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SJC-11503
COMMONWEALTH vs. IDELFONSO VELEZ.
Middlesex. October 6, 2017. - May 11, 2018.
Present: Gants, C.J., Gaziano, Cypher, & Kafker, JJ.
Homicide. Practice, Criminal, Assistance of counsel, New trial,
Capital case. Insanity. Mental Impairment.
Indictments found and returned in the Superior Court
Department on September 30, 2010.
The cases were tried before Sandra L. Hamlin, J., and a
motion for a new trial, filed on August 6, 2014, was heard by
Kimberly S. Budd, J.
Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
Jessica Langsam, Assistant District Attorney (Joseph T.
Gentile, Assistant District Attorney, also present) for the
Commonwealth.
CYPHER, J. A jury convicted the defendant, Idelfonso
Velez, of two counts of murder in the first degree for the
deaths of Angel Ortiz and Trisha Bennett. Each conviction was
based on theories of premeditation and extreme atrocity or
2
cruelty. Represented by new counsel on appeal, the defendant
moved for a new trial, arguing that his trial counsel was
ineffective for pursuing an impracticable third-party culprit
defense, rather than lack of criminal responsibility or mental
impairment defenses based on the defendant's record of mental
health problems and substance use. The defendant appeals from
his convictions and from the denial of his motion for a new
trial. We vacate the denial of his motion for a new trial and
remand the case to the Superior Court for an evidentiary
hearing.
1. Background. a. Facts. In April, 2010, Ortiz and
Bennett, who were boy friend and girl friend, were living in a
two-bedroom apartment with Bennett's two year old daughter.
Ortiz and the defendant were friends, and the defendant had
previously stayed overnight at the apartment.
On the evening of April 30, 2010, the defendant was again
staying overnight at the apartment. At 3:31 A.M. on May 1,
2010, the defendant telephoned 911 from Bennett's cellular
telephone and reported a home invasion. The defendant told the
dispatcher that masked men had entered the apartment he was in
and had stabbed him and his friends.1
1 Between 2:10 and 2:35 A.M., one of the tenants in the
apartment below Ortiz and Bennett's was bothered by the sound of
Ortiz and Bennett's washing machine. Between 2:30 and 2:40
A.M., that tenant heard a woman's loud scream. The screaming
3
At 3:40 A.M., police officers arrived at Ortiz and
Bennett's apartment building. The entryway to the building was
locked and could only be opened by someone with a key or by a
resident responding to the doorbell by remotely unlocking, i.e.,
"buzzing" open, the door. Officers pressed many buzzers until a
tenant responded and allowed the door to be opened. Upon
locating Ortiz and Bennett's apartment, officers found the door
ajar but saw no sign of damage to the door, lock, or handle. In
the apartment, police found a knife and towels in the kitchen
sink, both with blood on them. There was blood in the bathroom.
A vase on the floor and a mirror and a photograph hanging on the
wall in the hallway appeared undisturbed.
Ortiz and Bennett's bodies were found in the main bedroom.
Ortiz's body was at the foot of the bed with a comforter tightly
wrapped around his head. He had blunt-force injuries to his
head and an arm and sharp-force injuries to his neck and torso
and an arm.2 He died from an approximately four and one-half
continued intermittently for ten to twenty minutes; a woman's
voice once screamed the word "stop." At the same time, the
tenant heard footsteps coming from Ortiz and Bennett's
apartment. The footsteps continued after the screaming stopped.
By 3:13 A.M. the screaming had stopped and the tenant heard
"words as if a child were having a temper tantrum on the floor."
The tenant did not telephone the police.
2 According to the medical examiner's testimony, a sharp-
force injury is something that has a sharp edge and penetrates
the body. Sharp-force injuries are categorized as stab wounds
or incisions. A stab wound is a wound that is deeper into the
4
inch deep stab wound to his neck. Bennett's body was on the
other side of the room, between the bed and a wall. She had
twenty-four sharp-force injuries and died from two stab wounds
to her neck, either of which alone would have been fatal. She
also had blunt-force injuries to her body. The medical examiner
testified that Ortiz and Bennett had each experienced pain
before dying.
