Commonwealth v. Lopes ( 2018 )

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SJC-11587
COMMONWEALTH vs. CRISOSTOMO LOPES.
Suffolk. September 8, 2017. - January 10, 2018.
Present: Gants, C.J., Lenk, Budd, & Kafker, JJ.
Homicide. Jury and Jurors. Evidence, Relevancy and
materiality, Prior misconduct, Cross-examination.
Practice, Criminal, Capital case, Challenge to jurors,
Argument by prosecutor.
Indictment found and returned in the Superior Court
Department on July 1, 2010.
The case was heard by Patrick F. Brady, J.
Alan Jay Black for the defendant.
Janis DiLoreto Smith, Assistant District Attorney (Patrick
M. Haggan, Assistant District Attorney, also present) for the
Commonwealth.
KAFKER, J. The defendant, Crisostomo Lopes, pulled the
fourteen year old victim off a motorized scooter and held him,
while the codefendant, a juvenile, shot him multiple times at
close range. The victim succumbed to a gunshot wound to his
chest shortly thereafter. After a jury trial, both the
2
defendant and his codefendant were convicted of murder in the
first degree on the theories of deliberate premeditation and
extreme atrocity or cruelty.1
In his appeal, the defendant claims that reversal of his
conviction is required because the judge erred by: (1) failing
to find that the Commonwealth's peremptory challenges of
prospective jurors were improper; (2) allowing evidence of the
defendant's gang affiliation and the victim's brother's
knowledge of neighborhood gang activity; (3) precluding the
defendant from cross-examining a police officer witness on prior
misconduct; and (4) allowing the prosecutor to make improper and
prejudicial statements during the Commonwealth's closing
argument. For the reasons stated below, we conclude that there
has been no reversible error, and after a thorough review of the
record, we decline to exercise our authority under G. L. c. 278,
§ 33E, to reduce or set aside the verdict of murder in the first
degree. Therefore, we affirm the defendant's conviction.
Background. We summarize the facts that the jury could
have found, reserving certain details for discussion of the
legal issues.
The victim was fourteen years old and lived on Norton
Street in the Dorchester section of Boston. On May 30, 2010,
1
At the time of oral argument, the codefendant had not yet
filed his brief with this court.
3
the victim had been riding a scooter around Dorchester that was
being driven by his fifteen year old brother. Each was wearing
a helmet, but different styles. They were riding the scooter on
Inwood Street, approaching Olney Street, when the brother almost
hit the defendant, who was on a bicycle. The brother stopped
the scooter and lifted his helmet.2 No words were exchanged, and
the defendant continued moving.
Sometime after the encounter, the victim asked his brother
if he could ride the scooter by himself. The brother agreed,
and the victim put on his brother's helmet because it was the
better of the two. The brother saw the victim drive away from
their home heading toward Ridgefield Street.
Boston police Officer Anthony Williams, a member of the
local youth violence strike force, had left work at
approximately 7:45 P.M. and was driving home. As Officer
Williams drove toward the intersection of Bowdoin Street and
Norton Street, he observed the defendant and his codefendant.
They appeared to be "on a mission," proceeding hurriedly and
rapidly. Officer Williams turned his automobile around to
further observe them as they approached Bowdoin Street. He
pulled his automobile to the side of the road within close
2
The victim's brother testified that it was a neighborhood
rule to lift up one's helmet to prevent being mistaken for
someone else.
4
proximity to the defendant and his codefendant. From his
vantage point, Officer Williams testified that he had a clear
view of the individuals through his rear passenger and driver's
side windows.
At this time, the defendant was riding a bicycle and his
codefendant was, at one point, on the back. After they
dismounted the bicycle, Officer Williams observed that the
codefendant kept his hand stiffly inside his right pocket. Both
defendants were looking out toward Olney Street in a crouched
position.
As the victim drove the scooter down Olney Street toward
Bowdoin Street, Officer Williams observed the defendant dart out
into the street, grab the victim's shoulder, and motion to his
codefendant. As the defendant held the victim, his codefendant
removed a gun from his pocket, ran out into the street, and from
approximately one foot away fired shots into the victim's chest.
