Opinion
20-P-487
01-24-2022
COMMONWEALTH v. Freidy BAEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A Superior Court jury convicted the defendant of the voluntary manslaughter of George Sanchez as a lesser included offense of murder in the second degree. The jury heard evidence that the defendant took a folding knife from his pocket and stabbed Sanchez twice during a fist fight, once in the left forearm and once in the upper left thigh. The wound to Sanchez's thigh transected his femoral artery, which caused him to bleed to death. On appeal, the defendant claims that the judge erred in restricting his closing argument and failing to instruct the jury on the lesser included offense of involuntary manslaughter. Because we conclude that the jury should have been instructed on the lesser included offense of involuntary manslaughter, we vacate the judgment of conviction and remand to the Superior Court.
Discussion. 1. Closing argument. After the evidence closed, defense counsel sought the judge's permission to argue to the jury that the defendant feared that Sanchez would use the concrete platform and steps as a weapon by bashing the defendant's head against them. The judge expressed skepticism that the evidence supported such an inference, but gave defense counsel an opportunity to review the evidence overnight before she ruled. The following day, after hearing further argument, the judge denied the defendant's request, reasoning that it "was very clear that [the defendant's] concern was that he was being repeatedly punched ... [b]ut if he had had the concern that his head was getting hit off the concrete ... then he was free to say so and didn't." The defendant claims this was an improper restriction on his right to marshal the evidence during his closing argument. Because defense counsel objected to the judge's ruling, we review for prejudicial error. See Commonwealth v. Holbrook, 482 Mass. 596, 603 (2019).
Because the defendant claims that he is entitled to a new trial due to the restriction of his closing argument, we address the argument even though we vacate the judgment of conviction on a different issue.
We discern no error in the judge's ruling. The defendant testified that Sanchez "jumped on top of [him] ... grabbed [him] here by the neck -- the collar," and repeatedly "punch[ed] [him] hard on the head, the mouth." The defendant was afraid that Sanchez "was going to mess up [his] head," and that Sanchez "was going to kill [him]." No witness testified that Sanchez used the concrete platform or steps as a weapon, the physical evidence did not indicate such use, and the defendant did not testify that he feared Sanchez would do so. We agree with the judge's assessment that the reasonable inference from the defendant's testimony was that "his concern was that he was being repeatedly punched." The defendant's proposed argument would have required the jury to "speculate on a hypothesis not supported by the evidence." Commonwealth v. Paton, 31 Mass. App. Ct. 460, 464 (1991).
2. Involuntary manslaughter. The defendant's theory of the case was that he stabbed Sanchez while acting in self-defense. The judge agreed to instruct the jury on self-defense and the lesser included offense of voluntary manslaughter, but she declined to give an instruction on the lesser included offense of involuntary manslaughter, reasoning that the defendant admitted he intentionally stabbed Sanchez. The defendant claims error in the failure to instruct on involuntary manslaughter.
Pertinent here, involuntary manslaughter is an unlawful homicide where wanton and reckless conduct causes death. Commonwealth v. Simpson, 434 Mass. 570, 590 (2001). Wanton and reckless conduct in this context "is intentional conduct that create[s] a high degree of likelihood that substantial harm will result to another person" (quotation omitted). Commonwealth v. Pagan, 471 Mass. 537, 547, cert. denied, 577 U.S. 1013 (2015). Thus, "[i]n determining whether an involuntary manslaughter instruction must be given, we ask whether any reasonable view of the evidence would have permitted the jury to find wanton and reckless conduct rather than actions from which a plain and strong likelihood of death would follow" (quotation omitted). Commonwealth v. Braley, 449 Mass. 316, 331 (2007). See Commonwealth v. Fitzmeyer, 414 Mass. 540, 547 (1993), quoting Commonwealth v. Sires, 413 Mass. 292, 303 (1992) (involuntary manslaughter instruction not warranted "[w]hen it is obvious that the risk of physical harm to the victim creates a ‘plain and strong likelihood that death would follow’ "). In doing so, we draw all reasonable inferences in favor of the defendant. Braley, supra at 331.
The defendant testified that Sanchez attacked him and was on top of him "punching [him] hard on the head, the mouth." The defendant "thought [Sanchez] was going to kill [him]," so he took a knife from his pocket and "[t]o get [Sanchez] off [the defendant] nicked [Sanchez] in the arm." When Sanchez continued to beat him, the defendant "hit him on the left leg ... [w]ith the knife." This evidence, viewed in the light most favorable to the defendant, supports an inference that the defendant intentionally stabbed Sanchez in the arm and leg. The question is whether there was evidence before the jury that would have permitted it to infer that the defendant did so without knowledge of a "plain and strong likelihood that death would follow" (quotation omitted). Braley, 449 Mass. at 331.
The Supreme Judicial Court has affirmed the denial of a request for an involuntary manslaughter instruction in cases involving stabbings to the torso and head. It is obvious that stabbings to those areas of the human body create a plain and strong likelihood of death. See Pagan, 471 Mass. at 547 (stabbing to "abdomen with an eight-inch blade"); Commonwealth v. Burgess, 450 Mass. 422, 439 (2008) (stabbing to abdomen and chest with kitchen knife); Commonwealth v. Degro, 432 Mass. 319, 331 (2000) (stabbing in back and legs with large kitchen knife); Commonwealth v. Pierce, 419 Mass. 28, 33 (1994) (one knife blade protruding from temple and another into nasal cavity). This is so because a reasonable person is presumed to have general knowledge of the location and vital importance of organs in those areas of the body. See Commonwealth v. Hadley, 78 Mass. App. Ct. 405, 409 n.5 (2010). However, we have found no authority for the proposition that a single stab wound to an arm or a leg creates a plain and strong likelihood of death.
We do not suggest that a plain and strong likelihood of death can be determined by a bright line dividing the human torso from its extremities. Knife wounds to extremities, like the wound to Sanchez's leg, can cause death. It is a fact-based determination that will be different in each case. Here, however, when we view the facts in the light most favorable to the defendant, it was not obvious that stabbing Sanchez in the leg would cause his death. Therefore, the involuntary manslaughter instruction should have been given.
We are not persuaded by the Commonwealth's argument that the issue was not preserved because the defendant failed to file a written instruction as the judge requested. Defense counsel orally requested an instruction on involuntary manslaughter at the charge conference. The judge heard argument on the request and considered it, but ultimately decided not to give the instruction. "In these circumstances, the issue was properly preserved for appeal." Commonwealth v. Vick, 454 Mass. 418, 423 n.5 (2009).
Conclusion. After careful review of the record, we cannot say with "fair assurance" that "the error did not influence the jury, or had but very slight effect" (quotation omitted). Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). Accordingly, the judgment of conviction of voluntary manslaughter is vacated and the verdict is set aside. Because there was sufficient evidence to support a conviction of involuntary manslaughter, the Commonwealth has the option of moving for resentencing on the lesser included offense, or it may retry the defendant for voluntary manslaughter. See Commonwealth v. Horne, 466 Mass. 440, 453 (2013). We remand to the Superior Court for that purpose.
So ordered.
vacated, verdict set aside; remanded