In the main bedroom, police found three bloody footprints
on the bed. Two were matched to the defendant's footprint, but
one footprint was never identified. In the other bedroom, where
Bennett's daughter usually stayed and where the defendant was to
sleep that night, there was a computer displaying a pornographic
Web site. The computer had been used to view pornography
between 2:42 and 2:51 A.M.
Officers found the defendant lying on the ground outside
the building in a fetal position. He did not respond to
officers' attempts to communicate, although he seemed conscious
and alert. The defendant was wounded on his knee, abdomen,
forearm, and fingers. Emergency medical technicians (EMTs)
arrived and tended to his injuries, eventually moving him to the
back of a parked ambulance. While the defendant was being
body than it is long on the skin's surface. An incision is the
opposite: a wound that is longer on the skin's surface than it
is deep into the body. A blunt-force injury occurs when the
body is struck by an object with a blunted surface, usually
causing bruises or fractures.
5
treated, he began to get upset and call out someone's name,
possibly calling out for Ortiz.3 The defendant became more
physically agitated until a police officer got into the
ambulance and restrained one of the defendant's legs. After the
defendant calmed down, he was transported to a hospital.
b. The defendant's statements to police. The same police
officer who had restrained the defendant's leg rode in the
ambulance with the defendant and found him to be calm. The
officer asked the defendant what happened. The defendant
reported drinking beer and using cocaine throughout the evening.
According to the defendant, he went to sleep in Bennett's
daughter's bedroom and was awoken by sounds of a struggle in
Ortiz and Bennett's bedroom. In that room, he saw Ortiz gasping
for air while a man stood over him with a knife. The defendant
described the man's clothing but could not give any other
information about him. After the officer repeated the
defendant's statement to him, the defendant said that there were
two men in the room, although only one was holding a knife, and
that the men must have been waiting for the defendant. The
officer asked the defendant to describe the knife; in response
the defendant put up his hands approximately ten to twelve
3 One officer at the scene testified that the defendant was
calling out the name "Pluto" or "Flito," but stated that he was
not sure what the defendant was saying because the officer could
not understand the defendant. Ortiz was known by the nickname
"Filto" to his friends.
6
inches apart, which the officer understood to mean was the
length of the knife. The defendant explained that he struggled
with both of the men, that the man with the knife stabbed him in
the stomach, and that the defendant continued to fight for the
knife.
They arrived at the hospital, and the defendant was treated
for his wounds. A urine toxicology test was presumptively
positive for cocaine metabolite and showed that the defendant
had a serum alcohol level of ninety-six milligrams per
deciliter, roughly equivalent to a blood alcohol level of 0.096,
when the sample was taken at 4:32 A.M.
That same day, in the hospital, more police officers spoke
with the defendant. The defendant asked if Bennett and Ortiz
were alive. The defendant told police that he had been lying
down in the "kid's room" when he heard Bennett sounding
distressed and saying, "Baby, baby, baby." He went to Ortiz and
Bennett's bedroom and saw both of them bleeding on the floor.
He was attacked by someone with a knife and tried to defend
himself. He saw another person run out of the apartment. Both
of these people had their faces covered.
At approximately 11:30 A.M., after he was discharged from
the hospital, the defendant accompanied officers to the police
station. The defendant told officers that after being dropped
off, Bennett used the buzzer system to allow the defendant
7
access to the building and then allowed him into the apartment.
The defendant believed both Bennett and Ortiz went to sleep.
The defendant smoked a cigarette and drank a beer. At
approximately 2 A.M., the defendant went into the "kid's room,"
removed his sneakers, and watched pornography for about ten
minutes. Then he heard footsteps in the hallway and heard
Bennett yell, "Baby, baby, baby." He put on his sneakers and
looked into Bennett and Ortiz's room. The defendant saw Ortiz
lying in a pool of blood and someone standing over Bennett. The
person standing over Bennet had a shirt pulled over his head,
obscuring his face. The defendant made eye contact with the man
standing over Bennett and heard someone in the bedroom closet.
