March 11, 2016
Indictments found and returned in the Superior Court
Department on May 15, 2009.
case was tried before Patrick F. Brady, J.
Keighley for the defendant.
Montgomery Lewis, Assistant District Attorney ( David
Fredette, Assistant District Attorney, with her) for the
Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
N.E.3d 661] Spina, J.
defendant, Gregorio " Mikey" Lopez, appeals from
his conviction of murder in the first degree on theories of
deliberate premeditation and extreme atrocity or
cruelty. The defendant shot and killed his girl
friend's former boy friend in the
early morning hours of March 11, 2009. On [53 N.E.3d 662]
appeal, the defendant argues that a new trial is required
because (1) the trial judge abused his discretion when he
declined 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.
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
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.
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.
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
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. 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
[53 N.E.3d 663] Ortiz's bedroom. She then returned to her
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 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.
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
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 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.
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. 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 ...