Commonwealth v. Lopez

• Decision Date: 20 August 2020
• Docket Number: SJC-12007
• Citation: 151 N.E.3d 367,485 Mass. 471
• Parties: COMMONWEALTH v. Etnid LOPEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

485 Mass. 471

151 N.E.3d 367

COMMONWEALTH

v.Etnid LOPEZ.

SJC-12007

Supreme Judicial Court of Massachusetts, Bristol..

Argued January 10, 2020.

Decided August 20, 2020.

Elizabeth Doherty for the defendant.

Tara L. Johnston, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.

BUDD, J.

The defendant, Etnid Lopez, was convicted of murder in the first degree on a theory of extreme atrocity or cruelty in connection with the stabbing death of Tigan Hollingsworth. We have consolidated the defendant's direct appeal with his appeals from the denial of his motions for a new trial and for postconviction discovery, and we now affirm. After a full consideration of the entire record, we further decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

Background. We present the facts in the light most favorable to the Commonwealth, reserving certain details for discussion of specific issues.

At approximately 11:30 P . M . on June 25, 2010, the defendant, his girlfriend Kayla Lawrence, Jared Brown-Garnham (Garnham), and Michelle Torrey drove to a convenience store in Taunton. The defendant wore a white T-shirt, and Garnham wore dark clothing with a blue bandana. Upon arrival, the defendant entered the convenience store and Lawrence stood in the parking lot with Garnham. While waiting for the defendant, Lawrence saw the victim and exchanged heated words with him. Lawrence was familiar with the victim and had witnessed him, along with a group of other people, "jump" the defendant's brother, Jean Carlos Lopez (Jean),¹ a few years earlier. Soon thereafter, the defendant came out of the store and, with a knife in his hand, began chasing the victim around the parking lot. Torrey got out of her vehicle and attempted to restrain the defendant, holding him back by his arms, but the defendant eventually broke free and continued to chase the victim. During this time, Jean and the defendant's uncle, Erving Cruz, drove into the parking lot. As Cruz got out of the vehicle, he pointed at the victim and shouted, "Is that him? Is that him? Get him." Cruz and Jean joined the defendant in chasing the victim around the parking lot. The victim then ran out of the parking lot and down the street.

Two witnesses, Brittany Machado and Matthew D'Alessandro, observed the events at the convenience store parking lot as they waited in their vehicle at a red light directly across the intersection. Both witnessed the victim flee down the street chased by two men: one in a white T-shirt, and the other, who had just got out of a vehicle in the parking lot, in a black tank top and baggy black clothes. Both witnesses observed the chase as they drove parallel to the three men. As they made a left turn into their driveway, the victim and his two pursuers almost hit their car. D'Alessandro witnessed the three males turn back toward the convenience store before turning down a driveway one house down the street.

As Machado parked the car, they both heard the sound of the chain-link fence to their left clanging. D'Alessandro then saw the victim in his neighbor's back yard, illuminated by a motion-activated spotlight, followed by the man in the white T-shirt and the man in the black tank top. The two men then attacked the victim, holding him and hitting him. As the victim fell to the ground, D'Alessandro heard the man in the black tank top ask, "Did you get him? Did you get him?" The man in the white T-shirt responded, "Yes I got him." The two men then jumped over the fence and fled.²

The victim suffered from thirteen stab wounds, several of which penetrated his chest cavity. His cause of death was collapsed lungs and massive blood loss.

The defendant's theory at trial was that Garnham was the killer. He relied primarily on Lawrence's testimony that Garnham had participated in the attack and left the back yard "a few seconds" after the defendant. Lawrence further testified that following the stabbing, Garnham threatened to kill Lawrence and her daughter, just as he had killed the victim, if Lawrence mentioned his name to police. The defendant also called Garnham's brother, and the brother's fiancée, both of whom testified that Garnham admitted being involved in the attack.

Discussion. The defendant argues that the statements he made to police, text messages sent after the stabbing, and statements attributed to Cruz improperly were admitted in evidence. He also contends that the trial judge erred in declining to instruct the jury on involuntary manslaughter. Finally, he argues that his motion for a new trial was denied improperly.

