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SJC-11587

COMMONWEALTH vs. CRISOSTOMO LOPES.

Suffolk. September 8, 2017. - January 10, 2018.

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

Homicide. Jury and Jurors. Evidence, Relevancy and 

materiality, Prior misconduct, Cross-examination.

Practice, Criminal, Capital case, Challenge to jurors, 

Argument by prosecutor.

Indictment found and returned in the Superior Court 

Department on July 1, 2010.

The case was heard by Patrick F. Brady, J.

Alan Jay Black for the defendant.

Janis DiLoreto Smith, Assistant District Attorney (Patrick 

M. Haggan, Assistant District Attorney, also present) for the 

Commonwealth.

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
2

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,

 

1 At the time of oral argument, the codefendant had not yet

filed his brief with this court.
3

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

 

2 The victim's brother testified that it was a neighborhood

rule to lift up one's helmet to prevent being mistaken for

someone else.
4

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

 

3 Another eyewitness also observed the shooting and the

arrest of the two defendants. The eyewitness testified that the

two males he saw arrested were the same two individuals involved

in the shooting.
5

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 codedendant 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
6

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 (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
7

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

(1994); Batson v. Kentucky, 476 U.S. 79, 95 (1986); Commonwealth

v. Soares, 377 Mass. 461, 486, cert. denied, 444 U.S. 881 (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 (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 ("age is not a discrete grouping

defined in the constitution, and therefore a peremptory
8

challenge [of young women] may permissibly be based on age");

Commonwealth v. Samuel, 398 Mass. 93, 95 (1986) ("There is no

constitutional basis for challenging the exclusion of young

persons"); Commonwealth v. Bastarache, 382 Mass. 86, 90, 100

(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 raceneutral justification); United States v. Clemons, 843 F.2d 741,

748-749 (3d Cir.), cert. denied, 488 U.S. 835 (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 399, 408 (4th Cir. 1997), cert.

denied, 525 U.S. 843 (1998) (challenge of young juror proper

where "age is an acceptable race-neutral factor" [citation
9

omitted]); United States v. Clemons, 941 F.2d 321, 325 (5th Cir.

1991) (age was legitimate race-neutral reason for peremptorily

striking juror similar in age to twenty-two year old defendant);

United States v. Maxwell, 160 F.3d 1071, 1075–1076 (6th Cir.

1998) (declining to recognize young adults or college students

as distinctive groups for Batson purposes); United States v.

Jackson, 983 F.2d 757, 762 (7th Cir. 1993) (in excluding "young

adults" from jury, "no court has found a Fourteenth Amendment

equal protection violation based on the exclusion of a certain

age group from the jury"); United States v. Feemster, 98 F.3d

1089, 1092 (8th Cir. 1996) ("relative youth" qualified as

"potential race-neutral factor justifying the exercise of

'peremptory' challenges"); United States v. Pichay, 986 F.2d

1259, 1260 (9th Cir. 1993) (per curiam) ("young adults do not

constitute a cognizable group for purposes of an equal

protection challenge to the composition of a petit jury");

United States v. Helmstetter, 479 F.3d 750, 754 (10th Cir. 2007)

(youth acceptable race-neutral justification for exercising

peremptory strike); Willis v. Kemp, 838 F.2d 1510, 1518 (11th

Cir. 1988), cert. denied sub nom. Willis v. Zant, 489 U.S. 1059

(1989) ("petitioner failed to establish that young adults aged

eighteen to twenty-nine constituted a cognizable group"); United

States v. Greene, 489 F.2d 1145, 1149 (D.C. Cir. 1973), cert.

denied, 419 U.S. 977 (1974) ("'young persons' is not a
10

cognizable class").

As a general matter, "[w]e presume that peremptory

challenges are properly made, but this presumption can be 

rebutted by a prima facie showing of either a pattern of 

challenges of members of the same discrete group, . . . or, in 

certain circumstances, challenge of a single prospective juror 

within a protected class, . . . where there is a likelihood that 

[a prospective juror is] being excluded from the jury solely on 

the basis of . . . group membership" (quotations and citations

omitted). Commonwealth v. Issa, 466 Mass. 1, 8 (2013). A trial

judge is strongly encouraged to ask for an explanation as

questions are raised regarding the appropriateness of the

challenges. See id. at 11 n.14. A judge has the broad

discretion to do so "without having to make the determination

that a pattern of improper exclusion exists." Id., quoting

Commonwealth v. Scott, 463 Mass. 561, 571 (2012).

