COMMONWEALTH v. BENITEZ (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury convicted the defendant, David Benitez, of voluntary manslaughter in violation of G. L. c. 265, § 13. On appeal, he contends that the judge erred in denying his motions for a required finding of not guilty, and that the prosecutor's closing argument was inconsistent with the evidence at trial and the account presented to the grand jury. We affirm.

Background. We summarize the facts the jury could have found, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On November 15, 2014, sixteen-year-old Aaliyah Hayden sent a Facebook ² message to Antonio Ortiz seeking to buy marijuana from him.³ Two days later, Hayden received Ortiz's reply message offering to sell her marijuana. At that time, she was in a car with Charlena Ngeth, Shaquan Strickland, Jonathan Carreiro-Zelenski, and Anna Gnek, who was driving. Ngeth responded to Ortiz's message on Hayden's phone and arranged to purchase half an ounce of marijuana for $135 from Ortiz on Temple Street in Lowell.⁴ At some time prior to the group's arrival at the designated meeting place, Ngeth, Strickland, and Carreiro-Zelenski planned to “rob” Ortiz by throwing iced coffees at him. The group expected Ortiz to arrive alone.

Upon the group's arrival, everyone except for Gnek exited the vehicle and waited for Ortiz to arrive. Shortly thereafter, the defendant parked his car next to Gnek's vehicle and exited it along with Ortiz.⁵ Ortiz called Hayden's cell phone and told her to go onto the street. Ngeth, Strickland, and Carreiro-Zelenski sat on a set of stairs while Hayden looked for Ortiz. Hayden then saw Ortiz and the defendant walk down the stairs, and confirmed with Ortiz that “he had the weed on him.”

After walking up the stairs into a playground area with Ortiz, Hayden turned around and saw that the defendant was no longer behind her. Ngeth, Strickland, and Carreiro-Zelenski then ran past Hayden towards Ortiz, threw their iced coffees, and started fighting Ortiz. Ngeth kicked Ortiz in the head while Strickland and Carreiro-Zelenski hit him from the sides. The defendant then came up from behind Ngeth, put her in a “bear hug,” pulled a knife out from his side, and stabbed her in the back. The knife traveled five to six inches deep into the left side of Ngeth's back between her ribs, piercing her liver, diaphragm, and left lung. Ngeth fell to the ground, was transported to the hospital, and pronounced dead from the “sharp force injury” she sustained from the knife.

A grand jury subsequently indicted the defendant on charges of voluntary manslaughter and carrying a dangerous weapon.⁶ The parties stipulated at trial that Ngeth and her companions were the first aggressors, attacking the defendant and Ortiz to take their marijuana by force. Therefore, a central issue at trial “was whether the defendant engaged in the proper exercise of self-defense when he inflicted the fatal wound.”

At trial, the judge denied the defendant's motions for required findings of not guilty both at the conclusion of the Commonwealth's case and at the conclusion of all the evidence. The jury found the defendant guilty of voluntary manslaughter and not guilty of carrying a dangerous weapon. The judge later denied the defendant's postjudgment motion for a required finding of not guilty, or in the alternative, for a new trial. This appeal followed.

Discussion. 1. Sufficiency of the evidence. The defendant contends that the Commonwealth presented insufficient evidence to support his voluntary manslaughter conviction. When reviewing a denial of a motion for a required finding of not guilty, we determine “whether after viewing the evidence in the light most favorable to the [Commonwealth], [a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (citation omitted). Latimore, 378 Mass. at 677. Where, as here, the defendant moved for required findings both at the close of the Commonwealth's case and at the close of all the evidence, we consider the state of the evidence at both points in time to determine “whether the Commonwealth's position as to proof deteriorated after it closed its case” (citation omitted). Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006). “If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province.” Commonwealth v. Lao, 443 Mass. 770, 779 (2005). See E.B. Cypher, Criminal Practice and Procedure § 37.10 (4th ed. 2014). The inferences supporting a conviction “need only be reasonable and possible[; they] need not be necessary or inescapable” (citation omitted). Commonwealth v. West, 487 Mass. 794, 800 (2021). See Commonwealth v. Nelson, 370 Mass. 192, 203 (1976) (evidence need not require jury to draw inference; sufficient that evidence permits inference to be drawn).

To prove voluntary manslaughter, the Commonwealth must prove that the defendant (1) intentionally inflicted an injury on the victim likely to cause death, (2) caused the victim's death, and (3) did not act in proper self-defense.⁷ See Commonwealth v. Ware, 438 Mass. 1014, 1015 (2003); Model Jury Instructions on Homicide 81-82 (2018) (listing elements of voluntary manslaughter in absence of murder charge). To demonstrate that the defendant did not act in proper self-defense when using deadly force, the Commonwealth must prove beyond a reasonable doubt that the defendant (1) “did not have a reasonable ground to believe, and did not believe, that he was in imminent danger of death or serious bodily harm”; (2) did not “avail[ ] himself of all proper means to avoid physical combat before” using deadly force; or (3) “used more force than was reasonably necessary.” Commonwealth v. Glacken, 451 Mass. 163, 167 (2008). Here, the defendant challenges the sufficiency of the Commonwealth's proof regarding the third element of voluntary manslaughter. Specifically, he argues that the evidence supports “no reasonable conclusion other than that the defendant's actions were a proper exercise of self-defense.” The argument is unavailing.

