Commonwealth v. Chukwuezi

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SJC-11579

COMMONWEALTH vs. XZENIYEJU CHUKWUEZI.

Suffolk. February 12, 2016. - September 29, 2016.

Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.1

Homicide. Firearms. Evidence, Computer simulation, Prior
consistent statement, Alibi. Alibi. Constitutional Law,
Sentence. Practice, Criminal, Instructions to jury,
Argument by prosecutor, Sentence, Capital case.

Indictments found and returned in the Superior Court
Department on July 1, 2009.

The cases were tried before Linda E. Giles, J.

Stephen Paul Maidman for the defendant.
Zachary Hillman, Assistant District Attorney, for the
Commonwealth.

LENK, J. The defendant was convicted by a Superior Court

jury of murder in the first degree on a theory of deliberate

premeditation, and of unlawful possession of a firearm, in

1
Justices Spina and Duffly participated in the deliberation
on this case prior to their retirements.
 2

connection with the 2009 shooting death of Soheil Turner, a

fifteen year old boy. The defendant was eighteen years old at

the time of the shooting. On appeal, the defendant argues that

the trial judge abused her discretion in excluding from evidence

a computer-generated simulation that was intended to assist the

jury in determining the shooter's height. He also asserts error

in several other respects, described in greater detail below,

and seeks relief under G. L. c. 278, § 33E. Having reviewed the

entire record, we affirm the convictions and discern no reason

to exercise our authority to grant extraordinary relief.

1. Background and procedural posture. We recite the facts

the jury could have found, reserving certain details for later

discussion. At approximately 7:20 A.M. on May 7, 2009, Turner

was shot in the back of the head and in the right shoulder while

waiting for a school bus in the Roxbury section of Boston. He

died later that day as a result of the shooting. Police

recovered two shell casings from the scene of the shooting that

appeared to have been fired from a semiautomatic firearm.

Several video surveillance cameras recorded the shooting

and the surrounding circumstances.2 Shortly after 7 A.M. on the

morning of the shooting, the shooter, an African-American male

2
Police obtained video recordings from three surveillance
cameras in the vicinity of the shooting. None of the recordings
was of sufficient quality to allow for identification of the
shooter.
 3

carrying a yellow umbrella, walked north on Adams Street from

the direction of Forest Street, and stopped at the northeast

corner of Dudley Street and Adams Street. The shooter was

wearing a black hooded sweatshirt with the hood up, and a loose

fitting T-shirt and pants. A few minutes later, a young woman,

later identified as Amari Figueroa, arrived at the southeast

corner of the intersection, talking on her cellular telephone.

She and the shooter waved to each other. Shortly thereafter,

Turner arrived in the area and went into a convenience store on

Dudley Street near the southwest corner of the intersection.

After Turner returned outside, the shooter walked diagonally

across the intersection towards him, and stood with him in front

of the store. The two had a short conversation. The shooter

then drew a gun that he had been concealing and shot Turner

twice. The shooter ran around the corner onto Adams Street,

tucking the gun into his waist area as he did so, then ran up

the east side of Adams Street and out of view.

Figueroa eventually told police that the person she had

waved to on the morning of the shooting was the defendant. She

had known the defendant for several years, socialized with him

occasionally, and lived two houses away from him on Forest

Street, a short walk from the intersection where the shooting

took place. After hearing the gunshots, Figueroa saw the

defendant "speed walking" down Adams Street in the direction of
 4

Forest Street.3 She then telephoned 911. At some point in the

weeks after the shooting, Figueroa met with the defendant and

asked him why he shot Turner. The defendant told her that a

fifteen year old recently had shot and injured one of his

friends. The defendant explained that "[i]f he didn't kill

[Turner] then he was going to be next." The defendant also

urged her not to say anything to police.

Other witnesses corroborated Figueroa's testimony about the

shooting. Raymona Hartepps walked out of the convenience store

shortly before the shooting, and overheard part of the shooter's

brief conversation with Turner. She recalled hearing Turner ask

the defendant where he was from and what his name was.4 As soon

as Hartepps had walked past the store, she heard two gunshots,

and saw the shooter run around the corner onto Adams Street in

the direction of Forest Street, tucking a black object into his

right pocket. Isaiah Grant also saw the shooter run down Adams

Street onto Forest Street. Grant further observed the shooter

run up a set of steps and around to the right side of a duplex

house on Forest Street. The defendant, who was in high school

3
Forest Street is at the southern end of Adams Street, and
perpendicular to it.
4
The shooter identified himself as either "Jonathan from
Wayne Wood" or "Robert from Norwood."
 5

at the time, lived with his family on the right side of that

house.

