Commonwealth v. Beatrice Ortiz.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-583

COMMONWEALTH

vs.

BEATRICE ORTIZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with murder in the first degree,

G. L. c. 265, § 1, after she stabbed a man in the chest with a

knife. Following a jury trial at which she argued that she

acted in self-defense, she was convicted of the lesser included

offense of voluntary manslaughter. On appeal, she argues that

she is entitled to a new trial because the judge erred by

denying (1) her motion to strike a witness's testimony on the

basis that he was incompetent to testify and (2) her motions for

a required finding of not guilty because the Commonwealth failed

to disprove beyond a reasonable doubt that she acted in self-

defense. We affirm.
Discussion. 1. Witness competency. On the third day of

trial, the Commonwealth called as a witness, Alton Bullock, who

was present for the fight between the victim and the defendant.1

Bullock testified that he was a client of the Department of

Mental Health, had been so for more than forty years, and that

he was told by medical providers that he suffered from

schizophrenia. When questioned about the fight, which occurred

on August 19, 2019, he was able to recount the basic

circumstances about where and when it occurred, that he had the

impression that the victim and defendant were fighting about

drugs or money, that knives were used in the fight, and that he

intervened to protect the defendant because she was a woman.

However, when presented with a video of the incident that

depicted him attempting to intervene in the conflict, he

provided conflicting testimony as to whether he was on the video

and began asserting that he could not remember the fight.2 The

1 Bullock was assisted by a nurse and, in response to
questions from the prosecutor, testified that he had become
paralyzed after falling from a fire escape in an episode
unrelated to the stabbing, some months later.

2 The defendant was sobbing loudly during parts of the
testimony, and the judge told defense counsel he would remove
her from the courtroom if she could not control herself. After
the witness began to have difficulty remembering what happened,
the prosecutor suggested, in reference to the interruption, that
"there was some sort of turn at the point that [the witness] was
watching the defendant." The noise in the courtroom appears to
have caused the judge and counsel to have some difficulty in

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defendant moved to strike the testimony, asserting that Bullock

was not competent to testify. The judge stated that he had

concerns about Bullock's competency but denied the motion on the

basis that the defendant had the opportunity to cross-examine

Bullock effectively.3

"Whether a witness is competent is first determined by the

judge." Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 248

(2001). "The judge is afforded wide discretion -- indeed, is

obliged -- to tailor the competency inquiry to the particular

circumstances and intellect of the witness." Commonwealth v.

Thibeault, 77 Mass. App. Ct. 419, 424 (2010), quoting

Commonwealth v. Brusgulis, 398 Mass 325, 329-330 (1986). "The

judge's determination will usually survive appellate scrutiny,

because much which cannot be reproduced by the printed word

depends on the [witness's] appearance and manner" (quotations

and citation omitted). Monzon, supra at 248-249. "[I]t is

seldom that the discretion of the trial judge can be revised;

its exercise must have been clearly erroneous to justify such

hearing the witness, but the record before us contains adequate
clarity to permit our review of the defendant's appeal.

3 The defendant did not cross-examine Bullock regarding the
fight between the defendant and victim. The judge stated that
he thought this approach was a reasonable tactical decision.

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action." Thibeault, supra at 424, quoting Commonwealth v.

LeFave, 407 Mass. 927, 942 (1990).

"General Laws c. 233, § 20, provides that any person of

'sufficient understanding' may testify as a witness." Monzon,

51 Mass. App. Ct. at 248. To determine competency, judges apply

a well-established, two-prong test: "(1) whether the witness has

the general ability or capacity to observe, remember, and give

expression to that which [he] has seen, heard, or experienced;

and (2) whether [he] has understanding sufficient to comprehend

the difference between truth and falsehood, the wickedness of

the latter and the obligation and duty to tell the truth, and,

in a general way, belief that failure to perform the obligation

will result in punishment" (quotations omitted). Id. See

Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921). "A mentally

ill person . . . 'is not necessarily an incompetent witness.'"4

Commonwealth v. Piedra, 20 Mass. App. Ct. 155, 160 (1985),

quoting Commonwealth v. Jimenez, 10 Mass. App. Ct. 441, 444

(1980).