In determining whether a pattern exists, a judge is to

consider all of the relevant facts and circumstances. Jones,

477 Mass. at 322. Such factors to consider in determining a

pattern's existence may include (1) "the number and percentage

of group members who have been excluded"; (2) "the possibility

of an objective group-neutral explanation for the strike"; (3)

"any similarities between excluded jurors and those, not members

of the allegedly targeted group, who have been struck"; (4)
11

"differences among the various members of the allegedly targeted

group who were struck"; (5) "whether those excluded are members

of the same protected group as the defendant or the victim"; and

(6) "the composition of the jurors already seated." Id. See

Sanchez v. Roden, 753 F.3d 279, 302 (1st Cir. 2014).

"Once . . . a pattern is found, the burden shifts to the

party exercising the challenge to provide a 'group-neutral'

explanation for it." Oberle, 476 Mass. at 545, quoting

Commonwealth v. Maldonado, 439 Mass. 460, 463 (2003). "The

judge must then determine whether the explanation is both

'adequate' and 'genuine.'" Oberle, supra, quoting Maldonado,

supra at 464. We review the judge's decisions on the peremptory

challenges for abuse of discretion. Jones, 477 Mass. at 320.

a. Jury empanelment generally. On appeal, the defendant

argues that jurors nos. 73, 104, 127, and 129 were improperly

struck by the Commonwealth. To provide context for addressing

this claim, we begin by summarizing the jury selection process,

including the defendant's objections to challenges to other

jurors. Overall, it was clear that the Commonwealth was

exercising its challenges on younger, college-aged jurors. The

Commonwealth used twenty-six of its thirty-two peremptory

challenges on jurors under the age of thirty years. The judge

noted the defendant's (and his codefendant's) age-based

objections but ruled that age and status as a college student
12

were not protected classes.

The defendant first raised a race-based Soares challenge

when he objected to the Commonwealth's third peremptory strike,

targeting an eighteen year old female Asian student.4 The judge

found no pattern and did not require an explanation. He also

pointed out that one of the three excluded was a white male. 

All three of the Commonwealth's peremptory challenges at that

point had been exercised on jurors under the age of thirty. 

Additionally, the Commonwealth had not objected to the first

juror seated, a black female.

Next, the defendant objected to the Commonwealth's eighth

peremptory strike, a challenge of a twenty-one year old female

Hispanic student. Again, the judge found no Soares pattern and

did not require a race-neutral reason for the challenge from the

prosecutor.5 At the time of the defendant's challenge, the

 

4 A document showing the race, gender, and age of each

challenged juror was admitted at trial for identification

purposes.

5 Defense counsel again contended that the Commonwealth was

striking minority jurors. The judge raised a question whether

such a general objection, "lumping" together different

minorities, was appropriate or whether the objection needed to

be targeted to a particular group. The Commonwealth stated its

opinion that challenges needed to be specific to a particular

protected group, but also contested the factual underpinnings of

the objection. The Commonwealth stated:

"[T]he Commonwealth skip[ped] a female African-American

juror, finding her indifferent and being content. Then you
13

Commonwealth had exercised seven of eight peremptory strikes on

jurors under the age of thirty.

b. Jurors nos. 73, 127, and 129. The defendant asserted

his next race-based Soares challenge to the Commonwealth's

nineteenth peremptory strike, juror no. 73, who was a twenty

year old black male college student. Defense counsel described

juror no. 73 as the first young black male found impartial. The

judge declined to find a Soares pattern. The judge indicated

that this was another young juror but saw no pattern as to race

and required no explanation from the Commonwealth.6 Including

juror no. 73, at that point, the Commonwealth had used fifteen

of its nineteen peremptory strikes on jurors under the age of

 

have a strike of one black female, one white male, one

Asian female, one white female, one Asian female, two more

white females and a Hispanic female. I don't see how that

is, you know, with all due respect, anywhere near a

pattern."

