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Commonwealth v. Lopez

Supreme Judicial Court of Massachusetts, Suffolk

July 8, 2016

Gregorio Lopez

         Argued March 11, 2016

          Indictments found and returned in the Superior Court Department on May 15, 2009.

         The case was tried before Patrick F. Brady, J.

          Judgment affirmed.

          David Keighley for the defendant.

          Sarah Montgomery Lewis, Assistant District Attorney ( David Fredette, Assistant District Attorney, with her) for the Commonwealth.

         Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.


          [53 N.E.3d 661] Spina, J.

          The defendant, Gregorio " Mikey" Lopez,[1] appeals from his conviction of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.[2] The defendant shot and killed his girl friend's former boy friend in the

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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.

         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 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

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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.[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 [53 N.E.3d 663] 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 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

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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.

         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 ...

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