The codefendant fled on foot and the defendant picked up his
bicycle and rode away.3
Officer Williams got back in his vehicle and notified
Boston police operations. Officer Williams then continued his
pursuit of the codefendant and observed that he kept his hand in
3
Another eyewitness also observed the shooting and the
arrest of the two defendants. The eyewitness testified that the
two males he saw arrested were the same two individuals involved
in the shooting.
5
his right pocket throughout the pursuit. While the chase was
ongoing, two other officers arrived, including Officer Joseph
Singletary, who saw the codefendant reach into his pocket and
pull out a gun with his right hand. As the codefendant crossed
Stonehurst Street, he bent down near a Toyota Camry automobile
and a pickup truck. After the codefendant bent down, his hand
was no longer in his pocket.
As the officers were securing the codefendant, Officer
Williams saw the defendant, who had returned to the scene. He
drew his firearm and ordered the defendant to get onto the
ground. The defendant said, "What are you going to do, shoot
me? . . . You can catch one, too." As the defendant was placed
into custody, Officer Williams heard him yell, "Homes Ave.,
motherfuckers." An officer who was another member of the youth
violence strike force and who had responded to the scene
testified that as he placed the defendant into a transport
vehicle, the defendant also twice screamed, "That's right,
bitches, Homes Ave. on the block."
Officer Singletary recovered a firearm underneath the tire
of the Toyota Camry where he had seen the codedendant bend down.
That firearm, an Armi Tanfoglio .25 caliber semiautomatic
pistol, was found to match all of the ballistic evidence
recovered from the scene and from the victim's body. Swabs
later taken from the codefendant's hands and the defendant's
6
shirt revealed the presence of gunshot residue.
The defendant and his codefendant were brought to the
police station for booking following their arrest. The booking
officer was a Cape Verdean Creole speaker. He placed the
defendant in a cell close to him, and the codefendant in the
cell that was further away. On at least three occasions, the
booking officer heard the defendant yell to his codefendant in
Cape Verdean Creole, "Take the fault" and "Can you hear me?"
An autopsy revealed that the victim suffered a gunshot
wound to his chest, near his left armpit, and another to his
right thigh. The bullet to the victim's chest pierced through
his heart and both lungs, ultimately causing his death minutes
later.
Discussion. 1. Peremptory challenges of prospective
jurors. The defendant contends that the trial judge abused his
discretion by failing to determine that the Commonwealth's
peremptory challenges were improper. See Commonwealth v. Jones,
477 Mass. 307, 322 (2017). Although the defendant's particular
objections to the jury selection process are not always clear,
we understand him to assert that the Commonwealth improperly
used race to challenge jurors and that the judge erred in not
asking for an explanation earlier in the process and then
accepting the Commonwealth's explanations as adequate and
genuine when given. We conclude that there was no error. As
7
explained below, the Commonwealth's challenges were consistently
based on potential jurors' youth, which was not improper. The
judge did not therefore abuse his discretion in not requiring
explanations for certain earlier peremptory challenges. Nor did
the judge abuse his discretion in determining that the
prosecutor's race-neutral explanation -- based on a juror's
youth and volunteer service for a youth organization -- was both
adequate and genuine.
The Fourteenth Amendment to the United States Constitution
and art. 12 of the Massachusetts Declaration of Rights prohibit
a party from exercising peremptory challenges on the basis of
race or gender. See J.E.B. v. Alabama, 511 U.S. 127, 128-129
(1994); Batson v. Kentucky, 476 U.S. 79, 95 (1986); Commonwealth
v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (1979)
(referencing prohibitions against challenges based on sex, race,
color, creed, or national origin). Peremptory challenges have
not, however, been prohibited based on age, under either the
United States or Massachusetts Constitution. Commonwealth v.
Oberle, 476 Mass. 539, 545 (2017).
Accordingly, we have held that young adults are not
considered a discrete protected group for the purposes of
Batson-Soares peremptory challenges and may be excluded.
