Commonwealth v. Lopez ( 2016 )

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SJC-11551
COMMONWEALTH vs. GREGORIO LOPEZ.
Suffolk. March 11, 2016. - July 8, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
Homicide. Evidence, Prior violent conduct, State of mind, Self-
defense. Self-Defense. Defense of Others. Practice,
Criminal, Capital case, State of mind, Argument by
prosecutor.
Indictments found and returned in the Superior Court
Department on May 15, 2009.
The case was tried before Patrick F. Brady, J.
David Keighley for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney (David
Fredette, Assistant District Attorney, with her) for the
Commonwealth.
SPINA, J. The defendant, Gregorio "Mikey" Lopez,1 appeals
from his conviction of murder in the first degree on theories of
1
The defendant's nickname was "Mikey."
2
deliberate premeditation and extreme atrocity or cruelty.2 The
defendant shot and killed his girl friend's former boy friend in
the early morning hours of March 11, 2009. On appeal, the
defendant argues that a new trial is required because (1) the
trial judge abused his discretion when he refused to permit
evidence of the victim's prior violence against the defendant's
girl friend to be admitted and, by doing so, denied him his
constitutional right to present a defense; (2) the prosecutor's
comments in his closing argument severely prejudiced the
defense; and (3) this court should require the defendant's state
of mind to be considered in determining whether a murder is
committed with extreme atrocity or cruelty and, by applying such
a requirement to this case, the defendant's conviction of murder
in the first degree based on the theory of extreme atrocity or
cruelty should be overturned. We affirm the conviction and
decline to exercise our powers under G. L. c. 278, § 33E.
1. Background. The jury could have found the following
facts. At the time of the shooting, the defendant was staying
with his girl friend, Desirae Ortiz, in one bedroom of a five-
bedroom apartment on Mozart Street in the Jamaica Plain section
of Boston. Four additional people lived in the apartment, each
renting a separate bedroom. The tenants shared a kitchen and a
2
The defendant was acquitted of carrying a firearm without
a license under G. L. c. 269, § 10 (a).
3
bathroom. Insofar as relevant here, Ortiz lived, and the
defendant stayed, in one bedroom, Jenicelee Vega lived in
another bedroom, Moises Rivera lived in a third bedroom, and
Gricelle Alvarado and her infant son lived in a fourth bedroom.
Vega and Alvarado are cousins. The other individuals living in
the apartment did not know each other prior to occupying the
apartment. The defendant, Ortiz, Vega, Rivera, and Alvarado
were all home the morning of the murder.
The defendant and Ortiz met during the winter of 2008-2009
and the defendant began to stay frequently with Ortiz on Mozart
Street beginning shortly after February, 2009. Before dating
the defendant, Ortiz had had a relationship with the victim.
They had met when they were fourteen years old and had begun
dating shortly thereafter. They were no longer dating at the
time of the murder. However, Ortiz would speak with the victim
in the months prior to the murder using the telephone at the
house of their mutual friend. The defendant had knowledge of
Ortiz's prior relationship with the victim but did not know that
she was speaking recently to the victim on the telephone.
On March 10, 2009, photographs from a Massachusetts Bay
Transportation Authority surveillance video camera showed the
victim at the Massachusetts Avenue station at 12:34 A.M. and
again at the Jackson Square station in Jamaica Plain at 12:47
A.M. The Mozart Street apartment is a short walk from the
4
Jackson Square station. At approximately 1 A.M. on March 11,
2009, Alvarado heard "loud banging" at the front door. She was
in bed at the time. At first she tried to ignore the banging,
but as it continued, she answered the door. She looked through
the peephole of the front door and recognized the victim as
Ortiz's boy friend.3 It had been a while but she had seen the
victim at the apartment before. Despite knowing who it was, she
asked, "Who's this?" The victim asked whether Ortiz was home.
Alvarado opened the door and told the victim that she did not
know whether Ortiz was at the apartment or if she were sleeping.
