Commonwealth v. Lora

235 N.E.3d 887

COMMONWEALTH

v.Jose LORA.

SJC-12887

Supreme Judicial Court of Massachusetts, Worcester.

argued February 9, 2024

Decided June 24, 2024

Homicide. Practice, Criminal, Instructions to jury, Disclosure of evidence, Assistance of counsel, Failure to object, Argument by prosecutor, Cross-examination by prosecutor, New trial. Evidence, Prior violent conduct, Self-defense, Disclosure of evidence, Prior misconduct, Impeachment of credibility, Prior inconsistent statement, Cross-examination, Argument by prosecutor, Photograph, State of mind, Intent, Motive, Opinion. Constitutional Law, Assistance of counsel. Self-Defense. Mental Impairment. Social Media. Jury and Jurors.

Indictment found and returned in the Superior Court Department on May 20, 2016.

The case was tried before Paul D. Wilson, J., and a motion for a new trial, filed on September 10, 2021, was considered by him.

Jillise McDonough, Boston, for the defendant.

Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Wendlandt, Georges, & Dewar, JJ.

WENDLANDT, J.

In June 2015, the victim, David Luyando, was shot in the head as he was visiting the burial site of a friend in a Worcester cemetery; the victim was. an innocent bystander caught in a line of fire targeting Kevin Parker, who was a part of the group that accompanied the victim at the cemetery. Six days earlier, Parker, who was a member of the Providence Street Posse (PSP), a Worcester-based gang, had shot the defendant, Jose Lora, ostensibly because the defendant, a member of a rival gang, the Kilby Street Posse (KSP), was in the PSP’s apparent "territory." Finding himself face to face with Parker so soon after being shot, the defendant took the opportunity for revenge; he discharged his firearm six times in Parker’s direction, fatally striking the victim with one bullet. Following the killing, the defendant disposed of the murder weapon, cleaned the car in which he was travelling, and eventually absconded to the Dominican Republic.

The defendant was returned to the Commonwealth, and following a jury trial in Superior Court, he was convicted of murder in the first degree on a theory of deliberate premeditation. In this consolidated appeal, the defendant maintains that the trial judge erred by not instructing the jury to consider Parker’s known history of violence in connection with their assessment as to whether the defendant had a reasonable apprehension of Parker at the time of the killing, and that the judge abused his discretion in denying the defendant’s motion for a new trial because the prosecutor delayed disclosure of material evidence prejudicing his defense, and because he was provided with ineffective assistance of counsel. After carefully reviewing the defendant’s claims on appeal and having conducted an independent review of the entire record, we discern no error and no reason to exercise our extraordinary authority under G. L. c. 278, § 33E, to order a new trial or to reduce the verdict of murder in the first degree to a lesser degree of guilt. Accordingly, we affirm the conviction.

1. Background. The jury could have found the following facts from the evidence presented at trial.

a. Commonwealth’s case-in-chief. i. Cemetery shooting. On the afternoon of June 25, 2015, the victim, his aunt, Dawn Sims, his cousin, Ashayla Burrell, and his cousin’s friend, Caytlin Pizarro, were at a Worcester cemetery. Sims had driven the victim’s group to the cemetery in her Chevrolet Equinox after learning from Burrell’s boyfriend, Parker, that a headstone was missing from the burial site of a mutual friend. As discussed supra, Parker was a member of the PSP, a Worcester-based gang prominent in the eastern side of the city. Parker joined the victim’s group at the cemetery, arriving separately in a black Hyundai Elantra, along with fellow PSP gang member, Kevin Mulready. Neither Parker nor Mulready was armed. The two vehicles parked on opposite sides of the road near the gravesite.

Sims called the city police department to report the missing headstone. The victim’s group waited approximately forty-five minutes, but the police did not arrive.

As the victim’s group prepared to leave, Parker sat in the Elantra’s driver’s seat. The victim and Mulready were in the back passenger seats; the victim was on the driver’s side.

A third vehicle, a Mazda, approached the two cars. The vehicle pulled close to the Elantra. One of the Mazda’s windows opened, and Mulready saw a firearm "c[o]me up." Parker saw the defendant in the Mazda. As Parker tried to drive away from the Mazda, he heard five to seven shots. Sims, who was in the Equinox, saw the defendant hanging out of the Mazda¹ and discharging his firearm in the direction of the Elantra.

Pizarro was on her cellular telephone at the time of the shooting leaving a voicemail message for her doctor. The voicemail recording captures the sounds of six gunshots. Pizarro saw the window of the Mazda close following the shooting.

