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SJC-11551

COMMONWEALTH vs. GREGORIO LOPEZ.

Suffolk. March 11, 2016. - July 8, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.

Homicide. Evidence, Prior violent conduct, State of mind, Selfdefense. Self-Defense. Defense of Others. Practice, 

Criminal, Capital case, State of mind, Argument by 

prosecutor.

Indictments found and returned in the Superior Court 

Department on May 15, 2009.

The case was tried before Patrick F. Brady, J.

David Keighley for the defendant.

Sarah Montgomery Lewis, Assistant District Attorney (David 

Fredette, Assistant District Attorney, with her) for the 

Commonwealth.

SPINA, J. The defendant, Gregorio "Mikey" Lopez,

1 appeals 

from his conviction of murder in the first degree on theories of 

 

1 The defendant's nickname was "Mikey."
2

deliberate premeditation and extreme atrocity or cruelty.

2 The 

defendant shot and killed his girl friend's former boy friend in 

the early morning hours of March 11, 2009. On appeal, the 

defendant argues that a new trial is required because (1) the 

trial judge abused his discretion when he refused to permit 

evidence of the victim's prior violence against the defendant's 

girl friend to be admitted and, by doing so, denied him his 

constitutional right to present a defense; (2) the prosecutor's 

comments in his closing argument severely prejudiced the 

defense; and (3) this court should require the defendant's state 

of mind to be considered in determining whether a murder is 

committed with extreme atrocity or cruelty and, by applying such 

a requirement to this case, the defendant's conviction of murder 

in the first degree based on the theory of extreme atrocity or 

cruelty should be overturned. We affirm the conviction and 

decline to exercise our powers under G. L. c. 278, § 33E.

1. Background. The jury could have found the following 

facts. At the time of the shooting, the defendant was staying 

with his girl friend, Desirae Ortiz, in one bedroom of a fivebedroom apartment on Mozart Street in the Jamaica Plain section 

of Boston. Four additional people lived in the apartment, each 

renting a separate bedroom. The tenants shared a kitchen and a

 

2 The defendant was acquitted of carrying a firearm without 

a license under G. L. c. 269, § 10 (a).
3

bathroom. Insofar as relevant here, Ortiz lived, and the 

defendant stayed, in one bedroom, Jenicelee Vega lived in 

another bedroom, Moises Rivera lived in a third bedroom, and 

Gricelle Alvarado and her infant son lived in a fourth bedroom. 

Vega and Alvarado are cousins. The other individuals living in 

the apartment did not know each other prior to occupying the 

apartment. The defendant, Ortiz, Vega, Rivera, and Alvarado 

were all home the morning of the murder.

The defendant and Ortiz met during the winter of 2008-2009 

and the defendant began to stay frequently with Ortiz on Mozart 

Street beginning shortly after February, 2009. Before dating 

the defendant, Ortiz had had a relationship with the victim. 

They had met when they were fourteen years old and had begun 

dating shortly thereafter. They were no longer dating at the 

time of the murder. However, Ortiz would speak with the victim 

in the months prior to the murder using the telephone at the 

house of their mutual friend. The defendant had knowledge of

Ortiz's prior relationship with the victim but did not know that 

she was speaking recently to the victim on the telephone.

On March 10, 2009, photographs from a Massachusetts Bay 

Transportation Authority surveillance video camera showed the 

victim at the Massachusetts Avenue station at 12:34 A.M. and 

again at the Jackson Square station in Jamaica Plain at 12:47 

A.M. The Mozart Street apartment is a short walk from the 
4

Jackson Square station. At approximately 1 A.M. on March 11, 

2009, Alvarado heard "loud banging" at the front door. She was 

in bed at the time. At first she tried to ignore the banging,

but as it continued, she answered the door. She looked through 

the peephole of the front door and recognized the victim as 

Ortiz's boy friend.3 It had been a while but she had seen the 

victim at the apartment before. Despite knowing who it was, she 

asked, "Who's this?" The victim asked whether Ortiz was home. 

Alvarado opened the door and told the victim that she did not 

know whether Ortiz was at the apartment or if she were sleeping. 

