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SJC-09264
COMMONWEALTH vs. ANTONIO FERNANDEZ.
Norfolk. January 9, 2018. - August 24, 2018.
Present: Gants, C.J., Lowy, Cypher, & Kafker, JJ.
Homicide. Firearms. Practice, Criminal, Continuance, Fair
trial, Sentence, Capital case. Constitutional Law, Fair
trial, Sentence. Due Process of Law, Fair trial, Sentence.
Fair Trial.
Indictments found and returned in the Superior Court
Department on August 6, 2002.
The cases were tried before Isaac Borenstein, J., and a
motion for a new trial, filed on May 29, 2015, was heard by
Beverly J. Cannone, J.
John H. Cunha, Jr., for the defendant.
Pamela L. Alford, Assistant District Attorney, for the
Commonwealth.
LOWY, J. Almost as quickly as a verbal spat between two
groups of teenagers erupted, it dissipated. The defendant,
Antonio Fernandez, and his friends turned their backs and began
riding their bicycles away. Unprovoked, the defendant got off
2
his bicycle, turned to one of his friends, and said, "Fuck that
shit." He then took out a handgun, cocked it, and walked back
toward the victim. The defendant aimed the handgun at the
victim and shot him in the chest. The victim collapsed nearby
and died a short time later.
At trial, it was uncontroverted that the defendant killed
the victim; the defendant presented a theory of self-defense. A
Superior Court jury convicted the defendant of murder in the
first degree on the theory of deliberate premeditation and
possession of a firearm without a license. The defendant does
not challenge that he shot and killed the victim. He does,
however, argue that (1) the judge abused his discretion by
denying the defendant's motions for funds for an expert and for
a continuance on the eve of trial, (2) the circumstances of the
killing and the fact that he was sixteen at the time of the
killing require a reduction of the verdict, and (3) the
defendant's right to a public trial under the Sixth Amendment to
the United States Constitution was violated because the court
room was closed during jury empanelment. We discern no
reversible error and, after thorough review of the record,
decline to order a new trial or to direct the entry of a verdict
of a lesser degree of guilt under G. L. c. 278, § 33E. However,
we remand the matter to the Superior Court for resentencing
3
consistent with Diatchenko v. District Attorney for the Suffolk
Dist., 466 Mass. 655, 666 (2013), S.C., 471 Mass. 12 (2015).
1. Background. We recite the facts as the jury could have
found them, reserving certain details for later discussion as
they relate to other issues raised on appeal.
On the evening of June 20, 2002, the victim attended a
cookout in Brookline to celebrate his graduation from high
school. Following the cookout, the victim and several friends,
all of whom were between the ages of fifteen and nineteen years
old, traveled to a nearby park to "hang out." Shortly after
arriving, the victim and his friends saw three male teenagers,
one of whom was the defendant, approach the park on bicycles.1
The defendant and his two friends had traveled from Boston to
Brookline, supposedly "to see some girls." The defendant and
his friends were all between the ages of fourteen and sixteen;
the defendant was sixteen years old at the time. The defendant
and his friends entered the park, approached the victim and his
friends, and asked if they had any marijuana. One of the
victim's friends said that they did not, and the three Boston
teenagers left the park. Neither the victim nor any of his
friends knew or recognized the defendant or either of his
companions.
1 There was evidence that the defendant and one of the other
individuals he was with were riding bicycles, while the third
individual approached on foot.
4
The defendant and his friends made their way to a nearby
street, where one of the teenagers sat on the hood of a parked
motor vehicle while the defendant and the third individual sat
on their bicycles. A short time later, the victim and his
friends also left the park and approached the defendant's crew;
a verbal confrontation ensued. Although the accounts of the
encounter differed slightly, it appears that the defendant's
group had been laughing at the victim and his friends, and one
of the victim's friends asked the defendant and his friends if
they had a problem. When this interaction began, the victim was
not involved and instead was riding his bicycle nearby. The
demeanor of the interaction intensified, with one member of the
defendant's group proclaiming, "Brookline is a bunch of
bitches." One of the victim's friends told the defendant and
his friends to leave. When they did not leave, one of the
victim's friends asked the defendant and his friends if they
wanted to "shoot the fair ones," meaning have a fist fight. The
defendant and his friends group declined, responding, "We don't
fight fair." At this point, the victim got off his bicycle and
stood by his friend who had been interacting with the
defendant's group. The victim raised his hands as if ready to
fight and told the defendant and his friends to "[g]et the fuck
out of here." No punches were thrown, and the spat between the
groups did not escalate beyond name-calling and posturing.
