NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-583

COMMONWEALTH

vs.

BEATRICE ORTIZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was charged with murder in the first degree, 

G. L. c. 265, § 1, after she stabbed a man in the chest with a 

knife. Following a jury trial at which she argued that she 

acted in self-defense, she was convicted of the lesser included 

offense of voluntary manslaughter. On appeal, she argues that 

she is entitled to a new trial because the judge erred by 

denying (1) her motion to strike a witness's testimony on the 

basis that he was incompetent to testify and (2) her motions for 

a required finding of not guilty because the Commonwealth failed 

to disprove beyond a reasonable doubt that she acted in selfdefense. We affirm.
2

Discussion. 1. Witness competency. On the third day of 

trial, the Commonwealth called as a witness, Alton Bullock, who 

was present for the fight between the victim and the defendant.1 

Bullock testified that he was a client of the Department of 

Mental Health, had been so for more than forty years, and that 

he was told by medical providers that he suffered from

schizophrenia. When questioned about the fight, which occurred

on August 19, 2019, he was able to recount the basic 

circumstances about where and when it occurred, that he had the 

impression that the victim and defendant were fighting about 

drugs or money, that knives were used in the fight, and that he 

intervened to protect the defendant because she was a woman. 

However, when presented with a video of the incident that 

depicted him attempting to intervene in the conflict, he 

provided conflicting testimony as to whether he was on the video 

and began asserting that he could not remember the fight.2 The 

1 Bullock was assisted by a nurse and, in response to 

questions from the prosecutor, testified that he had become 

paralyzed after falling from a fire escape in an episode 

unrelated to the stabbing, some months later.

 

2 The defendant was sobbing loudly during parts of the 

testimony, and the judge told defense counsel he would remove 

her from the courtroom if she could not control herself. After 

the witness began to have difficulty remembering what happened, 

the prosecutor suggested, in reference to the interruption, that 

"there was some sort of turn at the point that [the witness] was 

watching the defendant." The noise in the courtroom appears to 

have caused the judge and counsel to have some difficulty in 
3

defendant moved to strike the testimony, asserting that Bullock 

was not competent to testify. The judge stated that he had 

concerns about Bullock's competency but denied the motion on the 

basis that the defendant had the opportunity to cross-examine 

Bullock effectively.3

"Whether a witness is competent is first determined by the 

judge." Commonwealth v. Monzon, 51 Mass. App. Ct. 245, 248 

(2001). "The judge is afforded wide discretion -- indeed, is 

obliged -- to tailor the competency inquiry to the particular 

circumstances and intellect of the witness." Commonwealth v. 

Thibeault, 77 Mass. App. Ct. 419, 424 (2010), quoting 

Commonwealth v. Brusgulis, 398 Mass 325, 329-330 (1986). "The 

judge's determination will usually survive appellate scrutiny, 

because much which cannot be reproduced by the printed word 

depends on the [witness's] appearance and manner" (quotations 

and citation omitted). Monzon, supra at 248-249. "[I]t is 

seldom that the discretion of the trial judge can be revised; 

its exercise must have been clearly erroneous to justify such 

hearing the witness, but the record before us contains adequate

clarity to permit our review of the defendant's appeal.

3 The defendant did not cross-examine Bullock regarding the 

fight between the defendant and victim. The judge stated that 

he thought this approach was a reasonable tactical decision.
4

action." Thibeault, supra at 424, quoting Commonwealth v. 

LeFave, 407 Mass. 927, 942 (1990).

"General Laws c. 233, § 20, provides that any person of 

'sufficient understanding' may testify as a witness." Monzon, 

51 Mass. App. Ct. at 248. To determine competency, judges apply 

a well-established, two-prong test: "(1) whether the witness has 

the general ability or capacity to observe, remember, and give 

expression to that which [he] has seen, heard, or experienced; 

and (2) whether [he] has understanding sufficient to comprehend 

the difference between truth and falsehood, the wickedness of 

the latter and the obligation and duty to tell the truth, and, 

in a general way, belief that failure to perform the obligation 

will result in punishment" (quotations omitted). Id. See 

Commonwealth v. Tatisos, 238 Mass. 322, 325 (1921). "A mentally 

ill person . . . 'is not necessarily an incompetent witness.'"4 

Commonwealth v. Piedra, 20 Mass. App. Ct. 155, 160 (1985), 

quoting Commonwealth v. Jimenez, 10 Mass. App. Ct. 441, 444 

(1980).