The victim told Alvarado that Ortiz was expecting him. Alvarado
responded, "Well if she's expecting you, then you know what room
is hers." She did not show the victim to Ortiz's room but she
saw him walk through the kitchen in the direction of Ortiz's
bedroom. She then returned to her bedroom.
The defendant and Ortiz were asleep. Ortiz was awakened by
a knock on her bedroom door and the sound of the bedroom door
opening. At first, she did not know who it was. She got up and
walked toward the door, and realized that it was the victim.
Ortiz was not expecting him that night. The victim forced
himself into Ortiz's bedroom and Ortiz turned on the light. As
Ortiz turned on the light, the victim saw the defendant in the
3
Gricelle Alvarado testified that she recognized the victim
as Ortiz's boy friend; Ortiz, however, testified that she and
the victim were no longer together.
5
bed, naked. The victim, shocked by the presence of the
defendant, threatened him. The victim said "he was going to
blow his head off." The victim said that Ortiz was his "wife."
The defendant did not respond. Ortiz did not see the victim
with a weapon nor did she see him hit the defendant. At this
point, Ortiz wanted the victim to leave so she told the
defendant that she was going to speak to the victim outside.
Ortiz left her cellular telephone in the bedroom. She and the
victim proceeded to the landing outside the front door of the
apartment, shutting the door behind them. The defendant
remained in the bedroom. The victim and Ortiz were on the
landing for approximately forty-five minutes. Ortiz and the
victim did not shout, yell, or argue.
Meanwhile, at 1:35 A.M., Vega awoke when her cellular
telephone rang. The caller identification indicated that the
call was from Ortiz's cellular telephone. When Vega answered
her cellular telephone, the defendant was speaking. The
defendant said that there was an emergency and asked Vega to
come to Ortiz's bedroom. Vega went to Ortiz's bedroom where the
defendant appeared "really upset." The defendant told Vega that
Ortiz was outside with her former boy friend and that the former
boy friend showed him a gun. He asked Vega to take him up the
street to get a gun. Vega refused and told him that she did not
want to become involved. Vega left Ortiz's bedroom and did not
6
see the defendant leave the apartment. Because she sensed
something was going to happen, Vega went to Alvarado's bedroom
and told her to get her son and leave the apartment.
At approximately 1:51 A.M., while she was in Alvarado's
bedroom, Vega received another telephone call from the
defendant, who was still using Ortiz's cellular telephone. He
told her that he was around the corner. At one point while the
defendant was not there, Alvarado became "curious" so she went
to look through the peephole of the front door. She saw Ortiz
and the victim on the landing.4 She then returned to her
bedroom. At approximately 2:05 A.M., Vega received a third
telephone call from the defendant. He told Vega to tell the
"guy" not to go anywhere and that he was on his way. After the
telephone calls, Vega went back to her room while Alvarado
continued to get ready to leave the apartment. A short time
later, Vega saw the defendant enter the house through the back
door. She saw a "long, brown" gun in his hand that looked like
a shotgun. Alvarado saw the defendant walking down the hallway
with a gun that looked like a rifle. When she saw the
defendant, Alvarado yelled at him to "stop, hold on" and to
allow her and her son to leave. At this time, the defendant was
4
Vega also was curious when the defendant left the
apartment. She looked through the peephole and saw Ortiz and
the victim having a conversation. She did not see any physical
confrontations or hear any arguing.
7
standing about two feet away from the front door. The defendant
responded, "Go ahead, go get your little man."
Alvarado returned to her bedroom, picked up her son, and
started to walk toward Vega's bedroom, walking past the
defendant. Alvarado knocked on Vega's bedroom door and as Vega
opened the door, she saw the defendant with his hand on the
doorknob, looking through the peephole of the front door. While
the defendant was looking through the peephole, Vega did not
hear fighting or shouting coming from the landing. As Alvarado
was entering the room and before Vega closed the door, Alvarado
heard the front door open and she looked back to see the
defendant raise the gun and shoot the victim. She did not see
anything in the victim's hands at the time he was shot. Ortiz,
still on the landing, saw the defendant open the door and
without saying a word, shoot the victim. Ortiz yelled, "No,
Mikey, no," and, "[W]hy did you do this to me?" The victim fell
to the floor. Rivera was walking to his bedroom door to go to
the bathroom when he heard a "very loud" gunshot. He did not
hear arguing or shouting prior to hearing the gunshot.5 He
checked his body and clothes for any signs of injury. Once he
knew he was not injured, he opened the door and saw the hands
5
On cross-examination, Rivera stated that he heard arguing
immediately before the gunshot.
