NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-373
COMMONWEALTH
vs.
WILLIAM LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals his convictions by a Superior Court
jury, inexplicably asserting claims of error only as to portions
of the indictments on which the jury acquitted him. He contends
that the prosecutor committed various acts of misconduct and
that the judge abused his discretion by failing to give certain
instructions to the jury, all relating to the two indictments
charging the defendant with attempt to disarm a police officer.
Where the defendant was found guilty on the indictments only of
the lesser included offense of assault and battery on a police
officer, which was not inconsistent with his defense at trial, he suffered no harm from any of the asserted errors.1 Moreover,
we discern no improprieties in the Commonwealth's presentation
of its case nor errors in the judge's instructions. To the
contrary, the record in this case reflects a conscientious and
ethical prosecution, a well-conceived and ultimately successful
defense, fully considered and legally sound jury instructions,
and a verdict that was consistent with the evidence and the law.
Accordingly, we affirm.
Discussion. 1. The defendant suffered no harm from any
claimed errors. The jury heard the following evidence. In
January 2021, a Massachusetts State police trooper in a fully
marked cruiser clocked the defendant's car at 120 miles per hour
on Route 495 at the intersection of Route 93. The trooper
pulled onto the highway and followed the vehicle for five or six
miles until he caught up to the defendant as he exited the
highway in Lawrence. When the trooper activated his emergency
lights and siren, the defendant cut around another vehicle,
crashed into the guardrail, continued onto the lower deck of the
1 The defendant was also convicted of negligent operation of a motor vehicle, failure to stop for a police officer, leaving the scene of property damage, and resisting arrest. He conceded those charges at trial and makes no claim on appeal of ineffective assistance of counsel. At the Commonwealth's request, the judge vacated the conviction for assault and battery on a police officer on the second indictment as duplicative of the conviction for the same charge on the first indictment.
2 roadway, struck the median barrier, lifted on two wheels, and
spun around, coming to rest sideways across two travel lanes.
The defendant ran from his car, ignoring the trooper's
instructions to stop and get on the ground. When the defendant
reached the guardrail, he turned toward the trooper and "raised
his hands in a fighting stance." The trooper tried to place him
in custody, but the defendant fought with him. The trooper and
the defendant wrestled until they "ended up crashing into the
guardrail together." The defendant's hands were "all over" the
trooper as the two men rolled around on the ground struggling to
gain control over each other. A second State police trooper
arrived and shouted at the defendant to "stop resisting, give us
your hands," and when the defendant failed to comply, he applied
his taser to the defendant. Ultimately, the defendant was
subdued and arrested.
The Commonwealth contended at trial that the defendant
attempted to disarm the trooper during the struggle. The
defendant conceded in his opening statement and closing argument
that he was "driving quickly," "trying to run from the police,"
engaged in an "altercation" with the trooper in "an attempt to
escape from him and to get away," "failed to stop," and
"resisted arrest." However, the defendant posited that the
Commonwealth lacked the necessary proof that he intended to take
the trooper's service revolver or taser during the struggle.
3 His trial counsel asked the jury to "convict [the defendant] of
nothing more and nothing less than what he's guilty of," and
urged the jury to acquit him of attempting to disarm the
trooper. The jury's verdict was exactly what the defendant
requested. The errors the defendant claims in this appeal
relate only to the attempt to disarm the trooper, of which the
defendant was acquitted. At its most basic level, appellate
jurisprudence (and, indeed, common sense) requires that to
obtain relief from a conviction, a criminal defendant must be
found guilty. Thus, there is no live issue that warrants
reversal.