We note that "[t]he test in Soares and Batson does not apply to

challenges to members of all minority ethnic or racial groups

lumped together, but instead applies to challenges to

'particular, defined groupings in the community.'" Commonwealth

v. Prunty, 462 Mass. 295, 307 n.17 (2012), quoting Commonwealth

v. Soares, 377 Mass. 461, 486 (1979). See Gray v. Brady, 592

F.3d 296, 305-306 (1st Cir.), cert. denied, 561 U.S. 1015 (2010)

("minorities," African-American, and Hispanic jurors are not

part of same "cognizable group" for Batson purposes).

6 As explained above, it would have been well within the

judge's discretion to require an explanation, even without

finding a pattern. Such questioning could have facilitated our

task on appeal, but the judge was not required to do so given

the obvious and consistent pattern of the prosecutor challenging

young people.
14

thirty. There was no discernable pattern as to race. The

Commonwealth exercised challenges on young jurors irrespective

of their race. Of the fifteen jurors under thirty years old

struck, ten were white, two were black, two were Hispanic, and

one was Asian. We discern no error on the judge's part. The

issue on appeal is not whether the judge was permitted to find

that the presumption of properly-made peremptory challenges had

been rebutted, but whether the judge was required to have so

found. Issa, 466 Mass. at 10. He was not so required for juror

no. 73.

The race-neutral explanations for the Commonwealth's

subsequent challenges of jurors nos. 127 and 129 are also

evident from the record. Juror no. 127, the second black male

challenged, who was over thirty years old, disclosed that his

cousin had been prosecuted by the Suffolk district attorney's

office and had been convicted of murder. The defendant did not

object to the Commonwealth's challenge to juror no. 127.

Juror no. 129, the third black male challenged, also was

over thirty years old and disclosed that his brother had been

prosecuted by the Suffolk district attorney's office and, at the

time, was incarcerated for the conviction. Further, juror no.

129 stated that, two years prior, he had been arrested in

another State and had received a probation sentence for

possession of cocaine. The defendant did not object. The judge
15

did not err in determining that there was no pattern and in

requiring no race-neutral reason; juror no. 129's two

significant experiences with the law provided a sufficient and

obvious basis for the prosecutor's peremptory challenge.

c. Juror no. 104. The judge did not find a prima facie

pattern until the third day of empanelment, when the

Commonwealth exercised a challenge to juror no. 104, another

twenty year old black male college student. Defense counsel

claimed that this was the fourth black male out of six jurors in

the venire that had been challenged. At that point, the judge

required the prosecutor to provide an adequate and genuine raceneutral reason for the decision to strike.

The prosecutor provided two explanations. First, the

prospective juror was twenty years old. The Commonwealth

further explained that individuals of that age have

"difficulties in deciding what classes to take, never mind

whether or not somebody is guilty of first-degree murder." 

Second, the prosecutor stated that this individual should be

challenged because, as counsel for the codefendant "point[ed]

out, [the juror] works with intercity youth who are

underprivileged." Although recognizing that the potential juror

was engaged in "absolutely honorable" work, the prosecutor was

concerned that the juror would be overly sympathetic to the
16

codefendant's counsel's juvenile brain development argument7 and

consequently "not follow the law but instead . . . follow his

heart." The prosecutor compared the potential juror to a "white

woman psychologist" who was rejected earlier for opining that

"[sixteen] year olds make impulsive decisions." See

Commonwealth v. Jones, 477 Mass. at 322 (one factor to consider

in determining whether prima facie case of discrimination has

been made is "similarities between excluded jurors and those,

not members of the allegedly targeted group, who have been

struck"). This argument was responsive to defense counsel's

motions to suppress and motion in limine, all of which had

argued that juvenile brain development was a mitigating factor.

The judge accepted the two reasons given by the prosecutor as

separately both adequate and genuine and denied the defendant's

request to disallow the Commonwealth's challenge.

