Commonwealth v. Lopez (Lawyers Weekly No. 10-095-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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. 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. […]