Oberle, 476 Mass. at 545 ("age is not a discrete grouping
defined in the constitution, and therefore a peremptory
8
challenge [of young women] may permissibly be based on age");
Commonwealth v. Samuel, 398 Mass. 93, 95 (1986) ("There is no
constitutional basis for challenging the exclusion of young
persons"); Commonwealth v. Bastarache, 382 Mass. 86, 90, 100
(1980) (in case involving the claimed underrepresentation of
jurors between the ages of eighteen and thirty-four,
"classifications based on age alone do not involve identifiable
or distinctive groups"). Although the United States Supreme
Court has not yet opined on the question, every United States
Court of Appeals that has considered the issue has rejected the
argument that young adults are a protected group for peremptory
challenges. See United States v. Cresta, 825 F.2d 538, 544-545
(1st Cir. 1987) (prosecutor's systematic challenge of potential
jurors aged eighteen to thirty-four did not violate equal
protection); United States v. Bryce, 208 F.3d 346, 350 n.3 (2d
Cir. 2000) (peremptory strike based on youth of juror, where
other young jurors were also struck, was permissible race-
neutral justification); United States v. Clemons, 843 F.2d 741,
748-749 (3d Cir.), cert. denied, 488 U.S. 835 (1988) (Batson did
not "handcuff a prosecutor's legitimate exercise of peremptory
strikes," which included striking "young . . . panel members");
Howard v. Moore, 131 F.3d 399, 408 (4th Cir. 1997), cert.
denied, 525 U.S. 843 (1998) (challenge of young juror proper
where "age is an acceptable race-neutral factor" [citation
9
omitted]); United States v. Clemons, 941 F.2d 321, 325 (5th Cir.
1991) (age was legitimate race-neutral reason for peremptorily
striking juror similar in age to twenty-two year old defendant);
United States v. Maxwell, 160 F.3d 1071, 1075–1076 (6th Cir.
1998) (declining to recognize young adults or college students
as distinctive groups for Batson purposes); United States v.
Jackson, 983 F.2d 757, 762 (7th Cir. 1993) (in excluding "young
adults" from jury, "no court has found a Fourteenth Amendment
equal protection violation based on the exclusion of a certain
age group from the jury"); United States v. Feemster, 98 F.3d
1089, 1092 (8th Cir. 1996) ("relative youth" qualified as
"potential race-neutral factor justifying the exercise of
'peremptory' challenges"); United States v. Pichay, 986 F.2d
1259, 1260 (9th Cir. 1993) (per curiam) ("young adults do not
constitute a cognizable group for purposes of an equal
protection challenge to the composition of a petit jury");
United States v. Helmstetter, 479 F.3d 750, 754 (10th Cir. 2007)
(youth acceptable race-neutral justification for exercising
peremptory strike); Willis v. Kemp, 838 F.2d 1510, 1518 (11th
Cir. 1988), cert. denied sub nom. Willis v. Zant, 489 U.S. 1059
(1989) ("petitioner failed to establish that young adults aged
eighteen to twenty-nine constituted a cognizable group"); United
States v. Greene, 489 F.2d 1145, 1149 (D.C. Cir. 1973), cert.
denied, 419 U.S. 977 (1974) ("'young persons' is not a
10
cognizable class").
As a general matter, "[w]e presume that peremptory
challenges are properly made, but this presumption can be
rebutted by a prima facie showing of either a pattern of
challenges of members of the same discrete group, . . . or, in
certain circumstances, challenge of a single prospective juror
within a protected class, . . . where there is a likelihood that
[a prospective juror is] being excluded from the jury solely on
the basis of . . . group membership" (quotations and citations
omitted). Commonwealth v. Issa, 466 Mass. 1, 8 (2013). A trial
judge is strongly encouraged to ask for an explanation as
questions are raised regarding the appropriateness of the
challenges. See id. at 11 n.14. A judge has the broad
discretion to do so "without having to make the determination
that a pattern of improper exclusion exists." Id., quoting
Commonwealth v. Scott, 463 Mass. 561, 571 (2012).