On July 1, 2009, a grand jury returned two indictments,

charging the defendant with murder in the first degree, G. L.

c. 265, § 1, and unlawful possession of a firearm, G. L. c. 269,

§ 10 (a). The defendant's theory of the case was one of

mistaken identity. He sought to impeach Figueroa's credibility

on cross-examination, and called alibi witnesses. The

defendant's mother and younger brother both testified that the

defendant was at home getting ready for school at the time of

the shooting. The defendant also testified in his own defense,

stating that he did not shoot Turner. In addition, the

defendant sought unsuccessfully to introduce a computer-

generated simulation in evidence.

On October 19, 2010, the jury found the defendant guilty of

murder in the first degree on a theory of deliberate

premeditation.5 They also found him guilty of unlawful

possession of a firearm. The defendant was sentenced to life in

prison without the possibility of parole for the conviction of

murder in the first degree, and to a term of from four to five

5
The jury were instructed with respect to murder in the
first degree both on the theory of deliberate premeditation and
on the theory of extreme atrocity or cruelty. They also were
instructed on murder in the second degree.
 6

years of incarceration for the conviction of unlawful possession

of a firearm, to run concurrently. This appeal followed.

2. Discussion. The defendant argues that the judge erred

with respect to several evidentiary rulings: excluding the

computer-generated simulation from evidence; admitting testimony

that the Commonwealth offered as a prior consistent statement by

Figueroa; and allowing the Commonwealth to impeach an alibi

witness for not volunteering his knowledge about the defendant's

whereabouts to police, without providing appropriate

instructions on alibi to the jury. The defendant further argues

that the Commonwealth improperly invoked sympathy for the

victim's family during its closing argument. Moreover, the

defendant contends that he should not have been sentenced to

life in prison without the possibility of parole because he was

only eighteen at the time of the shooting. The defendant also

seeks relief under G. L. c. 278, § 33E.6

6
In addition, the defendant asserts error in the judge's
decision to permit Figueroa, over objection, to enter the court
room through a side door in the presence of the jury, rather
than via the main door used by other witnesses. The defendant
asserts that that decision violated his constitutional rights to
due process and a fair trial because it intimated to the jury
that he was "a bad and dangerous person whose guilt [could] be
virtually assumed." See Commonwealth v. Brown, 364 Mass. 471,
475 (1973). That argument is without merit, because there is no
evidence in the record that the jury would have understood a
witness's method of entry into the court room to be related to
the defendant's dangerousness, thereby creating an unacceptable
risk of prejudice against him. See id. at 476 (burden is on
 7

a. Computer-generated simulation. Whether the shooter was

the same height as the defendant was a matter of dispute at

trial.7 To aid the jury in making that determination, the

defendant commissioned a computer-generated simulation of the

crime scene, based on two photographs from the surveillance

camera closest to the shooting,8 in which the shooter was

standing relatively upright on a level surface.9

defendant to show judge's decision in imposing security measure
was "arbitrary or unreasonable").
7
Immediately after the shooting, Figueroa told police that
the shooter was six feet, one inch tall, while other witnesses
stated that he was five feet, nine inches tall. The defendant's
height around the time of the shooting was not measured, but
police estimated that he was between five feet, eleven inches
and six feet tall. Photographs taken at the time of the
defendant's arrest similarly indicate that he was approximately
six feet tall.
8
The video recording comprised a series of time-lapsed
photographs.
9
An engineer identified fixed points in the background of
the photographs, and visited the crime scene in person to
measure their locations relative to each other and to the
camera. A graphic designer then used those measurements and
computer software to create a three-dimensional virtual model of
the crime scene.

