Commonwealth v. Penn ( 2015 )


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    SJC-10503
    COMMONWEALTH   vs.   LUIS PENN.
    Essex.      May 8, 2015. - September 9, 2015.
    Present:   Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.
    Homicide. Firearms. Constitutional Law, Public trial.
    Identification. Practice, Criminal, Capital case, Public
    trial, Assistance of counsel, Instructions to jury,
    Argument by prosecutor, Sentence.
    Indictments found and returned in the Superior Court
    Department on May 5, 2004.
    The cases were tried before Howard J. Whitehead, J., and a
    motion for a new trial, filed on October 29, 2010, was heard by
    him.
    Dana Alan Curhan for the defendant.
    Kenneth E. Steinfield, Assistant District Attorney, for the
    Commonwealth.
    GANTS, C.J.      A Superior Court jury convicted the defendant
    of murder in the first degree on a theory of deliberate
    2
    premeditation for the killing of the victim, Aneury Guzman.1    The
    critical issue in the case was whether the victim had been shot
    by the defendant or by the defendant's friend, Benjamin Serrano,
    who minutes before the shooting had confronted the victim with a
    firearm, handed the firearm to the defendant, and then engaged
    in a fist fight with the victim.
    On appeal, the defendant claims that he is entitled to
    reversal of the murder conviction because the evidence was
    insufficient as a matter of law.2   Alternatively, he claims that,
    even if the evidence were legally sufficient, the court should
    exercise its authority under G. L. c. 278, § 33E, to vacate the
    conviction, order a new trial, or reduce the conviction to
    murder in the second degree because the verdict was contrary to
    the weight of the evidence and not consonant with justice.     In
    addition, he claims that the murder conviction should be vacated
    or a new trial ordered because his right to a public trial was
    violated by the unconstitutional closure of the court room
    during jury selection; because the jury were not instructed
    about the risk of honest, but mistaken, eyewitness
    identification; and because the prosecutor vouched for the
    accuracy of the key eyewitness and expressed her personal belief
    1
    The defendant was also convicted of carrying a firearm
    without a license in violation of G. L. c. 269, § 10 (a).
    2
    The defendant does not challenge his conviction on the
    firearm indictment on appeal.
    3
    in the defendant's guilt during closing argument.   Finally, the
    defendant claims that, even if his murder conviction were to be
    affirmed, he is entitled to a reduction in sentence to life with
    the possibility of parole where he was seventeen years old at
    the time of the killing.   We affirm the defendant's conviction
    of murder in the first degree, but order the case remanded for
    resentencing in accordance with Diatchenko v. District Attorney
    for the Suffolk Dist., 
    466 Mass. 655
    , 671-674 (2013), S.C., 
    471 Mass. 12
     (2015).
    Background.   Because the defendant challenges the
    sufficiency of the evidence, we recite the evidence in the
    Commonwealth's case-in-chief in detail and in the light most
    favorable to the Commonwealth.   See Commonwealth v. Labadie, 
    467 Mass. 81
    , 93-94, cert. denied, 
    135 S. Ct. 257
     (2014).3    Because
    the defendant additionally claims that the verdict is contrary
    to the weight of the evidence, we also summarize the other
    relevant evidence, including the defendant's trial testimony.
    See Commonwealth v. Franklin, 
    465 Mass. 895
    , 896 (2013).
    3
    In evaluating the sufficiency of the evidence, we must
    also consider, in the light most favorable to the Commonwealth,
    "the evidence at the close of all the evidence to determine
    whether the Commonwealth's position as to proof had deteriorated
    since it had closed its case." Commonwealth v. Brown, 
    51 Mass. App. Ct. 702
    , 709 (2001), quoting Commonwealth v. Basch, 
    386 Mass. 620
    , 622 n.2 (1982). Here, however, the only evidence
    following the close of the Commonwealth's case was the
    defendant's testimony, which, viewed in the light most favorable
    to the Commonwealth, the jury were entitled not to credit.
    4
    1.   Commonwealth's case-in-chief.    Serrano had dated
    Jennifer Suarez "on and off" for approximately four years when
    she ended her relationship with Serrano and began dating the
    victim in January, 2004.   Serrano told Suarez that "he didn't
    want [her] with [the victim]," and that she was "his girl and
    [was] always going to be with him."     Serrano also threatened the
    victim, telling Suarez that "he's going to kill" the victim, and
    "[w]atch when he catches him."
    On the evening of April 1, 2004, Serrano knocked on the
    apartment door of Suarez's cousin, Vicky Gonzalez, who resided
    in a three-story multifamily building in Lawrence near the
    corner of Haverhill Street and Oxford Street.    Gonzalez
    "cracked" open the door and saw Serrano, whom she knew, dressed
    in a "brown down coat."    Serrano's jacket had a hood, but he did
    not "have it on."   Just behind Serrano was a man she did not
    know, who was dressed "all in black":    "[b]lack sneakers, black
    pants, [and a] black jacket."    The man had his "hood" on, and
    his face was "totally covered" with "what must have been a mask
    or something."   Serrano asked for Suarez, and pushed the door,
    trying to look into the apartment.    Gonzalez told him to leave,
    and Serrano said, "I want Jennifer and I know she's here."
    Gonzalez told him that she would call the police if he did not
    leave, and he and the other man left.