In determining whether a pattern exists, a judge is to
consider all of the relevant facts and circumstances. Jones,
477 Mass. at 322. Such factors to consider in determining a
pattern's existence may include (1) "the number and percentage
of group members who have been excluded"; (2) "the possibility
of an objective group-neutral explanation for the strike"; (3)
"any similarities between excluded jurors and those, not members
of the allegedly targeted group, who have been struck"; (4)
11
"differences among the various members of the allegedly targeted
group who were struck"; (5) "whether those excluded are members
of the same protected group as the defendant or the victim"; and
(6) "the composition of the jurors already seated." Id. See
Sanchez v. Roden, 753 F.3d 279, 302 (1st Cir. 2014).
"Once . . . a pattern is found, the burden shifts to the
party exercising the challenge to provide a 'group-neutral'
explanation for it." Oberle, 476 Mass. at 545, quoting
Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003). "The
judge must then determine whether the explanation is both
'adequate' and 'genuine.'" Oberle, supra, quoting Maldonado,
supra at 464. We review the judge's decisions on the peremptory
challenges for abuse of discretion. Jones, 477 Mass. at 320.
a. Jury empanelment generally. On appeal, the defendant
argues that jurors nos. 73, 104, 127, and 129 were improperly
struck by the Commonwealth. To provide context for addressing
this claim, we begin by summarizing the jury selection process,
including the defendant's objections to challenges to other
jurors. Overall, it was clear that the Commonwealth was
exercising its challenges on younger, college-aged jurors. The
Commonwealth used twenty-six of its thirty-two peremptory
challenges on jurors under the age of thirty years. The judge
noted the defendant's (and his codefendant's) age-based
objections but ruled that age and status as a college student
12
were not protected classes.
The defendant first raised a race-based Soares challenge
when he objected to the Commonwealth's third peremptory strike,
targeting an eighteen year old female Asian student.4 The judge
found no pattern and did not require an explanation. He also
pointed out that one of the three excluded was a white male.
All three of the Commonwealth's peremptory challenges at that
point had been exercised on jurors under the age of thirty.
Additionally, the Commonwealth had not objected to the first
juror seated, a black female.
Next, the defendant objected to the Commonwealth's eighth
peremptory strike, a challenge of a twenty-one year old female
Hispanic student. Again, the judge found no Soares pattern and
did not require a race-neutral reason for the challenge from the
prosecutor.5 At the time of the defendant's challenge, the
4
A document showing the race, gender, and age of each
challenged juror was admitted at trial for identification
purposes.
5
Defense counsel again contended that the Commonwealth was
striking minority jurors. The judge raised a question whether
such a general objection, "lumping" together different
minorities, was appropriate or whether the objection needed to
be targeted to a particular group. The Commonwealth stated its
opinion that challenges needed to be specific to a particular
protected group, but also contested the factual underpinnings of
the objection. The Commonwealth stated:
"[T]he Commonwealth skip[ped] a female African-American
juror, finding her indifferent and being content. Then you
13
Commonwealth had exercised seven of eight peremptory strikes on
jurors under the age of thirty.
b. Jurors nos. 73, 127, and 129. The defendant asserted
his next race-based Soares challenge to the Commonwealth's
nineteenth peremptory strike, juror no. 73, who was a twenty
year old black male college student. Defense counsel described
juror no. 73 as the first young black male found impartial. The
judge declined to find a Soares pattern. The judge indicated
that this was another young juror but saw no pattern as to race
and required no explanation from the Commonwealth.6 Including
juror no. 73, at that point, the Commonwealth had used fifteen
of its nineteen peremptory strikes on jurors under the age of
have a strike of one black female, one white male, one
Asian female, one white female, one Asian female, two more
white females and a Hispanic female. I don't see how that
is, you know, with all due respect, anywhere near a
pattern."
We note that "[t]he test in Soares and Batson does not apply to
challenges to members of all minority ethnic or racial groups
lumped together, but instead applies to challenges to
'particular, defined groupings in the community.'" Commonwealth
v. Prunty, 462 Mass. 295, 307 n.17 (2012), quoting Commonwealth
v. Soares, 377 Mass. 461, 486 (1979). See Gray v. Brady, 592
F.3d 296, 305-306 (1st Cir.), cert. denied, 561 U.S. 1015 (2010)
("minorities," African-American, and Hispanic jurors are not
part of same "cognizable group" for Batson purposes).