Although the judge did not make an explicit finding that
the camera continued to be positioned in the same place and at
the same angle at the time the measurements were taken as at the
time of the shooting, we infer this fact from testimony at the
voir dire hearing that the camera was "locked down" and "mounted
to a wall," from photographs of the camera's location that were
admitted in evidence, and from the Commonwealth's decision to
point out the location of the camera during a view of the crime
scene.
 8

Using principles of photogrammetry,10 the simulation

superimposed human-shaped figures of increasing height over the

shooter as he appeared in the photographs. The figures were to

scale with the photographs, and were shown standing rigidly

upright, wearing hooded sweatshirts with the hoods up. They

increased in height in one inch increments from five feet, nine

inches to six feet, as measured from the soles of their feet to

the tops of their hoods. In effect, the simulation attempted to

facilitate a comparison between actual height of the figures and

the shooter's apparent height in the photographs. The

Commonwealth filed a motion in limine to exclude it from

evidence on the ground that it was misleading.

i. Voir dire. The judge conducted a voir dire hearing at

which she questioned the graphic designer who produced the

simulation, an engineer, and a forensic photographer who worked

for the Federal Bureau of Investigation (FBI). The graphic

designer described in detail how he had produced the simulation.

At the judge's request, he used the simulation to estimate that

the shooter was between five feet, nine inches and five feet,

10
"Photogrammetry is the process of obtaining information,
usually measurements, from images" (citation omitted). Edmond,
Cole, Cunliffe, & Roberts, Admissibility Compared: The
Reception of Incriminating Expert Evidence (i.e., Forensic
Science) in Four Adversarial Jurisdictions, 3 U. Denv. Crim. L.
Rev. 31, 50 n.156 (2013).
 9

ten inches tall -- several inches shorter than the defendant, by

most accounts.11

The engineer testified that he was familiar with two

techniques for assessing a suspect's height from a video

recording. The first technique was the one the graphic designer

had used. The second technique, which the judge referred to as

a "height analysis," involved directly measuring the suspect's

height from the video recording, and could take the suspect's

posture into account. This second technique, however, required

using high-quality video footage from multiple camera angles;

such footage was not available. The forensic photographer who

worked for the FBI described a third technique that similarly

could account for a suspect's posture.12 In the forensic

photographer's opinion, the defendant's simulation was

misleading because it compared rigid figures with a person of

normal posture.

In light of this testimony and her own viewing of the

simulation, the judge concluded that the simulation was

"hopelessly misleading." She noted that the jury generally

11
See footnote 7, supra.
12
The third technique involved placing a person whose
height was known next to a ruler in roughly the same place as
the suspect was standing at the time of the crime. By using the
same camera that recorded the crime to recreate the scene, the
technique allowed forensic investigators to take a suspect's
posture into account in estimating his or her height.
 10

should be allowed to consider simulation evidence "in a close

case," and suggested that a "height analysis" in accordance with

one of the other techniques described might have been

admissible. Nonetheless, she expressed concern that the

simulation would confuse the jury into thinking that the

shooter, who was not standing as rigidly upright as the

computer-generated figures, was shorter than he actually was.

She declined to allow its admission in evidence, over the

defendant's objection.

ii. Review for abuse of discretion. The defendant argues

that the judge's evidentiary ruling deprived him of a meaningful

opportunity to present a complete defense, a right guaranteed by

the Sixth Amendment to the United States Constitution and

art. 12 of the Massachusetts Declaration of Rights. See Pixley

v. Commonwealth, 453 Mass. 827, 834 (2009). That right,

however, is not unfettered; it is subject to the limitations set

forth under standard rules of evidence. See Montana v.

Egelhoff, 518 U.S. 37, 42 (1996), and cases cited. In

determining whether to admit a computer-generated simulation

like the one at issue here, a trial judge must determine whether

the simulation is relevant evidence; whether the simulation's

conditions correspond to those of the original incident, see

Commonwealth v. Corliss, 470 Mass. 443, 456 (2015); and whether

the evidence will confuse or mislead the jury. See Commonwealth
 11

v. Rosa, 422 Mass. 18, 25 (1996); Lally v. Volkswagen

Aktiengesellschaft, 45 Mass. App. Ct. 317, 332 (1998).

