Commonwealth v. Lopes (Lawyers Weekly No. 10-003-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11587 COMMONWEALTH vs. CRISOSTOMO LOPES. Suffolk. September 8, 2017. – January 10, 2018. Present: Gants, C.J., Lenk, Budd, & Kafker, JJ. Homicide. Jury and Jurors. Evidence, Relevancy and materiality, Prior misconduct, Cross-examination. Practice, Criminal, Capital case, Challenge to jurors, Argument by prosecutor. Indictment found and returned in the Superior Court Department on July 1, 2010. The case was heard by Patrick F. Brady, J. Alan Jay Black for the defendant. Janis DiLoreto Smith, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, also present) for the Commonwealth. 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 defendant and his codefendant were convicted of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty.[1] 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 G. L. c. 278, § 33E, to reduce or set aside the verdict of murder in the first degree. Therefore, we affirm the defendant’s conviction. 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, the victim had been riding a scooter around Dorchester that was being driven by his fifteen year old brother. Each was wearing a helmet, but different styles. They were riding the scooter on Inwood Street, approaching Olney Street, when the brother almost hit the defendant, who […]
Commonwealth v. Lopes (Lawyers Weekly No. 11-070-16)
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 12-P-1829 Appeals Court COMMONWEALTH vs. NARDO LOPES. No. 12-P-1829. Suffolk. February 3, 2016. – June 15, 2016. Present: Kafker, C.J., Rubin, & Agnes, JJ. Constitutional Law, Public trial, Jury. Practice, Criminal, Public trial, Empanelment of jury. Jury and Jurors. Evidence, Prior violent conduct. Indictment found and returned in the Superior Court Department on June 1, 2001. The case was tried before Linda E. Giles, J., and motions for a new trial, filed on September 30, 2010, and September 3, 2013, respectively, were heard by her. Derege B. Demissie for the defendant. Teresa K. Anderson, Assistant District Attorney, for the Commonwealth. RUBIN, J. This is the rare case in which a court room closure was ordered over the defendant’s objection during jury empanelment, subsequent to the decision of the United States Court of Appeals for the First Circuit in Owens v. United States, 483 F.3d 48 (1st Cir. 2007). That case and the subsequent cases from the Supreme Judicial Court, see, e.g., Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010), and from the United States Supreme Court, see Presley v. Georgia, 558 U.S. 209 (2010), confirm that a defendant’s right to a public trial under the Sixth Amendment includes a right to have the public present during jury empanelment. As our cases and those of the Supreme Judicial Court have now made clear, prior to Owens, and notwithstanding Waller v. Georgia, 467 U.S. 39 (1984), some court rooms around this Commonwealth routinely were closed during jury empanelment. See, e.g., Cohen (No. 1), supra at 102 (Superior Court in Norfolk County); Commonwealth v. Lavoie, 464 Mass. 83, 84-85 (2013) (Superior Court in Middlesex County); Commonwealth v. Morganti, 467 Mass. 96, 98 (2014) (Superior Court in Plymouth County); Commonwealth v. Alebord, 467 Mass. 106, 109 (2014) (Superior Court in Plymouth County). In many such cases, because of the longstanding culture of these court houses, no contemporaneous objection was made to these closures. In a wide range of circumstances, under subsequent Supreme Judicial Court case law, those objections have been held waived. See, e.g., Lavoie, supra at 88-89; Morganti, supra at 101-102; Alebord, supra at 112-113. In this case, however, the jury venire was brought into the court room and, over the defendant’s objections, the court room was closed. In this direct appeal from his […]
Commonwealth v. Lopes (Lawyers Weekly No. 11-052-14)
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 12‑P‑1661 Appeals Court COMMONWEALTH vs. ROBERT P. LOPES. No. 12‑P‑1661. Berkshire. December 4, 2013. ‑ May 28, 2014. Present: Cypher, Kantrowitz, & Cohen, JJ. Motor Vehicle, Operating under the influence, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Constitutional Law, Confrontation of witnesses. Practice, Criminal, Confrontation of witnesses, Stipulation, Prior conviction, Instructions to jury. Evidence, Prior conviction. Complaint received and sworn to in the Southern Berkshire Division of the District Court Department on August 19, 2011. The case was tried before Rita S. Koenigs, J. Edmund R. St. John, III, for the defendant. John P. Bossé, Assistant District Attorney, for the Commonwealth. COHEN, J. The defendant appeals from two convictions arising from an incident on August 18, 2011: operating a motor vehicle while under the influence of liquor (OUI), fifth offense, pursuant to G. L. c. 90, § 24(1)(a)(1) (count one); and operating a motor vehicle while under the influence of liquor after his license had been suspended (and prior to restoration) for operating a motor vehicle while under the influence of liquor (OUI while OAS for OUI), pursuant to G. L. c. 90, § 23 (count two). With the exception of the subsequent offense portion of count one (which later was tried jury-waived), count one and count two were tried together before a District Court jury in June, 2012. The defendant’s appellate issues all relate to the introduction of evidence of his prior conviction for OUI as part of the Commonwealth’s proof on count two. For the following reasons, we affirm. Background. Prior to trial, the defendant filed a motion to bifurcate the trial so that the jury would first decide count one without hearing evidence, essential to a finding of guilt on count two, that the defendant’s license previously had been suspended or revoked for a prior OUI. The judge denied the motion during a pretrial hearing held on June 18, 2012, but ruled that she would limit the purpose of any such evidence in accordance with Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 102-103 (2011). The defendant also filed a motion to exclude evidence of his prior OUI convictions, his chief concern being to prevent their use for impeachment purposes should he elect to testify. The judge ruled that the convictions would not be […]