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SJC-10932
COMMONWEALTH vs. KENTEL MYRONE WEAVER.
Suffolk. January 12, 2016. - July 20, 2016.
Present: Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.
Homicide. Firearms. Constitutional Law, Admissions and
confessions, Voluntariness of statement, Waiver of
constitutional rights by juvenile, Assistance of counsel,
Public trial. Evidence, Admissions and confessions,
Voluntariness of statement. Practice, Criminal, Capital
case, Admissions and confessions, Voluntariness of
statement, Waiver, Assistance of counsel, Public trial,
Motion to suppress, New trial.
Indictments found and returned in the Superior Court
Department on December 5, 2003.
A pretrial motion to suppress evidence was heard by
Geraldine S. Hines, J.; the cases were tried before Stephen E.
Neel, J.; and a motion for a new trial, filed on June 1, 2011,
was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J.
Ruth Greenberg for the defendant.
John P. Zanini, Assistant District Attorney, for the
Commonwealth.
CORDY, J. On the evening of August 10, 2003, fifteen year
old Germaine Rucker was shot and killed. The defendant, who was
2
sixteen at the time of the shooting, subsequently admitted to
committing the murder after prolonged questioning by the police
and by his mother.
Prior to trial, the defendant filed a motion to suppress
his statements to the police. That motion was denied following
an evidentiary hearing. In 2006, a jury convicted the defendant
of murder in the first degree on the theory of deliberate
premeditation. He was also convicted of the unlicensed
possession of a firearm. In 2011, the defendant filed a motion
for a new trial under Mass. R. Crim. P. 30, as appearing in 435
Mass. 1501 (2001), claiming that he was denied the effective
assistance of counsel in two respects: first, that counsel
failed to adequately investigate the defendant's claim that his
statements to police were coerced because counsel did not
consult with a mental health expert or present expert testimony
about the voluntariness of those statements; second, that
counsel failed to object to the closure of the court room during
jury empanelment in violation of the defendant's right to a
public trial under the Sixth Amendment to the United States
Constitution. The motion was bifurcated, and different judges
considered, and ultimately rejected, the claims. The denial of
the motion was consolidated with the defendant's direct appeal.
In his appeal, the defendant asks us to expand our rule
requiring the corroboration of extrajudicial statements as it
3
applies to juvenile confessions pursuant to our extraordinary
power under G. L. c. 278, § 33E. He also claims error in (1)
the denial of his motion to suppress; (2) the denial of his
motion for a new trial; and (3) the denial of his motion for a
directed verdict on the firearms charge. We affirm the
defendant's convictions and decline to grant relief under G. L.
c. 278, § 33E.
1. Facts. We recite the facts in the light most favorable
to the Commonwealth, reserving certain details for our analysis
of the legal issues raised on appeal.
On August 10, 2003, the victim went to Wendover Street to
sell some small jewelry charms to a woman and her children.
After the transaction, the woman reentered her home, and the
daughter remained outside. The woman heard two gunshots. She
stepped back out of the doorway and saw the victim lying in the
street on top of his bicycle. The bag in which he had carried
the jewelry was gone. The woman went back inside and telephoned
911.
The daughter testified that, just before the shooting, she
noticed a group of males of varying ages gathered at the top of
Dudley and Wendover Streets. The group rushed toward the
victim, who threw his bag on the ground. They began to fight.
An older member of the group, who appeared to be about thirty
years of age and was wearing a straw hat, threw the first punch.
4
A younger member of the group, who appeared to be about fifteen
years of age and was wearing jean shorts and a white "doo-rag",
picked up the victim's bag and ran toward Dudley Street. The
daughter ran up the steps toward her front door and heard two
gunshots fired in quick succession.
A third witness, who lived on nearby Humphreys Street, was
sitting outside on his second-floor porch when he heard gunshots
from the direction of Wendover Street. He then saw a young
black man run down Humphreys Street away from Dudley Street.
The young man wore dark jeans and was trying to pull off a dark
shirt, under which he wore a white t-shirt. The young man
stumbled and hopped and pulled a pistol from his pants leg. The
pistol had a flat handle and a round silver barrel. As he did
so, the baseball cap he was wearing fell off of his head. The
cap was collected by the police later that evening.
The cap was a Detroit Tigers baseball cap, with a stitched
white "D" on the front and what appeared to be hand-drawn or
painted white "D" letters on the sides. The police had seen the
defendant wearing a cap matching the same description when they
spoke to him approximately two weeks before the victim was
murdered. Deoxyribonucleic acid (DNA) matching the defendant's
DNA profile was found on the hatband. An analyst testified that
the possible contributors to the DNA profile found on the
5
hatband were one in 40 billion Caucasians, one in 1.6 billion
African-Americans, and one in 65 billion Southeastern Hispanics.
A ballistics expert testified that shell fragments
recovered from the victim were consistent with having been fired
from a revolver and not a semiautomatic weapon. A revolver has
a round barrel, consistent with the description of the handgun
in the possession of the fleeing suspect, and does not eject
shell casings. No shell casings were recovered from Wendover
Street.
When emergency medical services arrived at the scene, the
victim showed no signs of life. He had a bleeding head wound
with brain matter visible and a second wound to his lower right
back. The medical examiner who performed the autopsy on the
victim determined that the cause of death was the two gunshot
wounds.
At trial, there was a great deal of testimony regarding the
investigation leading up to the incriminating statements that
the defendant made to police, especially his admission, made
after discussing the particulars with his mother, that he "shot
the [victim]." The defense strategy was to claim that the
defendant’s statements were involuntary, and the result of
coercion by a combination of lengthy questioning first by police
and then by his mother, Iris Weaver (Weaver). We leave the
details concerning the questioning of the defendant and the
6
resultant incriminating statements to the discussion of the
defendant's motion for a new trial, infra, as the trial
testimony of the involved police officers and the defendant's
mother, viewed in the light most favorable to the Commonwealth,
are substantively identical to the testimony given at the
evidentiary hearing on the motion.
At the conclusion of the trial, a humane practice
instruction was given to the jury. The judge instructed the
jury that the Commonwealth bore the burden of proving beyond a
reasonable doubt that the defendant made his statement to the
police "voluntarily, freely, and rationally." The judge further
stated:
"In order for a statement of a defendant to be
voluntary, it must not, in any way, be coerced by physical
intimidation or psychological pressure. Under the law of
the Commonwealth of Massachusetts, a statement may be
coerced not only by law enforcement officials but also by a
private citizen. That is, coercion -- You may find that the
defendant was coerced. Let me put it this way, coercion may
occur not only by law enforcement officials, but in order
to be coercion, it may also be caused by a private citizen.
A statement made by a defendant is not voluntary if it is
psychologically coerced. Therefore, if you find that the
statement made by the defendant was coerced by his mother
or any other person, you may not consider that statement in
reaching a verdict."
During deliberations, the jury asked for a legal definition
of "psychological coercion." After receiving the question, the
court adjourned for the day. Neither the judge nor counsel
located any case law defining the term before court reconvened
7
the next morning. The judge then repeated his original
instructions to the jury, adding that the jurors should "give
the term psychological coercion its plain and ordinary meaning
as you understand it. But I will tell you that psychological
coercion refers to inappropriate or inordinate psychological
pressure." The jury subsequently convicted the defendant.