    5
    Unknown to Serrano, the victim was in the apartment when
    Serrano tried to enter.    Minutes earlier, the victim had come to
    the apartment in an automobile with his friends, Johan Abreu and
    Santo Suarez,4 and they were waiting for the victim in the
    automobile in a parking lot off of Oxford Street outside the
    entrance to Gonzales's apartment.    When Serrano walked outside,
    he banged on the hood of the automobile.5    After Abreu asked
    Serrano what he was doing there, Serrano pulled out a gun from
    his waistband and told them "it's not with you" and "to get
    . . . out of here."     As this was happening, the victim came out
    of the apartment building and stepped between Serrano and his
    friends, facing Serrano.    Serrano pointed the gun at the
    victim's face and said, "Look where I found him," "this is the
    way I want[ed] to catch you."    He asked, "Who's a bigger man
    with a gun?"   Abreu screamed at Serrano to put down the gun and
    fight with his hands.    The victim told Serrano, "Do what you got
    to do."   Serrano struck the victim with his free hand and called
    for "Fifty" to come out, at which point the defendant came out
    from an alley alongside the apartment building.6    Serrano said he
    4
    Santo Suarez is Jennifer Suarez's brother. Because they
    share a last name, we shall refer to him by his first name.
    5
    Johan Abreu testified that Serrano was wearing "a jacket
    with a hoodie," and that the hoodie was "up" rather than "down."
    6
    The defendant, who was known as "Fifty," was wearing a
    jacket and had "a hoodie on" when he emerged from the alley.
    6
    wanted to fight the victim, and handed the defendant his gun.
    Serrano and the victim started "scuffling," and then "wrestling,
    trying to throw each other down to the ground."7   The defendant,
    who was pointing the gun at the victim, said, "Fuck these
    dudes," and Santo ran.    Abreu saw the victim "trying to cut
    loose," and Abreu ran, thinking the victim was going to run
    behind him.    Abreu ran "faster than a cat" up Haverhill Street,
    and then down an alley back towards the entrance to Gonzalez's
    apartment.    As he was running down the alley, he heard a
    gunshot.    He then ran back to the corner of Haverhill Street and
    Oxford Street, where he found the victim "[l]aying down" on the
    sidewalk.    He did not see who had fired the gunshot.
    The medical examiner concluded that the victim died from a
    single bullet wound at the top and towards the rear of the
    victim's head.    From the nature of the wound, he offered the
    opinion that the barrel of the gun was against the victim's
    scalp, and that the path of the bullet was "downward."
    The only witness to the shooting was Jose Estrella, who was
    at a gasoline station on Haverhill Street on the opposite side
    of the street from where the shooting occurred, pumping gasoline
    Abreu identified the defendant from a photographic array as the
    person Serrano called "Fifty" who was holding the gun during the
    fight, and also identified him at trial.
    7
    Abreu testified that Serrano's hoodie "came down" as they
    were "scuffling."
    7
    into his car on the street side of the pump.   From that vantage
    point, he saw a man, later identified as the victim, run north
    on Oxford Street and turn left on Haverhill Street.    The victim
    suddenly stopped on Haverhill Street and turned around to face
    in the direction of the corner with Oxford Street.    He saw a
    second man running right behind the victim, who stopped "right
    on the corner" after the victim stopped, and who then began to
    walk towards the victim.   The victim raised both hands above his
    waist and said something to the second man, who said something
    back.   The second man continued to approach, getting so close to
    the victim that he was "breathing on [his] face."    The second
    man then lifted his right hand upwards over his head, "swinging"
    it around and pointing it downward towards the head of the
    victim.   Estrella heard a gunshot, and the victim immediately
    fell to the ground.   The second man walked back in the direction
    from which he had come, and then began to run.
    Estrella noted that it was dark and drizzling when he saw
    the shooting.   From his vantage point, Estrella was between 178
    and 230 feet from the location of the shooting.     Estrella saw
    that the shooter was wearing a black or dark-colored winter
    coat, with a hood over his head.   Estrella testified that the
    second man was taller than the victim, and that he could see
    8
    when they came close together that the second man's chin nearly
    touched the center of the victim's forehead.8
    The victim was five feet, six inches tall; Serrano is five
    feet, five inches tall; the defendant is five feet, eleven
    inches tall.
    During the examination of the crime scene, next to a
    bloodstain on the sidewalk the police found a Virgin Mary
    medallion that belonged to Serrano, a single .22 caliber shell
    casing, and a closed pocket knife.   Nearby, they found a Jesus
    medallion that belonged to the victim, and a jacket that
    belonged to the victim.9,10
    The first 911 call reporting the shooting was made at
    approximately 9:00 P.M.   Approximately twenty minutes later,
    8
    Jose Estrella testified that the victim was standing
    "straight up" during the encounter, and denied that he was
    "crouched down."
    9
    The Jesus medallion was found on the street at the corner
    of Haverhill Street and Oxford Street. The victim's jacket was
    found partially on the sidewalk and in the street. The other
    items were found on the sidewalk. Neither of the medallions was
    found with a chain.
    10
    Deoxyribonucleic acid (DNA) testing revealed that the
    blood on the knife came from two persons, with the DNA of the
    victim matching the "major DNA profile." The DNA from the
    handle of the knife was a mixture of at least three individuals'
    DNA, with the DNA of the victim again matching the "major DNA
    profile." The defendant was excluded as the source of both the
    blood and the "handler DNA." Serrano was excluded as a source
    of the blood on the knife, and it was inconclusive whether he
    was a source of the "handler DNA," that is, he could be neither
    included nor excluded as a source.