Although "[w]e have consistently held that lower court

findings based on documentary evidence available to an appellate

court are not entitled to deference," Commonwealth v. Novo, 442

Mass. 262, 266 (2004), S.C., 449 Mass. 84 (2007), the judge's

decision in this case was based both on her viewing of the

simulation itself and on witnesses' explanations of the

simulation during the voir dire hearing. We therefore review

the judge's decision to exclude the simulation for abuse of

discretion. See Commonwealth v. McGee, 469 Mass. 1, 9 (2014).13

The defendant argues that the judge did not understand that

the figures were created precisely to scale based on principles

of photogrammetry, and could be presented with any desired

height or posture. In his view, the Commonwealth would have had

the opportunity to emphasize on cross-examination and during its

closing argument that the figures were standing rigidly upright

13
But see Commonwealth v. Scott, 470 Mass. 320, 327 (2014)
(reviewing judge's decision to exclude third-party culprit
evidence "independently" and under "a standard higher than that
of abuse of discretion" because of "[the] constitutional
dimension" of exclusion of such evidence [citations omitted]).
Because the defendant sought to use the simulation to call into
question whether he was the same height as the shooter, and not
to identify specifically another person as the culprit, the
higher standard does not apply in this case. See Commonwealth
v. Silva-Santiago, 453 Mass. 782, 800-801 (2009) (defining
third-party culprit evidence).
 12

while the shooter was not, so there was no danger that the jury

would be misled or confused. The defendant further argues that

the simulation should have been admitted because it was highly

relevant to the identity of the shooter, a "central issue in the

case." See Commonwealth v. Jaime, 433 Mass. 575, 579 (2001).

Accordingly, he contends that the judge abused her discretion in

excluding the simulation.

We do not agree. In Commonwealth v. Corliss, supra at 456,

in considering a simulation produced by the graphic designer who

was involved in this case, we determined that it was an

appropriate exercise of judicial discretion to exclude that

simulation from evidence. We deferred to the trial judge's

finding that the defendant had not proved satisfactorily that

the simulation's conditions matched those of the incident being

simulated.14 Id. Similarly here, we cannot say the judge made

"a clear error of judgment in weighing the factors relevant to

the decision, . . . such that the decision [fell] outside the

range of reasonable alternatives" (quotations and citations

14
There was evidence in that case suggesting that the
surveillance camera that had recorded the incident had been
moved during a renovation after the incident, and that the level
of the floor also had been changed. See Commonwealth v.
Corliss, 470 Mass. 443, 455 (2015).
 13

omitted). See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014), and cases cited.15

The judge's determination was not, as the defendant

contends, based on a misunderstanding of the principles of

photogrammetry. Rather, the judge concluded reasonably that the

simulation could not be explained with sufficient clarity to

avoid confusing the jury, and did not take into account

important factors that would have affected the shooter's

apparent height. By the judge's own account, it took her

"almost an hour . . . to figure [out] what [the graphic

designer] [was] saying." Furthermore, it is evident that the

"height analysis by comparison" that the simulation facilitated

was inexact at best. The photographs used in the simulation

showed the shooter wearing loose-fitting clothing and a hood

that obscured his posture and the location of the top of his

head. In one of the photographs, the shooter appeared to be

mid-stride. In the other, the shooter may have been hunched or

leaning forward under his umbrella. In both, the shooter was

addressing a victim who was only five feet, four inches tall,

and thus was likely to be tilting his head downward. In light

15
Cf. Commonwealth v. Caruso, 85 Mass. App. Ct. 24, 32-33
(2014) (judge declined to admit simulation created by graphic
designer as newly discovered evidence, and questioned
simulation's ability accurately to establish suspect's height).
 14

of these concerns, the judge did not abuse her discretion in

excluding the simulation.

Moreover, even if the exclusion had constituted error, it

would not have been prejudicial. See Commonwealth v. Corliss,

supra at 456-457. While the defendant's height around the time

of the shooting was not measured, most estimates placed him

between five feet, eleven inches and six feet tall. The jury

also may have been able to assess for themselves the defendant's

height at the time of trial.16 Eyewitnesses placed the shooter's

height within a narrow range, from five feet, nine inches tall

to six feet, one inch tall. In addition, one of the

surveillance videos showed Hartepps, who was five feet, nine

inches tall, walk past the shooter, allowing the jury to compare

their apparent heights. In his closing argument, defense

counsel discussed at length the possible difference between the

defendant's height and the shooter's. Given that the

Commonwealth would have explored the limitations of a "height

analysis by comparison" on cross-examination, the simulation was

unlikely to have supplemented the other evidence of the

shooter's height in any meaningful way. Cf. Commonwealth v.

