Commonwealth v. William Lopez.

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.

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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.

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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

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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.

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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

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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

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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.

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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,

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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.

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