6
As explained above, it would have been well within the
judge's discretion to require an explanation, even without
finding a pattern. Such questioning could have facilitated our
task on appeal, but the judge was not required to do so given
the obvious and consistent pattern of the prosecutor challenging
young people.
14
thirty. There was no discernable pattern as to race. The
Commonwealth exercised challenges on young jurors irrespective
of their race. Of the fifteen jurors under thirty years old
struck, ten were white, two were black, two were Hispanic, and
one was Asian. We discern no error on the judge's part. The
issue on appeal is not whether the judge was permitted to find
that the presumption of properly-made peremptory challenges had
been rebutted, but whether the judge was required to have so
found. Issa, 466 Mass. at 10. He was not so required for juror
no. 73.
The race-neutral explanations for the Commonwealth's
subsequent challenges of jurors nos. 127 and 129 are also
evident from the record. Juror no. 127, the second black male
challenged, who was over thirty years old, disclosed that his
cousin had been prosecuted by the Suffolk district attorney's
office and had been convicted of murder. The defendant did not
object to the Commonwealth's challenge to juror no. 127.
Juror no. 129, the third black male challenged, also was
over thirty years old and disclosed that his brother had been
prosecuted by the Suffolk district attorney's office and, at the
time, was incarcerated for the conviction. Further, juror no.
129 stated that, two years prior, he had been arrested in
another State and had received a probation sentence for
possession of cocaine. The defendant did not object. The judge
15
did not err in determining that there was no pattern and in
requiring no race-neutral reason; juror no. 129's two
significant experiences with the law provided a sufficient and
obvious basis for the prosecutor's peremptory challenge.
c. Juror no. 104. The judge did not find a prima facie
pattern until the third day of empanelment, when the
Commonwealth exercised a challenge to juror no. 104, another
twenty year old black male college student. Defense counsel
claimed that this was the fourth black male out of six jurors in
the venire that had been challenged. At that point, the judge
required the prosecutor to provide an adequate and genuine race-
neutral reason for the decision to strike.
The prosecutor provided two explanations. First, the
prospective juror was twenty years old. The Commonwealth
further explained that individuals of that age have
"difficulties in deciding what classes to take, never mind
whether or not somebody is guilty of first-degree murder."
Second, the prosecutor stated that this individual should be
challenged because, as counsel for the codefendant "point[ed]
out, [the juror] works with intercity youth who are
underprivileged." Although recognizing that the potential juror
was engaged in "absolutely honorable" work, the prosecutor was
concerned that the juror would be overly sympathetic to the
16
codefendant's counsel's juvenile brain development argument7 and
consequently "not follow the law but instead . . . follow his
heart." The prosecutor compared the potential juror to a "white
woman psychologist" who was rejected earlier for opining that
"[sixteen] year olds make impulsive decisions." See
Commonwealth v. Jones, 477 Mass. at 322 (one factor to consider
in determining whether prima facie case of discrimination has
been made is "similarities between excluded jurors and those,
not members of the allegedly targeted group, who have been
struck"). This argument was responsive to defense counsel's
motions to suppress and motion in limine, all of which had
argued that juvenile brain development was a mitigating factor.
The judge accepted the two reasons given by the prosecutor as
separately both adequate and genuine and denied the defendant's
request to disallow the Commonwealth's challenge.
We conclude that the judge did not abuse his discretion in
determining that the prosecutor's reasons for challenging juror
no. 104 were adequate and genuine. See Maldonado, 439 Mass. at
464-466. Although the judge deemed it a close call, and we
7
The prosecutor contended that counsel for the codefendant
would be presenting evidence supporting the argument that
"because of [the codefendant's] extreme youth, him being only
[sixteen] years of age, that in some way . . . mitigates his
conduct and that he should be found guilty perhaps of something
less than first degree murder, or perhaps even an outright
acquittal based upon some belief that his mind is not formed
enough."