On appeal, the defendant argues that the judge erred by 

denying her motion to strike Bullock's testimony, contending 

that he was incompetent to testify because his mental illness 

affected his ability to recall and describe events, and that the 

4 The defendant concedes this point.
5

testimony was "fraught with memory lapses, conflicting versions, 

or often both." To support this claim, she points specifically 

to Bullock's conflicting testimony regarding his memory of what 

was said prior to the fight and his confusion over whether he 

was on the video of the incident.

We decline to disturb the judge's ruling. Our review of 

the record reveals that Bullock's testimony demonstrated his 

ability to "observe, remember, and give expression to that which 

[he] has seen." Monzon, 51 Mass. App. Ct. at 248. In response 

to the prosecutor's questions, he was able to describe generally 

the location and time of the conflict, its participants, and his 

observations about their demeanors. This testimony was enough 

to allow the judge to properly conclude that Bullock was 

competent to testify. See Thibeault, 77 Mass. App. Ct. at 427-

428 (competency found based on entirety of testimony despite 

inconsistency).

There can be no doubt that Bullock's testimony took a turn 

when he was pressed as to the finer details of what happened in 

the moments leading up to the fight. In particular, when 

presented with a video of the stabbing and questioned about his 

appearance in that video, he alternated between recognizing 

himself in the video and denying that he was depicted in it. 

During a sidebar, the judge acknowledged that he was "having 
6

some difficulty with . . . the witness's competency to answer 

these questions."5 Unsurprisingly, the defendant's argument 

rests chiefly on the assertion that the witness's inconsistent 

testimony should require a finding that he was incompetent to 

testify because he was unable to remember the events in 

question. We disagree, however, because "inconsistency is 

usually not a question of competency but rather a question of 

credibility, a matter left to the trier of fact except in very 

rare cases." Commonwealth v. Lamontagne, 42 Mass. App. Ct. 213, 

218 (1997), quoting Commonwealth v. Gamache, 35 Mass. App. Ct. 

805, 809 (1994). Understanding that "[t]he bar for competency 

. . . is not a high one," Commonwealth v. Tang, 66 Mass. App. 

Ct. 53, 63 (2006), and that "a judge may accept as competent for 

testimony a witness whose reliability is, in [his] judgment, at 

most, marginally sufficient," id., quoting Demoulas v. Demoulas, 

428 Mass. 555, 564 (1998), we discern no ground on which to 

disturb the judge's ruling.

2. Sufficiency of the evidence. At the close of the 

Commonwealth's evidence and again at the close of all the 

5 In response to this statement, the prosecutor stated that 

she had met with the witness the day prior and he had been able 

to clearly recite what had happened, and suggested that he was 

distracted by the defendant's sobbing. The judge found that the 

witness was "nervous and upset about being [present in court] 

and[] having some difficulty, as anybody might."
7

evidence, the defendant moved for a required finding of not 

guilty. The judge denied each motion. The defendant appeals 

those rulings, arguing that the evidence could only support the 

conclusion that she acted in self-defense because she reasonably 

and actually believed that she was in immediate danger of death 

or serious bodily harm when the victim banged her head against a 

wall and continued to pursue her as she tried to escape him. We 

are not persuaded.

"In determining the validity of a claim challenging the 

sufficiency of the Commonwealth's evidence at trial, we review 

the evidence in the light most favorable to the Commonwealth to 

determine whether 'any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.'" 

Commonwealth v. Powell, 459 Mass. 572, 578-579 (2011), quoting 

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The 

inferences that support a conviction 'need only be reasonable 

and possible; [they] need not be necessary or inescapable.'" 

Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016), 

quoting Commonwealth v. Woods, 466 Mass. 707, 713 (2014). The 

question is whether the evidence would permit a jury to find the 

defendant guilty, not whether it requires it. See Commonwealth

v. Guy, 441 Mass. 96, 101 (2004), quoting Commonwealth v. 