The victim told Alvarado that Ortiz was expecting him. Alvarado 

responded, "Well if she's expecting you, then you know what room 

is hers." She did not show the victim to Ortiz's room but she 

saw him walk through the kitchen in the direction of Ortiz's 

bedroom. She then returned to her bedroom.

The defendant and Ortiz were asleep. Ortiz was awakened by 

a knock on her bedroom door and the sound of the bedroom door 

opening. At first, she did not know who it was. She got up and 

walked toward the door, and realized that it was the victim. 

Ortiz was not expecting him that night. The victim forced 

himself into Ortiz's bedroom and Ortiz turned on the light. As

Ortiz turned on the light, the victim saw the defendant in the 

 

3 Gricelle Alvarado testified that she recognized the victim 

as Ortiz's boy friend; Ortiz, however, testified that she and 

the victim were no longer together.
5

bed, naked. The victim, shocked by the presence of the 

defendant, threatened him. The victim said "he was going to 

blow his head off." The victim said that Ortiz was his "wife." 

The defendant did not respond. Ortiz did not see the victim 

with a weapon nor did she see him hit the defendant. At this 

point, Ortiz wanted the victim to leave so she told the 

defendant that she was going to speak to the victim outside. 

Ortiz left her cellular telephone in the bedroom. She and the 

victim proceeded to the landing outside the front door of the 

apartment, shutting the door behind them. The defendant 

remained in the bedroom. The victim and Ortiz were on the 

landing for approximately forty-five minutes. Ortiz and the 

victim did not shout, yell, or argue.

Meanwhile, at 1:35 A.M., Vega awoke when her cellular 

telephone rang. The caller identification indicated that the 

call was from Ortiz's cellular telephone. When Vega answered 

her cellular telephone, the defendant was speaking. The 

defendant said that there was an emergency and asked Vega to 

come to Ortiz's bedroom. Vega went to Ortiz's bedroom where the 

defendant appeared "really upset." The defendant told Vega that 

Ortiz was outside with her former boy friend and that the former 

boy friend showed him a gun. He asked Vega to take him up the 

street to get a gun. Vega refused and told him that she did not 

want to become involved. Vega left Ortiz's bedroom and did not 
6

see the defendant leave the apartment. Because she sensed

something was going to happen, Vega went to Alvarado's bedroom 

and told her to get her son and leave the apartment.

At approximately 1:51 A.M., while she was in Alvarado's 

bedroom, Vega received another telephone call from the 

defendant, who was still using Ortiz's cellular telephone. He 

told her that he was around the corner. At one point while the 

defendant was not there, Alvarado became "curious" so she went 

to look through the peephole of the front door. She saw Ortiz 

and the victim on the landing.4 She then returned to her 

bedroom. At approximately 2:05 A.M., Vega received a third 

telephone call from the defendant. He told Vega to tell the 

"guy" not to go anywhere and that he was on his way. After the 

telephone calls, Vega went back to her room while Alvarado 

continued to get ready to leave the apartment. A short time 

later, Vega saw the defendant enter the house through the back 

door. She saw a "long, brown" gun in his hand that looked like 

a shotgun. Alvarado saw the defendant walking down the hallway 

with a gun that looked like a rifle. When she saw the 

defendant, Alvarado yelled at him to "stop, hold on" and to 

allow her and her son to leave. At this time, the defendant was 

 

4 Vega also was curious when the defendant left the 

apartment. She looked through the peephole and saw Ortiz and 

the victim having a conversation. She did not see any physical 

confrontations or hear any arguing.
7

standing about two feet away from the front door. The defendant 

responded, "Go ahead, go get your little man."

Alvarado returned to her bedroom, picked up her son, and 

started to walk toward Vega's bedroom, walking past the 

defendant. Alvarado knocked on Vega's bedroom door and as Vega 

opened the door, she saw the defendant with his hand on the 

doorknob, looking through the peephole of the front door. While 

the defendant was looking through the peephole, Vega did not 

hear fighting or shouting coming from the landing. As Alvarado 

was entering the room and before Vega closed the door, Alvarado 

heard the front door open and she looked back to see the 

defendant raise the gun and shoot the victim. She did not see 

anything in the victim's hands at the time he was shot. Ortiz, 

still on the landing, saw the defendant open the door and 

without saying a word, shoot the victim. Ortiz yelled, "No, 

Mikey, no," and, "[W]hy did you do this to me?" The victim fell 

to the floor. Rivera was walking to his bedroom door to go to 

the bathroom when he heard a "very loud" gunshot. He did not 

hear arguing or shouting prior to hearing the gunshot.5 He 

checked his body and clothes for any signs of injury. Once he 

knew he was not injured, he opened the door and saw the hands 

 

5 On cross-examination, Rivera stated that he heard arguing 

immediately before the gunshot.
8

and shoes of the victim on the landing, the defendant at the 

front door, and Ortiz in the hallway.

