Commonwealth v. LopesCommonwealth v. Lopes
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
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
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,
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
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
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
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
The
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
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)
“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
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
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
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
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
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
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
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.”
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
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
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.
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.
“In general, specific instances of misconduct showing the witness to be untruthful are not admissible for the purpose of attacking . . . the witness‘s credibility.”
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, 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
5. Review under G. L. c. 278, § 33E. We have reviewed the record in accordance with
Judgment affirmed.
Notes
“[T]he Commonwealth skip[ped] a female African-American juror, finding her indifferent and being content. Then you 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).
“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?”
“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.”