17
agree that it was a close question given the number and
percentage of qualified black jurors excluded, we discern no
abuse of discretion. See generally, Jones, 477 Mass. at 319-
320. First, the Commonwealth made no secret of the fact that it
was exercising its challenges on younger, college-aged jurors
irrespective of race, and it did so consistently. See id. at
322. Second, the prospective juror's work with youth, given the
defense's expected emphasis on the age of the codefendant as an
exculpatory factor, provided an additional permissible objective
group-neutral explanation. See id. Others, including a juror
who worked with high school students and another who worked with
"juvenile delinquents" outside the targeted group, had been
excluded by the judge on this ground. Third, at the time of the
challenge to juror no. 104, the record reflects that five of the
fourteen jurors already seated were black (three black women and
two black men). See id.
In sum, the judge reasonably could have found that the
common denominator for the Commonwealth's peremptory challenges
was not race, but age. During three days of empanelment, the
judge carefully observed the composition of the jury, the
composition of the jury venire, and the prosecutor's consistent
use of peremptory challenges to exclude young jurors,
particularly college students. The judge determined that there
had not been a prohibited pattern of excluding black jurors from
18
the jury, and we discern no abuse of discretion in any of his
decisions on the defendant's objections to the Commonwealth's
peremptory challenges.
2. Gang evidence. The defendant contends that the judge
erred in admitting evidence concerning his purported affiliation
with the "Homes Ave." gang. The defendant objected to the
admission of this evidence, and we review for prejudicial error.
Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). We conclude
that there was no error. The defendant's own statements at the
scene of the crime placed the meaning and significance of Homes
Avenue at issue. The defendant yelled out: "Homes Ave.,
motherfuckers," and twice screamed, "That's right, bitches,
Homes Ave. on the block". Testimony from a police officer and
the victim's brother provided necessary context and explanation.
The background testimony was provided by Officer Anthony J.
Serra, a member of the youth violence strike force, who was
responsible for monitoring potential gang involvement in
Dorchester from 2008 through 2010, and who occasionally
patrolled Homes Avenue. Serra testified that, in 2008, "[W]e
were at the beginning stages of gathering intelligence . . .
about this group that seemed to be emerging in the Homes Ave.,
Topliff Street area . . .[and] seemed to be identifying
themselves with this street, Homes Ave.," and who were wearing
clothes with an insignia beginning with the letter "H."
19
Relatedly, Serra also testified that, in 2008, he saw the
defendant wearing a Harvard University athletic jacket.8
The victim's brother also was permitted to testify about
his own interactions and firsthand knowledge of a group that had
formed on Norton Street. He testified, based on his knowledge
from the neighborhood, that there was a long-standing and
ongoing dispute between the Norton Street group and two
neighboring groups, Homes Ave. and the Cape Verde Outlaws.
Additionally, the victim's brother testified that, approximately
one year before the murder, in 2009, he had had an altercation
with some individuals whom he had previously seen in the
8
Officer Anthony Serra also testified that he had a
conversation with the defendant on January 16, 2008, while the
defendant was being held for a burglary charge. On a couple of
occasions during the conversation, the defendant referred to
himself as "Homes Ave." and said that his "boys" were also Homes
Ave. The defendant contends that the judge erred in denying his
motion to suppress these statements because he was not issued
his Miranda warnings and was not afforded prompt arraignment as
required by Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996).
The Commonwealth contends that Miranda warnings were not
required and the Rosario requirements were satisfied. As the
2008 statements about his gang membership are clearly
duplicative of other evidence, we need not resolve these issues.
Even if admitted in error, the statements were harmless beyond a
reasonable doubt. See Commonwealth v. Dagraca, 447 Mass. 546,
552-553 (2006). As explained here, the Commonwealth introduced
substantial evidence at trial independent of the January 16,
2008, interview that demonstrated the defendant's gang
affiliation. That evidence included the specific statements
made by the defendant at the scene of the murder, the testimony
that the defendant wore clothing with the "Homes Ave." insignia,
and the background information about gangs in the neighborhood,
including the Homes Ave. gang.
20
Dorchester neighborhood of Fields Corner and on Homes Avenue.
The individuals attempted to rob him but were unsuccessful.
During the altercation, the individuals asked the brother, "Are
you from Norton?," to which he responded, "No, I live on
Norton," to indicate that he was not affiliated with the group
from Norton Street.
