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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




    1
        The defendant's nickname was "Mikey."
                                                                      2


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.

     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


     2
       The defendant was acquitted of carrying a firearm without
a license under G. L. c. 269, § 10 (a).
                                                                    3


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

again at the Jackson Square station in Jamaica Plain at 12:47

A.M.   The Mozart Street apartment is a short walk from the
                                                                       4


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 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

     3
       Gricelle Alvarado testified that she recognized the victim
as Ortiz's boy friend; Ortiz, however, testified that she and
the victim were no longer together.
                                                                     5


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 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
                                                                        6


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 yelled at him to "stop, hold on" and to

allow her and her son to leave.    At this time, the defendant was


     4
       Vega also was curious when the defendant left the
apartment. She looked through the peephole and saw Ortiz and
the victim having a conversation. She did not see any physical
confrontations or hear any arguing.
                                                                      7


standing about two feet away from the front door.     The defendant

responded, "Go ahead, go get your little man."

     Alvarado returned to her bedroom, picked up her son, and

started to walk toward Vega's bedroom, walking past the

defendant.   Alvarado knocked on Vega's bedroom door and as Vega

opened the door, she saw the defendant with his hand on the

doorknob, looking through the peephole of the front door.       While

the defendant was looking through the peephole, Vega did not

hear fighting or shouting coming from the landing.     As Alvarado

was entering the room and before Vega closed the door, Alvarado

heard the front door open and she looked back to see the

defendant raise the gun and shoot the victim.     She did not see

anything in the victim's hands at the time he was shot.     Ortiz,

still on the landing, saw the defendant open the door and

without saying a word, shoot the victim.   Ortiz yelled, "No,

Mikey, no," and, "[W]hy did you do this to me?"     The victim fell

to the floor.   Rivera was walking to his bedroom door to go to

the bathroom when he heard a "very loud" gunshot.     He did not

hear arguing or shouting prior to hearing the gunshot.5    He

checked his body and clothes for any signs of injury.     Once he

knew he was not injured, he opened the door and saw the hands




     5
       On cross-examination, Rivera stated that he heard arguing
immediately before the gunshot.
                                                                     8


and shoes of the victim on the landing, the defendant at the

front door, and Ortiz in the hallway.

    Rivera then saw the defendant pull the victim to the floor

and begin to kick and curse at him.     The defendant walked toward

Ortiz's bedroom and then returned to the landing.    The defendant

began to grunt at the victim.    Rivera then saw the defendant

leave the landing, return, and kick the victim again.       Ortiz

also testified that the defendant returned to the landing three

times, each time kicking and cursing the victim.    The defendant

then left the apartment through the back door.     While leaving,

he told Ortiz that he was trying to protect her.

    Ortiz returned to the landing and attempted to perform

cardiopulmonary resuscitation on the victim.    The victim tried

to speak to Ortiz, but his speech was "very slurred" and he

struggled to breathe.    Alvarado, while still in Vega's room,

telephoned 911, as did Rivera.    When the police arrived, about

five to ten minutes after the shooting, the victim was on the

floor of the landing with a large gunshot wound to his lower

right chest area.    The victim also had small abrasions on his

forehead and chin.    The victim was pronounced dead at the scene

between 2:15 A.M. and 2:30 A.M.    The cause of death was

determined to be a shotgun wound to the torso, with injuries to
                                                                   9


the liver, gallbladder, bowel, pancreas, aorta, and inferior

vena cava.6

     Prior to the commencement of trial, the trial judge allowed

a motion in limine, filed by the Commonwealth, to exclude

evidence of the victim's prior violence toward Ortiz.7   The

defendant argued that evidence of the prior violent relationship

between the victim and Ortiz would be relevant to the

defendant's state of mind to support his theory of self-defense

and defense of another and as it relates to murder in the first

and second degrees and manslaughter.   The judge allowed the

Commonwealth's motion but stated that he would reconsider if the

evidence raised an issue of reasonable provocation, defense of

another, or self-defense.

     At the close of the Commonwealth's case and at the close of

all the evidence, the defendant moved for a required finding of

not guilty.   The judge denied both motions.   At the charge

conference, the defendant argued that a jury instruction on

extreme atrocity or cruelty should not be given because the

judge refused to permit evidence of the prior violent

relationship between the victim and Ortiz, thereby denying the


     6
       The vena cava is the large vein that drains blood from the
lower extremities back to the heart.
     7
       The Commonwealth also filed a motion in limine to exclude
evidence that the victim was incarcerated until March 10, 2009.
The trial judge allowed this motion.
                                                                      10


defendant the opportunity to present evidence of his state of

mind and have the jury determine whether the killing was

committed with extreme atrocity or cruelty.      The judge denied

the defendant's request.     The defense theory was that the four

other residents of the apartment conspired to convict the

defendant.