Perito, 417 Mass. 674, 684 (1994) (judge did not abuse

16
The record does not indicate whether the defendant, then
a teenager, grew in height between May 7, 2009, and his trial in
October, 2010.
 15

discretion in concluding that failure to produce low-quality

video recording of suspect's height and build did not prejudice

defendant where same information was available from eyewitness).

b. Prior consistent statement. Although she had had

several earlier opportunities to do so, Figueroa did not tell

police that the defendant was the shooter until they interviewed

her on May 19, 2009.17 At trial, Figueroa explained that she

initially declined to identify the defendant because she was

concerned for her safety. During cross-examination, however,

the defendant elicited testimony that police had told Figueroa

during an interview on May 8, 2009, that they thought she knew

more about the shooting than she had disclosed; that police told

Figueroa during that interview that they would require her to

testify before the grand jury, where lying would constitute

perjury; and that by May 8, 2009, Figueroa believed that people

in the community were aware that she had seen the shooting. The

Commonwealth then introduced, over objection, testimony from

Figueroa's mother that Figueroa had confided in her on the night

of May 7, 2009, that "[s]omeone had got shot and she knew who

17
When interviewed at the scene immediately after the
shooting on May 7, 2009, and at the police station later that
day, Figueroa told police that she did not recognize the
shooter. During an interview on the evening of May 8, 2009,
however, Figueroa learned that police believed she had waved to
the shooter shortly before the shooting. When police asked her
at that interview whether she knew who the shooter was, she
responded that she wanted to "pass the question."
 16

did it," and that the shooter lived "[t]wo houses down" from

them. The defendant argues that Figueroa's mother's testimony

should not have been admitted.

"A witness's prior statement that is consistent with that

witness's trial testimony is usually inadmissible" (citation

omitted). Commonwealth v. Novo, 449 Mass. 84, 93 (2007). If,

however, a judge

"makes a preliminary finding that there is a claim that the
witness's in-court testimony is the result of recent
contrivance or a bias, and the prior consistent statement
was made before the witness had a motive to fabricate or
the occurrence of the event indicating a bias, the evidence
may be admitted for the limited purpose of rebutting the
claim of recent contrivance or bias."

Mass. G. Evid. § 613(b)(2) (2015). See Mass. G. Evid. § 613

note, at 215, citing Commonwealth v. Novo, 449 Mass. at 93.

Here, the judge found that the defendant had claimed that

Figueroa's identification of him as the shooter was the result

of recent contrivance or bias, because the defendant had

suggested on cross-examination that Figueroa felt pressure from

both police and the community falsely to identify a specific

individual as the shooter.18 The defendant does not contest that

18
The jury were not instructed regarding the proper use of
the prior consistent statement. Because the defendant did not
request such an instruction, however, there was no substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Rivera, 430 Mass. 91, 100 (1999) ("While the defendant was
entitled, on request, to a limiting instruction, there is no
 17

finding. Nonetheless, he argues that Figueroa's motive to

fabricate already existed before she told her mother, on the

night of May 7, 2009, that the shooter was their neighbor,

because she would have felt pressure from the community to

identify someone immediately after the shooting earlier that

day.

Police did not mention the possibility of criminal

prosecution for perjury, however, until May 8, 2009, the day

after Figueroa confided in her mother. Thus, the mother's

testimony properly was admitted as a prior consistent statement

to counter the defendant's suggestion of police pressure. See

Commonwealth v. Andrews, 403 Mass. 441, 455 (1988); Commonwealth

v. Mayfield, 398 Mass. 615, 629-630 (1986). Given this

conclusion, we need not consider when Figueroa's other supposed

motive to fabricate, pressure from the community, first arose.

c. Alibi witness. The defendant called his younger

brother, Cjaillon Andrade, to testify as an alibi witness that

he had seen the defendant at home getting ready for school at

the time of the shooting. Over objection, the Commonwealth

impeached Andrade's testimony on cross-examination on the ground

that Andrade had not reported this alibi to police. The

defendant argues that the judge should not have allowed this

substantial likelihood of a miscarriage of justice because the
judge did not give such an instruction sua sponte").
 18

impeachment. In addition, the defendant argues that the jury

instructions regarding alibi witness testimony were incorrect.