8
and shoes of the victim on the landing, the defendant at the
front door, and Ortiz in the hallway.
Rivera then saw the defendant pull the victim to the floor
and begin to kick and curse at him. The defendant walked toward
Ortiz's bedroom and then returned to the landing. The defendant
began to grunt at the victim. Rivera then saw the defendant
leave the landing, return, and kick the victim again. Ortiz
also testified that the defendant returned to the landing three
times, each time kicking and cursing the victim. The defendant
then left the apartment through the back door. While leaving,
he told Ortiz that he was trying to protect her.
Ortiz returned to the landing and attempted to perform
cardiopulmonary resuscitation on the victim. The victim tried
to speak to Ortiz, but his speech was "very slurred" and he
struggled to breathe. Alvarado, while still in Vega's room,
telephoned 911, as did Rivera. When the police arrived, about
five to ten minutes after the shooting, the victim was on the
floor of the landing with a large gunshot wound to his lower
right chest area. The victim also had small abrasions on his
forehead and chin. The victim was pronounced dead at the scene
between 2:15 A.M. and 2:30 A.M. The cause of death was
determined to be a shotgun wound to the torso, with injuries to
9
the liver, gallbladder, bowel, pancreas, aorta, and inferior
vena cava.6
Prior to the commencement of trial, the trial judge allowed
a motion in limine, filed by the Commonwealth, to exclude
evidence of the victim's prior violence toward Ortiz.7 The
defendant argued that evidence of the prior violent relationship
between the victim and Ortiz would be relevant to the
defendant's state of mind to support his theory of self-defense
and defense of another and as it relates to murder in the first
and second degrees and manslaughter. The judge allowed the
Commonwealth's motion but stated that he would reconsider if the
evidence raised an issue of reasonable provocation, defense of
another, or self-defense.
At the close of the Commonwealth's case and at the close of
all the evidence, the defendant moved for a required finding of
not guilty. The judge denied both motions. At the charge
conference, the defendant argued that a jury instruction on
extreme atrocity or cruelty should not be given because the
judge refused to permit evidence of the prior violent
relationship between the victim and Ortiz, thereby denying the
6
The vena cava is the large vein that drains blood from the
lower extremities back to the heart.
7
The Commonwealth also filed a motion in limine to exclude
evidence that the victim was incarcerated until March 10, 2009.
The trial judge allowed this motion.
10
defendant the opportunity to present evidence of his state of
mind and have the jury determine whether the killing was
committed with extreme atrocity or cruelty. The judge denied
the defendant's request. The defense theory was that the four
other residents of the apartment conspired to convict the
defendant.
2. Right to a defense. The defendant argues that the
judge's refusal to admit evidence of the victim's prior violent
relationship with Ortiz was an abuse of discretion because the
evidence was admissible under Massachusetts common law, and that
the defendant's constitutional right to present a defense was
violated. The Commonwealth argues that the judge properly
excluded the evidence because the defendant failed to make a
sufficient proffer as to the prior acts of violence, and the
evidence was insufficient to support a claim of self-defense,
defense of another, or manslaughter based on reasonable
provocation. We agree with the Commonwealth.
"The Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights guarantee a
criminal defendant's right to present a defense." Commonwealth
v. Dagenais, 437 Mass. 832, 839 (2002). However, this right is
not absolute. "In the face of 'legitimate demands of the
adversarial system,' this right may be tempered according to the
discretion of the trial judge." Commonwealth v. Carroll, 439
11
Mass. 547, 552 (2003), quoting Commonwealth v. Edgerly, 372
Mass. 337, 343 (1977). The judge refused to admit evidence of
the victim's prior violent relationship with Ortiz because he
concluded that the evidence was irrelevant in the absence of
evidence of sufficient provocation, self-defense,8 or defense of
another. The judge indicated he would consider admitting the
evidence if evidence of provocation, self-defense, or defense of
another were presented.