2. Discussion. a. Corroboration rule. In Commonwealth v.
Forde, 392 Mass. 453, 458 (1984), we announced the corroboration
rule, which "requires corroboration that the underlying crime
was in fact committed, thus preventing convictions against
persons who have confessed to fictitious crimes." Commonwealth
v. DiGiambattista, 442 Mass. 423, 430 (2004), citing Forde,
supra at 458. In DiGiambattista, we declined to expand the rule
to require corroboration that a defendant was the actual
perpetrator of the crime, or to require a showing that a
confession is reliable under the circumstances in which it was
given. DiGiambattista, supra at 431-432. Acknowledging the
phenomenon of false confessions, we concluded that the problem
is best addressed through the "strict analysis of the
circumstances of [an] interrogation as they affect the
voluntariness of a defendant's statement." Id. at 432.
On appeal, the defendant asks us to reconsider expanding
the corroboration rule as it applies to juvenile confessions in
light of research that juveniles are more likely than adults to
8
confess to crimes they did not commit -- research to which no
citation is provided. He argues that his case illustrates the
need for an expanded rule requiring additional evidence that the
accused perpetrated the crime because although there is no
question that a crime occurred -- satisfying Forde -- there is
no evidence, aside from the defendant's confession, linking him
to it.
We decline to expand the rule on this record. The
defendant fails to articulate why our practice of rigorously
examining the voluntariness of a defendant's confession is an
inadequate prophylactic measure against the use of false
confessions in securing a conviction. Indeed, even if we were
to expand the rule, it would not aid the defendant's case. In
addition to the defendant's admission, the Commonwealth
presented evidence at trial linking the defendant to the murder,
including testimony that (1) a young man was seen fleeing from
the scene of the shooting; (2) the young man had a firearm
fitting the description of a revolver in his possession as he
fled; (3) the young man was wearing a distinctive baseball cap,
which fell to the ground; (4) the cap belonged to the defendant;
and (5) the victim and the defendant were known to each other.
The defendant also asks for unspecified relief under G. L.
c. 278, § 33E, on the basis that the jury could not properly
assess the voluntariness of his admission in this case. We
9
disagree, as the jury heard extensive evidence about the
circumstances surrounding the defendant's statements, and were
properly instructed on the humane practice rule. We therefore
decline to grant relief under § 33E.
b. Motion to suppress the defendant's statements. The
defendant next asserts error in the denial of his pretrial
motion to suppress his statements to the police based on his
claim that they were involuntary and coerced. The Commonwealth
argues that the defendant waived this argument by failing to
brief the issue in accordance with Mass. R. A. P. 16 (a) (4), as
amended, 367 Mass. 921 (1975). 1 In his brief, the defendant does
not dispute the factual findings of the judge who heard the
motion (pretrial motion judge) as to the credibility of
witnesses, but the defendant states that he "does dispute the
conclusions of law." The defendant then states that he
incorporates by reference the authorities cited in the
defendant's application to a single justice in the county court
for leave to prosecute an interlocutory appeal "in the interests
of judicial economy and brevity." The defendant additionally
cites to authorities apparently not cited in the prior filings,
1
Rule 16 (a) (4) of the Massachusetts Rules of Appellate
Procedure, as amended, 367 Mass. 921 (1975), requires that the
appellant's argument "contain the contentions of the appellant
with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes and parts of the
record relied on. . . . The appellate court need not pass upon
questions or issues not argued in the brief."
10
but does not provide complete citations or any argument as to
why those authorities undermine the rulings of the pretrial
motion judge.
We agree with the Commonwealth that the defendant's
treatment of this issue in his brief does not rise to the level
of appellate argument required by rule 16 (a) (4) and is
therefore technically waived. 2 However, review under G. L.
c. 278, § 33E, requires us "to consider all issues apparent from
the record, whether preserved or not." Commonwealth v.
Randolph, 438 Mass. 290, 294 (2002). Thus, we review the denial
of the motion to suppress, and if there was error, we determine
whether the error created a substantial likelihood of a
miscarriage of justice in the verdict. Id.
"In reviewing a ruling on a motion to suppress, we accept
the judge's subsidiary findings of fact absent clear error 'but
conduct an independent review of his ultimate findings and
conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646
(2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218
(2002).
Following an evidentiary hearing, the pretrial motion judge
found the following facts that we conclude are supported by the
2
In his reply brief and at oral argument, the defendant
argued it was not his intention to waive this claim, but rather
incorporated the authority contained in the trial pleadings in
the interest of "judicial economy." This contention is
unavailing.
11
evidence. In investigating the victim's murder, the detectives
initially brought the defendant's older brother, Cassim, to the
police station for questioning because they had received
information that he had been seen wearing a blue Detroit Tigers
baseball cap, similar to the one found near the scene of the
shooting. Apparently satisfied that Cassim was not involved in
the shooting, he was subsequently dropped off at home by a
police officer after the interview. Weaver was upset that
Cassim had been taken to the police station.
After speaking with Cassim, the focus of the investigation
shifted to the defendant. O'Leary went to the Weaver residence,
apologized for bringing Cassim to the police station, and told
Weaver that he wanted to speak to the defendant about the
victim's murder. Weaver knew the victim and was aware of the
shooting. Weaver told the police that the defendant was away at
camp and that he would be returning on Sunday, August 24.
Weaver and O'Leary agreed that they would meet, with the
defendant present, on Monday, August 25.
In the time between speaking with Weaver and the
anticipated interview with the defendant, O'Leary learned that
the Boston police had arrested the defendant on a drug offense
on July 26, 2003. The booking sheet generated after that arrest
indicated that the defendant was wearing a Detroit Tigers
12
baseball cap. This baseball cap closely resembled the baseball
cap found near the scene of the victim's shooting.
At approximately 8:30 P.M. on August 25, O'Leary returned
to the Weaver home with another detective to meet with the
defendant. Although Weaver was cordial and respectful, the
presence of the detectives in her home caused her to feel very
uncomfortable. Weaver had not had any previous contact with the
police and she was still upset and concerned about the
detectives conducting the interview with Cassim. She invited
the detectives to sit at the dining room table where she and the
defendant joined them. At some point during the conversation,
Weaver left the table to continue cooking dinner in the
adjoining kitchen. The apartment had an open floor plan and the
view from the dining room table to the kitchen was unobstructed.
Before the detectives began questioning the defendant,
O'Leary produced a waiver form that contained a printed version
of the Miranda warnings especially for juveniles. Upon seeing
the form, Weaver asked if it was necessary to give her son the
Miranda warnings. O'Leary told her that it was "routine" and
then explained that because his purpose was to question the
defendant about the victim's shooting, the defendant should be
advised of his Miranda rights before any questioning took place.
O'Leary first asked the defendant to complete the part of the
form containing his personal information. The defendant did so
13
at his mother's direction. O'Leary read each of the rights from
the form and then asked Weaver and the defendant if they
understood them. He also asked them to initial the form after
each warning to indicate that the rights had been explained to
them. The pretrial motion judge concluded that Weaver, though
not highly educated, is an intelligent woman and understood
those rights.
Weaver noticed that the defendant was becoming "aggravated
and frustrated" as the rights were being explained. She told
him to relax and breathe while encouraging him to sign the form.
She and the defendant verbally acknowledged that they understood
the rights being explained and initialed the form as requested.
Weaver never explained her understanding of these rights to the
defendant.
After Weaver and the defendant signed the form, O'Leary
told Weaver that she could speak with her son privately. They
went to the area near the stairs, away from where they had been
sitting. After a few minutes, they returned to the dining room.