    9
    Officer Jamie Adames conducted an investigative stop of Serrano
    in the Essex Street projects, which is approximately "three
    intersections" from the location of the shooting.     Serrano was
    wearing a black "bubble" jacket.     The jacket had a hood, but
    Serrano was not wearing the hood, even though it was "pouring"
    rain.     Officer Adames conducted a patfrisk of Serrano, but found
    no weapons.
    On the evening of April 3, after speaking by telephone with
    the defendant, Stephanie Bertone traveled by taxicab to a motel
    in Middleton, where the defendant was now staying.11,12    The
    defendant told her that "there were people after him."      They
    stayed for "a couple of days" at the motel, and then traveled to
    Shamokin, Pennsylvania, where they stayed with a friend of the
    defendant's mother.    While in Pennsylvania, Bertone asked the
    defendant why they had left and why they were there.      The
    defendant told her that he was driving around with "Benji" in
    Benji's motor vehicle when Benji saw "some kid that he had a
    problem with and they stopped the car."    Benji got out of the
    vehicle and "started arguing with the kid and he ended fighting
    11
    Stephanie Bertone testified that, at this time, the
    defendant was an "ex-boyfriend."
    12
    The defendant had resided with his mother at an apartment
    in Lawrence. When the police gained entrance to the apartment
    on April 6, 2004, there was no furniture or clothing in the
    apartment, but only some "old mail." State police Trooper
    Brandon Arakelian testified, "The place was cleaned out."
    10
    with him."   When the kid had Benji down on the ground, Benji
    told the defendant to get out of the vehicle and bring him the
    gun that Benji had in it.    The defendant walked over to "where
    Benji and the other kid were fighting," and the defendant "went
    to hand" Benji the gun.    The defendant then paused, and Bertone
    asked him what happened.    He responded, "You can guess what
    happened."
    The defendant was arrested in Shamokin on April 14, and
    State police Trooper Brandon Arakelian interviewed him in the
    library of the county jail on April 15, in the presence of
    Lawrence police Detective Victor Morales and Officer William
    Miner of the Shamokin police department.   After the defendant
    was advised of his Miranda rights and waived them, the defendant
    provided a signed written statement in which he said that on the
    evening of April 1, he was home from 6 P.M. to after midnight
    with his friend, "David Domingoes," and his girl friend,
    "Melanie."   Domingoes left to go home but returned at around
    1 A.M.   The defendant left with Domingoes in Domingoes's
    mother's automobile and were traveling on Basswood Street, near
    the corner of Juniper Street, when someone in another vehicle
    with four people inside "shot at" the automobile in which the
    defendant was traveling.    Two persons stepped out of that
    vehicle, walked over to Domingoes's automobile, and fired "a
    couple of shots" at the driver's side of it, putting holes in
    11
    the windows.    The defendant stayed at his home that night but
    the next day went to the home of his mother's friend "because
    [he] got shot at."   After one night there, he went to stay at
    the motel.    He called Bertone and "told her that [they] needed
    to bounce."    He did not learn that the victim had been killed
    until after he arrived in Pennsylvania.    The defendant also said
    in his statement that he knew "Benji from the area" and knew
    that Benji "had problems" with the "kid who got shot . . . over
    a girl."
    The defendant gave a cellular telephone number for
    Domingoes, but Trooper Arakelian was unable to reach Domingoes
    at the number and was never able to locate him.     Trooper
    Arakelian also asked the defendant for Melanie's last name and
    street address, but the defendant provided neither.     The trooper
    also determined that there were no reports of shots fired in the
    area of Basswood and Juniper Streets on the night of April 1, or
    the day that preceded and the day that followed that night.       In
    fact, the only report of gunfire in that timeframe in Lawrence
    was the report of the shot that killed the victim.
    After this police interview, the defendant asked to speak
    with Officer Miner alone.    The officer explained to the
    defendant that the best thing the defendant could do was tell
    the other officers the truth.    The defendant "took a breath" and
    told Officer Miner, "I was there; I had the gun."    The defendant
    12
    then paused and added, "Things just got crazy."     After another
    pause, he said, "I just don't know what to do."
    2.    Defendant's trial testimony.   The defendant testified
    in his own defense.13    He said that he had known Serrano for
    about one and one-half months before the shooting.       On April 1,
    at approximately 8 P.M., he was at a barber shop and saw
    Serrano, who told him he was going to see his girl friend.       He
    stood behind Serrano, on the stairs, when Serrano knocked on an
    apartment door and learned that "Jennifer" was not home.       The
    defendant told Serrano he was going to go home.    Serrano passed
    him on the stairs and approached an automobile that was parked
    outside.    Two men got out of the vehicle, and Serrano asked,
    "Where is he?"    One of the men said he did not know.    A "kid"
    then came down the same set of stairs that Serrano and the
    defendant had just descended.    Serrano saw the kid, pulled out a
    gun and said, "This is the way I wanted to catch you."      Until
    that moment, the defendant had not seen the gun and did not know
    that Serrano was carrying a gun.
    Serrano pointed the gun at the top of the kid's head, with
    the wrist aimed downward, and asked, "Who's the man now?"       After
    the kid told him, "Do what you have to do," Serrano punched the
    kid in the face with his left hand, and said he was going to
    13
    The defendant called no other witnesses to testify.
    13
    fight him first.   Serrano then said, "Yo Fifty," and the
    defendant stepped out to where they were standing.   Serrano
    handed him the gun, which the defendant pointed toward the sky.
    The two men who had been in the automobile ran away.   The kid
    placed Serrano in a bear hug, lifted him up, slammed him on the
    ground, and began punching him in the face and stomach.     Serrano
    twice told the defendant to "give me my gun," but the defendant
    refused.   The kid then got off the ground, threw his jacket over
    his shoulder, and walked quickly out of the parking lot.
