November 9, 2015.
Indictments found and returned in the Superior Court
Department on June 27, 2012.
cases were tried before Linda E. Giles, J.
B. Stone for the defendant.
T. Sears, Assistant District Attorney ( Megan E.
O'Rourke, Assistant District Attorney, with him) for the
Cypher, Trainor, & Rubin, JJ.
N.E.3d 44] Cypher, J.
defendant, Jose Lugo, appeals from his convictions by a jury
of assault and battery with a knife, assault and battery with
a shod foot, and assault with a knife. He argues that the
trial judge's denial of his motions for a required
finding of not guilty was error because there was
insufficient evidence of his participation in a joint venture
to support his convictions of assault and battery with a
knife and assault with a knife. He claims error also in the
prosecutor's closing argument and the jury instructions
on prior inconsistent statements. We affirm the
N.E.3d 45] Background.
April 12, 2012, friends Victor Ramos, Milton Henriquez, Edwin
Colon, and Alejandro Naranjo spent the evening together at a
Boston nightclub. At closing time, around 2:00 a.m., the four
friends returned to their car, which was parked across the
street in a multilevel garage. Waiting in a line of vehicles
to exit the garage, the friends were approached by a man from
a vehicle in front of theirs who, thinking that they had been
honking the horn, punched Colon and Naranjo through their
open passenger's side windows. The four friends got out
of their car and Henriquez traded blows with the man before
being separated by the friends and others from surrounding
the brawl subsided and the crowd of people who had gathered
to watch or take part in the fight began to disperse, a sport
utility vehicle (SUV) from an upper level of the garage
approached the area and stopped and two men emerged. One was
a tall, skinny man, later identified as Javier Fernandez, and
the other was a short man with braids, later identified as
the defendant. According to testimony by Ramos, the two men
appeared to be intoxicated and angry, " [L]ike they
wanted to do something."
greeting and shaking hands with people from the surrounding
vehicles, the two men approached Ramos and Henriquez and
engaged them in a tense verbal exchange. During the exchange,
Fernandez and the defendant stood side by side facing Ramos,
and Henriquez stood behind Ramos, facing the defendant.
Fernandez and the defendant talked to Ramos and Henriquez,
but did not speak to one another. Ramos, attempting to defuse
the situation, suggested that they all go home and touched
Fernandez on the shoulder or arm, provoking Fernandez, who
asked, " [A]re
you disrespecting me?" Fernandez left the group and went
back to the SUV while the defendant continued talking to
Ramos and Henriquez.
from the SUV, Fernandez circled around the group and,
approaching Henriquez, stabbed him in the side, under his
armpit. Henriquez put his hand on Ramos's shoulder and
declared that he had just been stabbed. Ramos saw a knife in
Fernandez's hand as Fernandez stepped forward, twice
jabbing the knife at him. Ramos grabbed Henriquez and took
off running up a ramp to an upper level of the garage.
Fernandez and the defendant immediately gave chase, running
shoulder to shoulder with another man, identified only as
wearing a black polo shirt. As Ramos and Henriquez ran,
Fernandez stabbed at Henriquez, who stumbled and fell to the
ground. Fernandez slashed and stabbed at Henriquez and the
defendant kicked and stomped on him as he lay on the ground.
guard Jeffrey Swanson testified that he observed the
defendant stomping on Henriquez with the open sole of his
shoe, " like he was trying to put out a fire."
While Henriquez was being kicked and stabbed, Ramos grabbed
hold of him and tried to drag him away from the assailants.
The attack, which lasted about two or three minutes, was
interrupted when security guards arrived and ordered the men
security guards assessed the situation and waited for police
to arrive, they observed the defendant walking briskly away
from the scene and Fernandez throwing a knife under a car.
The two men were detained by security personnel. When police
arrived, Ramos pointed out the defendant and Fernandez as the
men who had attacked Henriquez. Sergeant Michael Talbot
testified that while the defendant was in custody at the
police station, his behavior was combative and he refused to
allow Talbot to photograph a [47 N.E.3d 46] scratch on his
hand. A bloodstain taken from the chest area of
defendant's outer shirt was determined to be consistent
with Henriquez's deoxyribonucleic acid profile.
1. Sufficiency of the evidence.
defendant moved for a required finding of not guilty at the
close of the Commonwealth's case and again at the close
of all the evidence. He claims that these motions were
improperly denied because the evidence failed to prove that
he participated in a joint venture with knowledge that his
companion was armed with a knife. In reviewing the denial of
a motion for a required finding, we examine the relevant
evidence in the light most favorable to the
Commonwealth and ask whether " any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Commonwealthv.Latimore, 378 Mass. 671, 677, 393 N.E.2d
370 (1979), quoting from Jacksonv.Virginia, 443 U.S. 307, 319 (1979), 99 S.Ct. 2781,
61 L.Ed.2d 560. " We take this view of the evidence
notwithstanding any evidence to the contrary presented by the
defendant." Commonwealthv.Garcia, 470 Mass. 24, ...