Rivera then saw the defendant pull the victim to the floor 

and begin to kick and curse at him. The defendant walked toward 

Ortiz's bedroom and then returned to the landing. The defendant 

began to grunt at the victim. Rivera then saw the defendant 

leave the landing, return, and kick the victim again. Ortiz 

also testified that the defendant returned to the landing three 

times, each time kicking and cursing the victim. The defendant 

then left the apartment through the back door. While leaving, 

he told Ortiz that he was trying to protect her.

Ortiz returned to the landing and attempted to perform

cardiopulmonary resuscitation on the victim. The victim tried 

to speak to Ortiz, but his speech was "very slurred" and he 

struggled to breathe. Alvarado, while still in Vega's room, 

telephoned 911, as did Rivera. When the police arrived, about 

five to ten minutes after the shooting, the victim was on the 

floor of the landing with a large gunshot wound to his lower 

right chest area. The victim also had small abrasions on his 

forehead and chin. The victim was pronounced dead at the scene

between 2:15 A.M. and 2:30 A.M. The cause of death was 

determined to be a shotgun wound to the torso, with injuries to 
9

the liver, gallbladder, bowel, pancreas, aorta, and inferior 

vena cava.6

Prior to the commencement of trial, the trial judge allowed 

a motion in limine, filed by the Commonwealth, to exclude 

evidence of the victim's prior violence toward Ortiz.7 The 

defendant argued that evidence of the prior violent relationship 

between the victim and Ortiz would be relevant to the 

defendant's state of mind to support his theory of self-defense 

and defense of another and as it relates to murder in the first 

and second degrees and manslaughter. The judge allowed the 

Commonwealth's motion but stated that he would reconsider if the 

evidence raised an issue of reasonable provocation, defense of 

another, or self-defense.

At the close of the Commonwealth's case and at the close of 

all the evidence, the defendant moved for a required finding of 

not guilty. The judge denied both motions. At the charge 

conference, the defendant argued that a jury instruction on 

extreme atrocity or cruelty should not be given because the 

judge refused to permit evidence of the prior violent 

relationship between the victim and Ortiz, thereby denying the 

 

6 The vena cava is the large vein that drains blood from the

lower extremities back to the heart.

7 The Commonwealth also filed a motion in limine to exclude 

evidence that the victim was incarcerated until March 10, 2009. 

The trial judge allowed this motion.
10

defendant the opportunity to present evidence of his state of 

mind and have the jury determine whether the killing was 

committed with extreme atrocity or cruelty. The judge denied 

the defendant's request. The defense theory was that the four 

other residents of the apartment conspired to convict the 

defendant.

2. Right to a defense. The defendant argues that the 

judge's refusal to admit evidence of the victim's prior violent 

relationship with Ortiz was an abuse of discretion because the 

evidence was admissible under Massachusetts common law, and that 

the defendant's constitutional right to present a defense was 

violated. The Commonwealth argues that the judge properly 

excluded the evidence because the defendant failed to make a 

sufficient proffer as to the prior acts of violence, and the

evidence was insufficient to support a claim of self-defense, 

defense of another, or manslaughter based on reasonable 

provocation. We agree with the Commonwealth.

"The Sixth Amendment to the United States Constitution and 

art. 12 of the Massachusetts Declaration of Rights guarantee a 

criminal defendant's right to present a defense." Commonwealth

v. Dagenais, 437 Mass. 832, 839 (2002). However, this right is 

not absolute. "In the face of 'legitimate demands of the 

adversarial system,' this right may be tempered according to the 

discretion of the trial judge." Commonwealth v. Carroll, 439 
11

Mass. 547, 552 (2003), quoting Commonwealth v. Edgerly, 372 

Mass. 337, 343 (1977). The judge refused to admit evidence of 

the victim's prior violent relationship with Ortiz because he 

concluded that the evidence was irrelevant in the absence of 

evidence of sufficient provocation, self-defense,

8 or defense of 

another. The judge indicated he would consider admitting the 

evidence if evidence of provocation, self-defense, or defense of 

another were presented.