    Serrano, still lying on the ground, told the defendant he
    was "a fucking punk," and asked him, "Why you let him beat me up
    like that?"   The defendant told him he should have defended
    himself.   Serrano then got up off the ground, said, "Give me my
    fucking gun," and pulled the gun away from the defendant's hand.
    The defendant walked north up Oxford Street, crossed Haverhill
    Street, and went down Railroad Street, heading home.   He looked
    back, and he saw "Benji coming around the corner towards" where
    the kid was standing on Haverhill Street.   The defendant "kept
    walking," thinking to himself that "this ain't my problem" and
    that "everything was over."   As he was walking towards the other
    end of Railroad Street, he heard "a pop" but ignored it --
    because he "didn't know what it was" -- and continued on to his
    mother's house.    The next morning, his mother woke him at 5 A.M.
    14
    and told him that someone had called her and that she needed to
    get him out because "they were going to kill" him.14
    He admitted that he lied to Trooper Arakelian but said he
    did so because he was "scared" and "didn't want to get charged
    with something [he] did not do."   The defendant maintained that
    false alibi even after Trooper Arakelian told the defendant that
    he knew the defendant was there, because the defendant "didn't
    want to rat on Benji."
    Discussion.   1.   Sufficiency and weight of the evidence.
    The defendant moved for a required finding of not guilty based
    on the insufficiency of the evidence at the close of the
    prosecution's case and at the close of all the evidence.    The
    defendant claims that the judge erred in denying these motions,
    and that he is entitled to reversal of the murder conviction.
    The defendant challenges the appellate standard that
    reviews a claim of insufficiency of the evidence.    Under that
    standard, we determine whether, "after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt" (emphasis in original).     Commonwealth
    14
    During cross-examination, the defendant claimed not to
    have known why anyone wanted to kill him, and he denied thinking
    that it had anything to do with the events of the night of April
    1. Although he went to stay at the motel in Middleton on
    Friday, April 2, he testified that he did not know that the
    victim had been killed until Saturday, April 3.
    15
    v. St. Hilaire, 
    470 Mass. 338
    , 343 (2015), quoting Commonwealth
    v. Latimore, 
    378 Mass. 671
    , 677 (1979).   See Jackson v.
    Virginia, 
    443 U.S. 307
    , 318-319 (1979).   The defendant argues
    that we should instead determine whether the essential elements
    of the crime could have been found beyond a reasonable doubt by
    "a reasonable jury."   The defendant cites in support of his
    position a law review article by then-Chief Judge Jon Newman of
    the United States Court of Appeals for the Second Circuit, who
    feared that "the word 'any' and the wholly gratuitous and
    potentially misleading underscoring of that word . . . can
    subtly shift an appellate court's attention from the correct
    construct of the reasonable jury to the quite incorrect
    construct of just one out of a distribution of reasonable
    juries."   Newman, Beyond "Reasonable Doubt," 
    68 N.Y.U. L. Rev. 979
    , 992 (1993).   Judge Newman's concern was that appellate
    courts under the "any rational trier of fact" formulation might
    "examine a record to satisfy themselves only that there is some
    evidence of guilt and . . . not conscientiously assess whether
    the evidence suffices to permit a finding by the high degree of
    persuasion required by the 'reasonable doubt' standard"
    (emphasis in original).   Id. at 993.
    The "any rational trier of fact" standard was stated by the
    United States Supreme Court in Jackson, 
    443 U.S. at 319
    ,
    immediately after the Court stated that "the critical inquiry on
    16
    review of the sufficiency of the evidence to support a criminal
    conviction must be . . . to determine whether the record
    evidence could reasonably support a finding of guilt beyond a
    reasonable doubt."   
    Id. at 318
    .   In Latimore, 
    378 Mass. at 677
    ,
    we quoted both of these standards.   Neither the Supreme Court in
    Jackson nor this court in Latimore suggested that these two
    standards are substantively different.15   We decline to
    characterize them now as different in substance.    We regard them
    simply as alternative formulations of the same appellate
    standard.   We note that we have used the alternative to the "any
    rational trier of fact" formulation in earlier cases without
    intending any difference in the standard of review.    See, e.g.,
    Commonwealth v. Rivera, 
    460 Mass. 139
    , 141 (2011) ("we review
    the evidence . . . to determine whether the evidence, viewed in
    the light most favorable to the Commonwealth, was sufficient for
    a reasonable jury to infer the existence of each essential
    element of the crime charged, beyond a reasonable doubt");
    Commonwealth v. Ferguson, 
    384 Mass. 13
    , 15 (1981) ("we must
    15
    Justice Stevens, joined by Chief Justice Burger and
    Justice Rehnquist, concurred in the judgment in Jackson v.
    Virginia, 
    443 U.S. 307
    , 339 (1979) (Stevens, J., concurring in
    judgment), because he saw no need for the Court to establish
    what he characterized as a "gratuitous directive to our
    colleagues on the federal bench" concerning a standard of review
    regarding the sufficiency of the evidence. He did not call for
    a reasonable jury standard rather than an "any rational trier of
    fact" standard.
    17
    determine whether [the] evidence, considered in the light most
    favorable to the Commonwealth, was sufficient to permit a jury
    reasonably to infer the existence beyond a reasonable doubt of
    each essential element of the crime charged").    Under both
    formulations of the appellate standard, "it is not enough . . .
    to find that there was some record evidence, however slight, to
    support each essential element of the offense."    Latimore,
    supra.   Rather, the evidence must be sufficiently strong to
    permit a reasonable jury to find that each essential element of
    the charged offense was proved beyond a reasonable doubt.      See
    cases cited, supra.