    2.      Right to a defense.   The defendant argues that the

judge's refusal to admit evidence of the victim's prior violent

relationship with Ortiz was an abuse of discretion because the

evidence was admissible under Massachusetts common law, and that

the defendant's constitutional right to present a defense was

violated.    The Commonwealth argues that the judge properly

excluded the evidence because the defendant failed to make a

sufficient proffer as to the prior acts of violence, and the

evidence was insufficient to support a claim of self-defense,

defense of another, or manslaughter based on reasonable

provocation.    We agree with the Commonwealth.

    "The Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights guarantee a

criminal defendant's right to present a defense."      Commonwealth

v. Dagenais, 437 Mass. 832, 839 (2002).      However, this right is

not absolute.    "In the face of 'legitimate demands of the

adversarial system,' this right may be tempered according to the

discretion of the trial judge."      Commonwealth v. Carroll, 439
                                                                   11


Mass. 547, 552 (2003), quoting Commonwealth v. Edgerly, 372

Mass. 337, 343 (1977).    The judge refused to admit evidence of

the victim's prior violent relationship with Ortiz because he

concluded that the evidence was irrelevant in the absence of

evidence of sufficient provocation, self-defense,8 or defense of

another.   The judge indicated he would consider admitting the

evidence if evidence of provocation, self-defense, or defense of

another were presented.

     Evidence of prior violent acts committed by the victim

"known to the defendant at the time of the homicide" may be

introduced in evidence when a claim of self-defense is raised

"to support his assertion that he acted justifiably in

reasonable apprehension of bodily harm."    Commonwealth v.

Fontes, 396 Mass. 733, 735-736 (1986).    However, "[t]he

incidents must not be remote (a discretionary matter for the

trial judge) and other competent evidence must raise the

question whether the defendant may have acted justifiably in his

own defense."   Id. at 736.

     Here, the defendant did not establish when in time the

prior acts of violence took place in relation to the murder, nor

did he provide any details as to specific incidents.     The


     8
       The defendant does not claim that he was denied the
opportunity to present evidence that the victim was the first
aggressor. See Commonwealth v. Adjutant, 443 Mass. 649, 654
(2005).
                                                                    12


defendant's proffer was merely that there was a "long term

relationship" between the victim and Ortiz and that "he beat her

pretty regularly."    Defense counsel stated merely that he may

inquire about one or two incidents but hoped that he did not

have to "go into specific incidents."     He did not offer any

details of the victim's prior acts of violence.     This proffer

was not sufficient.    See Commonwealth v. Campbell, 51 Mass. App.

Ct. 479, 481-482 (2001).

    Moreover, even if the proffer were sufficient, there was

insufficient evidence that the defendant acted justifiably in

his own defense.     In order for self-defense to be a viable issue

at trial, there must be sufficient evidence to create a

reasonable doubt that the defendant "(1) had reasonable ground

to believe and actually did believe that he was in imminent

danger of death or serious bodily harm, from which he could save

himself only by using deadly force, (2) had availed himself of

all proper means to avoid physical combat before resorting to

the use of deadly force, and (3) used no more force than was

reasonably necessary in all the circumstances of the case."

Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).    In this

case, viewing the evidence in the light most favorable to the

defendant, the evidence does not show that the defendant acted

justifiably in his own defense.    Commonwealth v. Pike, 428 Mass.

393, 395 (1998).
                                                                      13


    A defendant must avail himself of all proper means to avoid

a physical confrontation before he resorted to fatally shooting

the victim.   Harrington, supra at 450.    "This rule does not

impose an absolute duty to retreat regardless of personal safety

considerations . . . .    [An individual] must, however, use every

reasonable avenue of escape available to him" (citations

omitted).    Pike, supra at 398.   See Commonwealth v. Toon, 55

Mass. App. Ct. 642, 653-654 (2002).    In this case, the defendant

did not use "every reasonable avenue escape available."       Pike,

supra at 398.    After the initial verbal confrontation, the

victim and Ortiz went to the landing outside the apartment's

front door for approximately forty-five minutes, during which

the defendant could have telephoned the police or taken further

precautions such as leaving the apartment and not returning.