On appeal, the defendant argues that the judge erred by

denying her motion to strike Bullock's testimony, contending

that he was incompetent to testify because his mental illness

affected his ability to recall and describe events, and that the

4 The defendant concedes this point.

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testimony was "fraught with memory lapses, conflicting versions,

or often both." To support this claim, she points specifically

to Bullock's conflicting testimony regarding his memory of what

was said prior to the fight and his confusion over whether he

was on the video of the incident.

We decline to disturb the judge's ruling. Our review of

the record reveals that Bullock's testimony demonstrated his

ability to "observe, remember, and give expression to that which

[he] has seen." Monzon, 51 Mass. App. Ct. at 248. In response

to the prosecutor's questions, he was able to describe generally

the location and time of the conflict, its participants, and his

observations about their demeanors. This testimony was enough

to allow the judge to properly conclude that Bullock was

competent to testify. See Thibeault, 77 Mass. App. Ct. at 427-

428 (competency found based on entirety of testimony despite

inconsistency).

There can be no doubt that Bullock's testimony took a turn

when he was pressed as to the finer details of what happened in

the moments leading up to the fight. In particular, when

presented with a video of the stabbing and questioned about his

appearance in that video, he alternated between recognizing

himself in the video and denying that he was depicted in it.

During a sidebar, the judge acknowledged that he was "having

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some difficulty with . . . the witness's competency to answer

these questions."5 Unsurprisingly, the defendant's argument

rests chiefly on the assertion that the witness's inconsistent

testimony should require a finding that he was incompetent to

testify because he was unable to remember the events in

question. We disagree, however, because "inconsistency is

usually not a question of competency but rather a question of

credibility, a matter left to the trier of fact except in very

rare cases." Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213,

218 (1997), quoting Commonwealth v. Gamache, 35 Mass. App. Ct.

805, 809 (1994). Understanding that "[t]he bar for competency

. . . is not a high one," Commonwealth v. Tang, 66 Mass. App.

Ct. 53, 63 (2006), and that "a judge may accept as competent for

testimony a witness whose reliability is, in [his] judgment, at

most, marginally sufficient," id., quoting Demoulas v. Demoulas,

428 Mass. 555, 564 (1998), we discern no ground on which to

disturb the judge's ruling.

2. Sufficiency of the evidence. At the close of the

Commonwealth's evidence and again at the close of all the

5 In response to this statement, the prosecutor stated that
she had met with the witness the day prior and he had been able
to clearly recite what had happened, and suggested that he was
distracted by the defendant's sobbing. The judge found that the
witness was "nervous and upset about being [present in court]
and[] having some difficulty, as anybody might."

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evidence, the defendant moved for a required finding of not

guilty. The judge denied each motion. The defendant appeals

those rulings, arguing that the evidence could only support the

conclusion that she acted in self-defense because she reasonably

and actually believed that she was in immediate danger of death

or serious bodily harm when the victim banged her head against a

wall and continued to pursue her as she tried to escape him. We

are not persuaded.

"In determining the validity of a claim challenging the

sufficiency of the Commonwealth's evidence at trial, we review

the evidence in the light most favorable to the Commonwealth to

determine whether 'any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.'"

Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The

inferences that support a conviction 'need only be reasonable

and possible; [they] need not be necessary or inescapable.'"

Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016),

quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014). The

question is whether the evidence would permit a jury to find the

defendant guilty, not whether it requires it. See Commonwealth

v. Guy, 441 Mass. 96, 101 (2004), quoting Commonwealth v.

Fisher, 433 Mass. 340, 342-343 (2001).

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As the Supreme Judicial Court has explained:

"In a deadly force self-defense case, the Commonwealth may
establish the absence of proper use of self-defense by
proving beyond a reasonable doubt at least one of the
following propositions: (1) the defendant did not actually
believe that [she] was in immediate danger of death or
serious bodily harm from which [she] could save [herself]
only by using deadly force; (2) a reasonable person in the
defendant's position would not reasonably have believed
that [she] was in immediate danger of death or serious
bodily harm from which [she] could save [herself] only by
using deadly force; (3) the defendant did not use or
attempt to use all proper and reasonable means in the
circumstances to avoid physical combat before resorting to
the use of deadly force; or (4) the defendant used more
force than was reasonably necessary in all the
circumstances."