    Applying that standard, we conclude that the evidence in
    this case was sufficient to permit a reasonable jury to find the
    defendant guilty of the premeditated murder of the victim.     It
    is true, as the defendant argues, that Serrano had the stronger
    motivation to kill the victim, and that the medallion found at
    the scene of the killing belonged to Serrano, not the defendant.
    But the jury were reasonably entitled to credit Estrella's
    eyewitness testimony that the shooter's chin was level with the
    center of the victim's forehead, which would make the defendant,
    not Serrano, the shooter, where the defendant was five inches
    taller than the victim and the victim was one inch taller than
    Serrano.   Also, where the defendant was seen wearing a hood when
    he pointed the gun at the victim during the fight, the jury
    18
    reasonably could have credited Estrella's observation that the
    shooter wore a hood on his head, and inferred that Serrano,
    whose hood was off his head before the shooting, would not
    likely have put his hood on had he given chase to the victim.16
    Although Serrano, not the defendant, had threatened the life of
    the victim for dating the woman who had been Serrano's girl
    friend, the jury reasonably could have inferred that Serrano
    brought the defendant to the encounter to assist Serrano in
    doing harm to the victim.   After receiving the gun from Serrano,
    the defendant pointed it at the victim, and the jury reasonably
    could have inferred that part of the defendant's purpose in
    doing so was to prevent the victim from getting away.     Thus, the
    jury reasonably could have inferred that, when the victim fled
    the scene, the defendant was the person who gave chase,
    especially where the defendant was holding the gun during the
    fight and the gunshot was heard within moments after Abreu ran
    from the scene of the fight.   The jury also reasonably could
    have inferred that the victim pulled off Serrano's Virgin Mary
    medallion while he was wrestling with Serrano, and dropped it,
    along with the knife he was carrying, when he was shot.
    16
    In fact, when Serrano was stopped by Officer Adames
    twenty minutes after the shooting, Serrano was not wearing a
    hood, even though it was raining hard at that time.
    19
    The consciousness of guilt evidence also points to the
    defendant as the shooter.   The jury reasonably could infer that,
    regardless whether it was arrest or retaliation that he feared,
    he went to the motel and later left for Pennsylvania because he
    had shot and killed a person on the evening of April 1.    Had he
    not been the shooter, it is unlikely that he would have felt the
    same need to flee.   The jury could also reasonably have inferred
    that the closest he came to speaking the truth was when he told
    Officer Miner, "I was there," "I had the gun," and "Things just
    got crazy."   This explanation is consistent with the defendant
    acting instinctively to chase the victim while he "had the gun,"
    and shooting the victim because "[t]hings just got crazy."
    Although this evidence, viewed in its totality, does not
    eliminate the possibility that Serrano, not the defendant, was
    the shooter, the evidence is sufficient to permit a reasonable
    jury to conclude beyond a reasonable doubt that the defendant,
    not Serrano, was the shooter.   See Commonwealth v. Russell, 
    470 Mass. 464
    , 477 (2015) ("Proof beyond a reasonable doubt does not
    mean proof beyond all possible doubt, for everything in the
    lives of human beings is open to some possible or imaginary
    doubt").
    Having reviewed the entire record in this case pursuant to
    G. L. c. 278, § 33E, we also address the defendant's contention
    that the verdict is against the weight of the evidence.    Section
    20
    33E "does not . . . convert this court into a second jury, which
    must be convinced beyond a reasonable doubt of the guilt of a
    defendant . . . without the advantage of seeing and hearing the
    witnesses."   Franklin, 465 Mass. at 916, quoting Commonwealth v.
    Jefferson, 
    416 Mass. 258
    , 265 (1993).   "[F]or this court under
    the statute . . . to grant a new trial on the ground that the
    verdict was against the weight of the evidence, it must appear
    that the verdict . . . would work a miscarriage of justice
    . . . .   It is not enough that the judge or judges, if on the
    jury, would have felt a reasonable doubt which the jury did not
    share."   Franklin, supra, quoting Jefferson, 
    supra at 266
    .    In
    evaluating the weight of the evidence, we do not view the
    evidence in the light most favorable to the prosecution, and are
    free to consider the defendant's testimony at trial.    See
    Commonwealth v. Ortiz, 
    470 Mass. 163
    , 163 (2014); Jefferson,
    
    supra at 267
     (under G. L. c. 278, § 33E, we consider "the thrust
    of the evidence").
    It is reasonable to conclude that the defendant's version
    of what happened after the fight ended between Serrano and the
    victim is not credible for various reasons.    It is not credible
    that the victim simply walked away from the fight, where the
    defendant was pointing a gun at him.    Nor is it credible that,
    after the victim left the scene of the fight, the defendant
    walked away and got as far as he said he did past the corner of
    21
    Haverhill and Oxford Streets when he heard the gun shot behind
    him at that corner; the victim had not run far from the scene of
    the fight before he suddenly turned to face the person chasing
    after him, and their encounter was brief before the shooting.
    Nor is it credible that he ignored the "pop" sound he admits he
    heard, or that he did not recognize the meaning of the "pop."
    Nor is it credible that he fled his home early on the morning of
    April 2 for reasons unrelated to what had happened at
    approximately 9 P.M. on April 1.    In short, the weight of the
    evidence supports the jury's finding that the defendant, rather
    than Serrano, was the shooter.
