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Commonwealth v. Lugo

Appeals Court of Massachusetts, Suffolk

March 18, 2016

Jose Lugo

         Argued November 9, 2015.

          Indictments found and returned in the Superior Court Department on June 27, 2012.

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          The cases were tried before Linda E. Giles, J.

         Jacob B. Stone for the defendant.

         Matthew T. Sears, Assistant District Attorney ( Megan E. O'Rourke, Assistant District Attorney, with him) for the Commonwealth.

         Present: Cypher, Trainor, & Rubin, JJ.


          [47 N.E.3d 44] Cypher, J.

          The 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 defendant's convictions.

          [47 N.E.3d 45] Background.

          On 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 vehicles.

         When 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."

         After 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

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you disrespecting me?" Fernandez left the group and went back to the SUV while the defendant continued talking to Ramos and Henriquez.

         Returning 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.

         Security 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 to stop.

         As the 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.

          The 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

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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, ...

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