Someone ran out of the bedroom from the closet area wearing a
hooded sweatshirt pulled around his face so that only his eyes
were visible. That person ran toward the defendant and then out
of the apartment. The person standing over Bennett then
attacked the defendant with a knife. The defendant tried to
defend himself as the man with the knife attacked him in the
hallway. The assailant dropped the knife, ran down the hallway,
and left the apartment.
The defendant picked up the knife for protection in case
the intruders returned. He cleaned his wounds in the bathroom
and returned to check on Bennett and Ortiz. He found Ortiz
lying in a pool of blood, making gasping and gurgling sounds.
8
The sounds made the defendant feel sick so he put the comforter
over Ortiz. The defendant went to the kitchen to further wash
his wounds and placed the knife in a towel in the kitchen sink.
The defendant searched the closet in the victims' bedroom
for something to create a tourniquet around a wound on his arm.
He sought a cellular telephone because he believed his own
telephone was not working. He searched drawers and Bennett's
purse until he found her telephone. The defendant then returned
to the kitchen and tried to light a cigarette, but he had too
much blood on his hands so the lighter became clogged. The
defendant consumed some of a beer that was on the dining room
table. He telephoned 911, left the apartment, and lost
consciousness outside. At this point in the conversation, the
police took a break from interviewing the defendant.
After returning from the break, the defendant reiterated
his earlier statements with some alterations. The defendant was
"really, really scared" and wanted to leave the police station
to go to Pennsylvania. At the conclusion of the interview, the
defendant left the police station. He was indicted
approximately five months later on September 30, 2010.
The defendant moved to suppress the statements he made to
the police on the day of the homicides, arguing that the
statements were involuntary and therefore inadmissible because
the defendant had preexisting mental health conditions, had
9
ingested cocaine and alcohol that exacerbated those conditions,
had received narcotics for pain in the emergency room, and was
deprived of sleep.
In support of his argument at the hearing on the motion,
the defendant introduced the testimony of a clinical and
forensic psychologist who had examined the defendant's records
and concluded that the defendant could not have knowingly waived
his rights or made voluntary statements to the police. The
defendant also introduced records of his mental health treatment
and diagnoses.
The Commonwealth introduced the testimony of an EMT who
treated the defendant and transported him to the hospital, five
police officers who interviewed or interacted with the
defendant, and an emergency department physician who treated the
defendant. All testified that the defendant appeared coherent
on the day of the homicides and when speaking with police.
The motion judge denied the defendant's motion to suppress,
crediting the defense expert's opinion that the defendant was
"suffering from a serious mental illness and was not taking his
medication at the time of this incident," but concluding that he
was able to knowingly waive his Miranda rights.4
c. Third-party culprit defense. At trial, in his opening
statement and in his closing argument, defense counsel argued
4 The defendant does not challenge this ruling on appeal.
10
that a third-party culprit, Jonathan Gonzales, was responsible
for the homicides. Gonzales is the father of Bennett's daughter
and was Ortiz's friend until the two became estranged. Defense
counsel explained in his opening statement that Gonzales had the
following motives: (1) Bennett stopped dating Gonzales to date
Ortiz; (2) Ortiz stole $10,000 from Gonzales; and (3) Ortiz was
violent toward Bennett. In 2009, when Gonzales was
incarcerated, he told his and Bennett's mutual friend, Shannon
Begg, that he wanted to hire someone to kill Ortiz. After the
homicides, Gonzales told Begg, "Fuck you all. I did it. And
fuck you all."
The Commonwealth disputed this defense through direct
examination of Gonzales. He denied killing Ortiz and Bennett or
hiring others to do so. He testified that he made the
inculpatory statement to Begg because he was very frustrated
after the homicides that people suspected his involvement.
Gonzales also accounted for his whereabouts throughout the
evening of the homicides. The Commonwealth corroborated this
with testimony from four witnesses, security camera video
footage, and telephone records. Defense counsel questioned
Gonzales about his involvement on cross-examination, but
introduced no defense witnesses to support a theory that
Gonzales was the third-party culprit.