Evidence of prior violent acts committed by the victim 

"known to the defendant at the time of the homicide" may be 

introduced in evidence when a claim of self-defense is raised 

"to support his assertion that he acted justifiably in 

reasonable apprehension of bodily harm." Commonwealth v. 

Fontes, 396 Mass. 733, 735-736 (1986). However, "[t]he 

incidents must not be remote (a discretionary matter for the 

trial judge) and other competent evidence must raise the 

question whether the defendant may have acted justifiably in his 

own defense." Id. at 736.

Here, the defendant did not establish when in time the 

prior acts of violence took place in relation to the murder, nor 

did he provide any details as to specific incidents. The 

 

8 The defendant does not claim that he was denied the 

opportunity to present evidence that the victim was the first 

aggressor. See Commonwealth v. Adjutant, 443 Mass. 649, 654 

(2005).
12

defendant's proffer was merely that there was a "long term 

relationship" between the victim and Ortiz and that "he beat her 

pretty regularly." Defense counsel stated merely that he may 

inquire about one or two incidents but hoped that he did not 

have to "go into specific incidents." He did not offer any 

details of the victim's prior acts of violence. This proffer 

was not sufficient. See Commonwealth v. Campbell, 51 Mass. App. 

Ct. 479, 481-482 (2001).

Moreover, even if the proffer were sufficient, there was 

insufficient evidence that the defendant acted justifiably in 

his own defense. In order for self-defense to be a viable issue 

at trial, there must be sufficient evidence to create a 

reasonable doubt that the defendant "(1) had reasonable ground 

to believe and actually did believe that he was in imminent 

danger of death or serious bodily harm, from which he could save 

himself only by using deadly force, (2) had availed himself of 

all proper means to avoid physical combat before resorting to 

the use of deadly force, and (3) used no more force than was 

reasonably necessary in all the circumstances of the case." 

Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). In this 

case, viewing the evidence in the light most favorable to the 

defendant, the evidence does not show that the defendant acted 

justifiably in his own defense. Commonwealth v. Pike, 428 Mass. 

393, 395 (1998).
13

A defendant must avail himself of all proper means to avoid 

a physical confrontation before he resorted to fatally shooting 

the victim. Harrington, supra at 450. "This rule does not 

impose an absolute duty to retreat regardless of personal safety 

considerations . . . . [An individual] must, however, use every 

reasonable avenue of escape available to him" (citations 

omitted). Pike, supra at 398. See Commonwealth v. Toon, 55 

Mass. App. Ct. 642, 653-654 (2002). In this case, the defendant 

did not use "every reasonable avenue escape available." Pike, 

supra at 398. After the initial verbal confrontation, the 

victim and Ortiz went to the landing outside the apartment's 

front door for approximately forty-five minutes, during which 

the defendant could have telephoned the police or taken further 

precautions such as leaving the apartment and not returning. 

Instead, the defendant made several telephone calls, left the 

apartment to retrieve a gun, returned to the apartment, allowed 

Alvarado to get her son, looked out the peephole of the front 

door, opened the front door, and then, without any warning, shot 

the victim approximately forty-five minutes after the initial 

confrontation. Commonwealth v. Hart, 428 Mass. 614, 616 (1999)

("Indeed, the defendant had the opportunity to retreat and did 

so, but only to return a few minutes later armed with a loaded 

handgun"). There was no evidence that the defendant here 

attempted to avoid physical combat or that it was unreasonable 
14

for him to retreat. Therefore, there was insufficient evidence 

to support a theory of self-defense. See Commonwealth v. 

Benoit, 452 Mass. 212, 227 (2008). See also Pike, 428 Mass. at

399.

