Commonwealth v. Bruno Lopes.

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

22-P-821

COMMONWEALTH

vs.

BRUNO LOPES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury found the

defendant, Bruno Lopes, guilty of unlawful possession of a

firearm, G. L. c. 269, § 10 (a), and attempted assault and

battery by discharge of a firearm, G. L. c. 265, § 15F. Three

months later, the trial judge granted the defendant's

postconviction motion for relief pursuant to Mass. R. Crim. P.

25 (b) (2), as amended, 420 Mass. 1502 (1995), and set aside the

verdicts after concluding that the evidence was not sufficient

as to both indictments. The Commonwealth appealed, and a panel

of this court reversed and reinstated the verdicts in an

unpublished memorandum and order. A single justice of this

court stayed the defendant's appeal from his convictions pending
a decision in Commonwealth v. Guardado, 491 Mass. 666 (Guardado

I), S.C., 493 Mass. 1 (2023) (Guardado II), cert. denied, 144 S.

Ct. 2683 (2024). After Guardado II issued, this court extended

the stay pending a disposition of the defendant's motion for a

new trial on the conviction of unlawful possession of a firearm.

The Superior Court allowed the defendant's motion on that

charge, and the defendant pleaded guilty. Now, the defendant

appeals from his conviction of attempted assault and battery by

discharge of a firearm. We affirm.

Background. On May 14, 2018, in the Temple Landing housing

development in New Bedford, two pedestrians in a group of four

fired gunshots at a passing car. When police arrived at the

scene, they found six spent .22 caliber shell casings. The

police initially retrieved footage from four surveillance videos

from Temple Landing.

Footage from two of these videos proved to be particularly

significant. One video recording showed the movements of the

suspects just before the shooting (Cedar Street video) and a

second video recording showed the shooting (Middle Street

video). The Cedar Street video showed a group of four men walk

out of a residence at 78 Cedar Street, take a left turn, walk

along a sidewalk, take a right turn, and cross the street. The

Middle Street video then tracked their movements as they walked

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single file along an unoccupied sidewalk where the first and

third men fired gunshots at a passing car. All four men then

fled from the scene in the same direction.

These two videos showed distinct clothing worn by each man.

The first shooter wore black clothing with white stripes running

part way down his sweatpants. The second shooter (argued by the

Commonwealth to be the defendant) wore shorts and a dark hooded

sweatshirt (hoodie) with three white stripes running parallel

down the sleeves and a white logo on the left breast (an Adidas

jacket as one witness described it). A third man in the group

wore an orange shirt with ripped jeans, and a fourth man wore a

dark hoodie, a baseball cap, and maroon or red sweatpants.

Investigators gathered footage from five additional

surveillance videos depicting the four men along nearby Rivet

Street before the shooting. The Rivet Street videos showed the

following sequence of events involving the four men: (1) the

man wearing shorts and the man wearing the orange shirt walked

together along the sidewalk, waited outside a doorway during a

phone call, and entered the doorway; (2) the two men wearing

dark clothing walked together along the sidewalk and passed the

doorway; (3) the two men in dark clothing entered an alley,

waited, and entered a side door; (4) the four men left from the

doorway along the sidewalk, entered a Bluebird taxicab (with the

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man wearing shorts in the front passenger seat), and drove off;

and (5) the taxicab returned, someone walked from the doorway

and handed an object to someone on the passenger side of the

taxicab, and the taxicab drove away.

The camera angles of the Rivet Street videos provided close

and distinguishing images of the four men. As the man wearing

shorts approached the building, his face (partially obscured),

hands, and legs revealed a dark skin tone. His companion in the

orange shirt had a lighter complexion, with his face visible

from a variety of angles as he paced on the sidewalk. The two

men wearing black had light complexions with faces visible

(though a baseball cap partially obscured one).

The taxicab driver testified that she could not remember

the clothing of the four men. She did, however, recall that the

man who entered the front seat of her taxicab (wearing shorts in

the video), was a dark-skinned male. His complexion was darker

than the other three men. She described the man in the middle

of the backseat as light skinned. The taxicab driver did not

get a good look at the other two men in the backseat. She drove

the four men to 78 Cedar Street, where all four men got out of

the taxicab and entered the residence. Footage from a tenth

surveillance video showed the taxicab arrive on Cedar Street

where the four men got out and entered the residence.