Evidence of gang affiliation may be admissible to show
motive. Commonwealth v. Swafford, 441 Mass. 329, 332 (2004).
We have, however, urged caution in admitting gang-related
evidence because of the risk of suggesting that the defendant
may have a propensity for criminality or violence. Commonwealth
v. Akara, 465 Mass. 245, 267 (2013).
In this case, the gang evidence was properly admitted
because it was relevant to the defendant's motive and intent,
particularly in light of the "Homes Ave." statements the
defendant made at the time of his arrest for the killing in
2010. See Swafford, 441 Mass. at 332 (testimony about gang
affiliation allowed to establish defendants' retributive
motive); Commonwealth v. Maldonado, 429 Mass, 502, 504-505
(1999) (allowing evidence of gang affiliation relevant to
defendant's motive and state of mind). Here, the Commonwealth's
theory was that the defendant and his codefendant engaged in a
joint venture and killed the victim because they believed that
the victim was his older brother, an alleged member of a group
21
from Norton Street, who earlier had almost hit the defendant
with his scooter. Thus, the brother's testimony regarding the
ongoing feud between Homes Ave. and the Norton Street group and
Officer Serra's testimony that the defendant had been seen
wearing clothing that bore an "H" (signifying Homes Ave. gang
membership) was relevant in proving the defendant's motive.
The judge took proper steps to minimize any potentially
unfair prejudicial impact of the testimony. Akara, 465 Mass. at
268-269. During voir dire, he asked whether evidence of gang
membership would affect potential jurors' impartiality.9 Id. at
268; Commonwealth v. Correa, 437 Mass. 197, 201 (2002).
Additionally, the judge instructed the jury that evidence of
gang affiliation could not be considered as evidence of the
defendant's character or propensity to commit the crimes
charged.10 Id.
9
The judge asked members of the venire:
"There may be evidence in this case that some of the
people involved were or may have been involved or
affiliated with a gang or gangs. Whether such evidence is
introduced and, of course, if it is, the credibility of
such evidence and the importance of any such evidence is
completely up to the jury to decide. But there may be some
evidence of that subject. Would such evidence interfere
with your ability to fairly and impartially judge this
case?"
10
The judge instructed the jury:
22
We therefore conclude that the judge did not abuse his
discretion in admitting evidence of the defendant's gang
affiliation because the gang evidence admitted was limited and
properly went to the issue of motive. See Swafford, 441 Mass.
at 332. Further, the gang evidence admitted explained the
defendant's statements about "Homes Ave." at the scene of the
crime. Finally, the risk of unfair prejudice did not outweigh
the probative value of this evidence given the judge's limiting
instruction. See id.
3. Cross-examination of police witness. The defendant
contends that the judge erred in not allowing the defense to
cross-examine Officer Williams, one of the prosecution's key
eyewitnesses, about an internal affairs investigation.
"There was evidence in the case that [the defendant]
was affiliated with a gang or a group known as Homes
Avenue. Like all evidence, it's up to you to determine if
it is true, and if it is, how much weight to give it in
your deliberations on the charges in this case. But you
should keep in mind the following. [The defendant] is not
on trial for being a member of the Homes Avenue group or
gang. He is on trial for the murder of [the victim] on May
30, 2010. The evidence concerning his possible affiliation
with the Homes Avenue gang or group may provide you with
background information relevant to a possible motive in the
case, but it would be improper for you to conclude that
[the defendant] committed the crime for which he is charged
. . . merely because he was a member of Homes Avenue. You
may consider the evidence of [the defendant's] possible
gang affiliation as bearing upon the motive for the murder
of [the victim], but you may not consider it for the
purpose of showing [that the defendant] is or was a bad
person or has a propensity for criminality or violence."
23
Specifically, the defendant sought to impeach Williams with
information that the Boston police department had suspended him
five years earlier for, among other things, lying in an internal
affairs investigation on a personal matter. We conclude that
there was no error, as the judge was well within his discretion
to exclude this five-year-old evidence of lying.