Nor was there evidence to support a theory of defense of 

another. An individual may be justified in using deadly force 

against a person in defense of another when "(a) a reasonable 

person in the actor's position would believe his intervention to 

be necessary for the protection of the third person, and (b) in 

the circumstances as that reasonable person would believe them 

to be, the third person would be justified in using such force 

to protect himself." Commonwealth v. Martin, 369 Mass. 640, 649 

(1976). Although there was evidence of a threat made inside 

Ortiz's bedroom, the threat was directed at the defendant, not 

Ortiz. There was no evidence that the victim threatened Ortiz, 

either in the apartment or on the landing. Alvarado was the 

only witness who testified that she heard some arguing and 

yelling between a male and female; however, it is unclear 

whether the defendant was in the apartment at that time. 

Despite the fact that the defendant told Ortiz that he was 

trying to protect her, a reasonable person in the defendant's 

position would not believe that Ortiz needed intervention to 

protect her from the victim, nor would it have been reasonable 

for Ortiz to have used deadly force to protect herself. The 
15

evidence was insufficient evidence to support a theory of 

defense of another.

Last, there was insufficient evidence of adequate 

provocation to support a voluntary manslaughter instruction. "A 

voluntary manslaughter instruction based on provocation is 

appropriate 'if there is evidence of provocation deemed adequate 

in law to cause the accused to lose his self-control in the heat 

of passion, and if the killing followed the provocation before 

sufficient time had elapsed for the accused's temper to cool.'" 

Commonwealth v. Colon, 449 Mass. 207, 220, cert. denied, 555 

U.S. 1079 (2007), quoting Commonwealth v. Andrade, 422 Mass. 

236, 237 (1996). Although there was evidence that the victim 

threatened the defendant inside Ortiz's bedroom, the victim did 

not lay his hands on the defendant, nor did he have a weapon at 

the time he was shot. The only conceivable threat to the 

defendant was when the victim said that he would "blow his head 

off." Words alone generally do not amount to sufficient 

provocation.9 Commonwealth v. LeClair, 429 Mass. 313, 316 

(1999). Even if these words caused the defendant to "lose his 

self-control in the heat of passion," the defendant had adequate 

time to compose himself and cool his temper in the forty-five 

 

9 There is an exception to this general rule when a victim 

"convey[s] inflammatory information to the defendant." 

Commonwealth v. LeClair, 429 Mass. 313, 317 (1999). This is not 

applicable in this case.
16

minutes between the confrontation and the shooting. Colon, 

supra at 220. During that time, the defendant left the 

apartment and returned with a loaded firearm. "Our cases 

suggest that even where sufficient provocation exists, if a 

defendant leaves the scene of the provocation (as here) and then 

returns to attack the victim, the defendant is considered to 

have had adequate opportunity for his anger to subside." 

Commonwealth v. Keohane, 444 Mass. 563, 568 (2005). Even if 

adequate provocation existed, the defendant had a sufficiently 

reasonable amount of time to cool off. A voluntary manslaughter 

instruction was not warranted.

Because there was insufficient evidence to support a theory 

of self-defense, defense of another, or sufficient provocation, 

evidence of a prior violent relationship between the victim and 

Ortiz was not relevant. The judge did not abuse his discretion 

in excluding such evidence, and the defendant's constitutional 

right to present a defense was not violated.

3. Prosecutor's closing argument. The defendant contends 

that certain comments made by the prosecutor during his closing 

argument unfairly prejudiced him where the prosecutor invited 

the jury to draw inferences from the absence of evidence 

regarding the victim's prior violence toward Ortiz that the 

Commonwealth successfully requested to exclude. Additionally, 
17

the defendant argues that the prosecutor took advantage of the 

absence of the evidence. We disagree.

The defendant takes issue with the comments made by the 

prosecutor in his closing argument to the effect that the 

defendant shot the victim because he was jealous, angry, 

humiliated, and embarrassed.10 Because defense counsel requested 

a mistrial at the conclusion of closing arguments, we review for 

prejudicial error. Commonwealth v. Hrabak, 440 Mass. 650, 653-

654 (2004).