    2.   Court room closure.    After being convicted, the
    defendant moved for a new trial on the grounds that the court
    room had been improperly closed during jury empanelment, and
    that his trial counsel had been ineffective in failing to object
    to the closure.   Following an evidentiary hearing, the trial
    judge concluded that "the defendant's mother and a friend of
    hers were excluded from the courtroom during the jury
    [e]mpanelment," and that "the [c]ourt itself, from the bench in
    open court, directed that the courtroom be cleared of spectators
    before the prospective jurors entered."17    Defense counsel
    17
    The judge noted that this was "consistent with what then
    had been a longstanding practice in the Lawrence Superior
    Court," and that nothing in the record "suggest[ed] that, if
    22
    "advised [the two spectators] that they would have to remain
    outside until [e]mpanelment was complete," which they did.     He
    did not object to the closure and, after the jury were
    empaneled, stated that "the accused [was] satisfied with" the
    empanelment process.18   Based on these facts, the judge denied
    the defendant's motion for a new trial, concluding that the
    defendant both waived his right to a public trial during jury
    selection and procedurally waived the claim of a violation of
    that right.
    The defendant's right to a public trial under the Sixth
    Amendment to the United States Constitution applies to jury
    empanelment proceedings, and the violation of that right is
    structural error where the claim of error is properly preserved.
    See Commonwealth v. Cohen (No. 1), 
    456 Mass. 94
    , 105-106 (2010).
    See also Presley v. Georgia, 
    558 U.S. 209
    , 213 (2010).   But
    "[w]here counsel fails to lodge a timely objection to the
    closure of the court room" -- as happened in this case -- "the
    defendant's claim of error is deemed to be procedurally waived."
    pressed, the [c]ourt would have been unable to make an
    accommodation for the seating of the two women."
    18
    The judge determined that the defendant had been aware of
    the court room closure, but the defendant's affidavit attested
    that it "did not occur" to him during trial that the public had
    been excluded from the court room; his attorney "never made
    [him] aware that . . . [he] had a right to a public and fair
    trial"; and he "did not waive [his] rights to a public trial."
    23
    Commonwealth v. LaChance, 
    469 Mass. 854
    , 857 (2014), petition
    for cert. filed, 
    83 U.S.L.W. 3768
     (Mar. 20, 2015), citing
    Commonwealth v. Morganti, 
    467 Mass. 96
    , 102, cert. denied, 
    135 U.S. 356
     (2014), and Commonwealth v. Lavoie, 
    464 Mass. 83
    , 87-88
    & n.8, cert. denied, 
    133 S. Ct. 2356
     (2013).   Having waived his
    claim of error regarding the denial of his right to a public
    trial during jury selection, the defendant after conviction may
    claim that his attorney provided ineffective assistance of
    counsel for failing to object to the closure of the court room.
    See LaChance, supra at 858; Morganti, supra at 103.   However,
    even if a defendant were to show that his or her attorney was
    deficient for failing to make a timely objection, the defendant
    would be entitled to relief in a murder case only if he or she
    can show that a substantial likelihood of a miscarriage of
    justice arose from the court room closure.   See Commonwealth v.
    Jackson, 
    471 Mass. 262
    , 269 (2015).19   "The structural nature of
    the underlying error does not automatically excuse the defendant
    from showing prejudice when advancing an unpreserved claim."
    LaChance, supra at 857.   Here, the defendant has not claimed
    19
    Where the defendant has not been convicted of murder in
    the first degree and is not entitled to review under G. L.
    c. 278, § 33E, the defendant would need to show a substantial
    risk of a miscarriage of justice arising from counsel's failure
    to object to the closure of the court room during jury
    selection. See Commonwealth v. LaChance, 
    469 Mass. 854
    , 857
    (2014).
    24
    that the closure of the court room during jury selection was
    likely to have had any effect on the judgment.   See id. at 859,
    quoting Strickland v. Washington, 
    466 U.S. 668
    , 691 (1984)
    ("jury empanelment closed to spectators [other than jurors] and
    the defendant's family . . . will rarely have an 'effect on the
    judgment'").   Therefore, the defendant's public trial right
    claim fails because it was procedurally waived, and his claim of
    ineffective assistance of counsel fails because he has made no
    showing of prejudice.20
    3.   Absence of instruction regarding honest mistake in
    identification.   The defendant also contends that he is entitled
    to a new trial because the trial judge did not instruct the jury
    of the possibility that an eyewitness who observed the shooting
    may have made an honest but mistaken observation of the shooter.
    The defendant requested a five-part jury instruction on
    "mistaken observation," which the judge and defense counsel
    20
    We note that the United States Court of Appeals for the
    First Circuit in United States v. Negrón-Sostre, 
    790 F.3d 295
    ,
    300-306 (1st Cir. 2015), ordered a new trial where defendants
    failed to object to the closure of the court room during jury
    empanelment and did not make any showing that the closure had
    any effect on the verdict. The court concluded that the closure
    of the court room during the entirety of voir dire was "a plain
    and obvious error that, as a structural error, affected the
    defendants' substantial rights and seriously impaired the
    fairness, integrity, or public reputation of the proceedings."
    Id. at 306. However, the court noted that "the government did
    not argue that the failure to object constitutes waiver." Id.
    at 301 n.7.
