Commonwealth v. Cody R. Urban.

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

24-P-403

COMMONWEALTH

vs.

CODY R. URBAN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After trial on an indictment charging murder in the first

degree, a Superior Court jury found the defendant, Cody R.

Urban, guilty of the lesser included offense of voluntary

manslaughter. On appeal, he claims that the evidence was

insufficient to prove his identity as the assailant and that the

Commonwealth failed to prove that he did not act in self-

defense. He further claims that the Commonwealth improperly

called a witness solely for the purpose of introducing

inadmissible hearsay and that the prosecutor made improper

remarks during his opening statement and closing argument. We

affirm.
Background. Viewing the evidence in the light most

favorable to the Commonwealth, see Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), the jury could have found the

following facts. On the evening of August 23, 2020, the victim,

Samuel Rutledge, drove himself and his girlfriend to a gas

station convenience store. As he drove towards the entrance,

the defendant -- described by the victim's girlfriend as a tall

white male with short strawberry-blond hair and blue eyes,

wearing a blue medical mask and a black hooded Nike

sweatshirt -- blocked his path. The victim gestured to the

defendant to move, and when the defendant refused, the victim

lowered the window of his car and the two men argued. The

defendant approached the driver's door, at which point the

victim "hopped out" of his car and hit the defendant in the face

with his fist. The two men briefly grappled with each other.

While they were locked together, the defendant stabbed the

victim multiple times. After the two men disengaged, the victim

ran back to the car and said to his girlfriend, "[B]ring me to

the hospital. I just got stabbed."

On the way to the hospital, the victim was in visible pain,

holding his chest, and "gagging for air." By the time he

arrived at the hospital and was taken to the operating room his

heart had stopped and a surgeon pronounced him dead. The victim

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had been stabbed four times, three times in the chest and

abdomen, and once on the left forearm. One of the stab wounds

penetrated five and one-half centimeters into the victim's chest

and created a hole in his heart. Another stab wound perforated

the victim's stomach and entered his aorta. Either of these

wounds alone would have been fatal.

Video surveillance cameras at the gas station and a

building across the street recorded the initial encounter, the

two men wrestling, the stabbing, and the person who stabbed the

victim immediately getting into a car and driving away. The

video surveillance footage was admitted as evidence at trial,

but the defendant could not be identified from the footage.

Instead, as discussed below, the Commonwealth introduced a web

of circumstantial evidence to prove the defendant's identity.

Discussion. 1. Evidence of the defendant's identity. The

defendant argues that the evidence was insufficient to prove

beyond a reasonable doubt that he stabbed the victim because it

was entirely circumstantial and "did not really tie the knot on

any of the points it bore on."

"In reviewing claims of insufficient evidence, we view the

evidence presented at trial, together with reasonable inferences

therefrom, in the light most favorable to the Commonwealth to

determine whether any rational jury could have found the

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defendant guilty of the offense beyond a reasonable doubt."

Commonwealth v. Martinez, 487 Mass. 265, 275 (2021). See

Latimore, 378 Mass. at 676-677. Circumstantial evidence may be

sufficient to prove guilt beyond a reasonable doubt, and the

inferences drawn from such evidence "need only be reasonable and

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

Commonwealth v. Grandison, 433 Mass. 135, 141 (2001), quoting

Commonwealth v. Lodge, 431 Mass. 461, 465 (2000).

"Proof of the identity of the person who committed the

offense may be established in a number of ways and '[i]t is not

necessary that any one witness should distinctly swear that the

defendant was the [person], if the result of all the testimony,

on comparison of all its details and particulars, should

identify [the person] as the offender.'" Commonwealth v.

Beaulieu, 90 Mass. App. Ct. 773, 780-781 (2016), quoting

Commonwealth v. Blackmer, 77 Mass. App. Ct. 474, 483 (2010).

See Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 443 (2007)

("our law . . . does not unalterably require percipient

eyewitness testimony to the crime charged"). Here, the

Commonwealth presented the testimony of several witnesses and

forensic evidence establishing that the unidentified man in the

surveillance footage was the defendant.

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The victim's girlfriend provided a description of the man

who blocked the victim's car that matched that of the defendant.

A Federal Bureau of Investigation agent testified that cell site

location information confirmed that the defendant's cell phone

was in the area of the gas station on the night of the incident.