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The address at 78 Cedar Street, where the four men arrived

and left before the shooting, became the focus of the

investigation. After viewing the video footage connected to

this residence, a detective went to 78 Cedar Street and spoke to

Miriam Oliveira. She testified that the defendant, who was her

friend, visited her home prior to the shooting with three other

men. She testified that all four men wore black on the day of

the shooting, but quickly added that she couldn't remember.

When asked if she provided a description regarding basketball

shorts, Oliveira testified that she did not remember.

Evidence at trial also showed that the defendant provided a

statement to the police. He said that "he was there, but he

didn't shoot anybody."

Discussion. 1. Prosecutor's opening statement. Prior to

trial, while discussing competing motions in limine, the

prosecutor agreed that he "will not be asking any identification

to be made that the persons on the video -- they recognized as

Bruno Lopes." The judge then ruled that "any identification of

[the defendant] as the person on the video" would be excluded.

In his opening statement, the prosecutor told jurors that the

defendant and another person fired gunshots at a passing

vehicle. The prosecutor then outlined the investigative steps

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taken by Detective Stephen Wadman, including securing and

watching footage from surveillance videos:

"And in looking back at the video and going back in time
from when the shooting occurs, he's able to see the
Defendant and those three other males had just walked from
78 Cedar Street. So, at that point, he goes to 78 Cedar
Street and meets with the homeowner."

The prosecutor also referred to Det. Wadman obtaining footage

from another video "showing the [d]efendant" and a video showing

a "taxicab arriving with the [d]efendant." Defense counsel

objected at sidebar and moved for a mistrial because the

prosecutor's statement that the detective "looked at the video

and saw" the defendant amounted to a representation that Det.

Wadman would identify the defendant in court as the person in

the video. The prosecutor protested that he merely told jurors

that the defendant was depicted in the video footage seen by the

detective, and he did not state that the detective would

identify the defendant from the video footage. After a brief

discussion, the judge denied the request for a mistrial, and

with defense counsel's agreement, he provided a curative

instruction immediately, telling jurors that opening statements

are not evidence and "none of the words that you heard the

Assistant District Attorney tell you are evidence." He further

instructed, "Specifically there was an Officer Wadman who he

referred to as saying that Officer Wadman identified Mr. Lopes

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on the video after looking at the video. It is not expected in

this trial that Officer Wadman is going to testify to that."

We disagree with the defendant's contentions on appeal that

the curative instruction was inadequate and the statements

require a new trial. To the extent jurors may have understood

the prosecutor's remarks as suggesting that the detective would

identify the defendant from the video footage, the judge's

specific curative instruction mitigated any possible prejudice.

He immediately alerted jurors to the prosecutor's remark,

reminded them that none of the prosecutor's remarks constituted

evidence, and instructed them that the detective would not be

identifying the defendant from the video footage. See

Commonwealth v. Holley, 476 Mass. 114, 126 (2016) (forceful

contemporaneous curative instruction obviates prejudice). We

presume that jurors would understand and follow these

instructions as well as the judge's general instructions at the

beginning of the trial and during the final charge, in which he

cautioned jurors that the remarks of counsel are not evidence.

See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014) (jurors

"presumed to follow the judge's instructions"); Commonwealth v.

Deloney, 59 Mass. App. Ct. 47, 51 (2003) ("[a]ny possible

prejudice was cured by the judge's instruction that opening

statements are not evidence"). We also discern no prejudice

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because the defendant acknowledged his presence at the crime

scene, and the prosecutor's comment did not speak to the central

issue at trial -- whether the defendant was one of two shooters

depicted in the crime scene video footage.

We also discern no error, alone or in combination, from

additional remarks of the prosecutor. As to the defendant's

argument that the evidence failed to meet the prosecutor's

representation that the defendant's friend, Miriam Oliveira,

would testify that the defendant wore shorts on the day of the

shooting, we discern no "bad faith" or "prejudice" that would

warrant a new trial. Commonwealth v. Qualls, 440 Mass. 576, 586

(2003). Despite the prosecutor's opening statement, Oliveira

ultimately did not testify that the defendant wore shorts.