The defendant relies on his own testimony that he -- not Ortiz -- was the individual that Ngeth, Strickland, and Carreiro-Zelenski “rushed,” forced to the ground, and punched and kicked in the head. The defendant testified that he was in fear for his life, pulled the knife out of its sheath from between his leg and the cement, stabbed the person who was on top of him, and ran away. Although the jury could have credited the defendant's testimony, it was not obligated to do so. Instead, this jury, or any rational jury could have credited the evidence indicating that the defendant came up from behind Ngeth as she was kicking Ortiz in the head, placed her in a “bear hug,” and stabbed her in the back with a knife, causing her death.⁸ To the extent conflicting inferences are possible from the evidence, “it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province.” Lao, 443 Mass. at 779. Furthermore, there was evidence that the victim was unarmed, and that the defendant was substantially taller and heavier than she. In addition, the defendant admitted that he stabbed Ngeth rather than punching her when his hands were both free, and he did not suffer physical injury beyond a cut to his hand from pulling out his knife. See Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966) (when determining reasonableness of force used, “the jury should consider evidence of the relative physical capabilities of the combatants, the characteristics of the weapons used, and the availability of maneuver room in, or means of escape from [the area]”). Based on the evidence presented at trial, a rational jury could conclude that the Commonwealth proved beyond a reasonable doubt that the defendant did not avail himself of all proper means to avoid physical combat before using deadly force, used more force than was reasonably necessary, and thus did not act in proper self-defense. See Glacken, 451 Mass. at 166-167.

2. Prosecutor's closing argument. The defendant further contends that the prosecutor's closing argument was inconsistent with the account presented to the grand jury and the evidence at trial such that it deprived him of a fair trial. As the defendant did not object to the prosecutor's closing argument at trial, “we review to determine if the statements were error, and, if so, whether they created a substantial risk of a miscarriage of justice.” Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 9 (2019).

The defendant's argument that the prosecutor's closing argument “conflicted with the scenario presented to the grand jury” lacks merit. Because the grand jury minutes are not in the record before us, we do not consider their content.⁹ See Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007). Furthermore, the defendant cites to no authority, and we are aware of none, supporting the proposition that a prosecutor's closing argument must strictly comport with the evidence presented to the grand jury.¹⁰ The defendant maintains that this “mischaracterizes” his argument, and that rather, “[t]he problem here ․ is that the Commonwealth sought to rely on a version of the incident inconsistent with known events presented by the prosecutor to obtain the indictments returned.” Because this assertion maintains that the closing argument was improper because it conflicted with the version of events the prosecutor presented to the grand jury to obtain indictments, this is a distinction without a difference. To the extent that the defendant believed that the Commonwealth's witnesses’ trial testimony conflicted with their testimony before the grand jury, he could have, and did, impeach them with those inconsistencies on cross-examination. See Commonwealth v. DaSilva, 471 Mass. 71, 75-76 (2015).

Likewise, we are not persuaded by the defendant's argument that the Commonwealth “[sought] to prove its case on a basis which the grand jury rejected.” Contrary to this claim, nothing in the record specifies whether the Commonwealth sought an indictment for voluntary manslaughter only, or whether the Commonwealth sought an indictment for murder and the grand jury “viewed the events largely as described by the defendant” such that they “concluded that the lesser manslaughter charge was appropriate.” Similarly, that the same grand jury indicted Ortiz in a separate case for stabbing Strickland during this incident does not necessitate that the events “could not have occurred” as the prosecutor argued in closing. Ortiz being the person Ngeth, Strickland, and Carreiro-Zelenski forced to the ground, and Ortiz stabbing Strickland during the incident, are not mutually exclusive facts. Furthermore, as the judge instructed the jury, “[a]n indictment is not evidence,” but rather “merely a piece of paper” that serves as a “mechanism for bringing a criminal charge.” Finally, as discussed supra, it was the jury's role to resolve conflicting testimony and evidence. See Lao, 443 Mass. at 779.