1. Coventurer statements. At trial, over the defendant's objection, D'Alessandro testified that, as the defendant and Cruz³ pursued the victim around the convenience store parking lot, Cruz shouted, "Is that him? Is that him? Get him." Soon thereafter, from his driveway, D'Alessandro observed the defendant and Cruz in the back yard of the house next door repeatedly striking the victim. D'Alessandro testified that, as the victim fell to the ground, he heard the individual later identified as Cruz ask, "Did you get him? Did you get him?" and heard the other individual, later identified as the defendant respond, "Yes I got him." D'Alessandro then saw the two attackers climb the chain-link fence and flee the scene. The defendant contends that the judge erred in admitting Cruz's statements under the hearsay exemption for statements made by a coventurer.⁴ We perceive no error.

It is well established that "[o]ut-of-court statements by joint venturers are admissible against the others if the statements are made during the pendency of the criminal enterprise and in furtherance of it." Commonwealth v. Winquist, 474 Mass. 517, 520-521, 52 N.E.3d 105 (2016), quoting Commonwealth v. Burton, 450 Mass. 55, 63, 876 N.E.2d 411 (2007). See Mass. G. Evid. § 801(d)(2)(E) (2020). Before admitting a coventurer's statement, a judge must make a preliminary determination that the Commonwealth has established by a preponderance of the evidence, other than the out-of-court statement itself, that a joint venture existed between the declarant and the defendant, and that the statement was made in furtherance of that venture. See Commonwealth v. Rakes, 478 Mass. 22, 37, 82 N.E.3d 403 (2017) ; Winquist, supra at 521, 52 N.E.3d 105. If the judge finds that the Commonwealth has met this preliminary burden, the statement may be admitted, but the judge must instruct the jury that they may only consider the statement as evidence of guilt if the jury make "their own independent determination, again based on a preponderance of the evidence other than the statement itself, that a joint venture existed and that the statement was made in furtherance thereof." Rakes, supra. On appeal, we review the judge's preliminary determination that a coventurer statement is admissible for an abuse of discretion. Id. In doing so, "we view the evidence presented to support the existence of a joint venture in the light most favorable to the Commonwealth, recognizing also that the venture may be proved by circumstantial evidence." Commonwealth v. Bright, 463 Mass. 421, 435, 974 N.E.2d 1092 (2012).

Here, the judge made the requisite preliminary findings at sidebar before admitting each statement.⁵ The judge also provided appropriate instructions to the jury regarding how to consider the statements both prior to their admission in evidence and in his final charge.⁶ The judge did not abuse his discretion in determining that the Commonwealth had established, by a preponderance of the other evidence presented, that Cruz's statements were made during the pendency of a joint venture with the defendant and in furtherance of that joint venture.

"A joint venture is established by proof that two or more individuals ‘knowingly participated in the commission of the crime charged ... with the intent required for that offense.’ " Winquist, 474 Mass. at 521, 52 N.E.3d 105, quoting Bright, 463 Mass. at 435, 974 N.E.2d 1092. There was ample evidence, independent of Cruz's statements, that the defendant and Cruz were engaged in a joint venture that led to the victim's death. D'Alessandro, Machado, and Lawrence all testified that the defendant was chasing the victim around the convenience store parking lot and shouting expletives at the victim when Cruz arrived, got out of the car, pointed at the victim, and immediately joined the chase. The same witnesses also testified that the defendant and Cruz pursued the victim down the street and into a back yard several houses away from the convenience store. D'Alessandro, Lawrence, and another witness testified that both the defendant and Cruz struck the victim multiple times in the back yard, and then fled shortly after the victim fell to the ground. This testimony establishes, by a preponderance of the evidence, that the defendant and Cruz "were involved in a joint venture that resulted in the victim['s] death." Rakes, 478 Mass. at 38, 82 N.E.3d 403.

In addition, each of Cruz's statements was made during, and in furtherance of, the joint venture. At the time of Cruz's first statement, he was just beginning to join the defendant in pursuing the victim. The primary ends of the joint venture -- that is, catching and attacking the victim -- had not yet been achieved. In pointing at the victim and saying, "Is that him? ... Get him," Cruz furthered the venture by seeking to confirm the target, as evidenced further by Cruz immediately joining the chase.

As for Cruz's second statement in the back yard, the defendant contends that it was inadmissible as a statement in furtherance of the joint venture because the attack had been completed by that time. We disagree. "In essence, the inquiry to determine whether a statement was made during the pendency of a criminal enterprise and in furtherance of it ‘focuses not on whether the crime has been completed, but on whether a joint venture was continuing.’ " Winquist, 474 Mass....