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SJC-11426

                   COMMONWEALTH   vs.   LUIS ORTIZ.



     Middlesex.       October 10, 2014. - November 26, 2014.

   Present:    Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.


Homicide. Firearms.    Practice, Criminal, Capital case.    Self-
     Defense.



     Indictments found and returned in the Superior Court
Department on June 24, 2010.

    The cases were tried before Richard T. Tucker, J.


     Dana Alan Curhan for the defendant.
     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.


    LENK, J.    The defendant appeals from his conviction of

murder in the first degree, on a theory of deliberate

premeditation, in the shooting death of Philip Meltzer.

Although the defendant concedes that the evidence was sufficient

to support the jury's verdict, and does not suggest that any

error occurred at trial, he contends that the verdict was
                                                                     2


against the weight of the evidence.    The defendant asks that we

exercise our power under G. L. c. 278, § 33E, to order a new

trial or to reduce his conviction to a lesser degree of guilt.

Having reviewed the entire record, we decline to do so, and

affirm the defendant's conviction.

       Because the defendant maintains that the verdict was

against the weight of the evidence, we summarize that evidence

without drawing all inferences favorable to the Commonwealth.

See Commonwealth v. Franklin, 465 Mass. 895, 896 (2013).

       On May 29, 2010, the defendant's sister, Angelie Ortiz,1 was

kidnapped by her former boy friend, Gilberto Cartagena.

Cartagena trapped Angelie and their two year old son in a van

and drove to the Lowell home of his acquaintance, Timothy Brown.

Brown got into the van with Angelie and Cartagena and drove them

to Lawrence.    Brown had given Cartagena a gun, and on the way to

Lawrence, Cartagena pointed the gun at different parts of

Angelie's body, including her genitals, and threatened to kill

her.

       At some point, Angelie inadvertently dialed her brother's

telephone number.    A resulting message on the defendant's

telephone's voicemail recorded Angelie crying and screaming for

several minutes.

       1
       Because Angelie Ortiz shares a last name with the
defendant, we refer to her by her first name.
                                                                     3


     In Lawrence, Angelie escaped with her son.     She arranged

for the defendant to meet them, and the defendant drove them to

Angelie's aunt's home.    Angelie told the defendant that

Cartagena had kidnapped her and her son and had threatened her

with a gun.

     In the early hours of May 30, 2010, the defendant picked up

Angelie and their cousin, Luis Fontanez.2    Angelie and Fontanez

believed that they were driving to New Hampshire.     On the way,

Angelie, Fontanez, and the defendant stopped at a wake, where

the defendant had a drink.    Angelie told guests at the wake that

she had been kidnapped.    She also gave the defendant additional

details about her ordeal, including the fact that Cartagena had

pointed a gun at her genitals.

     After returning to their vehicle, Angelie, Fontanez, and

the defendant stopped at a nearby gasoline station, where

Angelie pumped gasoline and the defendant went into a

convenience store.    His image and that of the clothing he wore,

including a striped red shirt, were captured by the store's

security camera.     After they left the store, Angelie drove, and

the defendant directed her to Brown's neighborhood.     When they

passed Brown's house, Angelie pointed it out as the house to

which Cartagena had taken her.

     2
       Both Angelie and Luis Fontanez testified pursuant to
grants of immunity.
                                                                    4


    Angelie, Fontanez, and the defendant circled the block

twice.   The defendant instructed Angelie to stop the vehicle,

saying that he was "going to handle something."   At some point,

Fontanez had heard the defendant say that Cartagena was "going

to get his."   Angelie left the engine running; according to her

testimony, the defendant had instructed her to do so.   Angelie

also turned off the headlights.   The defendant asked Fontanez to

hand him gloves, and he put on one or both of the gloves.

Somewhere en route from the gasoline station to Brown's house,

the defendant had changed out of his striped red shirt and into

a dark T-shirt.   The defendant stepped out of the vehicle, went

to the trunk, pulled out a gun, and put it in his waistband.     He

walked towards Brown's house.

    Cartagena was not at the house, but Brown was there.     The

victim, Meltzer, was Brown's roommate, and he was also at the

house, along with Megan Grover, the victim's girl friend.

Earlier that day, Brown had stolen heroin from Cartagena.

Brown, Grover, and the victim were mixing the stolen heroin with

cocaine and using both.   Cartagena telephoned Grover on one or

more occasions, looking for Brown and threatening to kill him.