O'Leary stated that if they understood the rights and if they
agreed to speak with them, the defendant should sign the part of
the form that acknowledged that he had taken advantage of the
opportunity to speak with his mother outside the presence of the
police officers. The defendant and his mother signed the form.
14
The detectives then questioned the defendant about the
victim's shooting for about three hours. Weaver occasionally
left the table to continue cooking dinner but remained within
earshot of the interview at all times. The defendant denied
that he was in the area of Wendover Street on the night of the
shooting, that he was associated with any of the individuals
named by the police, or that he knew about a fight involving the
victim and other youths who had accused the victim of stealing a
bicycle.
The detectives asked more difficult questions that left no
doubt that they suspected the defendant of having been involved
in the shooting. The defendant was unaware that the detectives
had information that the defendant had fallen from his bicycle
the night of the shooting. O'Leary asked the defendant how (not
if) the defendant had hurt his leg; the defendant said that he
had injured it playing basketball. Signaling his disbelief,
O'Leary asked the defendant if it was possible that he had
injured himself by falling off his bicycle the night of the
shooting. The defendant denied this, and said whoever said that
was lying. When pressed about when the basketball injury
occurred, the defendant was unable to specify the date. Weaver
volunteered that they had gone to church on August 10 and that
the defendant was not limping at that time. After consulting a
calendar and reviewing the events of the weeks passed, the
15
defendant said that his injury occurred two days after the
shooting.
The detectives then questioned the defendant about his
Detroit Tigers baseball cap. The defendant admitted to wearing
such a cap when he was arrested on July 26. He also agreed that
the cap was distinctive on account of the airbrushed letter "D"
on either side of the logo. The defendant said that he had
taken the cap to an establishment in downtown Boston to have the
distinctive markings placed on it. When asked where the cap
was, the defendant stated that it was lost or stolen the same
day that he hurt his leg playing basketball. When pressed on
the date, the defendant stood by his statement that it was lost
on August 12.
O'Leary then told the defendant that a witness had observed
a black male matching the defendant's description running from
the scene of the shooting and losing a baseball cap that had
been recovered by the police. He said that if the defendant was
not wearing the cap it must have been Cassim. The defendant
denied that Cassim was at the scene. O'Leary expressed his
confidence that the defendant was present on Wendover Street on
August 10 and was involved in the shooting. The interrogation
was terminated shortly thereafter. O'Leary told the defendant
that he "needed to know the truth" and that the investigation
16
would continue. O'Leary told Weaver that he did not believe the
defendant's story.
Although he made no promises of leniency, O'Leary urged
Weaver to "sit down and talk with [the defendant]," "have a
heart to heart talk," and "try to figure out" his role in the
events of the shooting. O'Leary did not suggest questions to
Weaver, but he suspected that the defendant was involved and was
hoping for whatever information Weaver could provide to assist
in the investigation.
The pretrial motion judge found that neither Weaver nor the
defendant asked the detectives to leave their home, nor did they
ever request an attorney or seek in any way to terminate the
interview. The defendant's demeanor during the questioning was
sober and coherent, except for when he seemed to be agitated
that the same questions were being asked repeatedly. The
defendant did not appear to be under the influence of drugs or
alcohol, incapacitated, or incompetent. Although the detective
suspected that the defendant was involved in the shooting, he
did not have an arrest warrant and Weaver was free to terminate
the questioning at any time.
After the detectives left, Weaver began questioning her
son. She was upset that the detectives had come to her home and
was concerned with some of the defendant's answers to their
questions. She was particularly concerned that the defendant's
17
baseball cap may have been found at the scene of the shooting
and she wanted answers from him. The pretrial motion judge
found that she was as much concerned with her own need to
clarify her son's involvement in a very serious crime as she was
with the detective's request that she speak with the defendant.
In her own words, she "wanted to have some peace with this
thing." She asked the defendant the same questions that she had
heard the detectives asking and did not believe the defendant's
answers. After about an hour, she stopped questioning the
defendant, and then sat in a chair for most of the night
thinking about what had just happened.
O'Leary telephoned Weaver the next morning while she was at
work to ask if she had had the "heart to heart" talk with the
defendant. Weaver told him that she had not, but would when she
got home from work. She did not tell O'Leary about her
conversation with the defendant from the night before.
Because she was distracted by the events of the previous
evening, Weaver decided to leave work early and arrived home
around 10 A.M. She decided to talk with the defendant again
because she "didn't have peace with this thing in my mind."
After about an hour she stopped questioning him because the
questions and answers gave her a headache. About one-half hour
later, she called the defendant back to resume her questioning.
She brought God into the conversation, and told the defendant
18
that a boy had died and that such a thing could not be a secret
between children, that God knew about it, and that the defendant
would have no life at all if he did not tell what he knew about
the killing. She continued to question him on and off until the
late afternoon. In an effort to get the defendant to tell the
truth, she resorted to pounding her fist on the kitchen table
and gritting her teeth. The pretrial motion judge found that in
seeking the truth about the defendant's involvement in the
shooting, Weaver was motivated by a desire to do the right thing
in accordance with her personal spiritual beliefs and was not
acting as an agent of the police.
Weaver then prayed again and told the defendant she would
ask him two questions. She asked if he was in the area when the
shooting occurred; the defendant said, "Yes." She then asked if
he did it or if he knew who did it. The defendant put his head
down but said nothing; Weaver took this gesture to mean "Yes."
Weaver, who the pretrial motion judge found to be a woman of
sincere and deeply held religious convictions, began to cry and
to pray out loud. The defendant's sister came into the house
and joined her mother in prayer. Having realized the defendant
may have been involved in a murder, Weaver insisted that the
defendant had to confess for the good of his soul.
The pretrial motion judge found that the concern and love
that Weaver felt for her son expressed itself at this point in
19
her singular focus on his spiritual rather than his legal well-
being. She did not give the defendant any advice or counsel
that would have made him aware of the need to avail himself of
the constitutional protections to which he was entitled. She
did not tell the defendant to remain silent but rather advised
him to tell the truth to the police. She did not seek legal
assistance for her son.
At approximately 4 P.M., Weaver tried to contact O'Leary.
He called her back at around 8 P.M. and she told him that she
was bringing the defendant to speak with him. O'Leary replied
that he assumed the defendant was involved and Weaver said,
"Yes."
In the midst of the talk about God and surrender as the way
to salvation, the defendant told his mother that he did not want
to go to the police station. In the end, however, he succumbed
to his mother's entreaties that he confess for the good of his
soul and turn himself in to the police. Weaver formulated a
plan that they would go to the police station, that he would
say, "I shot Germaine Rucker," and the detectives would then
take him into custody. He was to say nothing more until a
lawyer was appointed to represent him. Sometime after midnight
on August 27, the Weaver family concluded their prayer session
and left their home to go to the police station which was a
short distance away. On the way, they prayed out loud. When
20
they arrived at the station, at approximately 12:30 A.M., they
stood together in a circle, praying for the defendant. The
defendant was crying. They waited for O'Leary and the other
detective to arrive. No police officer had requested that the
defendant be brought to the police station.
When the detectives arrived, Weaver told O'Leary that the
defendant had something to say to them, that she expected them
to take him into custody after his statement and that she wanted
him to have an attorney before they questioned him any further.
Realizing that the defendant was about to make an inculpatory
statement, O'Leary indicated that he would not take any
statement until the defendant was represented by counsel.
