53 N.E.3d 659
Mass.2016Background
- Early morning March 11, 2009, Gregorio “Mikey” Lopez shot and killed his girlfriend Desirae Ortiz’s former boyfriend in the landing of a shared apartment after the victim forced his way into Ortiz’s bedroom.
- Ortiz and the victim were alone on the landing for ~45 minutes after an initial confrontation; Lopez left the apartment, returned armed, peered through the peephole, opened the door, and shot the victim once with a long gun. The victim later died of a shotgun wound.
- Four other apartment residents witnessed events before or after the shooting; some received calls from Lopez and observed him return armed. Lopez claimed he was protecting Ortiz; he was convicted of first‑degree murder (deliberate premeditation and extreme atrocity or cruelty).
- Pretrial, the Commonwealth’s motion in limine to exclude evidence of the victim’s prior violence toward Ortiz was allowed; Lopez argued that exclusion denied his right to present a defense and prevented use of that evidence to support self‑defense, defense of another, or provocation manslaughter theories.
- At trial Lopez unsuccessfully moved for required findings of not guilty; he also objected to portions of the prosecutor’s closing argument as exploiting excluded evidence and later sought reversal based on (1) exclusion of the prior‑violence evidence, (2) prejudicial closing remarks, and (3) requiring proof of defendant’s mental state for extreme atrocity/cruelty.
Issues
| Issue | Commonwealth's Argument | Lopez's Argument | Held |
|---|---|---|---|
| Exclusion of victim’s prior violence toward Ortiz | Evidence was irrelevant because defendant failed to proffer specifics and there was no sufficient basis for self‑defense, defense of another, or provocation. | Exclusion deprived him of his constitutional right to present a defense and evidence of state of mind. | Trial judge did not abuse discretion; proffer was inadequate and the record lacked evidence supporting self‑defense, defense of another, or adequate provocation. |
| Prosecutor’s closing statements about motive (jealousy, humiliation) | Remarks were fair inferences from the evidence and responsive to defense theory; did not directly reference excluded evidence. | Remarks invited the jury to draw conclusions from absence of excluded evidence and unfairly prejudiced the defense. | No prejudicial error: statements were reasonable inferences from evidence, jury was instructed properly, and overwhelming evidence of premeditation made any error inconsequential. |
| Whether intent/state of mind is an element of extreme atrocity/cruelty theory | Court did not need to decide because conviction on deliberate premeditation renders it unnecessary to resolve broader doctrinal issue. | Lopez urged adoption of rule requiring proof of defendant’s state of mind for extreme atrocity/cruelty. | Court declined to adopt new rule here and did not reach the question because of alternate valid first‑degree murder theory. |
| G. L. c. 278, § 33E review to reduce degree or order new trial | No basis in record to grant relief. | Lopez sought reversal or reduction in degree under § 33E. | Exercise of § 33E powers denied; conviction affirmed. |
Key Cases Cited
- Commonwealth v. Dagenais, 437 Mass. 832 (recognizing constitutional right to present a defense but permitting judge discretion)
- Commonwealth v. Carroll, 439 Mass. 547 (trial judge’s discretion to temper right to present a defense)
- Commonwealth v. Fontes, 396 Mass. 733 (admissibility of victim’s prior violent acts known to defendant when self‑defense raised)
- Commonwealth v. Harrington, 379 Mass. 446 (elements required to raise self‑defense: reasonable belief of imminent danger, exhaustion of means to avoid combat, and proportionality)
- Commonwealth v. Pike, 428 Mass. 393 (duty to use reasonable avenues of escape before using deadly force)
- Commonwealth v. Hart, 428 Mass. 614 (returning armed to the scene undermines self‑defense claim)
- Commonwealth v. Benoit, 452 Mass. 212 (insufficient evidence for self‑defense when retreat/opportunity to avoid confrontation exists)
- Commonwealth v. Martin, 369 Mass. 640 (defense of another standard)
- Commonwealth v. Colon, 449 Mass. 207 (provocation standard for voluntary manslaughter instruction)
- Commonwealth v. LeClair, 429 Mass. 313 (words alone generally insufficient provocation)
- Commonwealth v. Grimshaw, 412 Mass. 505 (prosecutor may not argue matter excluded from evidence or invite inference about it)
- Commonwealth v. Harris, 443 Mass. 714 (prosecutor may not exploit absence of evidence excluded at Commonwealth’s request)
- Commonwealth v. Fitzgerald, 376 Mass. 402 (permitted drawing reasonable inferences in argument)
- Commonwealth v. Wilson, 427 Mass. 336 (impropriety in argument does not require reversal absent prejudice)
- Commonwealth v. Campbell, 51 Mass. App. Ct. 479 (proffer must identify specifics of prior acts to admit them)