Com. v. Lopes

• Decision Date: 06 October 2009
• Docket Number: SJC-09814
• Citation: 455 Mass. 147,914 N.E.2d 78
• Parties: COMMONWEALTH v. Danilo LOPES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

914 N.E.2d 78

455 Mass. 147

COMMONWEALTH v. Danilo LOPES.

SJC-09814

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 10, 2009.

Decided October 6, 2009.

Esther J. Horwich for the defendant.

Macy Lee, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., SPINA, COWIN, CORDY, & GANTS, JJ.

GANTS, J.

On February 16, 2005, a jury convicted the defendant of felony-murder in the first degree, armed robbery, and illegal possession of a firearm. Represented by new counsel on appeal, the defendant claims error in the denial of his various motions to suppress statements he made to the police and to suppress evidence seized from his person and the van he was driving shortly after the murder. The defendant also claims that the trial judge (who was not the motion judge) erred in allowing the jury to convict him on the theory of felony-murder by joint venture when that theory had not been presented to the grand jury. We reject the defendant's claims and find no basis to exercise our authority pursuant to G.L. c. 278, § 33E, to order a new trial or to reduce the defendant's murder conviction to a lesser degree of guilt. Accordingly, we affirm the defendant's convictions of felony-murder and illegal possession of a firearm. Because armed robbery was the predicate felony for the defendant's murder conviction, we vacate as duplicative his armed robbery conviction and dismiss the underlying indictment.¹ See Commonwealth v. Gunter, 427 Mass. 259, 275-276, 692 N.E.2d 515 (1998) ("When a murder conviction is based on a felony-murder theory, the underlying felony, whatever it may be, is always a lesser included offense and the conviction for that felony, in addition to the conviction of murder, is duplicative").

Facts. The Commonwealth presented the following evidence at trial. Jorge Fidalgo (victim) was a well known member of the Cape Verdean community in Boston. See note 3, infra. He and his wife owned the F and T Davey Supermarket (Davey's Market), a convenience store located on the corner of Dudley and Clarence Streets in the Roxbury neighborhood of Boston, and the victim cohosted a radio program for the Cape Verdean community.

Each morning, the victim's wife would divide the cash derived from the store's operation in packets according to denomination and wrap a brown paper band around each packet. The victim would list checks and WIC² vouchers on deposit slips and bind them together with a rubber band. The victim would then drive his teal-colored minivan to two banks where he had accounts to deposit the money and checks.

On the morning of April 23, 2001, the victim and his wife arrived at Davey's Market at 8 A.M. and, because their customary parking place in front of the store was occupied by another vehicle, the victim parked his minivan on Clarence Street. Around 9:45 A.M., the victim's wife gave him two brown bags containing three bundles, which included cash deposits totaling approximately $5,125, as well as checks, and WIC vouchers, and the victim left the store to make his customary deposits at the banks.

At approximately 9:50 A.M., officers of the Boston police department, responding to a 911 call of a shooting, arrived at 47 Clarence Street. The victim's minivan was stopped in the middle of the street with the engine still running. The victim was seated in the driver's seat, slumped toward the middle of the vehicle, with a gunshot wound behind his left ear. The victim was transported by ambulance to a Boston hospital where he was pronounced dead a few hours later.

The police spoke with an eyewitness, Antonio Fidalgo (a cousin of the victim),³ who had discovered the victim. Minutes before the shooting, Fidalgo had seen a long brown van⁴ with tinted windows and a Cape Verdean flag hanging from the interior rear view mirror parked in front of 47 Clarence Street. He saw at least two men inside, one in the driver's seat wearing what he described as a round "Jamaican hat," and another man moving around in the back seat area. The van was gone when he returned to the street and found the victim.

At approximately 11 A.M., a report was broadcast over the Brockton police radio asking police to be on the lookout for a brown van with tinted windows and a Cape Verdean flag in the rear with respect to a Boston homicide.⁵ After hearing the police broadcast, a Brockton school police officer working a construction detail on Warren Avenue in Brockton observed a van that he thought matched the broadcast description stopped next to him in traffic. He radioed for assistance, and within minutes, Brockton police officers arrived at the scene. One officer, with his gun drawn, approached the driver's side of the van (which was still stopped in the middle lane of Warren Avenue) and asked the driver (the defendant) whether he had just come from Boston. The defendant replied in the affirmative. The defendant and Isaiah Semedo then were ordered out of the van, handcuffed, and pat frisked for weapons (none was found). Two officers entered the van, one to retrieve the defendant's identification and the other to ensure that no third person was concealed inside. The officers discovered a gray velour jacket and a denim vest in the back of the van. Cash was seen in one pocket of the jacket. A wallet containing the defendant's driver's license was retrieved from one pocket of the vest.