5
One of the defendant's friends suggested that they leave,
warning the defendant that the victim might have a weapon. The
defendant responded, "He doesn't know what I got." One of the
defendant's friends responded to him, "Don't do anything
stupid." At that point, the defendant and his crew turned away
from the victim and his friends and began leaving; it appeared
that the confrontation had ended.
The defendant rode his bicycle away from the victim and his
friends. It took the defendant about fifteen seconds to ride in
the vicinity of forty-five feet away from the victim and his
friends. At that point, having moved away from the scene of the
confrontation, the defendant, unprovoked, stopped and put his
bicycle down. He turned to one of his friends and said, "Fuck
that shit." The defendant then pulled out a handgun, cocked it,
and began making his way back toward the victim. The victim had
not moved, and his hands were in the air; he was not holding
anything. The defendant stated, "I don't shoot the fair ones,"
pointed the handgun at the victim's chest, and fired. The
bullet struck the victim in the center of his chest, passing
through his left lung and heart before leaving his body. The
victim collapsed nearby, bleeding profusely from his chest. The
defendant ran away laughing. He and his friends fled the scene.
Police responded almost immediately and began performing
first aid on the victim, but he died shortly after being shot.
6
No gun, and no other weapon, was found on or near the victim's
person.
Later that night, the defendant bragged about the shooting,
proclaiming that he was "the number one clapper," meaning that
he was the number one shooter. The following day, the defendant
telephoned one of his friends who was with him during the
shooting and asked if the friend would travel with him to the
Dominican Republic. His friend declined, and the defendant fled
to New York, where he was apprehended three days later.
At trial, the defendant did not contest that he killed the
victim; instead, he claimed that he was acting in self-defense.
Defense counsel argued that the defendant believed the victim or
one of the victim's friends was armed, and the defendant
believed he was facing serious and imminent bodily harm. The
jury found the defendant guilty of murder in the first degree on
the theory of deliberate premeditation and possession of a
firearm without a license.
2. Discussion. a. Motion for funds for an expert and a
continuance. After several continuances, the defendant's trial
was scheduled to begin on November 13, 2003.2 On November 10,
three days before trial, the defendant filed a motion for funds
2 The defendant's trial was originally scheduled for October
14, 2003. On September 17, 2003, the trial date was continued
and set for November 10, 2003. On October 24, 2003, the trial
was further continued and set for November 13, 2003.
7
to hire an expert on adolescent brain development to evaluate
the defendant and testify in his defense.3 When defense counsel
filed this motion, she had been representing the defendant for
approximately one and one-half years. Although defense counsel
sought funds to hire an expert on the eve of trial, she did not
claim that she was unprepared for trial. The trial judge
construed the defendant's "motion for funds" as a motion for a
continuance because granting the motion to hire an expert would
necessitate a continuance of the trial by several months.
The defendant's motion generally asserted that an expert
could evaluate the development of his brain by conducting a
brain scan. In the event the scan indicated that the
defendant's brain was underdeveloped for purposes of decision-
making and impulse control, the defendant could then argue, with
the support of expert testimony, that he did not have the
capacity to form the specific intent necessary to commit murder
in the first degree on the theory of deliberate premeditation.
In support of the motion, the defendant attached an article
published by the National Juvenile Defender Center describing
how the science of adolescent brain development had progressed
considerably over the previous five years, and that the
adolescent brain was generally less developed than previously
3 The defendant also filed a motion in limine to admit the
expert testimony on adolescent brain development.
8
believed. The article further posited that adolescents with
less developed brains tended to react with "gut instinct" rather
than organized, reasoned thought. The defendant also included
an article describing the technology used to scan the brain as
having "a brilliant future in medicine, psychology, psychiatry,
and in the neurosciences in general, for studying the relation
between [brain] structure and function." There was nothing in
the materials submitted in support of the defendant's motion
indicating that all adolescent brains develop at the same rate,
or that there was necessarily a direct correlation between an
individual's age and his or her brain development. According to
the defendant, brain development directly correlated to an
adolescent's ability to control impulses, perform organized
thought, and form specific intent.