However, he did not tell the defendant to remain silent until
they could arrange for an attorney. At the same time, O'Leary
produced a juvenile Miranda form from his briefcase and began
reciting the warnings to the defendant. As he did so and before
he could finish reading the rights, the defendant said, "I shot
Germaine Rucker." O'Leary then arrested the defendant and read
him his rights. Until the defendant made the statements, he was
free to leave the station.
i. August 25 statements. The defendant first argues that
the statements made in his home on August 25, 2003, should have
been suppressed because he did not validly waive his Miranda
rights before speaking with the police and because his
21
statements were not voluntary. Rejecting these contentions, the
pretrial motion judge concluded that the Miranda warnings were
not required and that the defendant's statements were
voluntarily made. We agree.
A. Custodial interrogation. Miranda warnings are required
only when a defendant is subjected to a custodial interrogation,
and "a defendant's failure to receive or understand Miranda
warnings, or police failure to honor Miranda rights, does not
result in suppression of a voluntary statement made in a
noncustodial setting" (citation omitted). Commonwealth v.
Libby, 472 Mass. 37, 40 (2015). Whether an interrogation is
custodial depends on the "objective circumstances of the
interrogation, and not on the subjective views of either the
interrogating officers or the person being questioned."
Commonwealth v. Sneed, 440 Mass. 216, 220 (2003). This inquiry
focuses on whether a reasonable person in the defendant's
position would believe that his freedom of movement was
restricted to the degree associated with formal arrest.
Commonwealth v. Morse, 427 Mass. 117, 123 (1998). In
determining whether a defendant was in custody, the court
considers "(1) the place of the interrogation; (2) whether the
police conveyed any belief or opinion that the person being
questioned was a suspect; (3) whether the questioning is
aggressive or informal; and (4) whether the suspect was free to
22
end the interview by leaving the place of interrogation, or
whether the interview ended with the defendant's arrest."
Commonwealth v. Murphy, 442 Mass. 485, 493 (2004).
We agree with the pretrial motion judge's findings that the
environment in which the defendant was questioned was not
inherently coercive because it occurred in the defendant's home,
on a date and time of his convenience, and in his mother's
presence. See Commonwealth v. Conkey, 430 Mass. 139, 144
(1999), S.C., 443 Mass. 60 (2004) (interrogation not custodial
where defendant allowed police into home to question him).
Although the detectives informed the defendant that they
believed he was involved in the crime being investigated, they
did not coerce or threaten the defendant during the interview,
and the defendant and his mother were free to terminate the
interview at any time.
We appreciate that Weaver, and not the defendant, invited
the detectives into their home and permitted them to conduct the
interview. Nonetheless, we agree with the pretrial motion judge
that a reasonable person in the defendant's position would not
have viewed his questioning as coercive or believed that his
freedom of movement was curtailed to the degree of arrest.
Accordingly, the Miranda warnings were not required in
connection with the August 25 interrogation.
23
B. Interested adult. We also agree with the pretrial
motion judge's conclusion that, even if Miranda warnings were
required, there is no merit to the defendant's argument that his
waiver was invalid because he was not afforded the special
protections due to juveniles. "Investigating officials
permissibly may interview a juvenile suspected of a crime, and a
statement that is the product of that interview, if knowing and
voluntary, may be admitted at trial against the juvenile."
Commonwealth v. Philip S., 414 Mass. 804, 808 (1993). However,
the Commonwealth bears a heavy burden of demonstrating that a
defendant knowingly and intelligently waived his privilege
against self-incrimination. Commonwealth v. Berry, 410 Mass.
31, 34 (1991), S.C., 420 Mass. 95 (1995) Where a defendant is a
juvenile, the court proceeds with "special caution when
reviewing purported waivers of constitutional rights" (quotation
omitted). Id. Where a juvenile is at least fourteen years of
age, the Commonwealth must demonstrate that prior to waiving his
rights, he was given the opportunity to consult with an
interested adult who was informed of, and understood, those
rights. Id. at 35.
In his motion to suppress, the defendant argued that his
mother was not an "interested adult" because she did not
understand the Miranda warnings and because she felt compelled
to sign the waiver to have the defendant sign the waiver. The
24
defendant also denied having the opportunity to consult with
her.
In determining whether an adult is an interested adult,
"the facts must be viewed from the perspective of the officials
conducting the interview." Philip S., 414 Mass. at 809. The
court examines whether, at the time of the investigation, "it
should have been reasonably apparent to the officials
questioning a juvenile that the adult who was present on his or
her behalf lacked capacity to appreciate the juvenile's
situation and to give advice, or was actually antagonistic
toward the juvenile." Id. If such facts are present, the court
is warranted in finding that the juvenile was not assisted by an
interested adult and was not afforded the opportunity for
consultation. Id.
Here, the pretrial motion judge explicitly found that
Weaver understood the Miranda warnings, and we see no grounds to
disturb this finding. To the extent that the testimony of
Weaver and that of the detectives differed on this point, we
note that credibility determinations "are the province of the
motion judge." Commonwealth v. Johnson, 461 Mass. 44, 48
(2011). Moreover, viewing the circumstances from the
perspective of the officers, it appeared that Weaver was an
intelligent, responsible adult who cared for her son and was
concerned for his welfare. Additionally, the record reflects
25
that Weaver understood why the police were questioning her son,
and she remained present or within listening distance throughout
the interview. Nor was there any apparent animosity between the
defendant and Weaver.
The judge also found that Weaver and the defendant had had
a private consultation prior to signing the form and waiving
their rights. Even if Weaver and the defendant did not speak
during this time, we note that "[i]t is not necessary for such a
juvenile actually to consult with the interested adult, for it
is the opportunity to consult that is critical." Berry, 410
Mass. at 35.
Additionally, the motion judge correctly found that Weaver
was an interested adult despite encouraging the defendant to
speak with the detectives and to tell the truth. "We reject the
notion that a parent who fails to tell a child not to speak to
interviewing officials, who advises the child to tell the truth,
or who fails to seek legal assistance immediately is a
disinterested parent." Philip S., 414 Mass. at 810. See
Commonwealth v. Quint Q., 84 Mass. App. Ct. 507, 517 (2013)
(mother who advised son to be truthful with police was
interested adult despite giving advice that would not have
comported with that of lawyer). In other words, an interested
adult is not a proxy for a lawyer. Accordingly, we conclude
26
that the defendant was afforded the protections of the
interested adult rule.
C. Valid waiver. Even assuming the Miranda warnings were
required, we conclude the defendant's waiver of his Miranda
rights was valid. In determining whether a waiver is knowing
and voluntary, the court examines the totality of the
circumstances surrounding the waiver. See Commonwealth v.
Mazariego, 474 Mass. 42, 52-53 (2016). Factors relevant to this
inquiry include "promises or other inducements, conduct of the
defendant, the defendant's age, education, intelligence and
emotional stability, experience with and in the criminal justice
system, physical and mental condition, the initiator of the
discussion of a deal or leniency . . . and the details of the
interrogation, including the recitation of Miranda warnings"
(citation omitted). Commonwealth v. Walker, 466 Mass. 268, 274
(2013).
