Commonwealth v. Gomes

822 N.E.2d 720, 443 Mass. 502, 2005 Mass. LEXIS 81
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 22, 2005
StatusPublished
Cited by10 cases

This text of 822 N.E.2d 720 (Commonwealth v. Gomes) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gomes, 822 N.E.2d 720, 443 Mass. 502, 2005 Mass. LEXIS 81 (Mass. 2005).

Opinion

Greaney, J.

Based on a shooting that occurred after a dispute over a drink on the early morning of October 30, 1999, a jury found the defendant guilty of murder in the first degree on the theory of deliberate premeditation and of unlawful possession of a firearm. The defendant’s motion for a new trial was denied by the trial judge. Represented by new counsel on appeal, the defendant argues error in the admission of certain evidence at trial, error in the denial of his motion for a mistrial, and error in the prosecutor’s closing argument. The defendant also seeks relief pursuant to G. L. c. 278, § 33E. We affirm the defendant’s convictions and the order denying his motion for a new trial. We also discern no basis to grant relief under G. L. c. 278, § 33E.

The jury could have found the following facts. The shooting occurred in a second-floor, two-bedroom apartment in Fall River. The apartment was shared by three young women, Nancy Cardoza (Cardoza), Cardoza’s best friend, Holly Latour (Holly), and Holly’s cousin, Melissa Latour (Melissa), and a minor, Holly’s niece, Nichole Soares (Soares). Soares, who was fourteen years of age, had run away from her foster home.

At approximately midnight on October 29, 1999, the defendant’s brother, Moses Rivera, who was also known as “Tan” and was Holly’s former boy friend, telephoned the apartment and spoke with Cardoza. Within one-half hour, Tan and the defendant arrived at the apartment. They brought a one-half gallon bottle of vodka and an orange drink. Cardoza and Melissa were in the apartment when Tan and the defendant arrived. Earlier, Holly had gone downstairs to a friend’s apartment, and Soares had left the apartment to go out with some friends.

Melissa socialized with the defendant and Tan for a little over one hour, and then went to bed. The defendant drank during this time and appeared intoxicated. Later, sometime between 2:15 a.m. and 2:30 a.m., the victim, Herminio Gouveia, entered the apartment and asked Cardoza, who greeted him, if Ricky Mello was there. Cardoza, thinking that the victim was looking for a different Ricky, Ricky Lopes, told the victim that Ricky was downstairs. The victim left.

On her return, between 2:30 a.m. and 2:45 a.m., Soares went into Holly’s room, where Melissa was sleeping. Soares then [504]*504went into the bathroom where she saw Tan talking on a cellular telephone and the defendant “bagging coke.” Soares asked what they were doing, and the defendant told her to “mind [her] fucking business.”

Shortly thereafter, the victim returned to the apartment, asking for Ricky. Soares knew the victim, and she invited him inside. The two talked on the couch. The defendant and Tan left the bathroom and went to the kitchen. The defendant sat across from Cardoza at a table located between the bedrooms. The victim asked the defendant for a drink of vodka, and the defendant said no. The victim was a little agitated, but resumed talking with Soares.

Cardoza announced that it was time for everyone to leave. Tan asked if they could stay for one more drink, and Cardoza relented. On his way to the kitchen, Tan asked the victim if he wanted a drink. The victim responded, “What?” Tan repeated the offer, but the victim could not hear him because of loud music playing. Cardoza finally told the victim to go to the kitchen so that Tan could hear him (the victim), and the victim complied. Tan said he was only going to ask once more if the victim wanted a drink. Soares told the victim not to take the drink. The victim said he did not want the drink. The defendant then told the victim not to “disrespect” his brother, and a physical altercation between the defendant and the victim ensued. There was pushing and shoving by the defendant and by the victim. Ricardo Lopes, Melissa’s former boy friend, walked in.

The defendant pulled out a handgun in the kitchen. The fight moved into the living room, and then to Cardoza’s bedroom. The victim said, “Don’t disrespect her house,” and someone said, “We’re going to disrespect that room.” In Cardoza’s bedroom, the victim was pushed against a wall. The victim said to the defendant, “What are you going to do with that? . . . Let’s go outside. Take this outside. Don’t disrespect the house.” Cardoza saw a gun in the defendant’s hand and screamed, “Oh my God, he has a gun.” Cardoza threw two cast iron candlestick holders at the defendant while telling him to stop. Melissa, who had been awakened by Soares, screamed and begged the defendant to put the gun away. Both Tan and Lopes told the defendant to put the gun away. The defendant repeatedly said, [505]*505“Fuck this nigger.” Melissa saw the defendant, who was approximately one foot away from the victim, shoot the victim in the head. Soares, who also witnessed the shooting, estimated the distance between the defendant and the victim as a couple of feet. The victim slumped back against a wall. He died from a single gunshot to the middle portion of his right eyebrow.

The defendant and Tan ran from the apartment. Later that morning, at approximately 9 or 10 A.M., they arrived in Lewiston, Maine, at the home of Jamie Wilson, where they woke up their friend Anthony Tibbetts. The defendant had changed his clothes from a green “warm up suit” to black clothing. He and Tan appeared to be in shock. The defendant told Tibbetts that he and Tan had been at a party in Fall River where Tan had pulled the victim into a back room; that the defendant followed and pulled out a gun and waved it around; that Tan told the defendant to put the gun away at least three times; that Tan told the defendant, “I got it under control”; and that, when the victim asked the defendant, “What [are] you going to do with that?,” the defendant shot him. The defendant also told Tibbetts that he ran out of the house to a car, went to a pier or dock, where he threw the gun into the water, and then went to his mother’s home. The defendant described the gun he had used as a .38 caliber gun that could hold five rounds of ammunition.

After receiving a telephone call from a Massachusetts State trooper on November 8, 1999, police officers in York, Pennsylvania, located the defendant hiding in a second-floor closet in a local residence. When asked to identify himself, the defendant provided a false name and falsely stated that he was from Florida. During his booking, the defendant told an officer that he was glad it “was over” because “it was hard being on the run.” The defendant also stated that he did not mean to kill anyone, that his life had changed in an instant, and that “none of this would have happened if they had not taken his daughter.”

A State trooper identified the defendant’s fingerprints on a vodka bottle and on two glasses taken from the apartment after the shooting. A single .38 caliber bullet, consistent with having been discharged from a .38 caliber five-shot revolver, was removed from the victim’s head. Based on four-inch diameter [506]*506gun powder stippling on the victim, the medical examiner opined that the victim had been shot from a distance of between six inches and two to three feet from his face. A State trooper with the firearms identification section testified that a .38 caliber five-shot revolver, the most common of which was a Smith & Wesson J frame, would leave a four-inch diameter gun powder stippling if fired from one to two feet away.

The defendant did not testify.

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Cite This Page — Counsel Stack

Bluebook (online)
822 N.E.2d 720, 443 Mass. 502, 2005 Mass. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gomes-mass-2005.