2. There was no prosecutorial misconduct. Although the
defendant's claims of prosecutorial misconduct also relate to
the acquitted conduct, we nevertheless address them. The
defendant did not object at trial to any of the prosecutor's
statements, arguments, or eliciting of testimony that he now
contends violated principles of fundamental fairness.
a. Prosecutor's opening. The defendant asserts that the
Commonwealth's opening statement was unnecessarily
argumentative, appealed to the jury's emotions by mentioning the
trooper's military service, and referred to "facts not in
evidence"2 when the prosecutor described the defendant's alleged
2 Because it precedes the evidence, an opening statement by definition refers to facts not in evidence; we take the
4 attempt to disarm the trooper. The opening described the
trooper's observations of the defendant's driving, initial
interaction with the defendant, attempt to "deescalate[] his
[own] use of force" by holstering his gun, and struggle with the
defendant. It also touched upon the trooper's military and law
enforcement experience, during which he had "reholstered his
weapon . . . over 10,000 times." The prosecutor stated that
there would be evidence that the defendant had "his hands on the
right side of [the trooper's] duty belt, pulling on his radio
. . . . was able to get [the trooper's] flashlight out of its
holder . . . . [and] was slowly making his way across that duty
belt to access every single use of force weapon [available to
the trooper]."
All of these statements served "[t]he proper function of an
opening" by outlining what the prosecutor "expect[ed] to be able
to prove or support by evidence" (citation omitted).
Commonwealth v. Kapaia, 490 Mass. 787, 794 (2022). We discern
nothing in the opening that crossed the boundary between proper
narrative and improper argument. See Commonwealth v. Deloney,
59 Mass. App. Ct. 47, 51 (2003) (narrative opening proper so
long as clear to jury that narrative is prediction of what will
be established by evidence).
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-373
COMMONWEALTH
vs.
WILLIAM LOPEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals his convictions by a Superior Court
jury, inexplicably asserting claims of error only as to portions
of the indictments on which the jury acquitted him. He contends
that the prosecutor committed various acts of misconduct and
that the judge abused his discretion by failing to give certain
instructions to the jury, all relating to the two indictments
charging the defendant with attempt to disarm a police officer.
Where the defendant was found guilty on the indictments only of
the lesser included offense of assault and battery on a police
officer, which was not inconsistent with his defense at trial, he suffered no harm from any of the asserted errors.1 Moreover,
we discern no improprieties in the Commonwealth's presentation
of its case nor errors in the judge's instructions. To the
contrary, the record in this case reflects a conscientious and
ethical prosecution, a well-conceived and ultimately successful
defense, fully considered and legally sound jury instructions,
and a verdict that was consistent with the evidence and the law.
Accordingly, we affirm.
Discussion. 1. The defendant suffered no harm from any
claimed errors. The jury heard the following evidence. In
January 2021, a Massachusetts State police trooper in a fully
marked cruiser clocked the defendant's car at 120 miles per hour
on Route 495 at the intersection of Route 93. The trooper
pulled onto the highway and followed the vehicle for five or six
miles until he caught up to the defendant as he exited the
highway in Lawrence. When the trooper activated his emergency
lights and siren, the defendant cut around another vehicle,
crashed into the guardrail, continued onto the lower deck of the
1 The defendant was also convicted of negligent operation of a motor vehicle, failure to stop for a police officer, leaving the scene of property damage, and resisting arrest. He conceded those charges at trial and makes no claim on appeal of ineffective assistance of counsel. At the Commonwealth's request, the judge vacated the conviction for assault and battery on a police officer on the second indictment as duplicative of the conviction for the same charge on the first indictment.
2 roadway, struck the median barrier, lifted on two wheels, and
spun around, coming to rest sideways across two travel lanes.
The defendant ran from his car, ignoring the trooper's
instructions to stop and get on the ground. When the defendant
reached the guardrail, he turned toward the trooper and "raised
his hands in a fighting stance." The trooper tried to place him
in custody, but the defendant fought with him. The trooper and
the defendant wrestled until they "ended up crashing into the
guardrail together." The defendant's hands were "all over" the
trooper as the two men rolled around on the ground struggling to
gain control over each other. A second State police trooper
arrived and shouted at the defendant to "stop resisting, give us
your hands," and when the defendant failed to comply, he applied
his taser to the defendant. Ultimately, the defendant was
subdued and arrested.
The Commonwealth contended at trial that the defendant
attempted to disarm the trooper during the struggle. The
defendant conceded in his opening statement and closing argument
that he was "driving quickly," "trying to run from the police,"
engaged in an "altercation" with the trooper in "an attempt to
escape from him and to get away," "failed to stop," and
"resisted arrest." However, the defendant posited that the
Commonwealth lacked the necessary proof that he intended to take
the trooper's service revolver or taser during the struggle.