The facts support the pretrial motion judge's conclusion
that the defendant's waiver was knowing and voluntary. The
defendant and his mother were provided with Miranda warnings,
which both understood. The interrogation took place in the
defendant's home and in the presence of his mother. The record
did not show that the defendant's will was overborne by his
mother's directions to sign the form. Although the interview
lasted some time, the questioning was generally nonaggressive
27
and the police did not make any threats or promises to the
defendant. The defendant was young, but was of average
intelligence and had had at least one prior experience with the
police. His responses to questions were coherent, and there was
no evidence that he was under the influence of alcohol or other
substances. Nor did the defendant present any evidence that his
mental state was otherwise compromised. The defendant also made
several statements aimed at exculpating himself, including
stating that he was not at the scene of the shooting and
providing an explanation for the injury to his leg. See
Commonwealth v. Vazquez, 387 Mass. 96, 100 (1982) (exculpatory
statements tend to show defendant's statements are voluntary).
D. Voluntariness. Due process requires a separate inquiry
into the voluntariness of a defendant's inculpatory statements.
Commonwealth v. Siny Van Tran, 460 Mass. 535, 559 (2011). "A
voluntary statement is one that is the product of a rational
intellect and a free will, and not induced by physical or
psychological coercion" (citation and quotations omitted).
Commonwealth v. Monroe, 472 Mass. 461, 468 (2015). The court
examines the totality of the circumstances to determine whether
the defendant's statements were the product of free will and
rational intellect and "not the product of inquisitorial
activity which had overborne his will" (citation omitted). Siny
Van Tran, supra at 559. Relevant factors include "the
28
defendant's age, education, intelligence, physical and mental
stability, and experience with the criminal justice system."
Id. Applying these factors to the circumstances, we conclude
that the defendant's waiver was knowing and voluntary for
largely the same reasons set forth above. Additionally,
although the defendant expressed frustration with the
questioning, the record does not show that he was agitated or
emotionally overwrought. Cf. Monroe, 472 Mass. at 470-471
(statements coerced where defendant demonstrated disturbed
emotional state, was threatened by police and was crying, and
was subjected to hostile interview). Given these circumstances,
the pretrial motion judge did not err in concluding that the
defendant's statements on August 25, 2003, were voluntary, and
not the product of physical or psychological coercion.
ii. August 27 statement. The defendant also argues that
the motion judge erred in denying his motion to suppress his
statement at the police station, "I shot Germaine Rucker,"
because it was obtained in violation of his Miranda rights and
was involuntary. As the pretrial motion judge correctly
concluded, the Miranda warnings were not required because the
defendant's statement was not the product of interrogation or
its functional equivalent by the police. See Commonwealth v.
Gonzalez, 465 Mass. 672, 675 (2013) ("term 'functional
equivalent' includes 'any words or actions on the part of the
29
police [other than those normally attendant to arrest and
custody] that the police should know are reasonably likely to
elicit an incriminating response from the suspect'" [citation
omitted]). Here, the detective was reciting the Miranda
warnings when the defendant made his statement. Although the
detectives anticipated that the defendant would make a statement
and were therefore providing the Miranda warnings, the statement
was not made because of words or actions by the detectives meant
to elicit it.
A. Agent of the police. The defendant also argues that
his statement should have been suppressed because his mother
acted as an agent of the police when she brought him to the
police station to make the statement. A private party is
considered a State agent when government officials prompt the
party to act or participate with the party in an action which
they themselves could not have legally engaged. Commonwealth v.
Jung, 420 Mass. 675, 686 (1995). An individual is not a State
agent if no promises are made in exchange for the individual's
help and if nothing was offered or asked of that individual.
Commonwealth v. Reynolds, 429 Mass. 388, 393 (1999), quoting
Commonwealth v. Harmon, 410 Mass. 425, 428 (1991). Here, the
detectives urged Weaver to have a heart to heart conversation
with her son to determine whether he participated in the
shooting, and although he followed up on this request with a
30
telephone call to Weaver, he did not otherwise make any threats
or promises to obtain her assistance. Additionally, the
detectives do not appear to have been trying to gain information
through Weaver that they could not otherwise legally obtain
themselves, especially where the defendant voluntarily submitted
to questioning about the shooting. Moreover, the pretrial
motion judge's finding that Weaver aggressively questioned the
defendant out of her desire to do what was right in accordance
with her personal spiritual beliefs undercuts the defendant's
argument. See Commonwealth v. Foxworth, 473 Mass. 149, 158
(2015); Reynolds, 429 Mass. at 393 (individual who has not
entered into agreement with government or who reports
incriminating evidence to police out of conscience not acting as
government agent [quotation and citation omitted]). We
therefore reject the defendant's contention that Weaver was
acting as an agent of the police in encouraging the defendant's
confession.
B. Voluntariness. We lastly consider the defendant's
argument that his statement at the police station was
involuntary and the product of coercion by his mother. "[U]nder
the law of this Commonwealth, a judge must determine the
voluntariness of statements extracted by private coercion,
unalloyed with any official government involvement" (quotation
and citation omitted). Commonwealth v. Paszko, 391 Mass. 164,
31
176-177 (1984). "[A] statement obtained through coercion and
introduced at trial is every bit as offensive to civilized
standards of adjudication when the coercion flows from private
hands as when official depredations elicit a confession"
(citation omitted). Commonwealth v. Allen, 395 Mass. 448, 455
(1985). Accordingly, our inquiry is governed by the same
analysis delineated above regarding the voluntariness of the
defendant's August 25 statements.
The defendant argues that his mother coerced his August 27
confession by relentlessly questioning him for two days about
his involvement in the shooting, by demanding that he tell the
truth, and by making him feel guilty by praying and invoking God
and the need to "be at peace," and by forcing him to travel to
the police station to confess. It is well-settled that a
defendant may offer evidence that a relative's involvement in
questioning about a crime is coercive. See Commonwealth v.
McCra, 427 Mass. 564, 569 (1998); Commonwealth v. Adams, 416
Mass. 55, 60-61 (1993). The pretrial motion judge concluded
that although Weaver's exhortations played a major role in the
defendant's decision to confess, the circumstances of the
confession did not evidence that the defendant's will was
overborne to the extent that he lost his ability to make an
independent decision. Cf. Commonwealth v. Burgess, 434 Mass.
307, 314 (2001) (police may "broadly" suggest that it would be
32
best for suspect to tell truth); Commonwealth v. Cunningham, 405
Mass. 646, 658 (1989) (defendant's statement, prompted by urging
of police and priest that it would be best to tell truth, not
psychologically coerced where defendant made voluntary decision
to make statement, in part to unburden troubled conscience);
Philip S., 414 Mass. at 813 (court declined to consider requests
that juvenile tell truth as coercive practice).
We agree with the pretrial motion judge's findings that the
defendant was not physically or psychologically coerced by his
mother and her religious beliefs such that he could not resist
her pleas that he tell the truth. The defendant and his family
prayed at the police station, and the defendant cried, but he
was not otherwise overwrought such that his statement was not
the product of free will and a rational intellect. Moreover,
the defendant does not argue that his mother's efforts to get
him to confess were an improper appeal to his religious beliefs.
In fact, the record does not demonstrate whether the defendant
held the same beliefs as his mother. Cf. United States v.
Miller, 984 F.2d 1028, 1032 (9th Cir.), cert. denied, 510 U.S.
893 1993); Mersereau v. State, 286 P.3d 97, 115 (Wyo. 2012)
(court considered whether appeal to suspect's religious beliefs
was unduly coercive). Nor did his mother, in invoking God,
indicate that the defendant would be treated more leniently if
he confessed. We thus conclude that Weaver's questioning of the
33
defendant did not rise to the level of improper psychological
coercion that would render his statement involuntary, and the
defendant's confession on August 27 was a free and voluntary
act.