The defendant also argues that the prosecutor's closing argument was inconsistent with the evidence presented at trial. That the prosecutor's closing was inconsistent with the defendant's account of the incident is of no consequence. See Commonwealth v. Beaudry, 445 Mass. 577, 587-588 (2005). In closing argument, counsel “may argue from the evidence and may argue fair inferences that might be drawn from the evidence” (citation omitted). Commonwealth v. Ridge, 455 Mass. 307, 330 (2009). As explained above, the evidence and reasonable inferences drawn therefrom support the argument that the defendant “bear hugged” Ngeth from behind and stabbed her after Ngeth, Strickland, and Carreiro-Zelenski attacked Ortiz. See Commonwealth v. Wilkerson, 486 Mass. 159, 180 (2020) (prosecutor's closing argument not based on unreasonable inferences where there was competing testimony).

There were statements in the prosecutor's closing, however, that were not entirely consistent with the evidence at trial. When discussing Hayden's testimony during closing argument, the prosecutor stated:

“She describes Antonio as the shorter one․ She told you that her ․ three friends rushed Antonio, the shorter one․ And what she describes is Shaq and John on the side of Antonio ․ when someone in a black hoodie, the taller one, grabs Charlena in a bear hug․ But if you recall Aaliyah's version of events, she can place both those individuals. She places Antonio Ortiz, the one being attacked, and David Benitez, the one stabbing Charlena in the back. How? As he's the shorter one and he's the taller one.”

Although evidence at trial established that Ortiz is approximately five feet and six inches tall and the defendant is six feet tall, Hayden did not differentiate the two individuals based on height in her testimony.¹¹ Accordingly, the prosecutor's contention that Hayden testified that she differentiated Ortiz and the defendant based on height was improper. Nonetheless, we conclude that this misstatement did not create a substantial likelihood of a miscarriage of justice.

In applying the substantial risk standard, we must determine “if we have a serious doubt whether the result of the trial might have been different had the error not been made” (citation omitted). Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). We consider the challenged statements in the context of the entire closing, the judge's instructions to the jury, and the evidence at trial. See Commonwealth v. Martinez, 476 Mass. 186, 198 (2017). “A new trial will be ordered only in the extraordinary situation where, after such a review, we are left with uncertainty that the defendant's guilt has been fairly adjudicated” (citation omitted). Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

Here, the prosecutor's erroneous reference was brief and isolated in the context of his fourteen-page closing argument and was “not egregious enough to infect the whole of the trial.” See Commonwealth v. Salazar, 481 Mass. 105, 118 (2018). That the defendant did not object to the prosecutor's statements at trial “tends to support the inference that the prosecutor's misstatement was not so egregious and prejudicial as [he] now claims.” Commonwealth v. Maynard, 436 Mass. 558, 570 (2002). Furthermore, the judge repeatedly instructed the jury that they were the sole finders of fact, that closing arguments are not evidence, and that the jurors’ memory of the evidence controlled. See Commonwealth v. Hernandez, 473 Mass. 379, 392 (2015) (jury presumed to follow instructions). “[W]e ascribe a certain level of sophistication to the jury, and, [on this record], have little doubt that they would not have been swayed by this [misstatement]” (quotation and citation omitted). Commonwealth v. Kapaia, 490 Mass. 787, 805 (2022).

Judgment affirmed.

FOOTNOTES

2.   “Facebook” is a social networking website allowing the electronic exchange of written messages and images. See Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 735 n.1 (2014).

3.   Hayden had communicated with Ortiz “about weed” through Facebook on approximately four prior occasions. Whenever Hayden communicated with Ortiz, she could see his profile picture on her “screen.” She understood the profile picture “to be a photograph of [Ortiz].” However, she had not met Ortiz in person prior to the date of the incident.

4.   Hayden was not aware if anyone in the car had any money to purchase the marijuana.

5.   The defendant was approximately twenty-three years old at the time of the incident.

6.   The grand jury separately returned an indictment against Ortiz for assault and battery by means of a dangerous weapon causing serious bodily injury to Strickland.

7.   The defendant does not challenge the judge's instructions on voluntary manslaughter or self-defense.

8.   While Hayden admitted on cross-examination that she was “not sure” that Ortiz was the person her three companions punched and kicked in the head, she repeated that it was the other person who grabbed Ngeth from behind. The defendant does not dispute that he stabbed Ngeth.

9.   Without the grand jury minutes before us, we need not address the defendant's unsupported assertion that if the Commonwealth had presented Carreiro-Zelenski as a witness, his testimony, if consistent with what he told the grand jury, “may well have undermined the description of events” in the prosecutor's argument.

10.   We likewise reject the defendant's unsupported assertion that the prosecutor's closing argument conflicted with the Commonwealth's “Statement of the Case” filed at the outset of the proceedings. The defendant cites no relevant authority for this proposition. Furthermore, as the document states, it was “not intended to serve as a bill of particulars or otherwise limit the evidence in the Commonwealth's case.”

11.   When asked about the height of the person who stabbed Ngeth, Hayden testified that he was “[t]aller than Chi-Chi. I'm not sure.” When asked on cross-examination whether a “taller person and a shorter person” approached her, she responded, “I'm not sure, but they looked both tall.”