    The defendant knocked on the door to Brown's house sometime

after 3 A.M.   Brown ran out the back door and into the basement.

Grover stood in the doorway of Brown's room.   The victim went to

open the front door.   Grover testified at trial that the victim
                                                                         5


was not holding anything in his hands, and that she had never

seen him with a weapon.      When the door opened, the defendant

pulled a gun out of his jeans, shooting himself in the leg in

the process.      The defendant then shot the victim twice, killing

him.       The defendant returned to the car, where he told Angelie,

"I think I shot myself."3

       Angelie took the defendant to the hospital.     Before

entering the hospital, the defendant took off his bloody jeans

and his underwear.      Angelie then drove to an ice cream shop and

delivered the defendant's rolled-up jeans to some friends.         The

clothing, but not the gun, were later recovered by police.

       The defendant instructed Angelie and Fontanez to tell

police that he had been shot in front of a nearby liquor store.

The defendant himself told police on multiple occasions that he

had been shot at that liquor store.       During the course of their

investigation, officers asked the defendant several times, "If

it was self-defense, let us know."      The defendant answered, "No,

I was never there."

       The defendant was charged with murder in the first degree,

armed entry and assault with intent to commit a felony, and


       3
       Fontanez testified at trial that the defendant had said,
"I got shot, but I shot him back." In his grand jury testimony,
which was introduced at trial as a prior inconsistent statement,
Fontanez had said that the defendant "not only said he shot
himself, he said he shot someone else."
                                                                     6


unlawful possession of a firearm.     At trial, the defendant's

theory was self-defense.   He testified that, at the wake, he

heard for the first time the voicemail message that recorded his

sister screaming.   He decided to confront Cartagena, and he went

to Brown's house intending to fight Cartagena, whom he knew

well, or Brown, whom he did not know.    The defendant explained

that he had taken a gun with him because he knew that Cartagena

was a violent man who owned guns of his own.     Indeed, Cartagena

had given the defendant the gun that he used that night.

According to the defendant, the victim, whom the defendant also

did not know, opened the door, pointed a gun at the defendant,

and fired.   The defendant shot his own gun only because he did

not believe that he could run away.

    At the close of the Commonwealth's evidence, the judge

allowed the defendant's motion for a required finding of not

guilty on the theory of felony-murder.     The only theory of

murder in the first degree on which the judge instructed the

jury was deliberate premeditation.    The judge also instructed

the jury on murder in the second degree and on voluntary

manslaughter based on heat of passion upon reasonable

provocation, heat of passion induced by sudden combat, and

excessive use of force in self-defense.     In addition, the judge

provided a detailed instruction on self-defense.
                                                                     7


    The jury found the defendant guilty of murder in the first

degree and of unlawful possession of a firearm.   They acquitted

him of the charge of armed entry and assault with intent to

commit a felony.    The defendant filed a motion for a finding of

guilty of murder in the second degree, which the trial judge

denied.

    The defendant argues on appeal that the verdict was against

the weight of the evidence.    He contends that considerable

evidence suggested that he acted in self-defense.    Other

evidence, according to the defendant, pointed to mitigating

factors, and particularly to mitigation based on heat of

passion.    Finally, the defendant notes that he had virtually no

criminal record before this offense, and that his life has

featured meaningful family relationships and professional

accomplishments.

    General Laws c. 278, § 33E, requires us to determine if a

new trial or a reduction of a conviction to a lesser degree of

guilt is required because "the verdict was against the law or

the weight of the evidence . . . or for any other reason that

justice may require."    "Regard for the public interest impels us

to use with restraint our power under § 33E to modify the jury's

verdict."   Commonwealth v. Colleran, 452 Mass. 417, 431 (2008),

quoting Commonwealth v. Williams, 364 Mass. 145, 151 (1973).     We

thus have stressed time and again that "[w]e do not sit as a
                                                                    8


second jury to pass anew on the question of the defendant's

guilt."   Commonwealth v. Carlino, 449 Mass. 71, 80 (2007),

quoting Commonwealth v. Leahy, 445 Mass. 481, 501 (2005).     See

Commonwealth v. Reddick, 372 Mass. 460, 464 (1977).   In order

for this court to "grant a new trial on the ground that the

verdict was against the weight of the evidence, it must appear

that the verdict, if allowed to stand, would work a miscarriage

of justice."   Commonwealth v. Franklin, 465 Mass. 895, 916

(2013), quoting Commonwealth v. Jefferson, 416 Mass. 258, 266

(1993).   See Commonwealth v. Coyne, 420 Mass. 33, 35 (1995).