Instead, the defendant made several telephone calls, left the

apartment to retrieve a gun, returned to the apartment, allowed

Alvarado to get her son, looked out the peephole of the front

door, opened the front door, and then, without any warning, shot

the victim approximately forty-five minutes after the initial

confrontation.   Commonwealth v. Hart, 428 Mass. 614, 616 (1999)

("Indeed, the defendant had the opportunity to retreat and did

so, but only to return a few minutes later armed with a loaded

handgun").    There was no evidence that the defendant here

attempted to avoid physical combat or that it was unreasonable
                                                                    14


for him to retreat.    Therefore, there was insufficient evidence

to support a theory of self-defense.    See Commonwealth v.

Benoit, 452 Mass. 212, 227 (2008).    See also Pike, 428 Mass. at

399.

       Nor was there evidence to support a theory of defense of

another.   An individual may be justified in using deadly force

against a person in defense of another when "(a) a reasonable

person in the actor's position would believe his intervention to

be necessary for the protection of the third person, and (b) in

the circumstances as that reasonable person would believe them

to be, the third person would be justified in using such force

to protect himself."    Commonwealth v. Martin, 369 Mass. 640, 649

(1976).    Although there was evidence of a threat made inside

Ortiz's bedroom, the threat was directed at the defendant, not

Ortiz.    There was no evidence that the victim threatened Ortiz,

either in the apartment or on the landing.    Alvarado was the

only witness who testified that she heard some arguing and

yelling between a male and female; however, it is unclear

whether the defendant was in the apartment at that time.

Despite the fact that the defendant told Ortiz that he was

trying to protect her, a reasonable person in the defendant's

position would not believe that Ortiz needed intervention to

protect her from the victim, nor would it have been reasonable

for Ortiz to have used deadly force to protect herself.    The
                                                                   15


evidence was insufficient evidence to support a theory of

defense of another.

     Last, there was insufficient evidence of adequate

provocation to support a voluntary manslaughter instruction.      "A

voluntary manslaughter instruction based on provocation is

appropriate 'if there is evidence of provocation deemed adequate

in law to cause the accused to lose his self-control in the heat

of passion, and if the killing followed the provocation before

sufficient time had elapsed for the accused's temper to cool.'"

Commonwealth v. Colon, 449 Mass. 207, 220, cert. denied, 555

U.S. 1079 (2007), quoting Commonwealth v. Andrade, 422 Mass.

236, 237 (1996).    Although there was evidence that the victim

threatened the defendant inside Ortiz's bedroom, the victim did

not lay his hands on the defendant, nor did he have a weapon at

the time he was shot.    The only conceivable threat to the

defendant was when the victim said that he would "blow his head

off."    Words alone generally do not amount to sufficient

provocation.9   Commonwealth v. LeClair, 429 Mass. 313, 316

(1999).    Even if these words caused the defendant to "lose his

self-control in the heat of passion," the defendant had adequate

time to compose himself and cool his temper in the forty-five


     9
       There is an exception to this general rule when a victim
"convey[s] inflammatory information to the defendant."
Commonwealth v. LeClair, 429 Mass. 313, 317 (1999). This is not
applicable in this case.
                                                                   16


minutes between the confrontation and the shooting.    Colon,

supra at 220.   During that time, the defendant left the

apartment and returned with a loaded firearm.    "Our cases

suggest that even where sufficient provocation exists, if a

defendant leaves the scene of the provocation (as here) and then

returns to attack the victim, the defendant is considered to

have had adequate opportunity for his anger to subside."

Commonwealth v. Keohane, 444 Mass. 563, 568 (2005).    Even if

adequate provocation existed, the defendant had a sufficiently

reasonable amount of time to cool off.    A voluntary manslaughter

instruction was not warranted.

    Because there was insufficient evidence to support a theory

of self-defense, defense of another, or sufficient provocation,

evidence of a prior violent relationship between the victim and

Ortiz was not relevant.   The judge did not abuse his discretion

in excluding such evidence, and the defendant's constitutional

right to present a defense was not violated.

    3.   Prosecutor's closing argument.   The defendant contends

that certain comments made by the prosecutor during his closing

argument unfairly prejudiced him where the prosecutor invited

the jury to draw inferences from the absence of evidence

regarding the victim's prior violence toward Ortiz that the

Commonwealth successfully requested to exclude.    Additionally,
                                                                    17


the defendant argues that the prosecutor took advantage of the

absence of the evidence.     We disagree.

     The defendant takes issue with the comments made by the

prosecutor in his closing argument to the effect that the

defendant shot the victim because he was jealous, angry,

humiliated, and embarrassed.10    Because defense counsel requested

a mistrial at the conclusion of closing arguments, we review for

prejudicial error.   Commonwealth v. Hrabak, 440 Mass. 650, 653-

654 (2004).