Because "[a] person ordinarily has no legal obligation to

provide exculpatory information to the police," Commonwealth v.

Hart, 455 Mass. 230, 238 (2009), the Commonwealth may impeach a

witness for failing to provide such information only if it

establishes a sufficient foundation. We previously have

required the Commonwealth to establish "[1] that the witness

knew of the pending charges in sufficient detail to realize that

he possessed exculpatory information, [2] that the witness had

reason to make the information available, [and] [3] that he was

familiar with the means of reporting it to the proper

authorities." Commonwealth v. DaSilva, 471 Mass. 71, 82 (2015),

quoting Commonwealth v. Hart, supra. The defendant concedes

that the Commonwealth established each of these facts, but

argues that the judge additionally should have considered that

police were aware that Andrade might have relevant information,

yet never contacted him.19 In the defendant's view, this

additional consideration would have led the judge to conclude

that the impeachment of Andrade was unfairly prejudicial.

19
Police knew from speaking with the defendant's mother
that Andrade had been at home with her on the morning of the
shooting.
 19

In Commonwealth v. Hart, supra, we noted that there are

some circumstances "in which it would not be natural for a

witness to provide the police before trial with exculpatory

information," including when the witness "thinks that [his or]

her information will not affect the decision to prosecute." It

is possible that Andrade assumed as much; he was still a

teenager at the time the defendant was accused, and testified

that he believed police "probably" had spoken with his mother

when they executed a search warrant, providing them with the

same alibi that was the subject of his testimony. Nonetheless,

the defendant had an opportunity to rehabilitate the

Commonwealth's efforts at impeachment by eliciting this

information from Andrade on redirect, and did so effectively.

No more was required to protect against the possibility of

prejudice. See id. at 242 ("If the impeachment evidence is

admitted, the defendant is free to elicit on redirect

examination the witness's reason for prior silence").

The defendant's arguments regarding jury instructions

pertaining to alibi witnesses similarly are without basis. He

argues that the judge should have sustained his objection to the

judge's instruction that, in considering the credibility of a

given witness, the jury could consider "whether or not he or she

has any interest in the outcome of the case." Although the

contested instruction might have been problematic if it had
 20

targeted specifically the credibility of only the defendant's

alibi witnesses, it was included within a long list of standard

factors that the jury could consider in assessing any witness's

credibility. Because "[t]he charge was a general comment,

stated an obvious point, and did so only once," it was not

error. See Commonwealth v. Roderick, 411 Mass. 817, 821 (1992).

It also was not error for the judge to deny the defendant's

request for an instruction that the Commonwealth had the burden

of disproving the defendant's alibi. "[J]udges are not required

to deliver their instructions in any particular form of words,

so long as all necessary instructions are given in adequate

words." Commonwealth v. Sinnott, 399 Mass. 863, 878 (1987).

Here, the judge instructed the jury "that the Commonwealth has

the burden of proving beyond a reasonable doubt that the

Defendant committed the offense as charged," which included

"proving that the Defendant was present at the scene and not

somewhere else at the time." She added, "[I]f you have a

reasonable doubt about whether the defendant was present at the

time and place of the offenses, or about any other element of

the crimes, then you must find him not guilty." These

instructions conformed with the model instruction on alibi then

in effect, see Instruction 9.120 of the Criminal Model Jury

Instructions for Use in the District Court (2009), and
 21

adequately described the burden the defendant sought to

emphasize in his requested instruction.

The defendant also argues, for the first time on appeal,

that the jury should have been instructed that a person has no

obligation to provide exculpatory information to police. See

Commonwealth v. Hart, supra at 238. Recognizing that

"[o]rdinarily judges are not required, sua sponte, to instruct

juries as to the purposes for which evidence is offered at

trial," Commonwealth v. Roberts, 378 Mass. 116, 126 (1979),

S.C., 423 Mass. 17 (1996), we discern no error in the absence of

such an instruction.

d. Closing argument. The defendant contends that the

Commonwealth improperly invoked the jury's sympathy during

closing argument. Over objection, the Commonwealth described

the victim's family as being "summoned to the hospital that

morning after he was shot, forced to bear witness to the

[carnage] that this man [inflicted] on his body." The judge

declined to give a requested curative instruction. In the

defendant's view, the Commonwealth's closing placed too much

emphasis on the suffering of the victim's family, and deprived

him of his Federal and State constitutional rights to due

process and a fair trial.