We conclude that the judge did not abuse his discretion in

determining that the prosecutor's reasons for challenging juror

no. 104 were adequate and genuine. See Maldonado, 439 Mass. at

464-466. Although the judge deemed it a close call, and we

 

7 The prosecutor contended that counsel for the codefendant

would be presenting evidence supporting the argument that

"because of [the codefendant's] extreme youth, him being only

[sixteen] years of age, that in some way . . . mitigates his

conduct and that he should be found guilty perhaps of something

less than first degree murder, or perhaps even an outright

acquittal based upon some belief that his mind is not formed

enough."
17

agree that it was a close question given the number and

percentage of qualified black jurors excluded, we discern no

abuse of discretion. See generally, Jones, 477 Mass. at 319-

320. First, the Commonwealth made no secret of the fact that it

was exercising its challenges on younger, college-aged jurors

irrespective of race, and it did so consistently. See id. at

322. Second, the prospective juror's work with youth, given the

defense's expected emphasis on the age of the codefendant as an

exculpatory factor, provided an additional permissible objective

group-neutral explanation. See id. Others, including a juror

who worked with high school students and another who worked with

"juvenile delinquents" outside the targeted group, had been

excluded by the judge on this ground. Third, at the time of the

challenge to juror no. 104, the record reflects that five of the

fourteen jurors already seated were black (three black women and

two black men). See id.

In sum, the judge reasonably could have found that the

common denominator for the Commonwealth's peremptory challenges

was not race, but age. During three days of empanelment, the

judge carefully observed the composition of the jury, the

composition of the jury venire, and the prosecutor's consistent

use of peremptory challenges to exclude young jurors,

particularly college students. The judge determined that there

had not been a prohibited pattern of excluding black jurors from
18

the jury, and we discern no abuse of discretion in any of his

decisions on the defendant's objections to the Commonwealth's

peremptory challenges.

2. Gang evidence. The defendant contends that the judge

erred in admitting evidence concerning his purported affiliation

with the "Homes Ave." gang. The defendant objected to the

admission of this evidence, and we review for prejudicial error. 

Commonwealth v. Alphas, 430 Mass. 8, 23 (1999). We conclude

that there was no error. The defendant's own statements at the

scene of the crime placed the meaning and significance of Homes

Avenue at issue. The defendant yelled out: "Homes Ave.,

motherfuckers," and twice screamed, "That's right, bitches,

Homes Ave. on the block". Testimony from a police officer and

the victim's brother provided necessary context and explanation.

The background testimony was provided by Officer Anthony J.

Serra, a member of the youth violence strike force, who was

responsible for monitoring potential gang involvement in

Dorchester from 2008 through 2010, and who occasionally

patrolled Homes Avenue. Serra testified that, in 2008, "[W]e

were at the beginning stages of gathering intelligence . . .

about this group that seemed to be emerging in the Homes Ave.,

Topliff Street area . . .[and] seemed to be identifying

themselves with this street, Homes Ave.," and who were wearing

clothes with an insignia beginning with the letter "H."
19

Relatedly, Serra also testified that, in 2008, he saw the

defendant wearing a Harvard University athletic jacket.8

The victim's brother also was permitted to testify about

his own interactions and firsthand knowledge of a group that had

formed on Norton Street. He testified, based on his knowledge

from the neighborhood, that there was a long-standing and

ongoing dispute between the Norton Street group and two

neighboring groups, Homes Ave. and the Cape Verde Outlaws. 

Additionally, the victim's brother testified that, approximately

one year before the murder, in 2009, he had had an altercation

with some individuals whom he had previously seen in the

 

8 Officer Anthony Serra also testified that he had a

conversation with the defendant on January 16, 2008, while the

defendant was being held for a burglary charge. On a couple of

occasions during the conversation, the defendant referred to

himself as "Homes Ave." and said that his "boys" were also Homes

Ave. The defendant contends that the judge erred in denying his

motion to suppress these statements because he was not issued

his Miranda warnings and was not afforded prompt arraignment as

required by Commonwealth v. Rosario, 422 Mass. 48, 56-57 (1996). 

The Commonwealth contends that Miranda warnings were not

required and the Rosario requirements were satisfied. As the

2008 statements about his gang membership are clearly

duplicative of other evidence, we need not resolve these issues. 

Even if admitted in error, the statements were harmless beyond a

reasonable doubt. See Commonwealth v. Dagraca, 447 Mass. 546,

552-553 (2006). As explained here, the Commonwealth introduced

substantial evidence at trial independent of the January 16,

2008, interview that demonstrated the defendant's gang

affiliation. That evidence included the specific statements

made by the defendant at the scene of the murder, the testimony

that the defendant wore clothing with the "Homes Ave." insignia,

and the background information about gangs in the neighborhood,

including the Homes Ave. gang.
20

Dorchester neighborhood of Fields Corner and on Homes Avenue. 