     In the closing arguments, a prosecutor may argue the

evidence, draw conclusions, and assist the jury in evaluating

and analyzing the evidence.     See Commonwealth v. Burgess, 450

Mass. 422, 437 (2008); Commonwealth v. Johnson, 429 Mass. 745,

750 (1999).   However, "[a] prosecutor is barred from referring

in closing argument to matter that has been excluded from

evidence . . . and a prosecutor should also refrain from

inviting an inference from the jury about the same excluded

subject matter" (citation omitted).     Commonwealth v. Grimshaw,

412 Mass. 505, 508 (1992).    Additionally, a prosecutor may not


     10
       For example, the prosecutor in his closing statement
stated: "This man right here Gregorio Lopez was jealous. He
was angry. He had just been in that bedroom. His girlfriend,
new girlfriend of three months, the girl is changing his life.
The girl is helping him move away from his mother's house. He
was living there. Her old boyfriend came back at 1:30 in the
morning, forced his way into that bedroom, humiliated him and
made him angry. He was jealous. And he didn't call 911."
                                                                   18


exploit the absence of evidence that was excluded at his or her

request.   Commonwealth v. Harris, 443 Mass. 714, 732 (2005).     In

this case, the defendant concedes that the prosecutor never made

a direct reference to the excluded evidence (prior violent

relationship).   Rather, he contends that the prosecutor took

unfair advantage of the absence of excluded evidence when

arguing motive, which the defendant could not contradict without

the excluded evidence.    We disagree.

    The prosecutor was responding to defense counsel's closing

argument where he said that the four other occupants of the

apartment conspired to convict the defendant.    The prosecutor

was merely drawing reasonable inferences and conclusions from

the evidence.    Commonwealth v. Fitzgerald, 376 Mass. 402, 421

(1978).    The prosecutor focused on the fact that the victim, who

the defendant knew had been Ortiz's former boy friend,

unexpectedly barged into the bedroom that the defendant shared

with Ortiz.   The victim had referred to Ortiz as his "wife."

Ortiz and the victim then left and were alone together for

approximately forty-five minutes until the defendant opened the

door and, without warning, shot the victim.    Vega testified that

the defendant appeared "really upset" when she saw him alone in

Ortiz's bedroom.    It is reasonable to infer from the evidence

that the defendant was angry, jealous, embarrassed, and

humiliated after the victim barged into his bedroom, where he
                                                                   19


was naked and vulnerable.    Based on this record, it was not

improper for the prosecutor to make these statements in his

closing argument.

    Even if the prosecutor's statements were improper, they do

not warrant reversal.    See Commonwealth v. Wilson, 427 Mass.

336, 353 (1998).    Ortiz was standing on the landing with the

victim when the defendant opened the door and shot the victim.

Vega, prior to the defendant's shooting the victim, received

three telephone calls from the defendant.    In the first call the

defendant asked Vega to drive him up the street to get a gun.

In the second and third calls, after the defendant left the

apartment, the defendant told Vega that he was around the corner

and he asked her to tell the victim not to go anywhere.    She

then saw the defendant return and look out the peephole of the

front door, all the while with a "large, brown" gun in his hand.

Alvarado saw the defendant raise the gun and shoot the victim as

she was running into Vega's room.    The prosecutor's statements

were inconsequential in the face of the overwhelming evidence of

deliberate premeditation.    Moreover, the judge instructed the

jury that closing arguments were not evidence, that they must

base their decision on the evidence as they recalled it, and

that they alone were the judges of the facts.    Additionally, the

judge instructed the jury that motive was not an element of the

murder but that evidence of motive may be helpful in their
                                                                    20


analysis of the case.   The defendant suffered no prejudice by

the comments made by the prosecutor in his closing statement.

    4.   Defendant's state of mind.    The defendant urges us to

adopt the concurring opinion of then Justice Gants in

Commonwealth v. Berry, 466 Mass. 763, 777 (2014) (Gants, J.,

concurring), and conclude that a defendant's state of mind, or

intent, must be considered as an element of the theory of

extreme atrocity or cruelty, and not just in circumstances where

the evidence suggested that the defendant had a mental

impairment or was intoxicated by drugs or alcohol.    Where the

defendant also was convicted of murder on a theory of deliberate

premeditation, we need not address this issue.    See Commonwealth

v. Nolin, 448 Mass. 207, 220 (2007).

    5.   Review under G. L. c. 278, § 33E.    Having reviewed the

entire record, we discern no basis to grant the defendant a new

trial or reduce the degree of guilt.

                                    Judgment affirmed.