A prosecutor "should not play on the sympathy or emotions

of the jury," but is entitled to "tell the jury something of the
 22

person whose life [has] been lost in order to humanize the

proceedings" (citations omitted). Commonwealth v. Rodriguez,

437 Mass. 554, 566 (2002). Although the Commonwealth's

reference to the "carnage" witnessed by the victim's family

likely invoked some sympathy, it was presented as part of a

broader, humanizing description of the victim's life.20 In

context, the statement was not the "focal point" of the

Commonwealth's argument, and was not excessive. See id. at 567.

In any event, the jury were instructed to "confine [their]

deliberations to the evidence and nothing but the evidence," to

"determine the facts based solely on a fair consideration of the

evidence," and "not to be swayed by prejudice or sympathy."

These instructions helped to ensure that any sympathy the jury

felt for the victim's family did not influence their decision.

20
The prosecutor stated in full,

"Soheil Turner was a son, a grandson, a nephew and a
friend to many people. Because of the actions of this
Defendant he is none of those things anymore.

"Forever fifteen years old, the lasting image of his
short life will be standing innocently, defenseless and
unaware. A school kid waiting at his bus stop and eating
his honey bun. Unaware that his executioner was waiting
across the street and watching. Unaware that in moments
his life was going to end on the morning of May 7th of 2009
as he waited for his school bus.

"His family summoned to the hospital that morning
after he was shot, forced to bear witness to the [carnage]
that this man [inflicted] on his body."
 23

Cf. Commonwealth v. Camacho, 472 Mass. 587, 608-609 (2015)

(context of summation, evidence at trial, and jury instructions

prevented improper closing from creating substantial likelihood

of miscarriage of justice).

e. Sentence of life without the possibility of parole.

The defendant received the statutorily required sentence of life

in prison without the possibility of parole for his conviction

of murder in the first degree. See G. L. c. 265, § 2, as

amended by St. 2014, c. 189, § 5 (providing parole eligibility

for person convicted of murder in first degree only if person

was younger than eighteen at time of offense). The defendant

argues that this sentence is unconstitutionally disproportionate

to his crime because he was only eighteen years old at the time

of the shooting.21 The age of eighteen, however, "is the point

where society draws the line for many purposes between childhood

and adulthood." Roper v. Simmons, 543 U.S. 551, 574 (2005).

21
The defendant also argues that his sentence violates his
rights to equal protection under both the United States
Constitution and the Massachusetts Declaration of Rights,
because of his age at the time of the shooting. That argument
is without basis, as there is a rational basis for making
determinations of parole eligibility based on age, and age is
not a suspect classification requiring heightened scrutiny. See
Commonwealth v. Weston W., 455 Mass. 24, 30 (2009). See also
Commonwealth v. Freeman, 472 Mass. 503, 508 (2015) ("We have
repeatedly said that those who challenge the constitutionality
of a statute that does not burden a suspect group or a
fundamental interest carry a heavy burden in seeking to overcome
the statute's presumption of constitutionality" [quotations and
citations omitted]).
 24

That such line-drawing may be subject "to the objections always

raised against categorical rules," id., does not itself make the

defendant's sentence unconstitutional.

f. Relief pursuant to G. L. c. 278, § 33E. We have

examined the record carefully pursuant to our duty under G. L.

c. 278, § 33E,22 and discern no basis on which to grant the

defendant extraordinary relief.

Judgments affirmed.

22
We note that, during cross-examination by the defendant,
one of the detectives who executed a search warrant to search
the defendant's house testified that a rifle was seized from the
house. That testimony was not relevant to the charges before
the jury, and had the potential to lead them to believe that the
defendant had a propensity for violence or was affiliated with a
gang. Nonetheless, the defendant elicited from the detective
that there was no indication that the rifle "had anything to do
with" him, and the judge properly instructed the jury that the
charge of unlawful possession of a firearm referred only to a
semiautomatic handgun, not a rifle. Thus, it did not create a
substantial likelihood of a miscarriage of justice.