case, the answer is NO.

The rule is this: Acts of preparation to commit an offense do not constitute an attempt. There must be a step in the direct movement towards the commission of the crime after preparations have been made. The prosecution had to prove that Benito or Mike engaged in conduct that came dangerously near commission of the completed crime. That did not happen. Nothing happened.

If the Attempted Murder charge had stuck, Benito would have faced 17 years to life in prison. Benito was, however, found guilty of Criminal Solicitation and sentenced to 2 1/3 to 7 years in prison.

See you next week.


Here is the case: courts.state.ny.us/reporter/3dseries/2019/2019_01904.htm

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