See Commonwealth v. Davis, 487 Mass. 448, 462-464 (2021)

(combination of global positioning system data, video

surveillance footage, and witness's description was sufficient

to prove defendant's identify as shooter). The defendant's

deoxyribonucleic acid (DNA) was found on two plastic cups

recovered at the gas station, and surveillance footage showed

the person who stabbed the victim drinking from a similar

looking cup as the victim's car was pulling into the gas

station.

Surveillance footage also showed a man resembling the

defendant parking a white Toyota Corolla at the gas station on

the night in question and getting out of the car wearing a black

sweatshirt. The police traced the car to a rental agency, and

an agency employee testified that the defendant had rented the

car two months prior.1 The surveillance footage captured the

person who stabbed the victim fleeing the scene in the same car.

1 Police had obtained the license plate from surveillance
footage taken the day before, of the same gas station, during
daylight hours.

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A nip bottle of alcohol with the defendant's DNA on it was

recovered from the car after it was found abandoned several days

later. Even if the evidence did not require the jury to draw

the inference that the defendant was the man in the surveillance

video footage, the jury could reasonably draw that inference.

See Commonwealth v. Shiner, 101 Mass. App. Ct. 206, 212 (2022)

("To the extent that conflicting inferences are possible from

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

lies" [quotation and citation omitted]).

In addition, the Commonwealth introduced substantial

evidence of the defendant's consciousness of guilt. First, the

defendant abandoned his car and his phone after the stabbing.

See Commonwealth v. Robertson, 489 Mass. 226, 230 (2022) (asking

girlfriend to cancel cell phone number day after shooting

demonstrated consciousness of guilt); Commonwealth v. Morris,

465 Mass. 733, 738-739 (2013) (consciousness of guilt could be

inferred from defendant's immediately getting into vehicle and

leaving crime scene). Then, instead of returning home, the

defendant fled to New Hampshire where he stayed with a friend

until he was arrested by police four days later. See

Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) ("Flight is

perhaps the classic evidence of consciousness of guilt").

"Although these discrete pieces of evidence, standing alone,

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might not be sufficient to sustain a conviction, together they

form a 'mosaic' of evidence such that the jury could conclude,

beyond a reasonable doubt, that the defendant was the

[assailant]" (citation omitted). Commonwealth v. Jones, 477

Mass. 307, 317 (2017).

2. Self-defense. Because the defendant claimed that the

use of deadly force in this case was in self-defense, the

Commonwealth was required to prove at least one of the following

propositions beyond a reasonable doubt to prove "the absence of

proper use of self-defense":

"(1) the defendant did not actually believe that he was in
immediate danger of death or serious bodily harm from which
he could save himself only by using deadly force; (2) a
reasonable person in the defendant's position would not
reasonably have believed that he was in immediate danger of
death or serious bodily harm from which he could save
himself 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), S.C., 482

Mass. 1017 (2019).2 The defendant claims that the Commonwealth

failed to prove any of the above. We disagree. Viewed in the

2 If the Commonwealth proves only the fourth proposition,
the defendant may not be convicted of murder but is guilty of
voluntary manslaughter. See Grassie, 476 Mass. at 210.

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light most favorable to the Commonwealth, the evidence satisfied

at least the second and fourth propositions.

The Commonwealth presented sufficient evidence from which

the jury could find that a reasonable person in the defendant's

shoes would not have believed he was in immediate danger of

death or serious bodily injury. The victim struck the defendant

with his bare hands, and there was no evidence that the victim

had a weapon at his disposal. The defendant argues that,

because the surveillance videotape has no audiotape, the victim

might have said something that would have given the defendant

reason to fear imminent bodily harm or death. Viewing the

evidence in the light most favorable to the Commonwealth,

however, we need not fill the vacuum with evidence favorable to

the defendant. Cf. Hartfield v. Commonwealth, 443 Mass. 1022,

1022 (2005) ("The flaw in [the defendant's] argument is that the

jury were not required to credit the evidence supporting [his]

contention that [he] acted on provocation or in self-defense").

There was also ample evidence that the defendant used

excessive force in his response to the victim's attack. As in

Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 555 (2006), where

this court held that the defendant was not even entitled to an

instruction on self-defense, the victim attacked the defendant

only with his fists, and not with "a degree of force likely to

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cause serious injury or bodily harm." Moreover, when the

defendant was apprehended, he had no visible injuries. See id.

