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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 sharpforce 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 thirdparty 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. 

 

9 We express no opinion regarding the merits of the motion 

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.