Evidence of prior violent acts committed by the victim
"known to the defendant at the time of the homicide" may be
introduced in evidence when a claim of self-defense is raised
"to support his assertion that he acted justifiably in
reasonable apprehension of bodily harm." Commonwealth v.
Fontes, 396 Mass. 733, 735-736 (1986). However, "[t]he
incidents must not be remote (a discretionary matter for the
trial judge) and other competent evidence must raise the
question whether the defendant may have acted justifiably in his
own defense." Id. at 736.
Here, the defendant did not establish when in time the
prior acts of violence took place in relation to the murder, nor
did he provide any details as to specific incidents. The
8
The defendant does not claim that he was denied the
opportunity to present evidence that the victim was the first
aggressor. See Commonwealth v. Adjutant, 443 Mass. 649, 654
(2005).
12
defendant's proffer was merely that there was a "long term
relationship" between the victim and Ortiz and that "he beat her
pretty regularly." Defense counsel stated merely that he may
inquire about one or two incidents but hoped that he did not
have to "go into specific incidents." He did not offer any
details of the victim's prior acts of violence. This proffer
was not sufficient. See Commonwealth v. Campbell, 51 Mass. App.
Ct. 479, 481-482 (2001).
Moreover, even if the proffer were sufficient, there was
insufficient evidence that the defendant acted justifiably in
his own defense. In order for self-defense to be a viable issue
at trial, there must be sufficient evidence to create a
reasonable doubt that the defendant "(1) had reasonable ground
to believe and actually did believe that he was in imminent
danger of death or serious bodily harm, from which he could save
himself only by using deadly force, (2) had availed himself of
all proper means to avoid physical combat before resorting to
the use of deadly force, and (3) used no more force than was
reasonably necessary in all the circumstances of the case."
Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). In this
case, viewing the evidence in the light most favorable to the
defendant, the evidence does not show that the defendant acted
justifiably in his own defense. Commonwealth v. Pike, 428 Mass.
393, 395 (1998).
13
A defendant must avail himself of all proper means to avoid
a physical confrontation before he resorted to fatally shooting
the victim. Harrington, supra at 450. "This rule does not
impose an absolute duty to retreat regardless of personal safety
considerations . . . . [An individual] must, however, use every
reasonable avenue of escape available to him" (citations
omitted). Pike, supra at 398. See Commonwealth v. Toon, 55
Mass. App. Ct. 642, 653-654 (2002). In this case, the defendant
did not use "every reasonable avenue escape available." Pike,
supra at 398. After the initial verbal confrontation, the
victim and Ortiz went to the landing outside the apartment's
front door for approximately forty-five minutes, during which
the defendant could have telephoned the police or taken further
precautions such as leaving the apartment and not returning.
Instead, the defendant made several telephone calls, left the
apartment to retrieve a gun, returned to the apartment, allowed
Alvarado to get her son, looked out the peephole of the front
door, opened the front door, and then, without any warning, shot
the victim approximately forty-five minutes after the initial
confrontation. Commonwealth v. Hart, 428 Mass. 614, 616 (1999)
("Indeed, the defendant had the opportunity to retreat and did
so, but only to return a few minutes later armed with a loaded
handgun"). There was no evidence that the defendant here
attempted to avoid physical combat or that it was unreasonable
14
for him to retreat. Therefore, there was insufficient evidence
to support a theory of self-defense. See Commonwealth v.
Benoit, 452 Mass. 212, 227 (2008). See also Pike, 428 Mass. at
399.