11
2. Discussion. The defendant appeals from his convictions
and from the denial of his motion for a new trial, arguing in
both that trial counsel was ineffective for advancing a third-
party culprit defense instead of pursuing defenses based on the
defendant's mental health or intoxication. He also urges us to
exercise our power, pursuant to G. L. c. 278, § 33E, to set
aside the verdicts or reduce the degree of guilt.
When a defendant alleges that his attorney committed a
strategic error, as the defendant does on appeal and in his
motion for a new trial, we consider whether trial counsel's
tactical choice was manifestly unreasonable at the time the
choice was made. Commonwealth v. Almeida, 452 Mass. 601, 611-
612 (2008). Where trial counsel's tactic was manifestly
unreasonable, his representation is ineffective if it created a
substantial likelihood of a miscarriage of justice.
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014).
A strategy is manifestly unreasonable if "lawyers of
ordinary training and skill in the criminal law would [not]
consider [it] competent" (quotation and citation omitted).
Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478
Mass. 189 (2017). The defendant argues that it was manifestly
unreasonable to pursue a third-party culprit defense and forsake
any argument that the defendant was not criminally responsible
12
or could not form the requisite mental state as a result of a
mental impairment. The defendant contends that his lengthy
history of mental illness and consumption of alcohol and cocaine
prior to the homicides support such defenses.5
The Commonwealth alleges that counsel chose to pursue a
third-party culprit defense after losing the motion to suppress
because, presumably, counsel wanted to avoid tainting the
defendant's credibility by pursuing a defense that was
inconsistent with the defendant's statements.6 However, on two
occasions before the motion to suppress was denied, counsel told
the judge that he would not be pursuing lack of criminal
5 Had trial counsel presented a defense based on the
defendant's mental health and substance use, such a defense
could have been one of a lack of criminal responsibility, see
Commonwealth v. McHoul, 352 Mass. 544, 548-555 (1967), or of
mental impairment, see Commonwealth v. Gould, 380 Mass. 672,
680-683 (1980). A successful defense resulting in a verdict of
not guilty for lack of criminal responsibility would have
demonstrated that the defendant lacked "substantial capacity
either to appreciate the criminality [wrongfulness] of his
conduct or to conform his conduct to the requirements of law"
(citation omitted; brackets in original). McHoul, supra at 547.
A successful defense of mental impairment, resulting in a
conviction of a lesser charge, would have proved that "an
abnormal mental condition negate[d] [the defendant's] capacity
to form a specific intent or his ability to make a decision in a
normal manner." Commonwealth v. Urrea, 443 Mass. 530, 535
(2005). The defendant would have had to prove that he lacked
the mental capacity to engage in premeditation and that he was
unable to appreciate that his acts were extremely atrocious or
cruel and to stop committing those acts. Id.
6 The defendant accepted this assumption during the motion
for a new trial and on appeal, apparently unaware that counsel
had made this choice before the motion to suppress was denied.
13
responsibility or mental impairment defenses.7 On the first
occasion, two weeks after the conclusion of the hearing on the
motion to suppress, counsel informed the judge that he was
waiving any mental health defense. On the second occasion,
nearly two months later, and still before the motion to suppress
was decided, counsel again assured the judge that he was not
pursuing defenses based on the defendant's mental health or
substance use.
To determine whether this was a reasonable strategic choice
at the time it was made, it is necessary to understand counsel's
reasoning at the time he informed the judge that he would not
pursue lack of criminal responsibility or mental impairment
defenses. See Almeida, 452 Mass. at 612; Commonwealth v.
Coonan, 428 Mass. 823, 827 (1999) (we assess if counsel's
decisions were reasonable "when made"). In support of the
motion for a new trial, the defendant submitted the psychiatric
records that had been introduced at the motion to suppress and
additional psychiatric records. The defendant argued that his
history of schizoaffective disorder and his substance use prior
to the homicides supported defenses of lack of criminal
7 The record did not include a transcript of the events in
court in which defense counsel made these statements. In our
effort to discern why trial counsel chose this strategy and
fulfil our responsibility under G. L. c. 278, § 33E, we ordered
transcriptions of the status conference and hearing on the
motion to continue and learned of defense counsel's statements.