A hearing on the defendant's motion took place the day
before trial was set to begin. Defense counsel explained that
she began Internet research the week prior, looking for possible
ways to "break this case down from a murder to a manslaughter."
In the course of this research, defense counsel discovered the
materials describing the advances in the science of adolescent
brain development that gave rise to the request for funds to
hire an expert and a continuance. The article the defendant
principally relied on had been published in April, 2003,
approximately six months earlier. Defense counsel argued that
9
conducting scans of the defendant's brain could demonstrate the
extent to which the defendant's brain was developed, which, in
turn, could potentially indicate whether the defendant was more
likely to think impulsively and whether he was capable of
forming the specific intent to commit murder in the first
degree.
The judge, who was aware of the advances in the science of
adolescent brain development, acknowledged that the material
submitted indicated that adolescents are "subject to these
potential risks and dangers," but noted that "no study says that
all juveniles develop in the same way," and that the studies had
margins of error. Critically, the judge noted that the
defendant failed to provide any information suggesting that the
defendant fell within the group of adolescents identified in the
literature. In other words, the defendant failed to submit
sufficient evidence, such as psychological or behavioral
studies, suggesting brain scans would provide useful information
for the defendant's case. The judge also noted that although
defense counsel had been representing the defendant for
approximately one and one-half years, she raised this issue for
the first time on the eve of trial. The judge's decision to
deny the defendant's motion centered on the fact that the
defendant had belatedly requested the continuance and failed to
10
substantiate that the defendant fell within the group of
adolescents generally described by the studies.4
Because the judge's denial had nothing to do with the
request for funds itself, but instead focused on the defendant's
implicit request for a continuance, we consider whether the
judge erred in denying the defendant's motion for a
continuance.5,6 "Whether a motion for continuance should be
granted lies within the sound discretion of the judge, whose
4 In denying the defendant's motion for a continuance, the
judge stated:
"I don't think it would have been unreasonable at that
time, a year-and-a-half ago, to immediately request funds
for such an evaluation."
The judge further explained:
"Here we are on the eve of trial, for the first time
without specific supporting information, you're asking me,
without the Commonwealth having the opportunity to rebut,
get their own evidence, witnesses, whatever, for what
essentially is a several months long, at least, continuance
to be able to fully explore this to be fair to both sides.
I don't think the motion is fairly raised at the right time
without any supporting information. And I'm going to deny
it for those reasons."
5 The defendant filed a posttrial motion to reduce the
verdict and a renewed motion for funds to hire an adolescent
brain development expert. The trial judge denied both motions.
6 The defendant filed a motion for reconsideration
concerning the denial of the motion for funds and a continuance.
The trial judge reiterated that the denial had nothing to do
with the defendant's indigent status or the fact that the
defendant had requested funds. Rather, the judge denied the
motion based on its lack of support and the belated timing of
the motion given that counsel had been involved in the case for
approximately fifteen months.
11
action will not be disturbed unless there is patent abuse of
that discretion, which is to be determined in the circumstances
of each case." Commonwealth v. Pena, 462 Mass. 183, 189 (2012),
quoting Commonwealth v. Bettencourt, 361 Mass. 515, 517-518
(1972). See Commonwealth v. Snell, 428 Mass. 766, 771-772
(1999), cert. denied, 528 U.S. 1106 (2000) (motion to continue
filed ten days before trial seeking further deoxyribonucleic
acid testing properly denied). A judge considering a motion for
a continuance may not exercise his or her discretion "in such a
way that denial of a continuance deprives a defendant of the
right to effective assistance of counsel and to due process of
law." Pena, supra at 190. See Commonwealth v. Miles, 420 Mass.