Nor was there evidence to support a theory of defense of
another. An individual may be justified in using deadly force
against a person in defense of another when "(a) a reasonable
person in the actor's position would believe his intervention to
be necessary for the protection of the third person, and (b) in
the circumstances as that reasonable person would believe them
to be, the third person would be justified in using such force
to protect himself." Commonwealth v. Martin, 369 Mass. 640, 649
(1976). Although there was evidence of a threat made inside
Ortiz's bedroom, the threat was directed at the defendant, not
Ortiz. There was no evidence that the victim threatened Ortiz,
either in the apartment or on the landing. Alvarado was the
only witness who testified that she heard some arguing and
yelling between a male and female; however, it is unclear
whether the defendant was in the apartment at that time.
Despite the fact that the defendant told Ortiz that he was
trying to protect her, a reasonable person in the defendant's
position would not believe that Ortiz needed intervention to
protect her from the victim, nor would it have been reasonable
for Ortiz to have used deadly force to protect herself. The
15
evidence was insufficient evidence to support a theory of
defense of another.
Last, there was insufficient evidence of adequate
provocation to support a voluntary manslaughter instruction. "A
voluntary manslaughter instruction based on provocation is
appropriate 'if there is evidence of provocation deemed adequate
in law to cause the accused to lose his self-control in the heat
of passion, and if the killing followed the provocation before
sufficient time had elapsed for the accused's temper to cool.'"
Commonwealth v. Colon, 449 Mass. 207, 220, cert. denied, 555
U.S. 1079 (2007), quoting Commonwealth v. Andrade, 422 Mass.
236, 237 (1996). Although there was evidence that the victim
threatened the defendant inside Ortiz's bedroom, the victim did
not lay his hands on the defendant, nor did he have a weapon at
the time he was shot. The only conceivable threat to the
defendant was when the victim said that he would "blow his head
off." Words alone generally do not amount to sufficient
provocation.9 Commonwealth v. LeClair, 429 Mass. 313, 316
(1999). Even if these words caused the defendant to "lose his
self-control in the heat of passion," the defendant had adequate
time to compose himself and cool his temper in the forty-five
9
There is an exception to this general rule when a victim
"convey[s] inflammatory information to the defendant."
Commonwealth v. LeClair, 429 Mass. 313, 317 (1999). This is not
applicable in this case.
16
minutes between the confrontation and the shooting. Colon,
supra at 220. During that time, the defendant left the
apartment and returned with a loaded firearm. "Our cases
suggest that even where sufficient provocation exists, if a
defendant leaves the scene of the provocation (as here) and then
returns to attack the victim, the defendant is considered to
have had adequate opportunity for his anger to subside."
Commonwealth v. Keohane, 444 Mass. 563, 568 (2005). Even if
adequate provocation existed, the defendant had a sufficiently
reasonable amount of time to cool off. A voluntary manslaughter
instruction was not warranted.
Because there was insufficient evidence to support a theory
of self-defense, defense of another, or sufficient provocation,
evidence of a prior violent relationship between the victim and
Ortiz was not relevant. The judge did not abuse his discretion
in excluding such evidence, and the defendant's constitutional
right to present a defense was not violated.
3. Prosecutor's closing argument. The defendant contends
that certain comments made by the prosecutor during his closing
argument unfairly prejudiced him where the prosecutor invited
the jury to draw inferences from the absence of evidence
regarding the victim's prior violence toward Ortiz that the
Commonwealth successfully requested to exclude. Additionally,
17
the defendant argues that the prosecutor took advantage of the
absence of the evidence. We disagree.
The defendant takes issue with the comments made by the
prosecutor in his closing argument to the effect that the
defendant shot the victim because he was jealous, angry,
humiliated, and embarrassed.10 Because defense counsel requested
a mistrial at the conclusion of closing arguments, we review for
prejudicial error. Commonwealth v. Hrabak, 440 Mass. 650, 653-
654 (2004).