3 His trial counsel asked the jury to "convict [the defendant] of
nothing more and nothing less than what he's guilty of," and
urged the jury to acquit him of attempting to disarm the
trooper. The jury's verdict was exactly what the defendant
requested. The errors the defendant claims in this appeal
relate only to the attempt to disarm the trooper, of which the
defendant was acquitted. At its most basic level, appellate
jurisprudence (and, indeed, common sense) requires that to
obtain relief from a conviction, a criminal defendant must be
found guilty. Thus, there is no live issue that warrants
reversal.
2. There was no prosecutorial misconduct. Although the
defendant's claims of prosecutorial misconduct also relate to
the acquitted conduct, we nevertheless address them. The
defendant did not object at trial to any of the prosecutor's
statements, arguments, or eliciting of testimony that he now
contends violated principles of fundamental fairness.
a. Prosecutor's opening. The defendant asserts that the
Commonwealth's opening statement was unnecessarily
argumentative, appealed to the jury's emotions by mentioning the
trooper's military service, and referred to "facts not in
evidence"2 when the prosecutor described the defendant's alleged
2 Because it precedes the evidence, an opening statement by definition refers to facts not in evidence; we take the
4 attempt to disarm the trooper. The opening described the
trooper's observations of the defendant's driving, initial
interaction with the defendant, attempt to "deescalate[] his
[own] use of force" by holstering his gun, and struggle with the
defendant. It also touched upon the trooper's military and law
enforcement experience, during which he had "reholstered his
weapon . . . over 10,000 times." The prosecutor stated that
there would be evidence that the defendant had "his hands on the
right side of [the trooper's] duty belt, pulling on his radio
. . . . was able to get [the trooper's] flashlight out of its
holder . . . . [and] was slowly making his way across that duty
belt to access every single use of force weapon [available to
the trooper]."
All of these statements served "[t]he proper function of an
opening" by outlining what the prosecutor "expect[ed] to be able
to prove or support by evidence" (citation omitted).
Commonwealth v. Kapaia, 490 Mass. 787, 794 (2022). We discern
nothing in the opening that crossed the boundary between proper
narrative and improper argument. See Commonwealth v. Deloney,
59 Mass. App. Ct. 47, 51 (2003) (narrative opening proper so
long as clear to jury that narrative is prediction of what will
be established by evidence). The references to military service
defendant's argument to be that the opening referred to facts that were not borne out by the evidence.
5 had an evidentiary purpose because the trooper's military and
law enforcement experience was tied to the Commonwealth's theory
that the trooper holstered his weapon properly before engaging
with the defendant. Finally, the prosecutor's "prediction" of
what would be established at trial regarding the defendant's
actions while on the ground with the trooper was borne out by
the evidence, even if the verdict suggests that the jury did not
fully accept the Commonwealth's version of events. See id.
There was nothing improper in the prosecutor's opening.
b. Prosecutor's closing. In a scattershot blast, the
defendant argues that the prosecutor's closing was inflammatory,
argued facts not in evidence, injected personal belief,
improperly opined about the defendant's state of mind, suggested
"special knowledge" of the defendant's guilt, impermissibly
vouched for witnesses, and misstated the law. We see no record
support for this line of attack on the prosecutor's performance.
We disagree with the defendant's contention that the
prosecutor's reference to the trooper's military service and the
stress he had endured in combat were inflammatory and not
relevant to any material issue. The statements regarding the
trooper's military service were grounded in the evidence and a
fair response to the defendant's argument that the trooper
improperly holstered his pistol because of the "stressors" at
play during his confrontation with the defendant. See
6 Commonwealth v. Fernandes, 478 Mass. 725, 741 (2018) (prosecutor
may argue forcefully for conviction based on evidence and
reasonable inferences, including fairly responding to
defendant's closing). The prosecutor's arguments that (1) the
defendant was "going for the weapons, the things that he and
anybody else with any common sense knows that if they're
accessed by a suspect, that could really well and truly end this
confrontation once and for all"; (2) "[j]ust because [the
trooper] did not feel the defendant's hands on his gun did not
mean that they weren't there"; and (3) the defendant "was
struggling so violently with [the trooper] trying to rip every
item out of his duty belt" did not reflect her personal belief,
opinion, special knowledge, or witness vouching. These
statements were based on the evidence and the reasonable
inferences that could be drawn from it. See Commonwealth v.