67, 85 (1995) (counsel must have reasonable opportunity to
prepare defense). Although there is no "mechanical test" for
determining whether the denial of a continuance constituted an
abuse of discretion, Commonwealth v. Cavanaugh, 371 Mass. 46, 51
(1976), "we are guided by the circumstances present in every
case, particularly in the reasons presented to the trial judge
at the time the request is denied" (citation and quotation
omitted). Commonwealth v. Cruz, 456 Mass. 741, 747 (2010). See
Commonwealth v. Caldwell, 459 Mass. 271, 285 (2011), quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964). "A judge should
grant a continuance only when justice so requires, balancing the
requesting party's need for additional time against concerns
12
about inconvenience, cost, potential prejudice, and the burden
of the delay on both the parties . . . ." Commonwealth v. Melo,
472 Mass. 278, 305 (2015), quoting Commonwealth v. Ray, 467
Mass. 115, 128 (2014). See Mass. R. Crim. P. 10 (a) (1), 378
Mass. 861 (1979) ("a continuance shall be granted only when
based upon cause and only when necessary to insure that the
interests of justice are served"). The judge must also consider
the over-all administration of justice, and "give due weight to
the interest of the judicial system in avoiding delays which
would not measurably contribute to the resolution of a
particular controversy." Commonwealth v. Chavis, 415 Mass. 703,
711 (1993), quoting Cavanaugh, supra.
Based on the particular circumstances presented in the
defendant's request for a continuance, we conclude that the
judge did not abuse his discretion in denying the motion. After
representing the defendant for approximately one and one-half
years, and having successfully moved for funds to hire a private
investigator and a ballistics expert on April 30, 2003, defense
counsel moved for what would amount to the functional equivalent
of a continuance at least several months long, three days before
trial. Beyond the belated nature of this request, the defendant
did not support the motion with information or evidence -- other
than the defendant's age at the time of the offenses --
indicating that the requested brain scans would yield helpful
13
information. Defense counsel did not present evidence
concerning the defendant's medical, psychological, or behavioral
history; school records; or any information suggesting that he
was a particularly psychologically troubled adolescent who might
fall within the group of adolescents described in the
literature. The defendant's motion relied exclusively on
articles, which do not appear to be peer-reviewed medical or
psychological studies or journals, that discuss generally the
advancement of the science of adolescent brain development in
the previous five years, and that argue that juvenile brains, in
general, are less developed than adult brains. In short, the
defendant failed to support his motion with any evidence
specific to him suggesting that a continuance to hire an
adolescent brain development expert would furnish exculpatory
evidence in his case. See Snell, 428 Mass. at 772.
In support of his argument, the defendant focuses on our
scientific and legal understanding of adolescent brain
development as it exists in 2018, not the understanding of the
science or law as it existed at the time of his trial in 2003.
There is no question that our scientific and legal understanding
of adolescent brain development has advanced since the
defendant's trial. See Miller v. Alabama, 567 U.S. 460, 479-480
(2012) (invalidating sentencing scheme that mandates life in
prison without possibility of parole for juvenile offenders
14
convicted of homicide offenses); Graham v. Florida, 560 U.S. 48,
75 (2010) (prohibiting life sentence without possibility of
parole for juveniles convicted of nonhomicide offenses); Roper
v. Simmons, 543 U.S. 551, 578 (2005) (invalidating death penalty
for juveniles). See also Commonwealth v. Okoro, 471 Mass. 51,
59-60 (2015); Diatchenko, 466 Mass. at 658. It is now well
established, based on "science, social science, and common
sense," that adolescents are significantly different from adults
for purposes of analysis under the Eighth Amendment to the
United States Constitution. Diatchenko, supra at 660, citing
Miller, supra at 471. See Okoro, supra ("[s]cientific and
social science research on adolescent brain development and
related issues continues"). Therefore, our acknowledgement that
adolescents are constitutionally different from adults has been
precisely limited to our consideration of juvenile sentencing,
not whether a juvenile defendant is capable of committing
murder. See Okoro, supra; Diatchenko, supra at 659-660. See
also Commonwealth v. Perez, 477 Mass. 677, 682-683 (2017);
Commonwealth v. Brown, 474 Mass. 576, 590 n.7 (2016) (holding of
Miller focuses on "prohibition against cruel and unusual
punishment under the Eighth Amendment . . . as it applied to
sentencing and punishment of juveniles," and did not address
"intent, knowledge, or deliberate premeditation as elements of a
crime"); Commonwealth v. Ogden O., 448 Mass. 798, 804 (2007)
15
("While a delinquent child may not have the maturity to
appreciate fully the consequences of his wrongful actions
. . . , that does not mean that a delinquent child lacks the
ability to formulate the specific intent to commit particular
wrongful acts"). But see Okoro, supra at 65-66 (trial judge was
correct in both allowing expert testimony concerning that
particular juvenile defendant's "capacity for impulse control
and reasoned decision-making on the night of the victim's
death," and precluding expert from suggesting that "it
was impossible for anyone [fifteen years old] to formulate the
necessary intent to commit [murder in the second degree]").
