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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.
