The opinion
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-295
COMMONWEALTH
vs.
ROBERTO LOPEZ-ORTIZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of felony-murder
in the second degree and from an order denying his renewed
motion for a new trial. 1 In a separate published decision issued
today, we address the defendant's claim concerning the
peremptory strike of juror no. 3 by the Commonwealth, and, by a
divided vote, affirm his conviction. In this memorandum and
order we address his other claims, with respect to all of which
we are unanimous. The facts of the case are addressed in both
the majority and dissenting opinions in our published decision,
and we will not repeat them here.
1 The defendant makes no separate arguments concerning his
renewed motion for a new trial.
1. Sufficiency. The defendant argues that the evidence
was insufficient to support a conclusion beyond a reasonable
doubt that the death occurred during the commission of the
underlying felony.
The defendant was found not guilty of armed home invasion,
and of armed assault with intent to rob. He was found guilty of
the lesser included offense of assault with intent to rob.
(This conviction was dismissed as duplicative of his felony-
murder in the second degree conviction.) The Commonwealth
contends that in assessing this claim, we must view the evidence
in the light most favorable to the Commonwealth, regardless of
the various verdicts reached by the jurors. The defendant
counters that we must view the evidence in the light most
favorable to the verdict, so that, for example, despite the
evidence that the defendant was armed, we must take the jury's
decision to acquit him of armed assault with intent to rob, in
favor of the lesser included offense of unarmed assault with
intent to rob, along with his acquittal of armed home invasion,
to mean that the jury found that he was not armed.
We need not resolve the issue because, even assuming the
defendant's own testimony is true regarding the events
surrounding the murder, under that testimony the defendant was,
at the time of the killing, outside the building but was not yet
in the car. The jury were not required to believe his testimony
2
that he had attempted to stop the crime once he realized a
member of his group was armed, nor that he had stopped being a
participant. Without concluding anything at variance with their
verdict, the jury could have found that the defendant was
attempting to escape the scene of the crime when the shooting
occurred, and this was sufficient for the jury to convict him.
See Commonwealth v. Hanright, 466 Mass. 303, 308-309 (2013).
2. Jury reinstruction. The defendant contends that the
judge's response to a jury question during deliberation was
erroneous, and that such error could have led to his conviction
on unlawful grounds.
The jury submitted a question to the judge, asking, "There
are four co-venturer's [sic] in an assault with an intent to
rob, three exit the building, one remains in the building where
the felony took place. Are the subsequent acts by the co-
venturer automatically part of the under-lying [sic] felony,
i.e., is the under-lying [sic] felony still going on?" Defense
counsel requested that the judge instruct the jury that
"subsequent acts of the co-venturers are not automatically part
of the under-lying [sic] felony." The judge declined, instead
repeating essentially the instruction on withdrawal that she had
previously given and adding the sentence, "This is a fact
question for you the jury to resolve based on the evidence
presented at the trial and my instructions to you considered as
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a whole." 2 The defendant argues that reversal of his conviction
is required, as the judge's reinstruction did not explain to the
jury that finding the defendant "automatically" guilty under the
circumstances described would be impermissible.
The judge's instruction was a correct statement of the law.
We see no abuse of discretion or other error of law in the
supplemental instruction.
3. Voir dire question. Finally, defense counsel sought to
question jurors about who they voted for in the 2016
presidential election, arguing that Donald Trump's campaign used
racist rhetoric -- in particular, calling people of Hispanic
origin criminals -- so the jurors' voting history was relevant
to discovering bias. The judge declined to allow that line of
questioning, saying it would be inappropriate. The defendant
now argues that the judge's decision was erroneous. Given both
the secrecy of the ballot, see, e.g., proposed but unenacted
Fed. R. Evid. 507, 3 Weinstein's Federal Evidence § 507.01 (2d
ed. 2024) ("Every person has a privilege to refuse to disclose
2 The judge said: "To prove felony murder in the 1st or 2nd
degree the Commonwealth must prove beyond a reasonable doubt
that the act that caused Christiano Diaz-Arias’ death occurred
during the commission of the under-lying [sic] felony at
substantially the same place and time. A killing may be found
to occur during the commission of the felony if the killing
occurred as part of the defendant’s effort to escape
responsibility for the felony. This is a fact question for you
the jury to resolve based on the evidence presented at the trial
and my instructions to you considered as a whole."
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the tenor of his vote at a political election conducted by
secret ballot unless the vote was cast illegally"), and the fact
that tens of millions of people for a wide range of reasons vote
for each candidate in a presidential election, we see no abuse
of discretion or other error of law in not allowing the
defendant, at voir dire, to use voting for Donald Trump for
President in 2016 as a proxy for racism against Latinos.
4. Application of Brown. Finally, the defendant argues
that he is entitled to the benefit of the common law rule
announced in Commonwealth v. Brown, 477 Mass 805, 825 (2017)
(Gants, C.J.). The Supreme Judicial Court, in Brown, made its
substantive change in the law prospective only. Id. 834. It
stated that the rule would not apply to cases like this one
where trial was held before the date of the Supreme Judicial
Court decision. Id.
As described in our published decision, the judgment and
order denying the renewed motion for a new trial are affirmed.
So ordered.
By the Court (Rubin,
Englander & D'Angelo, JJ. 3),
Clerk
Entered: February 12, 2025.
3 The panelists are listed in order of seniority.
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