Commonwealth v. Lopes

• Decision Date: 05 December 2003
• Parties: COMMONWEALTH vs. DANA E. LOPES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 731

802 NE 2d 97

COMMONWEALTH vs. DANA E. LOPES.

Supreme Judicial Court of Massachusetts, Barnstable.

December 5, 2003.

January 22, 2004.

Present: Marshall, C.J., Greaney, Ireland, Cowin, & Cordy, JJ.

Eric S. Brandt, Committee for Public Counsel Services, for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

A jury in the Superior Court convicted the defendant of murder in the first degree by reason of deliberate premeditation. Represented by new counsel, the defendant now argues that a new trial is required because the judge (1) refused to pose a collective question to the venire as to whether they, or a family member, had ever been a victim of a violent crime, and (2) failed to instruct the jury, sua sponte, on the use of nondeadly force in self-defense. We reject these arguments. We also conclude that there is no basis to exercise our power pursuant to G. L. c. 278, § 33E, to order a new trial or reduce the defendant's murder conviction to a lesser degree of guilt. Accordingly, we affirm the defendant's conviction. The Commonwealth presented evidence at trial that permitted the jury to find the following facts. On the evening of December 9, 2000, the defendant and Deborah Pitts met outside a homeless shelter. At approximately 8 P.M., after collecting and cashing a check for $500 (payment for work the defendant had contracted to perform on Martha's Vineyard), the two checked into room 37 of the American Host Motel (motel) in Yarmouth. The defendant paid for the room for a week in advance with $200 in cash.

In the motel room, the defendant and Pitts talked, drank, engaged in consensual sexual intercourse, and fell asleep. Pitts awoke early the next morning and began drinking. The defendant wanted to have sex again, but Pitts refused and was able to calm the defendant when he became aggressive. Pitts fell back asleep and did not hear the defendant leave the room.

At approximately 1 or 1:30 P.M. on December 10, 2000, the defendant entered a liquor store, accompanied by the victim, David Bortnik. The defendant appeared to have been drinking but was not noticeably intoxicated. While the victim shopped, the defendant told the store clerk that he had paid for a motel room as a Christmas present for the victim. The defendant also stated that he was going to buy the victim "pretty much what he wanted" so that he (the victim) would not have to bother "rolling old people." The defendant told the store clerk, however, that if the victim tried to rob him, he (the defendant) would kill him. The defendant and the victim both laughed, and the store clerk did not perceive the statement as a threat. The defendant purchased vodka and beer. As the two men left the liquor store, the defendant reminded the victim that he would kill him if he "went after" the defendant's money. The victim just laughed.¹

The defendant and the victim returned to the motel and told the desk clerk that they had been locked out of the defendant's room. The desk clerk, accompanied by the two men, knocked on the door to room 37 and, after Pitts opened the door, returned to the motel office. The defendant, the victim, and Pitts (who was a friend of the victim) began drinking. The defendant, who had initially been angry at Pitts for not letting him into the room, now appeared to be in a good mood. The defendant and the victim hugged each other and called each other "brother." The victim giggled and laughed and, according to Pitts, was his "happy-go-lucky self."

As the afternoon wore on, interaction between the defendant and the victim became testy. The defendant eventually fell asleep. Pitts then reached into his pockets. She removed his wallet and then $115.² Placing the wallet (which had contained no money) on the bed, and urging the victim to join her, Pitts left the room with the $115. The victim, who was laughing and clearly intoxicated,³ followed but returned to the room to retrieve his shirt. Pitts never saw him again.

At approximately 7 P.M. that evening, the defendant appeared in the motel office. He told the desk clerk that he had received an emergency telephone call⁴ and had to check out of the motel immediately. He asked the desk clerk to refund the money he had paid for the room. When informed that was impossible, the defendant responded that he would accept any amount of money. The desk clerk gave the defendant thirty dollars. At trial, the desk clerk described the defendant's demeanor as "real fidgety." After the defendant left, the desk clerk proceeded to room 37, where he discovered the victim's body. The body appeared to be unbruised, with the exception of red welts that encircled the neck area. Police officers subsequently recovered a wire coat hanger in the trees behind the motel, just below the window of room 37. The defendant was arrested the following morning at the home of friends in Hyannis.