The individuals attempted to rob him but were unsuccessful.

During the altercation, the individuals asked the brother, "Are

you from Norton?," to which he responded, "No, I live on

Norton," to indicate that he was not affiliated with the group

from Norton Street.

Evidence of gang affiliation may be admissible to show

motive. Commonwealth v. Swafford, 441 Mass. 329, 332 (2004). 

We have, however, urged caution in admitting gang-related

evidence because of the risk of suggesting that the defendant

may have a propensity for criminality or violence. Commonwealth

v. Akara, 465 Mass. 245, 267 (2013).

In this case, the gang evidence was properly admitted

because it was relevant to the defendant's motive and intent,

particularly in light of the "Homes Ave." statements the

defendant made at the time of his arrest for the killing in

2010. See Swafford, 441 Mass. at 332 (testimony about gang

affiliation allowed to establish defendants' retributive

motive); Commonwealth v. Maldonado, 429 Mass, 502, 504-505

(1999) (allowing evidence of gang affiliation relevant to

defendant's motive and state of mind). Here, the Commonwealth's

theory was that the defendant and his codefendant engaged in a

joint venture and killed the victim because they believed that

the victim was his older brother, an alleged member of a group
21

from Norton Street, who earlier had almost hit the defendant

with his scooter. Thus, the brother's testimony regarding the

ongoing feud between Homes Ave. and the Norton Street group and

Officer Serra's testimony that the defendant had been seen

wearing clothing that bore an "H" (signifying Homes Ave. gang

membership) was relevant in proving the defendant's motive.

The judge took proper steps to minimize any potentially

unfair prejudicial impact of the testimony. Akara, 465 Mass. at

268-269. During voir dire, he asked whether evidence of gang

membership would affect potential jurors' impartiality.9 Id. at

268; Commonwealth v. Correa, 437 Mass. 197, 201 (2002).

Additionally, the judge instructed the jury that evidence of

gang affiliation could not be considered as evidence of the

defendant's character or propensity to commit the crimes

charged.

10 Id.

 

9 The judge asked members of the venire:

"There may be evidence in this case that some of the

people involved were or may have been involved or

affiliated with a gang or gangs. Whether such evidence is

introduced and, of course, if it is, the credibility of

such evidence and the importance of any such evidence is

completely up to the jury to decide. But there may be some

evidence of that subject. Would such evidence interfere

with your ability to fairly and impartially judge this

case?"

10 The judge instructed the jury:
22

We therefore conclude that the judge did not abuse his

discretion in admitting evidence of the defendant's gang

affiliation because the gang evidence admitted was limited and

properly went to the issue of motive. See Swafford, 441 Mass.

at 332. Further, the gang evidence admitted explained the

defendant's statements about "Homes Ave." at the scene of the

crime. Finally, the risk of unfair prejudice did not outweigh

the probative value of this evidence given the judge's limiting

instruction. See id.

3. Cross-examination of police witness. The defendant

contends that the judge erred in not allowing the defense to

cross-examine Officer Williams, one of the prosecution's key

eyewitnesses, about an internal affairs investigation. 

 

"There was evidence in the case that [the defendant]

was affiliated with a gang or a group known as Homes

Avenue. Like all evidence, it's up to you to determine if

it is true, and if it is, how much weight to give it in

your deliberations on the charges in this case. But you

should keep in mind the following. [The defendant] is not

on trial for being a member of the Homes Avenue group or

gang. He is on trial for the murder of [the victim] on May

30, 2010. The evidence concerning his possible affiliation

with the Homes Avenue gang or group may provide you with

background information relevant to a possible motive in the

case, but it would be improper for you to conclude that

[the defendant] committed the crime for which he is charged

. . . merely because he was a member of Homes Avenue. You

may consider the evidence of [the defendant's] possible

gang affiliation as bearing upon the motive for the murder

of [the victim], but you may not consider it for the

purpose of showing [that the defendant] is or was a bad

person or has a propensity for criminality or violence."
23

Specifically, the defendant sought to impeach Williams with

information that the Boston police department had suspended him

five years earlier for, among other things, lying in an internal

affairs investigation on a personal matter. We conclude that

there was no error, as the judge was well within his discretion

to exclude this five-year-old evidence of lying.