Instead, she testified that she could not remember providing the

police with a description involving "basketball shorts." "A

prosecutor in his opening may explain the facts that he expects

to prove during the trial, so long as he has a good faith

expectation that he will be able to do so with relevant and

admissible evidence." Commonwealth v. Jones, 439 Mass. 249, 260

(2003), quoting Commonwealth v. Thomas, 429 Mass. 146, 157

(1999). Absent a showing of the prosecutor's bad faith or

prejudice flowing from the prosecutor's remark, "the fact that

certain evidence fails to materialize is not a ground for

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reversal." Qualls, supra at 586. Neither bad faith nor

prejudice is present here. Based on a statement the witness

previously made to the police (as discussed at a sidebar), the

prosecutor had a good faith belief that the witness would

testify that the defendant wore basketball shorts. Her failure

of memory on the witness stand does not equate with bad faith of

the prosecutor. See Commonwealth v. Rosa, 73 Mass. App. Ct.

540, 544 (2009) (no bad faith where prosecutor "unexpectedly

faced with the officer's failure to remember the color of the

defendant's clothing"). Nor has the defendant shown that the

prosecutor's remark resulted in prejudice. As previously

stated, the judge instructed jurors on three occasions (before

the openings, after the prosecutor's opening, and in the final

charge) that the statements of the lawyers were not to be

considered as evidence. He carefully limited their

consideration to "testimony of the witnesses as you recall the

testimony and any documents or other things that were received

into evidence as exhibits." Thus, the prosecutor's remark in

his opening statement about the shorts would not have been

considered by the jury. See Andrade, 468 Mass. at 549.

2. Prosecutor's closing argument. "In determining whether

an argument was improper we examine the remarks 'in the context

of the entire argument, and in light of the judge's instructions

9
to the jury and the evidence at trial.'" Commonwealth v.

Gaynor, 443 Mass. 245, 273 (2005), quoting Commonwealth v.

Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

At trial, the prosecutor asked Oliveira questions in an

unsuccessful effort to establish what the defendant was wearing

at her residence. He asked, "[W]hat was [the defendant] wearing

that day?" Oliveira replied, "I don't remember. They was all

wearing black." He asked what the four men who came to her

apartment were wearing, and Oliveira testified, "I think they

was all wearing black." She immediately followed up by

testifying, "I don't remember." On redirect, the prosecutor

asked if she remembered providing any other description to the

police other than "men in all black." Oliveira testified, "I

don't remember." The prosecutor then asked, "If you had

mentioned that one of the males was wearing an orange shirt,

does that refresh your memory?" She replied, "No." "And giving

a different description regarding basketball shorts, you don't

remember --" Once again, she interjected, "No."

After the next witness testified and the judge excused the

jurors for lunch, the prosecutor sought to introduce Oliveira's

prior statement to the police, which referenced the defendant

wearing "gray-ish basketball shorts" on the day of the shooting.

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Following a voir dire of a police witness and lengthy arguments

of counsel, the judge denied the Commonwealth's request.

In his closing argument, the prosecutor referenced

Oliveira's failed memory regarding clothing worn by the

suspects: "I believe she says they were all -- all wearing

black. When pushed further as far as asking (inaudible) that

[the defendant] was in gray shorts, she couldn't remember.

Pushed further about, Did you see an orange shirt? She couldn't

remember." On appeal, the defendant contends that the

prosecutor erred because the argument "implied" Oliveira

previously reported the defendant was wearing shorts, and the

prosecutor "enhanced" the improper implication through the

opening statement in which he told jurors that Oliveira would

testify the defendant was wearing shorts. We discern no error

as to this portion of the argument.

"A prosecutor can address, in a closing argument, a

witness's demeanor, motive for testifying, and believability,

provided that such remarks are based on the evidence, or fair

inferences drawn from it." Commonwealth v. Freeman, 430 Mass.

111, 118-119 (1999). As the prosecutor's repeated references to

the video evidence shows, he argued that the most reliable

evidence of the clothing came from other sources (including

eight of the ten video clips) that showed what the four suspects

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were wearing on the day in question. Accordingly, the

prosecutor could suggest, as he did here, that jurors should

believe Oliveira when she testified that the defendant was at

her house with other men prior to the shooting, but they should

not believe her testimony regarding the clothing being worn.

Nothing in the prosecutor's argument referred to the content of

Oliveira's statement to the police. Contrast Commonwealth v.

Gaudette, 441 Mass. 762, 770 (2004) (improper for prosecutor's

argument to imply that he "knew the contents of the police

report" that was not in evidence).

Although he did not restate the precise question asked

during Oliveira's testimony, we discern "no prejudice."