    25
    characterized as an "amplification" of the instruction regarding
    eyewitness identification that this court approved in
    Commonwealth v. Rodriguez, 
    378 Mass. 296
    , 310-311 (Appendix)
    (1979), S.C., 
    419 Mass. 1006
     (1995).   The judge declared that he
    was not inclined "to do the amplification," but was inclined to
    give "the straight Rodriguez instruction," fearing that the
    additional detail in the amplified instruction would put him
    "more in the role of advocate than [he] ought to be."      The judge
    agreed to defense counsel's request that his objection be noted
    for the record, even though defense counsel added that "there is
    no legal basis" for the objection "other than looking for an
    expansion."
    At the charge conference that followed the close of
    evidence at trial, the judge said that he no longer thought that
    the Rodriguez instruction was appropriate because that
    instruction provides guidance regarding "an actual
    identification" and there was no identification of the shooter
    in this case.   The judge said he would draft an instruction that
    would make clear to the jury that there was no identification of
    the shooter but there was testimony from Estrella regarding the
    "physical characteristics and attire" of the shooter, and set
    forth the factors the jury might use in assessing that
    testimony.    Defense counsel agreed that "that would be
    appropriate."
    26
    The judge instructed the jury regarding eyewitness
    identification as he had promised.21,22   Defense counsel did not
    object to this instruction or to any of the judge's jury
    instructions.    The judge, however, did not include a jury
    21
    The judge told the jury:
    "The threshold fact that the Commonwealth must prove beyond
    a reasonable doubt . . . is that the defendant was the one
    who actually shot [the victim]. . . . The Commonwealth has
    not presented you with . . . any witness who has both
    testified that he saw the shooting and has identified the
    defendant as the shooter. Rather, . . . [t]he Commonwealth
    has presented you with a witness, Mr. Estrella, . . . who
    has testified that he saw the shooting. He gave an account
    of how it occurred, as well as an account of the physical
    appearance and dress of the shooter. In determining the
    reliability of that account, you consider all . . . that
    I've already mentioned as appropriate to consider in
    assessing the credibility and reliability of witness
    testimony in general and you will remember that, among
    those factors, you consider the opportunity of the witness
    to observe the relevant events. In that regard you
    consider in particular: how far or close Mr. Estrella was
    to the shooting; how long or short the time was that he had
    to observe the shooting; the lighting conditions; consider
    the presence or absence of obstruction to his vision;
    consider the extent to which Mr. Estrella focused his
    attention on the shooting and the shooter in
    particular. . . . Considering the reliability of witness
    testimony . . . you consider all of the evidence in the
    case, in determining whether in fact the defendant was the
    person who shot [the victim]."
    22
    By giving a modified eyewitness identification
    instruction, the judge acted in accordance with the guidance we
    gave six years later in Commonwealth v. Franklin, 
    465 Mass. 895
    ,
    912 (2013), where we declared that a trial judge, if so
    requested, should provide the jury with a modified eyewitness
    identification instruction where "eyewitnesses have provided a
    physical description of the perpetrator or his clothing," even
    if no eyewitness positively identified the defendant.
    27
    instruction regarding the possibility of an honest but mistaken
    identification, even though the defendant had sought such an
    instruction in the fifth part of his proposed five-part jury
    instruction.23
    In Commonwealth v. Pressley, 
    390 Mass. 617
    , 620 (1983), we
    declared that where "[i]dentification [is] crucial to the
    Commonwealth's case . . . [f]airness to a defendant compels the
    trial judge to give an instruction on the possibility of an
    honest but mistaken identification when the facts permit it and
    when the defendant requests it."   Here, where the facts
    permitted such an instruction and the defendant requested it,
    the judge should have instructed the jury about the risk of an
    honest but mistaken observation even in the absence of a
    positive eyewitness identification.   See Franklin, 465 Mass. at
    23
    The fifth part of the instruction sought by the defendant
    provided as follows:
    "In assessing the testimony of any witness relied upon by
    the Commonwealth to attempt to prove that [the defendant]
    committed a crime, you must consider the possibility of
    'good faith error' by the witness. That is, in addition to
    assessing the credibility of the witness, you must also
    consider whether the witness is honestly mistaken in his or
    her observations. Even if you find that the witness is
    sincere and honest in his or her belief in what they
    observed, you must still return a verdict of not guilty
    unless you are convinced beyond a reasonable doubt that the
    observations testified to are reliable and accurate. The
    burden is on the Commonwealth to prove[] beyond a
    reasonable doubt that the witness'[s] observations, however
    honest, [are] correct."
    28
    912.    The defendant, however, did not object to the judge's jury
    instructions at trial, and therefore failed to alert the judge
    of the need for such an instruction.24   Where the objection was
    not preserved, we consider whether the error produced a
    substantial likelihood of a miscarriage of justice.    See, e.g.,
    Commonwealth v. Smith, 
    449 Mass. 12
    , 17 (2007).     We conclude
    that there was no such risk in this case because, even without
    the instruction, the jury reasonably would have understood that
    they needed to consider whether Estrella made a good faith,
    honest error in his observations of the shooting.    The defendant
    never suggested that Estrella was lying; nor was there any
    evidence that Estrella had any motive to lie.   The possibility
    that Estrella's testimony was based on an honest mistake was the
    focus of the defendant's cross-examination of Estrella and his
    24
    The defendant argues that the error should be treated as
    preserved where the defendant earlier in the trial objected to
    the judge's decision not to give the defendant's proposed five-
    part instruction and the judge noted the objection. That
    objection focused on the judge's unwillingness to give an
    "amplification" of the instruction regarding eyewitness
    identification in Commonwealth v. Rodriguez, 
    378 Mass. 296
    , 310-
    311 (Appendix) (1979), S.C., 
    419 Mass. 1006
     (1995), and his
    inclination to give a "straight" Rodriguez instruction, an
    inclination the judge later revised when he learned there was no
    positive identification of the defendant as the shooter. Where
    the Rodriguez instruction is silent as to the possibility of an
    honest but mistaken identification, defense counsel's objection
    to the judge's disinclination to give an amplified Rodriguez
    instruction would not reasonably have alerted the judge that the
    defendant objected to the absence of an honest, but mistaken,
    identification instruction.