"In general, specific instances of misconduct showing the

witness to be untruthful are not admissible for the purpose of

attacking . . . the witness's credibility." Mass. G. Evid.

§ 608(b) (2017). See Commonwealth v. Hightower, 400 Mass. 267,

271 (1987), and cases cited.

11 Here, Officer Williams's alleged

conduct from an internal affairs investigation five years before

the murder was not material to the May 30, 2010, homicide

investigation. That investigation did not result in a criminal

conviction or even a criminal charge. It was also not related

to how he conducted police investigations. Thus, it was well

within the judge's discretion to conclude that any probative

weight of such five-year-old evidence was far outweighed by the

risk of distracting the jury with the details of an unrelated

 

11 We have carved out narrow exceptions, allowing evidence

of prior false accusations of rape to impeach a witness's

credibility in rape and sexual assault cases. See, e.g.,

Commonwealth v. LaVelle, 414 Mass. 146, 151–152 (1993),

discussing Commonwealth v. Bohannon, 376 Mass. 90, 94–96 (1978),

S.C., 385 Mass. 733 (1982).
24

incident.12 Accordingly, we discern no error in the judge's

exclusion of this evidence.

4. Prosecutor's closing argument. Last, the defendant

contends that the prosecutor made improper remarks during the

Commonwealth's closing arguments. Specifically, the defendant

claims that he was prejudiced by the prosecutor's

characterization of the version of events set forth by

codefendant's counsel as an "insult to your intelligence," a

"farce of a defense," and a "distraction."

Prosecutors are "entitled to argue forcefully for the

defendant's conviction" based on the evidence. See Commonwealth

v. Wilson, 427 Mass. 336, 350 (1998). "[E]nthusiastic rhetoric,

strong advocacy, and excusable hyperbole are not grounds for

reversal" (quotations and citation omitted). Id. To determine

whether an improper argument was made, the prosecutor's remarks

are "considered in the context of the whole argument, the

evidence admitted at trial, and the judge's instructions to the

jury" (citation omitted). Commonwealth v. Nelson, 468 Mass. 1,

 

12 The judge also properly allowed wide-ranging crossexamination of Officer Williams to demonstrate bias or lying on

his part. LaVelle, 414 Mass. at 153 ("in contrast to prior bad

acts, evidence of bias is almost never a collateral matter").

In this case, the record demonstrates that, at trial, defense

counsel extensively cross-examined Officer Williams on his trial

and grand jury testimonies, contemporary reports, and the

forensic evidence. Further, defense counsel repeatedly asserted

during closing arguments that Officer Williams was lying. The

defendant's confrontation rights were not violated.
25

10 (2014).

In the Commonwealth's closing argument, the prosecutor

critiqued the theory of counsel for the codefendant that there

was a third party who was the actual killer. The prosecutor

urged the jury to disbelieve the notion that, if there was

further investigation, the evidence may have been different. 

During closing argument, the prosecutor properly marshaled the

evidence admitted at trial, including statements of witnesses,

surveillance videotape, and forensic evidence. It was in this

context that the prosecutor, over defendant's objection, used

the words "insult," "farce," and "distraction." As a specific

curative instruction, the judge reiterated to the jury that

arguments were not evidence and admonished the jury not to get

"carried away by words like 'insult' or 'distraction' or 'farce'

or anything like that . . . [and to] treat that as rhetoric."

Placed in context, the prosecutor's statements constituted

an overly aggressive response to the argument by the

codefendant's counsel but not grounds for reversal. Even when

understandably provoked, a prosecutor must not "fight fire with

fire." Commonwealth v. Dargon, 457 Mass. 387, 402 (2010). Most

importantly, the judge's curative instruction specifically and

appropriately eliminated any concern of prejudice. Commonwealth

v. Kater, 432 Mass. 404, 424 (2000). Accordingly, we conclude

that there was no reversible error arising from the prosecutor's
26

closing argument.

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

record in accordance with G. L. c. 278, § 33E, and discern no

basis to set aside or reduce the verdict of murder in the first

degree or to order a new trial. Accordingly, we decline to

exercise our authority.

Judgment affirmed.