Despite these changes in the science and law as they relate
to juvenile sentencing, we do not impute our contemporary legal
or scientific understanding of adolescent brain development in
evaluating whether the trial judge abused his discretion by
denying the defendant's motion for a continuance on the eve of
trial in 2003.7 Instead, "we are guided by the circumstances
7 On appeal, the defendant does not claim that the
advancements in adolescent brain development since his trial
constitute newly discovered evidence. See Commonwealth v.
Grace, 397 Mass. 303, 306 (1986) (evidence is newly discovered
where it was "unknown to the defendant or his counsel and not
reasonably discoverable" through "reasonable pretrial
diligence"). Similarly, the defendant's appellate counsel, who
was not the same counsel representing him at trial, stated at
oral argument that he considered raising a claim of ineffective
assistance of trial counsel, but ultimately chose not to raise
the claim because, in 2003, lawyers who commonly represented
defendants in murder trials were not aware of the issues
16
present in [this] case" (citation and quotation omitted), Cruz,
456 Mass. at 747, reflecting the law and general understanding
of adolescent brain development in 2003, Commonwealth v. Lally,
473 Mass. 693, 704-705 (2016) (concluding that although
scientific guidelines had changed, method used at trial was
"reliable method . . . at the time of trial"). See Commonwealth
v. Bastaldo, 472 Mass. 16, 31 (2015) ("we evaluate the alleged
errors under the existing law at the time of trial");
Commonwealth v. Crayton, 470 Mass. 228, 245 (2014) (judge did
not abuse discretion where decision "was in accord with the case
law existing at the time of her decision"). See also
Commonwealth v. LeFave, 430 Mass. 169, 181 (1999) (discussing
"conflict between the constantly evolving nature of science and
the doctrine of finality").
From the circumstances presented here, notably the
defendant's failure to substantiate his request with specific
evidence -- other than his age -- the defendant failed to make a
"case-specific argument for granting a continuance at that
juncture." Ray, 467 Mass. at 129. See Cruz, 456 Mass. at 748
(no abuse of discretion in denying motion for continuance where
"defendant failed to provide a persuasive reason for a
concerning adolescent brain development, particularly prior to
Roper v. Simmons, 543 U.S. 551, 578 (2005). After a full review
of the record before us on appeal, we cannot say that counsel
was ineffective.
17
continuance and instead relied on general assertions that the
defense could 'benefit' from more time"). Viewing the evidence
presented by the defendant in his motion for funds and for a
continuance in light of the science in 2003, and its acceptance
in our legal system, it is unlikely that a delay could have
measurably contributed to the fair resolution of the case. Ray,
supra, citing Miles, 420 Mass. at 85. The judge's decision was
not a "myopic insistence upon expeditiousness in the face of a
justifiable request for delay." Pena, 462 Mass. at 190.
Instead, it reflected careful examination of the circumstances
presented, particularly the lack of support offered to
substantiate the request for a continuance. See Cruz, supra.8
Accordingly, we affirm the trial judge's denial of the
defendant's motion for a continuance.
b. Sufficiency of the evidence of premeditation. The
defendant contends that the evidence in his case indicates
spontaneity rather than deliberate premeditation, and therefore,
8 Even under the case law as it exists today, it is far from
clear that a similar motion, three days before trial, would be
allowed on this record -- a record devoid of evidence concerning
this particular defendant's psychological or behavioral status
or evidence suggesting that a scan of his brain would furnish
helpful evidence. See Commonwealth v. Okoro, 471 Mass. 51, 66
(2015) (expert testimony admissible concerning particular
juvenile defendant's "capacity for impulse control and reasoned
decision-making on the night of the victim's death" because it
"did not amount to an opinion that the defendant [or any other
fifteen year old] was incapable of forming the intent required
for murder in the first or second degree simply by virtue of
being fifteen").
18
that we should exercise our extraordinary authority under G. L.
c. 278, § 33E, to reduce his verdict from murder in the first
degree to murder in the second degree or manslaughter. Pursuant
to G. L. c. 278, § 33E, our duty is "to consider broadly the
whole case on the law and the facts to determine whether the
verdict is consonant with justice" (citation and quotation
omitted). Commonwealth v. Howard, 469 Mass. 721, 747 (2014).