In a statement to police, the defendant related the following version of events. According to the defendant, it was Pitts who left the motel room on Sunday morning. The defendant went back to sleep, and when he awoke, the victim (who the defendant claimed weighed 300 pounds) and a younger male were holding him down on the bed. As the younger male fled with his wallet (which the defendant stated contained $400) and $100 that had been on the night stand, the victim held the defendant on the bed, punching him in the arms and legs. The defendant feigned unconsciousness. When the victim turned away, the defendant jumped up, and the victim "came at" the defendant. The defendant then punched the victim as hard as he could in the throat, and the victim collapsed. The defendant stated to police: "I killed him, but I did not strangle him." When confronted by police officers with the medical examiner's findings that the victim had, in fact, been strangled, the defendant speculated that someone else may have entered the motel room after he had left. He then conceded, however, that such a scenario was unlikely.

The Commonwealth proceeded against the defendant on theories of deliberate premeditation and extreme atrocity or cruelty (the latter theory was not selected by the jury on the verdict form). The medical examiner testified that the victim had died as a result of asphyxiation by ligature strangulation and testified that the ligature most likely was the wire coat hanger.⁵ The crossed marks on the victim's neck corresponded with the shape of the coat hanger and, the medical examiner concluded, could only have been made if the assailant was standing behind the victim and holding the ligature from behind. Small pinpoint, or petechial, hemorrhages in the victim's eyes and airways indicated an asphyxial death and confirmed that the victim was alive at the time the ligature strangulation occurred. Deoxyribonucleic acid (DNA) testing of a bloodstain on the defendant's khaki pants and swabs taken from his left thumbnail, his right inside forearm, and his left sneaker revealed DNA consistent with the victim's.

The defendant did not testify. Through cross-examination of the Commonwealth's witnesses, and through witnesses of his own, the defendant's trial counsel presented evidence to support contentions that the killing occurred in the heat of passion or by the use of excessive force in self-defense, and further, that the defendant was intoxicated and debilitated due to chronic alcoholism at the time of the killing and, so, was incapable of premeditation.⁶

1. Pursuant to G. L. c. 234A, § 22, each member of the venire was required to complete and sign a confidential juror questionnaire that elicited information to be used by the judge and lawyers during empanelment of the jury. The questionnaire provided a space for each potential juror to "[d]escribe briefly any involvement (past or present) as a party or a victim in a civil or criminal case by you or any member of your immediate family." In the course of jury selection, the defendant's trial counsel requested that the judge inquire of the venire whether they, or anyone in their family, had ever been the victim of a crime of violence. The judge noted that the identical question had already been posed to prospective jurors by the confidential juror questionnaire. The defendant's trial counsel indicated that, in his experience, one or more jurors may have been a victim of a violent crime but, intentionally or inadvertently, neglected to include this information in the written responses to the questionnaire.⁷ The judge denied the request, and the jury then were empanelled.

The defendant does not now claim, nor is there anything in the record to indicate, that the chosen jurors were less than fair and impartial. He argues only that the jury may have included members whose views were tainted by personal experiences with violent crime and that the judge's refusal to pose the requested question denied him the opportunity to probe for potential bias. The scope of voir dire rests in the sound discretion of the trial judge, and a determination by the judge that a jury are impartial will not be overturned on appeal in the absence of a clear showing of abuse of discretion or that the finding was clearly erroneous. See Commonwealth v. Emerson, 430 Mass. 378, 384 (1999), cert. denied, 529 U.S. 1030 (2000). We reject the defendant's contention that the proper focus of our review is "whether the [questions] used for testing impartiality created a reasonable assurance that prejudice would be discovered if present." United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973). The goal of permitting questioning of prospective jurors is to provide a defendant with a competent, fair, and unbiased jury. A trial judge, who is aware of the facts of a particular case and can observe firsthand the demeanor of each prospective juror, is in the best position to determine what questions are necessary reasonably to ensure...