Accordingly, we conclude that the judge did not err in
denying the defendant's pretrial motion to suppress on the
various grounds asserted by the defendant.
3. Ineffective assistance of counsel. a. Mental health
expert. The defendant argues that the judge who heard one
portion of his motion for a new trial (first new trial motion
judge) 3 erroneously denied that portion of the motion, which was
based on the failure of the defendant's trial counsel to
investigate the defense of psychological coercion adequately by
not consulting with a mental health expert or presenting expert
testimony about the voluntariness of the defendant's confession
at either the suppression hearing or at trial. 4 The defendant
also contends that the first new trial motion judge erred
3
In his motion for a new trial, the defendant asserted two
bases for ineffective assistance of counsel. Because the trial
judge had retired, the issues were bifurcated and decided by
judges other than the trial judge.
4
The defendant initially argued that trial counsel should
have consulted with an expert and presented expert testimony on
the existence and etiology of false confessions, in addition to
expert testimony on the issue of voluntariness. On appeal, the
defendant abandons this argument and acknowledges we have not
yet ruled such evidence admissible. Commonwealth v. Hoose, 467
Mass. 395, 419 (2014).
34
because he failed to distinguish between testimony concerning
the voluntariness of a statement and the phenomenon of false
confessions. We conclude that the motion was properly denied,
although for reasons different than those stated by the judge.
In a written memorandum of decision and order issued after
three days of evidentiary hearings, the first new trial motion
judge made the following findings of fact. 5 The defendant's
trial counsel is a very experienced and highly regarded defense
attorney. He has practiced law for over forty years and handled
over one hundred murder trials at the trial and appellate level.
Because the defendant was sixteen years of age, trial counsel
spent a great deal of time speaking with the defendant's mother
about the circumstances surrounding the defendant's statements
to her, and formulated the defense that the police used Weaver
as their agent to induce the defendant to admit his involvement
in the homicide. Trial counsel moved to suppress the
defendant's August 27, 2003, statement to the police on that
5
Because the judge who heard this portion of the
defendant's motion for a new trial (first new trial motion
judge) drew facts about the murder, investigation, and
defendant's admission from those found by the judge had who
presided over the defendant's pretrial motion to suppress, we do
not repeat them here. Insofar as relevant here, the first new
trial motion judge based his additional findings on the
affidavits and testimony of the defendant's trial counsel and
Dr. Frank DiCataldo, a psychologist whom the defendant had
retained, as well as the affidavits of the defendant and his
mother, Weaver. The affidavits submitted by the defendant and
Weaver reiterated that the defendant's statements were not the
product of his free will, but rather were coerced by Weaver.
35
ground, as well as on the ground that Weaver failed to act as an
interested adult for her son by impermissibly pressuring him to
confess to the police.
Trial counsel testified that he prepared a defense by
learning the facts of a case and then, starting from scratch,
researching the law as it related to the issues presented. The
judge found that at the time trial counsel litigated the motion
to suppress and tried the case, he had researched but was not
aware of any appellate or trial court decisions permitting
expert testimony on claimed coerced or false confessions. 6
According to trial counsel, there was no strategic reason not to
consult with or present an expert on psychological coercion, and
that given the nature of the defense, it would not have harmed
the defense to do so.
In connection with the motion for a new trial, Dr. Frank
DiCataldo, a forensic psychologist, examined the defendant and
testified at the evidentiary hearing. DiCataldo did not find
any evidence that the defendant suffered from any significant
cognitive limitations and did not detect any signs of mental
illness. After administering two psychological tests,
6
The first new trial motion judge noted that trial counsel
had defended one case where a codefendant's request to present
expert testimony on coerced and false confessions was denied
because it failed to satisfy the standards of expert testimony,
and that the ruling was affirmed on appeal. See Commonwealth v.
Robinson, 449 Mass. 1, 5-7 (2007). Trial counsel acknowledged
he would have been aware of the decision.
36
interviewing the defendant, and gaining an understanding of the
defendant's family dynamics, DiCataldo opined that by virtue of
a protracted investigation by his mother, the defendant's
admissions were not the product of his own free will or rational
intellect. DiCataldo acknowledged that the basis for his
opinion was limited because he had never evaluated a
voluntariness claim where the asserted coercive force was a
parent, or where the statement was made ten years prior to the
evaluation. DiCataldo also acknowledged that neither of the
tests he administered to the defendant was specifically focused
on juveniles and that there are no specific psychological tests
to determine whether a person's will has been overborne.
Applying the standard set forth in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974), the first new trial motion
judge denied the defendant's motion. In doing so, he rejected
the defendant's claim that trial counsel was ineffective for
failing to consult with an expert witness. The judge found that
it was more likely than not that trial counsel was aware of the
absence of Massachusetts case law permitting expert testimony on
the psychology of coerced and false confessions, and did not
consult an expert because it would not have added value to the
defense.
The judge further concluded that the defendant failed to
satisfy the prejudice prong of a Saferian analysis because he
37
could not demonstrate, as a threshold matter, that DiCataldo's
testimony would have been admissible under the foundational
requirements of Mass. G. Evid. § 702(b) (2016). Additionally,
the judge found that the parent-child dynamic is so generally
familiar to a fact finder that expert testimony was not required
to further illuminate the issue for a jury. Moreover, the
psychological influences of a parent on her child are
categorically different from those of other authority figures,
such as the police. Thus, the judge found, DiCataldo's reliance
on scientific research involving the impact of psychologically
coercive or manipulative techniques by police to obtain a
statement do not provide a basis for his opinion that, in this
case, the defendant was coerced by his mother's conduct. The
judge concluded that because DiCataldo's proffered testimony was
inadmissible under § 702(b), trial counsel's failure, either to
consult an expert or attempt to present expert testimony, could
not have prejudiced the defendant's case.
Where a defendant has been convicted of murder in the first
degree, the court evaluates a claim of infective assistance
claim to determine whether "there exists a substantial
likelihood of a miscarriage of justice," Commonwealth v.
Williams, 453 Mass. 203, 204 (2009). The court asks "[1]
whether there was an error in the course of trial (by defense
counsel, the prosecutor, or the judge), and, [2] if there was,
38
whether that error was likely to have influenced the jury's
conclusion" (citation omitted). Commonwealth v. Lang, 473 Mass.
1, 19 (2015) (Lenk, J., concurring). This standard is more
favorable than the constitutional standard for determining
ineffectiveness of counsel. Commonwealth v. Gonzalez, 443 Mass.
799, 808 (2005). The court considers the defendant's claim
"even if the action by trial counsel does not constitute conduct
'falling measurably below that . . . of an ordinary fallible
lawyer'" (citation omitted). Id. at 808-809.
Where a defendant challenges tactical or strategic
decisions by trial counsel, the court will find ineffective
assistance "only if such a decision was manifestly unreasonable
when made." Commonwealth v. Diaz, 448 Mass. 286, 288 (2007).
However, the "manifestly unreasonable standard" only applies
"where the attorney's purportedly constitutionally ineffective
conduct involved a strategic decision, rather than some other
claimed inadequacy such as a lack of appropriate investigation
or preparation by defense counsel." Lang, 473 Mass. at 20
(Lenk, J., concurring), citing Commonwealth v. Martin, 427 Mass.
816, 822 (1998).