Fisher, 433 Mass. 340, 342-343 (2001).
8

As the Supreme Judicial Court has explained:

"In a deadly force self-defense case, the Commonwealth may 

establish the absence of proper use of self-defense by 

proving beyond a reasonable doubt at least one of the 

following propositions: (1) the defendant did not actually 

believe that [she] was in immediate danger of death or 

serious bodily harm from which [she] could save [herself] 

only by using deadly force; (2) a reasonable person in the 

defendant's position would not reasonably have believed 

that [she] was in immediate danger of death or serious 

bodily harm from which [she] could save [herself] only by 

using deadly force; (3) the defendant did not use or 

attempt to use all proper and reasonable means in the 

circumstances to avoid physical combat before resorting to 

the use of deadly force; or (4) the defendant used more 

force than was reasonably necessary in all the 

circumstances."

Commonwealth v. Grassie, 476 Mass. 202, 210 (2017).

We conclude that the evidence presented at trial was 

sufficient to permit the jury to find that the defendant did not 

act in self-defense. Most significantly, the Commonwealth 

presented the jury with a surveillance video that clearly 

depicted the conflict, as well as the moments leading up to it.6 

Viewed in the light most favorable to the Commonwealth, that 

video, which did not include sound, showed the defendant and the 

victim engaged in what appeared to be a heated exchange on a 

public sidewalk. As the conversation became more animated, the 

defendant repeatedly stepped toward the victim and the two 

6 The Commonwealth also presented testimony from eight 

witnesses, including four law enforcement officers, a forensic 

video analyst, a medical examiner, the victim's sister, and, as 

discussed supra, Bullock.
9

gesticulated at one another. Eventually the defendant initiated 

the violence by pushing the victim into the street. Once the 

victim recovered, he threw a beverage container at the 

defendant, which she evaded. The victim began assaulting the 

defendant, slamming her head into a wall repeatedly, and a knife 

fell from the defendant's clothing onto the ground. As it did 

so, Bullock attempted to intervene by grabbing the victim and 

punching him. While the victim was occupied with Bullock, the 

defendant fell to the ground, maintained her grip on the 

victim's shirt, picked up the knife, and stabbed him in the 

chest. After doing so, she picked up some money that had fallen 

on the ground, and calmly retrieved her glasses from a ledge 

while Bullock continued to scuffle with the victim.

Moreover, the Commonwealth presented the recording of a 

police interview with the defendant that occurred early in the 

morning following the incident. In that interview, she 

described how, prior to the fight, the victim had called her 

derogatory names, causing a bystander to laugh at her. She 

further told detectives that she felt disrespected and told the 

victim and bystander "you guys need to stop disrespecting me." 

As a result of this treatment, the defendant "got mad" and would 

not back down because she was "tired of people walking all over 
10

[her]." This recording properly spoke to the defendant's state 

of mind at the time of the stabbing.

We are unpersuaded by the defendant's argument that the 

evidence was insufficient to disprove her claim of self-defense. 

Most importantly, considering the evidence in the light most 

favorable to the Commonwealth, the jury was entitled to 

determine that the defendant continued to grab onto the victim 

after he let her go and stabbed him while he was occupied with 

Bullock. They were further entitled to determine that she did 

so rather than fleeing, which they could have reasonably 

concluded she had ample time to do. See Commonwealth v. LeonerAguirre, 94 Mass. App. Ct. 581, 583-584 (2018). Additionally, 

they could have reasonably concluded that she stabbed the victim 

rather than fleeing because she was upset by the victim's 

disrespectful treatment of her and had decided to stand up for 

herself instead of backing down. Accordingly, we cannot say 

that the Commonwealth failed to provide sufficient evidence to 

permit a fact finder to conclude that the defendant did not act 

in accord with our self-defense jurisprudence. See Grassie, 476 

Mass. at 210-211.

The defendant largely supports her argument to the contrary 

by reciting the facts depicted in the video in a light more 

favorable to her -- emphasizing that the victim slammed the 
11

defendant’s head against a wall and attempted to pursue her 

after she stabbed him -- and contends that those facts show she 

was in fear for her life at the time of the stabbing. This 

argument, however, relies on a view of the evidence that is at 

odds with our standard of review. See Powell, 459 Mass. at 578-

579. See also Commonwealth v. Martino, 412 Mass. 267, 272

(1992) ("To the extent that conflicting inferences are possible 

from the evidence, it is for the jury to determine where the 

truth lies" [quotation omitted]). The judge did not err in 

denying the defendant's motions for a required finding of not 

guilty.

Judgment affirmed.

By the Court (Green, C.J., 

Desmond & Hershfang, JJ.7),

Clerk

Entered: August 9, 2024.

7 The panelists are listed in order of seniority.