In the closing arguments, a prosecutor may argue the 

evidence, draw conclusions, and assist the jury in evaluating

and analyzing the evidence. See Commonwealth v. Burgess, 450 

Mass. 422, 437 (2008); Commonwealth v. Johnson, 429 Mass. 745, 

750 (1999). However, "[a] prosecutor is barred from referring 

in closing argument to matter that has been excluded from 

evidence . . . and a prosecutor should also refrain from 

inviting an inference from the jury about the same excluded 

subject matter" (citation omitted). Commonwealth v. Grimshaw, 

412 Mass. 505, 508 (1992). Additionally, a prosecutor may not 

 

10 For example, the prosecutor in his closing statement 

stated: "This man right here Gregorio Lopez was jealous. He 

was angry. He had just been in that bedroom. His girlfriend, 

new girlfriend of three months, the girl is changing his life. 

The girl is helping him move away from his mother's house. He 

was living there. Her old boyfriend came back at 1:30 in the 

morning, forced his way into that bedroom, humiliated him and 

made him angry. He was jealous. And he didn't call 911."
18

exploit the absence of evidence that was excluded at his or her

request. Commonwealth v. Harris, 443 Mass. 714, 732 (2005). In 

this case, the defendant concedes that the prosecutor never made 

a direct reference to the excluded evidence (prior violent 

relationship). Rather, he contends that the prosecutor took 

unfair advantage of the absence of excluded evidence when 

arguing motive, which the defendant could not contradict without 

the excluded evidence. We disagree.

The prosecutor was responding to defense counsel's closing 

argument where he said that the four other occupants of the 

apartment conspired to convict the defendant. The prosecutor

was merely drawing reasonable inferences and conclusions from 

the evidence. Commonwealth v. Fitzgerald, 376 Mass. 402, 421 

(1978). The prosecutor focused on the fact that the victim, who 

the defendant knew had been Ortiz's former boy friend,

unexpectedly barged into the bedroom that the defendant shared 

with Ortiz. The victim had referred to Ortiz as his "wife." 

Ortiz and the victim then left and were alone together for 

approximately forty-five minutes until the defendant opened the 

door and, without warning, shot the victim. Vega testified that 

the defendant appeared "really upset" when she saw him alone in 

Ortiz's bedroom. It is reasonable to infer from the evidence 

that the defendant was angry, jealous, embarrassed, and 

humiliated after the victim barged into his bedroom, where he 
19

was naked and vulnerable. Based on this record, it was not 

improper for the prosecutor to make these statements in his 

closing argument.

Even if the prosecutor's statements were improper, they do 

not warrant reversal. See Commonwealth v. Wilson, 427 Mass. 

336, 353 (1998). Ortiz was standing on the landing with the 

victim when the defendant opened the door and shot the victim. 

Vega, prior to the defendant's shooting the victim, received 

three telephone calls from the defendant. In the first call the 

defendant asked Vega to drive him up the street to get a gun. 

In the second and third calls, after the defendant left the 

apartment, the defendant told Vega that he was around the corner 

and he asked her to tell the victim not to go anywhere. She 

then saw the defendant return and look out the peephole of the 

front door, all the while with a "large, brown" gun in his hand. 

Alvarado saw the defendant raise the gun and shoot the victim as 

she was running into Vega's room. The prosecutor's statements

were inconsequential in the face of the overwhelming evidence of 

deliberate premeditation. Moreover, the judge instructed the 

jury that closing arguments were not evidence, that they must

base their decision on the evidence as they recalled it, and 

that they alone were the judges of the facts. Additionally, the 

judge instructed the jury that motive was not an element of the 

murder but that evidence of motive may be helpful in their 
20

analysis of the case. The defendant suffered no prejudice by 

the comments made by the prosecutor in his closing statement.

4. Defendant's state of mind. The defendant urges us to 

adopt the concurring opinion of then Justice Gants in

Commonwealth v. Berry, 466 Mass. 763, 777 (2014) (Gants, J., 

concurring), and conclude that a defendant's state of mind, or 

intent, must be considered as an element of the theory of

extreme atrocity or cruelty, and not just in circumstances where

the evidence suggested that the defendant had a mental 

impairment or was intoxicated by drugs or alcohol. Where the 

defendant also was convicted of murder on a theory of deliberate 

premeditation, we need not address this issue. See Commonwealth

v. Nolin, 448 Mass. 207, 220 (2007).

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

entire record, we discern no basis to grant the defendant a new 

trial or reduce the degree of guilt.

Judgment affirmed.