Commonwealth v. Roman, 495 Mass. 412, 427 (2025). In his

closing, the prosecutor recalled the testimony, "When pushed

further as far as asking (inaudible) that [the defendant] was in

gray shorts, she couldn't remember." As set forth above, the

transcript shows that the prosecutor never directly asked

Oliveira if the defendant wore gray shorts, but the argument

otherwise accurately reflected the testimony that showed

Oliveira could not remember what the defendant wore and could

not remember "giving a different description regarding

basketball shorts." The prosecutor did not purport to quote the

testimony verbatim and did not mischaracterize Oliveira's lack

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of memory. See Commonwealth v. Delacruz, 443 Mass. 692, 695

(2005) ("prosecutor will often paraphrase or summarize from

notes or memory a witness's trial testimony in his or her

closing argument"); Commonwealth v. Evans, 439 Mass. 184, 194,

cert. denied, 540 U.S. 923, 973 (2003) (not improper for closing

argument to paraphrase witness testimony).

Any error in the prosecutor's argument with respect to

Oliveira's memory failure did not result in prejudice. See

Roman, 495 Mass. at 426 (when reviewing closing argument we

consider whether error had "effect on the jury and whether the

error contributed or might have contributed to the verdicts"

[citation omitted]). The case focused on fifty exhibits

including video recordings and still photographs (some taken

from the videos) and the defendant's admission to being at the

scene. Evidence included video clips that methodically traced

the movements of the four men from their gathering on Rivet

Street, to leaving in a taxicab, to arriving at Oliveira's

residence in the taxicab, to walking from that residence toward

the shooting scene, to arriving at the scene, where the four men

stood alone on a sidewalk and two fired shots (one wearing

shorts). The taxicab driver testified that the front seat

passenger had a darker skin tone than that of the other three

men. The videos showed that the front seat passenger wore

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shorts, and the Rivet Street videos depicted some distinguishing

skin tones of the suspects. The defendant admitted that he was

present at the scene of the shooting -- a scene where the only

persons present on the sidewalk were the four persons depicted

in the videos. By comparing the defendant's appearance in the

courtroom with the video evidence depicting skin tones of the

other three suspects, jurors could exclude the possibility that

the defendant was the man in the orange shirt or one of the

remaining two men wearing dark pants. Thus, through a process

of elimination, jurors could conclude, without reference to any

error in the prosecutor's closing argument, that the defendant

was the only person wearing shorts and was necessarily the

second shooter.

We also discern no hybridized error from a combination of

the prosecutor's opening statement with the closing argument.

As previously discussed, the prosecutor failed to deliver on his

opening statement in which he suggested Oliveira would testify

that the defendant wore shorts. That failure to deliver did not

result in prejudice, and the judge repeatedly instructed jurors

that opening statements are not evidence. We see no risk that

following the closing arguments jurors would engage in

speculation and disregard the judge's instructions at the

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beginning of the trial and his repeated instructions on the same

subject in his final charge to the jury.

Finally, the judge's careful, detailed, and extensive

instructions obviated any risk of prejudice. At the beginning

of the trial, the judge told jurors that opening statements and

closing arguments are not evidence. He added, "You must decide

this case solely from the evidence presented in the courtroom,

and this includes the sworn testimony of witnesses, any exhibits

that I admit into evidence, any [stipulations and judicially

noticed facts]." He also cautioned, "If one of the attorneys or

I refer to some part of the evidence that does not [] coincide

with your own recollection, it is your recollection which you

are to follow in your deliberations." In his final charge, the

judge told jurors, "You are not to engage in any guesswork about

any unanswered questions that might remain in your mind or to

speculate about what 'the real facts' might or might not have

been." He repeated his definition of evidence, told jurors to

refrain "from suspicion or conjecture," and repeated that "the

opening statements and the closing [arguments] are not

evidence." He again noted, "If your memory of the testimony

differs from the attorneys in their closing arguments, you are

to follow your own recollection of the testimony." Jurors are

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"presumed" to follow such instructions. Andrade, 468 Mass. at

549.

Having considered the defendant's claims in the context of

the entire argument, the judge's instructions, and the evidence

presented, Gaynor, 443 Mass. at 273, we discern no error or

combination of errors that requires reversal.

Judgment affirmed.

By the Court (Rubin, Shin &
Hodgens, JJ.1),

Clerk

Entered: May 6, 2025.

1 The panelists are listed in order of seniority.

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