Commonwealth v. Lopez

856 N.E.2d 163, 447 Mass. 625, 2006 Mass. LEXIS 669
Massachusetts Supreme Judicial Court·Decided November 7, 2006·Published·Cited by 5 cases

Opinion

Cowin, J.

The defendant, Luis M. Lopez, was convicted by a jury of murder in the first degree on a theory of felony-murder, armed robbery, and home invasion.1 He appeals from these convictions and from the denial of his subsequent motion for a new trial. Represented by new counsel, his sole contention on appeal from both the convictions and the denial of the motion is that his testimony was so inculpatory that it rendered the trial, in effect, an elongated guilty plea, and that as a result the judge should have conducted a plea colloquy. We affirm the convictions and the order denying the motion for a new trial. Pursuant to G. L. c. 278, § 33E, we have reviewed the entire record and [626] decline to exercise our power to order a new trial or to direct the entry of a verdict of a lesser degree of guilt on the murder conviction.

Background. We summarize the facts the jury could permissibly have found. On July 22, 1998, the victim, Luis Leganreta, and others from a “drug spot” located at 213 Chestnut Street in Holyoke, “talk[ed] shit” to Glenn Jacobs, a friend of the defendant. Afterward, Jacobs, the defendant, and Reynaldo DeJesus decided to arm themselves and “stick up the guys from Chestnut Street.” At approximately 2:30 a.m. the following morning, the trio obtained firearms from Leonard Velez-Vega (Velez-Vega) and proceeded to the apartment building that housed the “drug spot.” In a hallway, they met Luis Velez (Velez), who was acting as a “lookout” for the victim. To assure that drugs were in the apartment, DeJesus gave Velez money to buy drugs there. When Velez returned with the drugs, the trio brandished their weapons and forced Velez to accompany them upstairs.

At the victim’s door, Velez knocked, identified himself, and indicated that he was accompanied by a drug buyer. The door was secured by a chain. When the door opened slightly, the defendant kicked it in, knocking the victim to the floor. The defendant and DeJesus entered with their weapons pointed at the victim, while Jacobs guarded Velez at the door. The victim told the assailants where the drugs were located, and DeJesus hit him on the head with the butt of his handgun. The defendant then told DeJesus, “Shoot that motherfucker in the face. Shoot him.”2 DeJesus fired his weapon at the victim’s face. The bullet struck the victim through his upper arm and reentered the left side of his head, resulting in death. The defendant also told DeJesus to shoot Velez, the sentry, but the gun jammed and Velez escaped. Several bags of “crack” cocaine were taken, and the group left, shattering a window in order to flee.

A few days later, after the defendant heard that the police were looking for him, he turned himself in, was arrested, and gave a full statement detailing the attack and inculpating [627] himself.* 3 The defendant was indicted for murder in the first degree, armed robbery, and home invasion. The defendant further cooperated with the investigation of the crime, and his accomplices were indicted and convicted of various offenses.4 The defendant testified at the trial of Velez-Vega, again inculpating himself, this time by sworn testimony.

In return for the defendant’s cooperation, the Commonwealth entered into a cooperation agreement with the defendant, pursuant to which he would plead guilty to murder in the second degree. However, in view of the crimes of which his accomplices were convicted, the defendant eventually wished to plead guilty only to the lesser charge of manslaughter. When the Commonwealth refused to reduce the charge to that extent, the defendant elected to proceed with a jury trial.

The trial spanned five days. The first day was devoted largely to jury selection. During the next three days, the Commonwealth called twelve witnesses and in addition read into the record the defendant’s confession to the police and his testimony at the Velez-Vega trial. The defendant’s counsel cross-examined most of the witnesses. At the end of the fourth day, the defendant took the stand and provided testimony consistent with the accounts of other witnesses, except he claimed that he “froze” when DeJesus beat and shot the victim, that he did not tell DeJesus to commit these acts, and that he did not take drugs from the body of the victim. The testimony was similar to his earlier statements, giving emphasis to certain details: the nature of his familial relations, including the fact that he was a father and that his mother was in the court room; that he was not “in charge” of the venture; that he was drinking and “high” on narcotics at the relevant times; and that he felt intense remorse for what had transpired.

The defendant requested an instruction on manslaughter, but the judge refused the request. The charge of murder in the first [628] degree was submitted to the jury on the theories of premeditation and felony-murder. The predicate offenses for felony-murder were the armed robbery and home invasion. The judge instructed the jury that the Commonwealth was proceeding against the defendant as a principal with respect to some of the crimes and as a joint venturer with respect to others. On the verdict slip, the jury found the defendant guilty of felony-murder, armed robbery, and home invasion. The defendant thereafter appealed, secured new counsel, and filed a motion for new trial, arguing that his testimony amounted to a guilty plea that could not be accepted without a contemporaneous record of intelligent waiver, i.e., a plea colloquy.5 The motion judge, who was also the trial judge, conducted an evidentiary hearing and denied the motion. The defendant’s appeals were consolidated for review.

Discussion. The defendant argues that the judge should have conducted a plea colloquy with him, sua sponte, to assure his “understanding that [his] testimony surrendered . . . the constitutional protections of a trial afforded to persons accused of crime,” and that the failure to do so requires a new trial. We review to determine whether there was any error and, if so, whether it caused a substantial likelihood of a miscarriage of justice. See Commonwealth v. Candelario, 446 Mass. 847, 859 n.4 (2006); Commonwealth v. Randolph, 438 Mass. 290, 294 & n.8 (2002). There was no error.

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Commonwealth v. Lopez, 856 N.E.2d 163, 447 Mass. 625, 2006 Mass. LEXIS 669 (Mass. 2006).

856 N.E.2d 163 (Commonwealth v. Lopez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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