In Lang, trial counsel was aware of the defendant's
psychiatric history but chose to pursue another defense without
investigating a criminal responsibility defense. Lang, 473
Mass. at 11-12 (Hines, J., concurring). A majority of justices
39
concurred that the "manifestly unreasonable standard" did not
apply in these circumstances because "strategic choices made
after less than complete investigation are reasonable [only] to
the extent that reasonable professional judgments support the
limitation on investigation." Id. at 19 (Lenk, J., concurring),
quoting Commonwealth v. Baker, 440 Mass. 519, 529 (2003).
Although Lang and the cases cited therein relate to the adequacy
of an investigation into a lack of criminal responsibility
defense, these cases provide a useful framework for evaluating
the defendant's claim.
Here, the first new trial motion judge found that there was
no evidence showing that trial counsel's failure to consult with
a mental health expert was a lapse rather than a reasoned
decision. This finding was confined to trial counsel's
investigation into case law permitting expert testimony on
psychological coercion as it related to false confessions and
did not address trial counsel's strategy with respect to expert
testimony about voluntariness. We therefore assume without
deciding that trial counsel's failure to consult with a mental
health expert was not a strategic or tactical decision and thus
manifestly unreasonable. Accordingly, we ask only whether the
failure to consult a mental health expert or to present expert
testimony at trial as to the voluntariness of the defendant's
statements "was likely to have influenced the jury's
40
conclusion." Commonwealth v. Wright, 411 Mass. 678, 682 (1992),
S.C., 469 Mass. 447 (2014).
In order to carry his burden of demonstrating that the
expert consultation and testimony would have accomplished
something material for the defense, Commonwealth v. Bell, 460
Mass. 294, 303 (2011), the defendant, as a threshold matter,
must demonstrate that DiCataldo's testimony would have been
admissible. The first new trial motion judge correctly
concluded that DiCataldo's testimony regarding a child's
susceptibility to parental coercion generally, or the
defendant's susceptibility to coercion by his mother would not
have been admissible.
Section 702 of the Massachusetts Guide to Evidence
governing the admission of expert testimony provides:
"A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if
"(a) the expert's scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
"(b) the testimony is based on sufficient facts
or data;
"(c) the testimony is the product of reliable
principles and methods; and
"(d) the expert has reliably applied the
principles and methods to the facts of the case."
Mass. G. Evid. § 702 (2016).
41
DiCataldo's evaluation of the defendant was based on his
assessment of the defendant through the administration of
psychological tests and information provided by the defendant
and his mother. The first new trial motion judge noted that the
facts relied on by DiCataldo were substantially different from
those presented at the hearing on the motion to suppress and
found by the pretrial motion judge. Additionally, DiCataldo
created his own methodology for forming an opinion about the
voluntariness of the defendant's statement because he was not
aware of any peer-reviewed or generally accepted methodology
within the psychological community that would apply to the
circumstances in this case.
We have explained that "expert testimony is sufficiently
reliable if the underlying theory or methodology is either (1)
generally accepted in the relevant scientific community; . . .
or (2) satisfies the alternative requirements adopted in
[Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994)]" (citation
omitted). Commonwealth v. Shanley, 455 Mass. 752, 761-762,
(2010). The defendant claims that he demonstrated the
admissibility of DiCataldo's testimony by establishing general
acceptance in the psychological community. We disagree.
First, the defendant relies on the false logic that because
DiCataldo has rendered his expert opinion in other cases in the
42
Commonwealth, his opinion was admissible in this case. We
reject this unsubstantiated statement. The defendant does not
point to a single case where DiCataldo testified about the
coercion of a child by a parent.
The defendant further argues that the first new trial
motion judge erred in ruling that DiCataldo's testimony was
inadmissible because the courts of the Commonwealth have long
recognized that a defendant is entitled to present expert
testimony by a mental health expert regarding the voluntariness
of a statement, and that trial counsel should have sought expert
testimony in light of this precedent, and that such testimony is
admissible. The defendant cites to several cases to illustrate
this point. Notably, in each of these cases, the proffered
expert testimony related to a mental impairment that called into
question the voluntariness of the defendant's statements. See,
e.g., Commonwealth v. Boyarsky, 452 Mass. 700, 713 (2008) (panic
disorder); Commonwealth v. Crawford, 429 Mass. 60, 67 (1999),
overruled on another ground by Commonwealth v. Carlino, 449
Mass. 71 (2007) (battered woman's syndrome and posttraumatic
stress disorder); Commonwealth v. Monico, 396 Mass. 793, 798-799
(1986) (head trauma that impacted voluntariness of statements
and raised question of criminal responsibility); Commonwealth v.
Daniels, 366 Mass. 601, 608 (1975) (intellectual disability);
Commonwealth v. Harrison, 342 Mass. 279, 289, 293 (1961) (head
43
trauma, mental illness, personality disorder, "defective
intelligence," psychosis); Commonwealth v. Banuchi, 335 Mass.
649, 655-656 (1957) (effect of sudden deprivation of alcohol on
mental capacity of confirmed alcoholic).
The defendant argues that in rejecting DiCataldo's
testimony as inadmissible, the first new trial motion judge
concluded that "psychology as a science was incapable of
yielding reliable admissible evidence probative of a statement's
voluntariness." Such an assertion is unfounded. Rather, our
case law demonstrates that when expert testimony as to a novel
or developing area of science is offered, the court carefully
considers whether it is "sufficiently reliable to reach the
trier of fact." Shanley, 455 Mass. at 761. See, e.g.,
Commonwealth v. Hoose, 467 Mass. 395, 419 (2014); Crawford, 429
Mass. at 67.
In addition to determining the reliability of an expert's
proffered testimony, "[t]he judge must also determine whether
the reasoning or methodology can be applied to the facts in
issue -- that is, whether there is a proper 'fit' between the
two." Shanley, 455 Mass. at 761 n.13. Here, DiCataldo, in
addition to employing a one of a kind methodology to evaluate
the defendant, relied on research involving the impact of
psychologically coercive or manipulative techniques by police to
obtain a statement to evaluate whether the defendant had been
44
coerced by his mother. Not only is this reasoning a poor "fit,"
but it also depends on expert testimony on false confessions,
which we have not yet ruled admissible. Hoose, 467 Mass. at
419.
Similarly misplaced is the defendant's reliance on our
decisions in Commonwealth v. Jackson, 471 Mass. 262, 264 n.5
(2015), cert. denied, 136 S. Ct. 1158 (2016), and Adams, 416
Mass. at 61, where expert testimony was admitted to aid the jury
in assessing the voluntariness of a juvenile's statements. In
Jackson, supra at 264 n.5, the voluntariness of the defendant's
statements to the police was an important issue at trial. The
defendant called a clinical psychologist to testify "about his
examination of the defendant and his opinion with regard to the
defendant's susceptibility to being influenced by persons in
authority like the police." Id.
While these facts are superficially similar to the
defendant's case, there are important distinctions to be drawn.
Although the admissibility of the expert testimony was not at
issue in our decision in Jackson, our review of the record
before the court in that case reveals that the defendant was
evaluated by the clinical psychologist because there was a
question of criminal responsibility and competency to stand
trial. The psychologist conducted a forensic mental health
assessment of the defendant, which included extensive
45
investigation into the defendant's past as well as interviews
and a number of psychological assessment tests of the defendant.