The defendant, however, retaliated by stabbing the victim four

times with a knife, with a degree of force sufficient to cause

two fatal wounds. A rational jury could have found that this

degree of force was not reasonably necessary for the defendant

to repel the victim's attack. The defendant is not entitled to

an acquittal on the ground that the Commonwealth failed to carry

its burden of disproving the proper exercise of self-defense.

3. Impeachment of witness with prior inconsistent

statements. The defendant argues that it was error for the

Commonwealth to introduce, through Detective Michael Bunker,

prior inconsistent statements of the defendant's friend, Brian

Elliot. Specifically, after Elliot denied telling officers that

the defendant had told him "that [the defendant] needed to lay

low and it's nothing crazy," Bunker testified that Elliot had in

fact told Bunker that the defendant "said that he was to lay

low." Relying on a single case, Commonwealth v. Benoit, 32

Mass. App. Ct. 111 (1992), the defendant claims that there was

no purpose for Elliot's testimony other than to lay a foundation

for the admission of his prior inconsistent statements.

Parties are permitted to impeach their own witnesses with

their prior inconsistent statements. See Commonwealth v. Scott,

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408 Mass. 811, 823-824 & n.14 (1990); Commonwealth v. Pires, 97

Mass. App. Ct. 480, 484 (2020). See also G. L. c. 233, § 23;

Mass. G. Evid. § 607, 613(a)(1) (2025). "[H]owever, . . . a

party cannot rely on this statutory right to call a witness whom

he knows beforehand will offer no testimony relevant to an issue

at trial solely for the purpose of impeaching that witness with

prior inconsistent statements that would otherwise be

inadmissible." Commonwealth v. McAfee, 430 Mass. 483, 489-490

(1999), citing Benoit, 32 Mass. App. Ct. at 114-115. This is

not such a case.

Elliot's testimony provided significant, relevant evidence

apart from his prior inconsistent statements. See Cramer v.

Commonwealth, 419 Mass. 106, 111 n.3 (1994). Elliot testified

that the defendant arrived at Elliot's apartment in New

Hampshire, unannounced, the day after the stabbing and stayed

for three nights. Elliot was present when the police arrested

the defendant for the homicide and searched Elliot's apartment

for evidence, resulting in the seizure of the defendant's newly

acquired cell phone and tablet device. This is not a case where

the witness's testimony "added nothing of value." Pires, 97

Mass. App. Ct. at 485.3

3 Because we discern no error, we need not decide whether
the defendant's objections to Bunker's testimony adequately
preserved this issue. We do note that the judge gave repeated,

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4. Closing argument. For the first time on appeal, the

defendant challenges several of the prosecutor's remarks in

closing argument.4 We review these claims to determine whether

any error created a substantial risk of a miscarriage of

justice. See Commonwealth v. Sanchez, 405 Mass. 369, 375

(1989).

The defendant's only argument supported by legal authority

is that the prosecutor improperly commented on the defendant's

right not to testify by stating that there was "nothing to

contradict" the victim's girlfriend's testimony that the victim

did not have a weapon. Examined in the context of the entire

argument, see Commonwealth v. Drummond, 76 Mass. App. Ct. 625,

630-631 (2010), the prosecutor's statement was a permissible

comment on the state of the evidence. See Commonwealth v.

Buzzell, 53 Mass. App. Ct. 362, 367 (2001) (prosecutor is

allowed to emphasize strength and weaknesses of defendant's

forceful, specific instructions that the jury were not to
consider Bunker's testimony about Elliot's prior statements for
the truth of those statements, but solely for the purpose of
assessing Elliot's credibility. The judge repeated this
instruction, in more general terms, in the final charge to the
jury.

4 In his principal brief, the defendant also made a claim
about the prosecutor's opening statement. The prosecutor's
statement underlying that claim, however, does not appear in the
corrected transcript, which was submitted after the defendant
filed his brief. We need not address the issue further.

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case, even if doing so may "prompt some collateral or passing

reflection on the fact that the defendant declined to testify"

[citation omitted]). See also Commonwealth v. Feroli, 407 Mass.

405, 408-409 (1990).

We briefly address the defendant's remaining contentions.

The record does simply not support the defendant's claim that

the prosecutor made substantive use of Elliot's prior

inconsistent statements. The prosecutor's arguments about the

defendant's lack of injury were permissible and relevant to the

defendant's claim of self-defense.

Judgment affirmed.

By the Court (Massing,
Englander & D'Angelo, JJ.5),

Clerk

Entered: July 15, 2025.

5 The panelists are listed in order of seniority.

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