Commonwealth v. Grassie, 476 Mass. 202, 210 (2017).

We conclude that the evidence presented at trial was

sufficient to permit the jury to find that the defendant did not

act in self-defense. Most significantly, the Commonwealth

presented the jury with a surveillance video that clearly

depicted the conflict, as well as the moments leading up to it.6

Viewed in the light most favorable to the Commonwealth, that

video, which did not include sound, showed the defendant and the

victim engaged in what appeared to be a heated exchange on a

public sidewalk. As the conversation became more animated, the

defendant repeatedly stepped toward the victim and the two

6 The Commonwealth also presented testimony from eight
witnesses, including four law enforcement officers, a forensic
video analyst, a medical examiner, the victim's sister, and, as
discussed supra, Bullock.

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gesticulated at one another. Eventually the defendant initiated

the violence by pushing the victim into the street. Once the

victim recovered, he threw a beverage container at the

defendant, which she evaded. The victim began assaulting the

defendant, slamming her head into a wall repeatedly, and a knife

fell from the defendant's clothing onto the ground. As it did

so, Bullock attempted to intervene by grabbing the victim and

punching him. While the victim was occupied with Bullock, the

defendant fell to the ground, maintained her grip on the

victim's shirt, picked up the knife, and stabbed him in the

chest. After doing so, she picked up some money that had fallen

on the ground, and calmly retrieved her glasses from a ledge

while Bullock continued to scuffle with the victim.

Moreover, the Commonwealth presented the recording of a

police interview with the defendant that occurred early in the

morning following the incident. In that interview, she

described how, prior to the fight, the victim had called her

derogatory names, causing a bystander to laugh at her. She

further told detectives that she felt disrespected and told the

victim and bystander "you guys need to stop disrespecting me."

As a result of this treatment, the defendant "got mad" and would

not back down because she was "tired of people walking all over

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[her]." This recording properly spoke to the defendant's state

of mind at the time of the stabbing.

We are unpersuaded by the defendant's argument that the

evidence was insufficient to disprove her claim of self-defense.

Most importantly, considering the evidence in the light most

favorable to the Commonwealth, the jury was entitled to

determine that the defendant continued to grab onto the victim

after he let her go and stabbed him while he was occupied with

Bullock. They were further entitled to determine that she did

so rather than fleeing, which they could have reasonably

concluded she had ample time to do. See Commonwealth v. Leoner-

Aguirre, 94 Mass. App. Ct. 581, 583-584 (2018). Additionally,

they could have reasonably concluded that she stabbed the victim

rather than fleeing because she was upset by the victim's

disrespectful treatment of her and had decided to stand up for

herself instead of backing down. Accordingly, we cannot say

that the Commonwealth failed to provide sufficient evidence to

permit a fact finder to conclude that the defendant did not act

in accord with our self-defense jurisprudence. See Grassie, 476

Mass. at 210-211.

The defendant largely supports her argument to the contrary

by reciting the facts depicted in the video in a light more

favorable to her -- emphasizing that the victim slammed the

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defendant’s head against a wall and attempted to pursue her

after she stabbed him -- and contends that those facts show she

was in fear for her life at the time of the stabbing. This

argument, however, relies on a view of the evidence that is at

odds with our standard of review. See Powell, 459 Mass. at 578-

579. See also Commonwealth v. Martino, 412 Mass. 267, 272

(1992) ("To the extent that conflicting inferences are possible

from the evidence, it is for the jury to determine where the

truth lies" [quotation omitted]). The judge did not err in

denying the defendant's motions for a required finding of not

guilty.

Judgment affirmed.

By the Court (Green, C.J.,
Desmond & Hershfang, JJ.7),

Clerk

Entered: August 9, 2024.

7 The panelists are listed in order of seniority.

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