He testified that the defendant suffered from attention deficit
disorder and dependent personality disorder, and that these
conditions made him more susceptible to being influenced by
people in positions of authority. The methodology used by the
psychologist and its application to the facts in Jackson were
profoundly different from those used by DiCataldo. Moreover,
the defendant in Jackson, 471 Mass. at 264 n.5, presented
evidence that it was his mental health impairments that made him
more susceptible to pressure by authority figures. Here, the
defendant sought to present evidence that his will was simply
overborne by his mother. These inquiries are fundamentally
distinct.
Similarly, in Adams, 416 Mass. at 60-61, we held that it
was error to exclude testimony from the defendant's mother and a
forensic psychiatrist tending to show that the defendant had
been coerced into confessing by the presence of his mother.
Although we do not know the methodology employed by the
psychiatrist in evaluating Adams, it is apparent from the
unpublished memorandum and order that the Appeals Court issued
pursuant to its rule 1:28 following Adams's retrial that there
was a contention that his intellectual abilities or disabilities
may have affected the voluntariness of his statement. As
46
discussed earlier, while we regularly admit expert testimony
regarding the voluntariness of a statement where the defendant
suffers from a mental impairment or mental health issue, there
is no evidence that the defendant here had cognitive limitations
or suffers from a mental illness that would affect his capacity
to make a voluntary statement.
Finally, we agree with the first new trial motion judge's
determination that the parent-child dynamic is generally
familiar to a fact finder, and that the likelihood of a child
being influenced by a parent is not a matter outside the common
understanding of the average juror, nor is the proposition that
a parent may exert pressure on his or her child a novel one.
Thus, the jury's evaluation of whether the defendant's
statements were psychologically coerced by his mother "could be
accomplished through its common understanding without need of
expert testimony." Commonwealth v. Bly, 448 Mass. 473, 496
(2007).
Our conclusion that DiCataldo's testimony would not have
been admissible at trial does not foreclose a defendant from
presenting expert testimony regarding coercion and
voluntariness. "Determining whether . . . scientific testimony
is reliable often will hinge on the presentations made by the
parties in a particular case . . . and these determinations may
vary appropriately on a case-by-case basis." Canavan's Case,
47
432 Mass. 304, 312 (2000). In this case, the defendant failed
to show that the methodology used by DiCataldo would be
generally accepted by the scientific community or was otherwise
admissible under the factors articulated in Lanigan. Because
the testimony would not have been admissible at the defendant's
trial, we cannot conclude that it would have accomplished
something material for the defense such that the jury verdict
would have been different. Accordingly, the defendant's claim
of ineffective assistance must fail.
b. Public trial. The defendant next claims error in the
denial of the portion of his motion for a new trial that rested
on the ground that his trial counsel was ineffective for failing
to object to the closure of the court room during the entirety
of jury empanelment.
After an evidentiary hearing, the judge who hear this
portion of the motion (second new trial motion judge) issued a
written memorandum of decision in which she found the following
facts, which are supported by the evidence. Jury selection
spanned two days. The approximately ninety venire members made
the court room was very crowded. They took every available
seat, and those who could not find seats stood wherever they
could. On the first day of empanelment, a court officer
informed the defendant's mother that she and those accompanying
her that the court room was "closed for jury selection." They
48
were also denied entry the second day of empanelment for the
same reason. Trial counsel lodged no objection.
The second new trial motion judge concluded that the sole
reason that a court officer closed the court room to the
defendant's family and other members of the public was the
crowded condition. The judge found that facts surrounding the
empanelment did not satisfy the criteria articulated in Waller
v. Georgia, 467 U.S. 39, 48 (1984), that may justify a court
room closure, but concluded that the closure did not prejudice
the defendant's case, and accordingly denied the motion.
A violation of the Sixth Amendment right to a public trial
constitutes structural error. See Commonwealth v. Jackson, 471
Mass. 262, 268 (2015), citing United States v. Marcus, 560 U.S.
258, 263 (2010). We agree with the second new motion judge's
conclusion that the closure was a full, rather than partial,
closure of the court room. See Commonwealth v. Cohen (No. 1),
456 Mass. 94, 111 (2010); Commonwealth v. Lavoie, 80 Mass. App.
Ct. 546, 551-552 (2001), S.C., 464 Mass. 83, cert denied, 133
S. Ct. 2356 (2013).
Where a meritorious claim of structural error is timely
raised, the court presumes "prejudice, and reversal is
automatic." Jackson, 471 Mass. at 268, quoting Commonwealth v.
LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct.
317 (2015). However, the right to a public trial can be waived
49
in some circumstances. Jackson, supra. "[W]here the defendant
has procedurally waived his Sixth Amendment public trial claim
by not raising it at trial, and later raises the claim as one of
ineffective assistance of counsel in a collateral attack on his
conviction, the defendant is required to show prejudice from
counsel's inadequate performance (that is, a substantial risk of
a miscarriage of justice) and the presumption of prejudice that
would otherwise apply to a preserved claim of structural error
does not apply." LaChance, supra at 856.
The defendant did not raise an objection to the court room
closure because his attorney did not understand that the public
had a right to be present during the jury empanelment phase of
the trial proceedings. The second new trial motion judge's
analysis, which anticipated the rule announced in LaChance,
supra, correctly determined that counsel's inaction was the
product of "serious incompetency, inefficiency, or inattention
to the defendant's Sixth Amendment right to a public trial, and
was not objectively reasonable," but that the defendant
otherwise failed to show that trial counsel's conduct caused
prejudice warranting a new trial.
On appeal, the defendant does not dispute that he failed to
demonstrate prejudice, but rather asks us to revise the LaChance
rule and instead hold that that a defendant who raises an
ineffective assistance of counsel claim and has established
50
that, in failing to object to a court room closure, counsel's
performance fell below that of an ordinary fallible attorney, is
entitled to a presumption of prejudice. See LaChance, supra at
860-868 (Duffly, J., dissenting). We decline to do so.
Moreover, the defendant has not advanced any argument or
demonstrated any facts that would support a finding that the
closure subjected him to a substantial likelihood of a
miscarriage of justice. Relief is therefore not warranted under
G. L. c. 278, § 33E, and the denial of the motion for a new
trial is affirmed.
4. Firearms conviction. The defendant lastly asks the
court to vacate his firearms conviction on the grounds that the
Commonwealth presented no evidence that he lacked the required
firearms licenses, and thus failed to prove beyond a reasonable
doubt that he did not have a license to carry. Contrary to the
defendant's assertion, lack of license is not an element of
unlicensed possession, but rather an affirmative defense.
Commonwealth v. Allen, 474 Mass. 162, 174 (2016), and cases
cited. Accordingly, the defendant bore the burden of producing
evidence that he held a license, and he failed to carry that
burden.
5. Review under G. L. c. 278, § 33E. We have reviewed the
record in accordance with G. L. c. 278, § 33E, and we discern no
basis on which to reduce the verdict of murder in the first
51
degree or to order a new trial. The defendant's convictions are
affirmed. Based on the record before us, it appears that the
defendant is entitled to the benefit of a corrected mittimus to
reflect that his life sentence under G. L. c. 265, § 2 carries
with it the opportunity for parole consideration after fifteen
years because he was a juvenile at the time of his conviction.
See Diatchenko v. District Attorney for the Suffolk Dist., 466
Mass. 655, 673 (2013), S.C., 471 Mass 12 (2015), and
Commonwealth v. Brown, 466 Mass. 676, 688-689 (2013), S.C., 474
Mass. 576 (2016). The matter is accordingly remanded to the
Superior Court for further proceedings consistent with this
opinion.
So ordered.