In undertaking this duty, we may, "if satisfied that the verdict
was against the law or the weight of the evidence . . . or for
any other reason that justice may require[,] . . . direct the
entry of a verdict of a lesser degree of guilt." G. L. c. 278,
§ 33E.
We begin by noting that "a primary consideration" in
determining whether a conviction of murder in the first degree
based on deliberate premeditation is consonant with justice "is
whether the killing reflects spontaneity rather than
premeditation" (citation and quotation omitted). Commonwealth
v. Ruci, 409 Mass. 94, 98 (1991). In order to prove deliberate
premeditation, the Commonwealth must show that "the plan to kill
was formed after deliberation and reflection. However, no
particular length of time is required in order for deliberate
premeditation to be found." Commonwealth v. Bolling, 462 Mass.
440, 446 (2012), quoting Commonwealth v. Caine, 366 Mass. 366,
374 (1974). "The law recognizes that a plan to murder may be
19
formed within a few seconds." Commonwealth v. Chipman, 418
Mass. 262, 269 (1994). See Commonwealth v. Rakes, 478 Mass. 22,
34 (2017) ("No particular length of time of reflection is
required to find deliberate premeditation, and the decision may
be made in only a few seconds"). To prove deliberate
premeditation, the Commonwealth must demonstrate that the
defendant had the opportunity to reflect, however brief, and
actually reflected on the decision to kill. See Commonwealth v.
Bins, 465 Mass. 348, 367 (2013). "As such, it is the sequence
of the thought process rather than the time which is taken to
think that is the key to determining whether someone acted with
deliberate premeditation." Chipman, supra, citing Commonwealth
v. Tucker, 189 Mass. 457, 494-495 (1905) (this thought process
is often characterized as "[f]irst the deliberation and
premeditation, then the resolution to kill, and lastly the
killing in pursuance of the resolution").
In Commonwealth v. Colleran, 452 Mass. 417, 431-432 (2008),
we set forth a number of factors to consider in deciding whether
a defendant's conviction of murder in the first degree based on
deliberate premeditation should be reduced. "Each case depends
on its peculiar facts. No one fact is conclusive." Id. at 432,
quoting Commonwealth v. Gaulden, 383 Mass. 543, 556 (1981). The
defendant contends that the circumstances of his case embody
20
each of the mitigating factors enunciated in Colleran, supra at
431-432. A careful review of the record belies this contention.
There was a brief verbal spat between two groups of
teenagers. No punches were thrown. The interaction, although
hostile, only consisted of name-calling and posturing. The
squabble between the two groups ended, and the defendant turned
away from the victim, got on his bicycle, and began to ride
away. After having traveled approximately forty-five feet, the
defendant stopped his bicycle and exclaim to his friend, "Fuck
that shit." At that point, he then took out a handgun, cocked
it, walked back toward the victim, and shot him in the chest.
The circumstances here indicate that the defendant did not
shoot the victim in the midst of a senseless brawl or in the
heat of sudden combat. It was reasonable for the jury to
conclude that the defendant had time to reflect as he was riding
away from the scene, and that his statement, "Fuck that shit,"
before cocking the gun and walking back toward the victim,
evinced that the defendant had an opportunity to reflect,
actually reflected on the situation, and formed the intent to
kill before shooting the victim. In addition to a period
sufficient for the defendant to have "cooled off" and formed the
intent to kill, the events here also show that the defendant
left the scene of the altercation and returned with the weapon
with the intent to kill the victim. See Commonwealth v. Taylor,
21
463 Mass. 857, 870 (2012) (where ample time to cool off after
fight but defendant returned to victim's house with firearm and
shot victim, killing not in heat of passion); Commonwealth v.
Jiles, 428 Mass. 66, 75 (1998) (defendant went to scene of crime
with loaded gun for purposes of shooting suspected rival gang
members). Cf. Commonwealth v. Jones, 366 Mass. 805, 809 (1975)
(defendant was reasonably in fear of sudden attack by victim
with razor blade immediately prior to killing).
There is no question that this was a minor controversy that
exploded into the killing of a human being. See Commonwealth v.
Baker, 346 Mass. 107, 109-110 (1963). See also Commonwealth v.