After driving away from the Mazda, Parker turned and saw that the victim appeared to have suffered a gunshot wound to the head; he was struggling to breathe and was choking on his own blood. Parker drove to the hospital. The victim died later that day from a gunshot wound to his head.

ii. Nightclub shooting. As discussed supra, the defendant was a member of the KSP, a Worcester-based gang engaged in a decades-long feud with the PSP. Parker and the defendant had an ongoing "rivalry" that sometimes had turned "physical." At trial, the prosecutor’s theory was that the shooting at the cemetery was in retaliation for a shooting that had occurred six days earlier. Specifically, on June 19, 2015, Parker had shot at the defendant as the defendant was in a vehicle near a nightclub in the PSP’s "area" on the eastern side of the city; one bullet struck the defendant’s arm.²

iii. Defendant’s activities prior to and after the cemetery shooting. On the day of the cemetery shooting, the defendant asked his friend, Ashley Forget,³ for a ride to another KSP gang member’s home.⁴ At the time, Forget was in Crystal Park in Worcester with Janeshley Delossantos, and a KSP gang member, Fred Taylor.⁵ Forget, accompanied by Delossantos and Taylor, drove her Mazda to the defendant’s home, where the group picked him up. En route to the KSP member’s home, Forget drove, Delossantos was in the front passenger’s seat, and the defendant and Taylor were in the back seat. The defendant was on the driver’s side.

As the defendant’s group neared the cemetery, Forget suggested that they stop to see whether a headstone for their deceased friend had been installed.⁶ As they approached the friend’s gravesite, the group saw two vehicles. Taylor surmised that the vehicles belonged to their friend’s family, and Forget pulled the Mazda behind one of the vehicles.

But Taylor was wrong. Instead of their friend’s relatives, the defendant’s group encountered Parker. Forget noticed Parker "slunched" low in the driver’s seat in the vehicle directly across from hers. The defendant started "freaking out" and said "f*** them."

Delossantos, who was familiar with rumors that Parker had shot the defendant six days earlier,⁷ testified that she saw Parker "duck[ ]" as if searching for something in his car. She did not see Parker with a firearm, however. Instead, she saw that the defendant carried a firearm and heard him "clock[ ]" it. Forget, who began to drive away, heard multiple gunshots coming from her Mazda; Delossantos also heard the gunshots.

Near the back entrance of the cemetery, the defendant told Forget to stop the car, which she did. The defendant and Taylor alighted from the car. The defendant instructed Taylor to dispose of the firearm.

The defendant’s group then drove back to Crystal Park and warned KSP members to "get out of there" in light of the shooting that had occurred. Thereafter, Forget drove to Delossantos’s home, where Forget and the defendant cleaned the interior of Forget’s Mazda. The defendant also smashed his cellular telephone and discarded the pieces: He remarked to Forget and Delossantos that he hoped that he had "hit KP." Delossantos testified that "KP" was Parker’s nickname.

Days after the shooting, the defendant fled to the Dominican Republic, where he stayed for several months. While there, he made several posts on his social media account. In one post, which was dated approximately three weeks after the shooting, the defendant stated, "I will never drop my stripes[.] I did too much to get them[.]" In another post that same day, the defendant stated, "[G]od protect me from my friends[.] [I] can take care of my enemies[.]"

A .380 caliber firearm was found at the cemetery near the crime scene. Along the road where the shooting occurred, five spent shell casings were recovered; ballistic testing showed that the casings had been ejected from the .380 caliber firearm. One spent projectile, matching the caliber of the weapon found at the scene, was recovered from the Elantra in which the victim had been shot.

b. The defense. At trial, the defendant asserted that, although he had shot the victim, he had acted in self-defense. The defendant, who took the stand in his own defense, testified that when Forget pulled behind one of the vehicles near the gravesite of their friend, Taylor grabbed the defendant’s leg and gave him a "paranoid" look.

The defendant then saw Parker holding a firearm "right in [the defendant’s] face."⁸ The defendant ducked down, cocked his own weapon, and fired "wildly" in Parker’s general direction. He asserted that he did so to defend himself and his friends. The defendant acknowledged that he disposed of his weapon and cellular telephone following the cemetery shooting, explaining that he did so because he feared being arrested.

The defendant also testified to two incidents that he claimed affected his state of mind at the time of the cemetery shooting. The first occurred in October 2014, approximately eight...