In the closing arguments, a prosecutor may argue the
evidence, draw conclusions, and assist the jury in evaluating
and analyzing the evidence. See Commonwealth v. Burgess, 450
Mass. 422, 437 (2008); Commonwealth v. Johnson, 429 Mass. 745,
750 (1999). However, "[a] prosecutor is barred from referring
in closing argument to matter that has been excluded from
evidence . . . and a prosecutor should also refrain from
inviting an inference from the jury about the same excluded
subject matter" (citation omitted). Commonwealth v. Grimshaw,
412 Mass. 505, 508 (1992). Additionally, a prosecutor may not
10
For example, the prosecutor in his closing statement
stated: "This man right here Gregorio Lopez was jealous. He
was angry. He had just been in that bedroom. His girlfriend,
new girlfriend of three months, the girl is changing his life.
The girl is helping him move away from his mother's house. He
was living there. Her old boyfriend came back at 1:30 in the
morning, forced his way into that bedroom, humiliated him and
made him angry. He was jealous. And he didn't call 911."
18
exploit the absence of evidence that was excluded at his or her
request. Commonwealth v. Harris, 443 Mass. 714, 732 (2005). In
this case, the defendant concedes that the prosecutor never made
a direct reference to the excluded evidence (prior violent
relationship). Rather, he contends that the prosecutor took
unfair advantage of the absence of excluded evidence when
arguing motive, which the defendant could not contradict without
the excluded evidence. We disagree.
The prosecutor was responding to defense counsel's closing
argument where he said that the four other occupants of the
apartment conspired to convict the defendant. The prosecutor
was merely drawing reasonable inferences and conclusions from
the evidence. Commonwealth v. Fitzgerald, 376 Mass. 402, 421
(1978). The prosecutor focused on the fact that the victim, who
the defendant knew had been Ortiz's former boy friend,
unexpectedly barged into the bedroom that the defendant shared
with Ortiz. The victim had referred to Ortiz as his "wife."
Ortiz and the victim then left and were alone together for
approximately forty-five minutes until the defendant opened the
door and, without warning, shot the victim. Vega testified that
the defendant appeared "really upset" when she saw him alone in
Ortiz's bedroom. It is reasonable to infer from the evidence
that the defendant was angry, jealous, embarrassed, and
humiliated after the victim barged into his bedroom, where he
19
was naked and vulnerable. Based on this record, it was not
improper for the prosecutor to make these statements in his
closing argument.
Even if the prosecutor's statements were improper, they do
not warrant reversal. See Commonwealth v. Wilson, 427 Mass.
336, 353 (1998). Ortiz was standing on the landing with the
victim when the defendant opened the door and shot the victim.
Vega, prior to the defendant's shooting the victim, received
three telephone calls from the defendant. In the first call the
defendant asked Vega to drive him up the street to get a gun.
In the second and third calls, after the defendant left the
apartment, the defendant told Vega that he was around the corner
and he asked her to tell the victim not to go anywhere. She
then saw the defendant return and look out the peephole of the
front door, all the while with a "large, brown" gun in his hand.
Alvarado saw the defendant raise the gun and shoot the victim as
she was running into Vega's room. The prosecutor's statements
were inconsequential in the face of the overwhelming evidence of
deliberate premeditation. Moreover, the judge instructed the
jury that closing arguments were not evidence, that they must
base their decision on the evidence as they recalled it, and
that they alone were the judges of the facts. Additionally, the
judge instructed the jury that motive was not an element of the
murder but that evidence of motive may be helpful in their
20
analysis of the case. The defendant suffered no prejudice by
the comments made by the prosecutor in his closing statement.
4. Defendant's state of mind. The defendant urges us to
adopt the concurring opinion of then Justice Gants in
Commonwealth v. Berry, 466 Mass. 763, 777 (2014) (Gants, J.,
concurring), and conclude that a defendant's state of mind, or
intent, must be considered as an element of the theory of
extreme atrocity or cruelty, and not just in circumstances where
the evidence suggested that the defendant had a mental
impairment or was intoxicated by drugs or alcohol. Where the
defendant also was convicted of murder on a theory of deliberate
premeditation, we need not address this issue. See Commonwealth
v. Nolin, 448 Mass. 207, 220 (2007).
5. Review under G. L. c. 278, § 33E. Having reviewed the
entire record, we discern no basis to grant the defendant a new
trial or reduce the degree of guilt.
Judgment affirmed.