Vargas, 475 Mass. 338, 364 (2016). It is also true that the
defendant and the victim were strangers to each other and there
was no indication of prior trouble between them. See
Commonwealth v. Ransom, 358 Mass. 580, 583 (1971). The
defendant was also sixteen at the time he shot and killed the
victim. See Brown, 474 Mass. at 592 (upholding seventeen year
old's conviction of murder in first degree based on deliberate
premeditation). Indeed, the prosecutor acknowledged the
defendant's age in his closing argument: "[O]ne of the factors
in this case that you have to think about -- and I think I have
to mention it, is how old [the defendant] was at the time --
sixteen years, sixteen years, ten months old. That's young.
That's young. You will decide what to do." Closing arguments
22
are not evidence, but the prosecutor's statement reflects that
the defendant's age was known to the jury, and that fact was
available for their consideration. Although the defendant's age
is not dispositive, the jury were free to consider the
defendant's age in determining the extent of the defendant's
guilt. See Okoro, 471 Mass. at 66 (expert testimony concerning
adolescent brain development admissible to assist jury in
"determining whether the defendant was able to form the intent
required for deliberate premeditation . . . at the time of the
incident"). However, in these circumstances, the defendant's
age does not outweigh the compelling evidence that his actions
were the product of deliberate premeditation, not spontaneity.
Accordingly, we decline to exercise our authority under G. L.
c. 278, § 33E, to reduce the defendant's conviction of murder in
the first degree based on deliberate premeditation.
c. Court room closure claim. The defendant avers that his
right to a public trial under the Sixth Amendment to the United
States Constitution was violated because during jury empanelment
the trial judge conducted individual voir dire of the jurors in
a court room that was not open to the public. During the final
pretrial conference, defense counsel specifically requested that
the judge conduct individual voir dire of the jurors for
purposes of asking questions related to self-defense. The judge
allowed the request and set forth the procedure he intended to
23
use for conducting the voir dire: After asking general
questions of the venire in the court room where the case was
being tried, prospective jurors would be individually brought
into an adjacent court room and questioned by the trial judge in
the presence of the defendant, counsel for both sides, and the
court reporter. After the judge outlined this proposed
procedure, defense counsel agreed to it and thanked the judge
for accommodating her request for individual voir dire. Jury
empanelment and the individual voir dire occurred exactly as the
judge and defense counsel had agreed on at the final pretrial
conference. Moreover, counsel and the defendant were present
for the individual voir dire procedure and did not object.
Where defense counsel not only requested individual voir
dire and agreed to the individual voir dire procedure used in
this case, but also was present for it and did not raise a
contemporaneous objection, we conclude that the defendant did
not preserve his court room closure claim. Commonwealth v.
Robinson, 480 Mass. 146, 154 (2018). See Ray, 467 Mass. at 121-
122 (public trial right waived where "[c]ounsel for the
Commonwealth and the defendant affirmatively agreed to the
procedure"); Commonwealth v. Dyer, 460 Mass. 728, 734, 736-737
(2011), cert. denied, 566 U.S. 1026 (2012) (defendant waived
right to public trial by consenting to individual juror voir
dire in judge's chambers). The defendant has failed to advance
24
any grounds supporting his contention that the individual voir
dire procedure used in his case created a substantial likelihood
of a miscarriage of justice or otherwise resulted in a
fundamentally unfair empanelment procedure. See Weaver v.
Massachusetts, 137 S. Ct. 1899, 1909–1910, 1912 (2017).
d. Relief under G. L. c. 278, § 33E. The defendant was
sixteen years old at the time of the crime. After conviction,
he received the mandatory sentence for murder in the first
degree under G. L. c. 265, § 2 -- life without the possibility
of parole. Pursuant to our holding in Diatchenko, 466 Mass. at
658–659, the defendant's life sentence remains in force, but the
exception then present in G. L. c. 265, § 2, rendering him
ineligible for parole, is no longer applicable. Commonwealth v.
Brown, 466 Mass. 676, 688–689 (2013), S.C., 474 Mass. 576
(2016). Accordingly, we affirm the defendant's convictions of
murder in the first degree and carrying a firearm without a
license, and affirm the order denying the defendant's motion for
a new trial, but remand for resentencing consistent with
Diatchenko, supra. We have reviewed the entire record pursuant
to our obligation under G. L. c. 278, § 33E, and conclude that
there are no grounds for reversing the defendant's convictions
or for granting any other relief.
So ordered.