Commonwealth v. Lopes, SJC–11587

• Decision Date: 08 September 2017
• Docket Number: SJC–11587
• Citation: 91 N.E.3d 1126,478 Mass. 593
• Parties: COMMONWEALTH v. Crisostomo LOPES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

478 Mass. 593

91 N.E.3d 1126

COMMONWEALTH

v.Crisostomo LOPES.

SJC–11587

Supreme Judicial Court of Massachusetts, Suffolk..

September 8, 2017

January 10, 2018

Alan Jay Black, Springfield, for the defendant.

Janis DiLoreto Smith, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, also present) for the Commonwealth.

Present: Gants, C.J., Lenk, Budd, & Kafker, JJ.

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 was on a bicycle. The brother stopped the scooter and lifted his helmet.² No words were exchanged, and the defendant continued moving.

Sometime after the encounter, the victim asked his brother if he could ride the scooter by himself. The brother agreed, and the victim put on his brother's helmet because it was the better of the two. The brother saw the victim drive away from their home heading toward Ridgefield Street.

Boston police Officer Anthony Williams, a member of the local youth violence strike force, had left work at approximately 7:45 P.M. and was driving home. As Officer Williams drove toward the intersection of Bowdoin Street and Norton Street, he observed the defendant and his codefendant. They appeared to be "on a mission," proceeding hurriedly and rapidly. Officer Williams turned his automobile around to further observe them as they approached Bowdoin Street. He pulled his automobile to the side of the road within close proximity to the defendant and his codefendant. From his vantage point, Officer Williams testified that he had a clear view of the individuals through his rear passenger and driver's side windows.

At this time, the defendant was riding a bicycle and his codefendant was, at one point, on the back. After they dismounted the bicycle, Officer Williams observed that the codefendant kept his hand stiffly inside his right pocket. Both defendants were looking out toward Olney Street in a crouched position.

As the victim drove the scooter down Olney Street toward Bowdoin Street, Officer Williams observed the defendant dart out into the street, grab the victim's shoulder, and motion to his codefendant. As the defendant held the victim, his codefendant removed a gun from his pocket, ran out into the street, and from approximately one foot away fired shots into the victim's chest. The codefendant fled on foot and the defendant picked up his bicycle and rode away.³

Officer Williams got back in his vehicle and notified Boston police operations. Officer Williams then continued his pursuit of the codefendant and observed that he kept his hand in his right pocket throughout the pursuit. While the chase was ongoing, two other officers arrived, including Officer Joseph Singletary, who saw the codefendant reach into his pocket and pull out a gun with his right hand. As the codefendant crossed Stonehurst Street, he bent down near a Toyota Camry automobile and a pickup truck. After the codefendant bent down, his hand was no longer in his pocket.

As the officers were securing the codefendant, Officer Williams saw the defendant, who had returned to the scene. He drew his firearm and ordered the defendant to get onto the ground. The defendant said, "What are you going to do, shoot me? ... You can catch one, too." As the defendant was placed into custody, Officer Williams heard him yell, "Homes Ave., motherfuckers." An officer who was another member of the youth violence strike force and who had responded to the scene testified that as he placed the defendant into a transport vehicle, the defendant also twice screamed, "That's right, bitches, Homes Ave. on the block."

Officer Singletary recovered a firearm underneath the tire of the Toyota Camry where he had seen the codefendant bend down. That firearm, an Armi Tanfoglio .25 caliber semiautomatic pistol, was found to match all of the ballistic evidence recovered from the scene and from the victim's body. Swabs later taken from the codefendant's hands and the defendant's shirt revealed the presence of gunshot residue.

The defendant and his codefendant were brought to the police station for booking following their arrest. The booking officer was a Cape Verdean Creole speaker. He placed the defendant in a cell close to him, and the codefendant in the cell that was further away. On at least three occasions, the booking officer heard the defendant yell to his codefendant in Cape Verdean Creole, "Take the fault" and "Can you hear me?"

An autopsy revealed that the victim suffered a gunshot wound to his chest, near his left armpit, and another to his right thigh. The bullet to the victim's chest pierced through his heart and both lungs, ultimately causing his death minutes later.

Discussion. 1. Peremptory challenges of prospective jurors. The defendant contends that the trial judge abused his discretion by failing to determine that the Commonwealth's peremptory challenges were improper. See Commonwealth v. Jones, 477 Mass. 307, 322, 77 N.E.3d 278 (2017). Although the defendant's particular objections to the jury selection process are not always clear, we understand him to assert that the Commonwealth improperly used race to challenge jurors and that the judge erred in not asking for an explanation earlier in the process and then accepting the Commonwealth's explanations as adequate and genuine when given. We conclude that there was no error. As explained below, the Commonwealth's challenges were consistently based on potential jurors' youth, which was not improper. The judge did not therefore abuse his discretion in not requiring explanations for certain earlier peremptory challenges. Nor did the judge abuse his discretion in determining that the prosecutor's race-neutral explanation—based on a juror's youth and volunteer service for a youth organization was both adequate and genuine.

The Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights prohibit a party from exercising peremptory challenges on the basis of race or gender. See J.E.B. v. Alabama, 511 U.S. 127, 128–129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; Commonwealth v. Soares, 377 Mass. 461, 486, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979) (referencing prohibitions against challenges based on sex, race, color, creed, or national origin). Peremptory challenges have not, however, been prohibited based on age, under either the United States or Massachusetts Constitution. Commonwealth v. Oberle, 476 Mass. 539, 545, 69 N.E.3d 993 (2017).

Accordingly, we have held that young adults are not considered a discrete protected group for the purposes of Batson– Soares peremptory challenges and may be excluded. Oberle, 476 Mass. at 545, 69 N.E.3d 993 ("age is not a discrete grouping defined in the constitution, and therefore a peremptory challenge [of young women] may permissibly be based on age"); Commonwealth v. Samuel, 398 Mass. 93, 95, 495 N.E.2d 279 (1986) ("There is no constitutional basis for challenging the exclusion of young persons"); Commonwealth v. Bastarache, 382 Mass. 86, 90, 100, 414 N.E.2d 984 (1980) (in case involving the claimed underrepresentation of jurors between the ages of eighteen and thirty-four, "classifications based on age alone do not involve identifiable or distinctive groups"). Although the United States Supreme Court has not yet opined on the question, every United States Court of Appeals that has considered the issue has rejected the argument that young adults are a protected group for peremptory challenges. See United States v. Cresta, 825 F.2d 538, 544–545 (1st Cir. 1987) (prosecutor's systematic challenge of potential jurors aged eighteen to thirty-four did not violate equal protection); United States v. Bryce, 208 F.3d 346, 350 n.3 (2d Cir. 2000) (peremptory strike based on youth of juror, where other young jurors were also struck, was permissible race-neutral justification); United States v. Clemons, 843 F.2d 741, 748–749 (3d Cir.), cert. denied, 488 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988) ( Batson did not "handcuff a prosecutor's legitimate exercise of peremptory strikes," which included striking "young ... panel members"); Howard v. Moore, 131 F.3d...