The record in this case does not indicate that the verdict was

against the weight of the evidence, or that it otherwise worked

a miscarriage of justice.

     Turning first to the matter of self-defense, to which the

defendant testified, the defendant sought to undermine Grover's

contrary testimony that the victim was not holding a gun.     He

did so by exploring her history of drug use and by introducing

evidence that she could not have seen what she claimed to have

observed about the shooting.4   Even if the jury were to discount


     4
       The defendant introduced photographs and other evidence
purporting to show that, given the layout of the house, Grover
only could have seen the killer's gun, as she claimed, if it had
come within an inch or two of the victim. The evidence
indicated that, at so close a range, the killer's shots likely
would have left marks known as "stippling" on the victim's body,
but that no such stippling was discovered.
                                                                        9


aspects of Grover's testimony, they were free to credit her

testimony that the victim was unarmed when he answered the door,

just as they were free to discredit the defendant's claim that

he shot the victim in self-defense.       "The jury could believe

all, some, or none of the testimony of any witness."

Commonwealth v. Gomes, 459 Mass. 194, 203 (2011), citing

Commonwealth v. Harbin, 435 Mass. 654, 658–659 (2002).

       There were also multiple factors that supported Grover's

account.       Unlike the defendant, Grover had no apparent reason to

lie.       A search of Brown's house by police did not turn up the

gun that, according to the defendant, the victim had been

holding.       And both Angelie and a neighbor testified that they

had heard three shots; because the defendant fired two shots at

the victim and one, inadvertently, at himself, if the victim had

first shot at the defendant, nearby witnesses would have been

expected to hear four shots.5      In sum, "the question of self-

defense was fully aired at the trial," Commonwealth v. Walker,

443 Mass. 213, 229 (2005), and we see no reason to disturb the

jury's resolution of this question.



       5
       Fontanez testified at trial that he had heard four shots.
This evidence was impeached with Fontanez's statements to police
that he had heard three shots. Fontanez's grand jury testimony
on this subject was ambiguous. Angelie testified before the
grand jury that she had heard "three or four" shots. Another
neighbor heard only two shots, as did Megan Grover.
                                                                      10


    The jury's conclusion that the defendant's actions were not

mitigated by heat of passion was also not against the weight of

the evidence.   The defendant had learned sometime the previous

day that Angelie had been kidnapped.     It is possible that the

defendant, as he alone testified, first heard Angelie's

unintended voicemail message at the wake.    But the defendant

left the wake, went into a convenience store, returned to his

vehicle, traveled to Brown's neighborhood, and twice circled the

block before arriving at Brown's house.     The defendant also took

various measures in apparent preparation for the shooting:       he

changed from a conspicuous striped shirt into a nondescript dark

one; asked his cousin for a glove or two and put them on; took a

gun out of the trunk and placed it in his waistband; and left

behind a car primed for a speedy, undetected escape, its motor

running and its lights off.   After leaving the scene, the

defendant evidently arranged for the disposal of his gun and

bloody clothing, and he concocted a false story to explain his

wound, which he instructed his sister and his cousin to tell

police.   The jury were entitled to conclude, based on this

evidence, that the defendant's actions reflected premeditation

rather than spontaneity, and that a conviction of murder in the

first degree, rather than a lesser offense, was warranted.       Cf.

Commonwealth v. Colleran, 452 Mass. at 432, citing Commonwealth

v. Gaulden, 383 Mass. 543, 556 (1981).
                                                                   11


    Finally, the personal characteristics to which the

defendant points, while relevant to our analysis, are

insufficient in this case to disturb the verdict.   See

Commonwealth v. Walker, 443 Mass. at 229; Commonwealth v. Almon,

387 Mass. 599, 607-608 (1982).

    We have reviewed the entire record pursuant to G. L.

c. 278, § 33E.   We are satisfied that the defendant's trial was

conducted fairly and without error, and we discern no cause to

reduce the defendant's conviction to a lesser degree of guilt or

to order a new trial.

                                    Judgments affirmed.