14
responsibility and mental impairment. The defendant also
submitted an affidavit stating that after the motion to suppress
had been denied, trial counsel told him that counsel would
pursue a third-party culprit defense.8 The defendant did not
submit an affidavit from trial counsel, however, and the
defendant's affidavit does not explain defense counsel's
reasoning at the time he waived lack of criminal responsibility
and mental impairment defenses.
The defendant requested an evidentiary hearing. The motion
judge denied the request, pursuant to Mass. R. Crim. P. 30 (c)
(3), as appearing in 435 Mass. 1501 (2001) ("The judge may on
rule on the issue or issues presented by such motion on the
basis of the facts alleged in the affidavits without further
hearing if no substantial issue is raised by the motion or
affidavits"). To determine whether a "substantial issue" has
been raised, we consider the seriousness of the deficiency
asserted and the adequacy of the defendant's showing.
Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). A
credible claim of ineffective assistance of counsel is serious
and, when a sufficient showing is made, may merit an evidentiary
hearing. See Commonwealth v. Licata, 412 Mass. 654, 660-663
8 This could not be the reason trial counsel did not pursue
lack of criminal responsibility or mental impairment defenses.
As we noted, defense counsel told the judge before the motion to
suppress statements was denied that he would not be pursuing
such defenses.
15
(1992). Often, affidavits alone suffice to determine the
necessity of an evidentiary hearing. Here, however, when we
consider the affidavits that were submitted to the motion judge,
the transcripts that were not originally included in the record
or submitted to the motion judge, and the defendant's mental
health records, we perceive inconsistencies that merit a closer
look. Trial counsel's decision to pursue a third-party culprit
defense may have been a sound strategic choice or the choice
preferred by the defendant. On this record, however, we cannot
be certain.
We have reviewed the defendant's mental health records, and
we cannot say that such a defense did not have potential
support. The information in the mental health records suggests
that defenses of lack of criminal responsibility and mental
impairment were not necessarily inconsistent with the statements
the defendant made to the police. However, this is not a case
where it is apparent on the face of the record that counsel was
ineffective in choosing to forgo a mental health or criminal
responsibility defense. See, e.g., Commonwealth v. Williams
(No. 1), 68 Mass. App. Ct. 287, 290-291 (2007) (remanding for
further fact finding to determine if trial counsel's performance
was "manifestly unreasonable" where record was insufficient to
make such determination). Some of the evidence in the
defendant's medical records indicates that, before the
16
homicides, he suffered from hallucinations, including auditory
hallucinations, that people were telling him to hurt people.
After the homicides, he reported seeing people coming to hurt
him. Such evidence, if developed and if admissible, might have
supported such defenses. It might also have served to explain,
in part, the defendant's statements to the police that others
were in the apartment. This evidence was not brought to our
attention on appeal or to the attention of the judge in the
motion for a new trial.
While ordinarily we defer to the discretion of a judge on
whether a motion for a new trial requires an evidentiary
hearing, in these unusual circumstances, we believe that an
evidentiary hearing is necessary in order to determine whether
trial counsel's strategy was reasonable in light of the
defendant's particular mental health history.9 Licata, 412 Mass.
at 660-661. Without sufficient information about trial
counsel's intentions and strategic choices, the motion judge
could not determine whether it was "manifestly unreasonable" for
trial counsel to forgo these defenses when he chose to do so.
We conclude that it is necessary to vacate the order denying the
defendant's motion for a new trial and remand this case to the
Superior Court for an evidentiary hearing. See Commonwealth v.
We express no opinion regarding the merits of the motion
9
for a new trial.
17
Celester, 473 Mass. 553, 574 (2016) (vacating denial of motion
for new trial and remanding for evidentiary hearing on issue of
ineffective assistance of counsel where defendant's state of
mind during interrogation was at issue, defendant did not
testify at evidentiary hearing, and defendant's affidavit was
not considered by judge).
3. Conclusion. With respect to the defendant's appeal
from the order denying his motion for a new trial, we vacate
that order and remand the case to the Superior Court for an
evidentiary hearing and further proceedings consistent with this
opinion. We do not reach the defendant's direct appeal.
So ordered.