Mack, 482 Mass. 311, 322 (2019) (prosecutor entitled to marshal
evidence and reasonable inferences). The prosecutor did not
mention the law in her closing, let alone improperly argue it as
the defendant contends. There was neither impropriety nor error
in the prosecutor's closing.
c. Testimony elicited from witnesses. The defendant
further argues that the prosecutor improperly elicited expert
testimony that "was a generalization of the defendant's guilt"
from the trooper and a State police ballistician. The trooper
7 testified that he properly holstered his firearm before
interacting with the defendant and felt the defendant "yanking
or manipulating" something on the right side of his duty belt
during their physical struggle, which he "imagine[d]" was the
defendant trying to take the gun. This was not proffered as
expert testimony, nor could it reasonably be construed as such.
It was simply the trooper testifying about his recollection of
the altercation based on his personal observations. See
Commonwealth v. Moffat, 486 Mass. 193, 200 (2020) (witnesses may
testify to matters within personal knowledge); Mass. G. Evid.
§ 602 (2024). The expert ballistician subsequently testified
that he examined the trooper's weapon, performed tests on it,
determined that the "locking mechanism" was defeated, and
concluded that "the pistol was slowly coming out and dragging
against something." This was proper expert testimony: it
related to a question at issue in the trial, relied on
specialized training, and was designed to assist the jury in
understanding evidence in an area where technical knowledge
would be helpful. See Commonwealth v. Pytou Heang, 458 Mass.
827, 844 (2011). The defendant's expert offered similar
testimony based on his own experimentation but came to a
different conclusion. There was no error nor misconduct by the
prosecutor in presenting this evidence.
8 3. Defendant's claims of error in judge's instructions.
The defendant claims the judge abused his discretion by failing
to give an instruction regarding inadequate police
investigation. See Commonwealth v. Bowden, 379 Mass. 472, 485-
486 (1980). The defendant asked the judge to give a Bowden
instruction based on the failure of police to take photographs
of the trooper's equipment belt, firearm, holster, and taser in
the immediate aftermath of the incident, while acknowledging
that it was "within the [judge's] sound discretion . . . and we
[are] free to argue this even without the instruction." The
defendant cites no authority to support his position on appeal
that such an instruction was mandatory under the circumstances
of this case. To the contrary, "[t]here was no error because
the giving of such an instruction is never required."
Commonwealth v. Williams, 439 Mass. 678, 687 (2003).
The defendant's argument that the judge should have set
forth "separate proofs for the disparate intents required" for
attempting to disarm a police officer and the lesser included
offense of assault and battery on a police officer falls
similarly flat. A judge's instruction is not required to "use
the common-law terms, general intent and specific intent,
provided that [it] explains to the jury the Commonwealth's
burden on [any] specific intent element" (footnote omitted).
Commonwealth v. Gunter, 427 Mass. 259, 268-269 (1998). Here,
9 the judge gave thorough and detailed instructions on the intent
required to prove simple assault and battery (that the defendant
"intended to touch" the trooper, "on purpose and not by
accident") and on the intent required to prove attempting to
disarm a police officer (that the defendant "intended to disarm
[the trooper], that is, take away [the trooper's] gun in the
case of one of the indictments and a taser, his taser in the
case of the other indictment"). The defendant did not seek any
clarification or additional instructions. There was no error.3
Judgments affirmed.
By the Court (Massing, Walsh & Brennan, JJ.4),
Clerk
Entered: March 21, 2025.
3 The defendant also asserts error in the judge's failure to allow his motions for required finding on the charges of attempting to disarm a police officer. Where the jury acquitted him of the charges, we need not address this claim.
4 The panelists are listed in order of seniority.