The defendant and Semedo were uncuffed and informed that they were not under arrest. They were asked if they would stay until Boston police detectives could question them, and they agreed to do so. Boston police officers arrived shortly thereafter, accompanied by Fidalgo. Fidalgo identified the van as the one he had seen parked in front of 47 Clarence Street prior to his cousin's shooting. He was, however, unable to identify the defendant and Semedo as the individuals who had been in the van. The van was impounded and towed to the Brockton police station lot. Neither the defendant nor Semedo was arrested, but $175 was taken from the defendant.

Boston police officers applied for and obtained a warrant to search the impounded van, and the search was executed on April 24. In the van, in addition to the velour jacket and denim vest, police officers discovered $2,006 in cash and brown paper "counting bands."⁶ The vest had a wallet in one pocket and a white glove in another. Three other white gloves were found in the van.

At 9 A.M. on April 25, the defendant, accompanied by his father, entered the Brockton police station and informed police that he wanted to turn himself in. He was handcuffed and escorted to an interview room, where he received Miranda warnings and waived his rights. The defendant was crying and sullen, but had no difficulty understanding the Miranda warnings, and did not appear to be under the influence of drugs or alcohol. The defendant removed $2,000 from his pocket, placed it on a table in front of him, and stated that the money belonged to the victim. Officers from the Boston homicide unit arrived at the Brockton station shortly thereafter. The defendant again was read, and waived, his Miranda rights. The officers spoke with the defendant without recording their discussion, and then conducted a formal interview, which was tape recorded and played for the jury.

In the tape-recorded interview, the defendant admitted that he and Semedo had met a week prior to the day of the murder and devised a plan to rob the victim. The plan was for the defendant to park the van in front of Davey's Market early in the morning, so that the victim could not park his minivan in his usual spot. Semedo knew that the victim always counted the money in the morning and that the victim then would take the money to the bank. Semedo wanted to rob the victim but needed the defendant's help to carry out the robbery because the victim knew Semedo (and, presumably, did not know the defendant).⁷

The defendant said that, on the morning of April 23, the defendant drove the van, which he had borrowed from a friend, to Davey's Market, and picked up Semedo, who was waiting for him outside the market. They parked the van in front of Davey's Market and watched for the victim to emerge. Semedo sat in the driver's seat of the van. The defendant stayed out of sight in the back of the van. When the victim left the store, Semedo told the defendant to get out of the van, and Semedo drove the van and stopped at the stop sign on Clarence Street, blocking the street. When the victim's minivan stopped behind the van driven by Semedo, the defendant approached the driver's window of the minivan, pointed a gun at the victim's neck, and demanded that he hand over the bag. The victim handed him one bag, and reached for another bag but did not give him the second bag. Instead, the victim moved his hand toward the gun, which went off. The defendant ran straight to the van, and Semedo drove the van to the highway, where the defendant emptied the gun of its remaining bullets and threw them out the window, along with the paper bag and the checks found inside the bag. They drove to a junk yard in Brockton, where they counted the money and Semedo gave the defendant $2,175; the defendant hid $2,000 in his boots.⁸

The defendant told police that the gun used in the murder belonged to him and was buried in his aunt's yard in Brockton. Although the defendant initially gave the wrong address for his aunt's home, he provided a rough sketch of her house and yard. Later that day police recovered, pursuant to a search warrant, a .38 caliber handgun from the yard of 74 Otis Street. Forensic testing matched the handgun to the spent bullet recovered from the victim's skull by the medical examiner.

The sole witness for the defense, Jaamaille Williams, testified that he had a conversation with Semedo in March, 2003, in the Cambridge jail in which Semedo bragged that he had shot his codefendant's uncle or nephew, who owned Davey's Market. Williams said that Semedo had claimed ...