"In general, specific instances of misconduct showing the
witness to be untruthful are not admissible for the purpose of
attacking . . . the witness's credibility." Mass. G. Evid.
§ 608(b) (2017). See Commonwealth v. Hightower, 400 Mass. 267,
271 (1987), and cases cited.11 Here, Officer Williams's alleged
conduct from an internal affairs investigation five years before
the murder was not material to the May 30, 2010, homicide
investigation. That investigation did not result in a criminal
conviction or even a criminal charge. It was also not related
to how he conducted police investigations. Thus, it was well
within the judge's discretion to conclude that any probative
weight of such five-year-old evidence was far outweighed by the
risk of distracting the jury with the details of an unrelated
11
We have carved out narrow exceptions, allowing evidence
of prior false accusations of rape to impeach a witness's
credibility in rape and sexual assault cases. See, e.g.,
Commonwealth v. LaVelle, 414 Mass. 146, 151–152 (1993),
discussing Commonwealth v. Bohannon, 376 Mass. 90, 94–96 (1978),
S.C., 385 Mass. 733 (1982).
24
incident.12 Accordingly, we discern no error in the judge's
exclusion of this evidence.
4. Prosecutor's closing argument. Last, the defendant
contends that the prosecutor made improper remarks during the
Commonwealth's closing arguments. Specifically, the defendant
claims that he was prejudiced by the prosecutor's
characterization of the version of events set forth by
codefendant's counsel as an "insult to your intelligence," a
"farce of a defense," and a "distraction."
Prosecutors are "entitled to argue forcefully for the
defendant's conviction" based on the evidence. See Commonwealth
v. Wilson, 427 Mass. 336, 350 (1998). "[E]nthusiastic rhetoric,
strong advocacy, and excusable hyperbole are not grounds for
reversal" (quotations and citation omitted). Id. To determine
whether an improper argument was made, the prosecutor's remarks
are "considered in the context of the whole argument, the
evidence admitted at trial, and the judge's instructions to the
jury" (citation omitted). Commonwealth v. Nelson, 468 Mass. 1,
12
The judge also properly allowed wide-ranging cross-
examination of Officer Williams to demonstrate bias or lying on
his part. LaVelle, 414 Mass. at 153 ("in contrast to prior bad
acts, evidence of bias is almost never a collateral matter").
In this case, the record demonstrates that, at trial, defense
counsel extensively cross-examined Officer Williams on his trial
and grand jury testimonies, contemporary reports, and the
forensic evidence. Further, defense counsel repeatedly asserted
during closing arguments that Officer Williams was lying. The
defendant's confrontation rights were not violated.
25
10 (2014).
In the Commonwealth's closing argument, the prosecutor
critiqued the theory of counsel for the codefendant that there
was a third party who was the actual killer. The prosecutor
urged the jury to disbelieve the notion that, if there was
further investigation, the evidence may have been different.
During closing argument, the prosecutor properly marshaled the
evidence admitted at trial, including statements of witnesses,
surveillance videotape, and forensic evidence. It was in this
context that the prosecutor, over defendant's objection, used
the words "insult," "farce," and "distraction." As a specific
curative instruction, the judge reiterated to the jury that
arguments were not evidence and admonished the jury not to get
"carried away by words like 'insult' or 'distraction' or 'farce'
or anything like that . . . [and to] treat that as rhetoric."
Placed in context, the prosecutor's statements constituted
an overly aggressive response to the argument by the
codefendant's counsel but not grounds for reversal. Even when
understandably provoked, a prosecutor must not "fight fire with
fire." Commonwealth v. Dargon, 457 Mass. 387, 402 (2010). Most
importantly, the judge's curative instruction specifically and
appropriately eliminated any concern of prejudice. Commonwealth
v. Kater, 432 Mass. 404, 424 (2000). Accordingly, we conclude
that there was no reversible error arising from the prosecutor's
26
closing argument.
5. Review under G. L. c. 278, § 33E. We have reviewed the
record in accordance with G. L. c. 278, § 33E, and discern no
basis to set aside or reduce the verdict of murder in the first
degree or to order a new trial. Accordingly, we decline to
exercise our authority.
Judgment affirmed.