    29
    closing argument.25   Given this context, the jury would have
    known what the missing instruction would have told them.
    Therefore, "we are substantially confident that, if the error
    had not been made, the jury verdict would have been the same."
    Commonwealth v. Ruddock, 
    428 Mass. 288
    , 292 n.3 (1998).
    4.   Closing argument.   In her closing argument, the
    prosecutor told the jury that the defendant "can't tell you the
    truth because the truth doesn't help [the defendant].    The truth
    is . . . that [the defendant] was the shooter."    She later said
    that Estrella "[has] no reason to come in here and tell you
    anything but the truth.    And that's exactly what he did."   She
    concluded, "The defendant is the trigger man.    That is the truth
    . . . .   It was the defendant who murdered [the victim]."    The
    defendant argues that, in making these statements, the
    prosecutor improperly vouched for the accuracy of Estrella's
    testimony and improperly expressed her personal opinion as to
    the defendant's guilt.    Where, as here, the defendant did not
    object to these closing argument statements at trial, we
    determine whether the statements created a substantial
    likelihood of a miscarriage of justice that requires a new
    trial.    See, e.g., Commonwealth v. Sanders, 
    451 Mass. 290
    , 296
    (2008) (where there was no objection to closing argument
    25
    In closing argument, defense counsel referred to Estrella
    as a "[g]ood man [who] cares about the neighborhood."
    30
    statements in first-degree murder case, "we review to determine
    whether the statements were improper, and, if so, whether they
    created a substantial likelihood of a miscarriage of justice").
    We agree with the defendant that the statements were
    improper.    A prosecutor is free to provide the jury with the
    reasons why they should find a witness's observations to be
    accurate, but she cannot tell the jury that the witness speaks
    the truth.    See id. at 297 ("[T]he prosecutor [may not] suggest
    that he has personal knowledge of, or vouch for, the credibility
    of a witness . . . [but may] state logical reasons why a
    witness's testimony should be believed").   See also Mass. G.
    Evid. § 1113(b)(3)(B) (2015) (impermissible in closing argument
    "to state a personal opinion about the credibility of a
    witness").   A prosecutor is also free to harness the key
    evidence and provide the jury with the reasons why they should
    conclude that a defendant was the shooter, but she cannot tell
    the jury that she knows it to be true that he was the shooter.
    See Sanders, supra at 296-297 ("A prosecutor may not express his
    personal belief in the testimony or suggest that he has
    knowledge independent of the evidence at trial . . . [but] may
    comment on and draw inferences from the evidence at trial").
    See also Mass. G. Evid. § 1113(b)(3)(B) (impermissible in
    closing argument "to state a personal opinion about . . . the
    ultimate issue of guilt").
    31
    We conclude, however, that the prosecutor's statements in
    this case, although improper, did not create a substantial
    likelihood of a miscarriage of justice.   A prosecutor's vouching
    for the truth of a witness's testimony or of the defendant's
    guilt is improper because it might suggest to the jury that the
    prosecutor has special knowledge, apart from the evidence
    presented at trial, that enables her to know that the witness is
    telling the truth or that the defendant committed the crime.
    See Commonwealth v. Ciampa, 
    406 Mass. 257
    , 265 (1989), and cases
    cited.   But there was little danger that the jury would make
    that inference here because the prosecutor argued the reasonable
    inferences from the evidence at trial and did not suggest that
    she came to the "truth" based on anything other than the
    evidence at trial.   See Commonwealth v. Montgomery, 
    52 Mass. App. Ct. 831
    , 834 (2001), quoting Commonwealth v. Murchison, 
    418 Mass. 58
    , 60-61 (1994) ("prosecutor's assertions that the
    defendant was lying[] generally were accompanied by the words
    'the evidence establishes,' and thus were 'expressed as a
    conclusion to be drawn from the evidence and not as a personal
    opinion'").   The prosecutor's statement that Estrella was
    telling the truth was made immediately after the statement that
    Estrella had "no reason" to do anything but tell the truth, and
    immediately before the prosecutor argued based on Estrella's
    testimony that the shooting was uniquely memorable for Estrella.
    32
    And immediately after the prosecutor's statement that "[t]he
    truth is . . . that [the defendant] was the shooter," the
    prosecutor said, "[T]he evidence tells us so."   Because a
    reasonable jury would have understood the prosecutor's
    assertions of the "truth" to be based on the evidence at trial,
    there was no substantial likelihood of a miscarriage of justice.
    5.   Resentencing as a juvenile.   The defendant was
    seventeen 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 in prison without the
    possibility of parole.   The defendant was sentenced in 2007,
    prior to Miller v. Alabama, 
    132 S. Ct. 2455
    , 2464 (2012), in
    which the United States Supreme Court held that the mandatory
    imposition of a sentence of life without the possibility of
    parole on an offender under the age of eighteen violates the
    Eighth Amendment to the United States Constitution, and prior to
    Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
    at 671 & n.16, in which we held that the imposition of a
    sentence of life without the possibility of parole on an
    offender under the age of eighteen violates art. 26 of the
    Massachusetts Declaration of Rights.   Because we give the "new"
    rules announced in Miller and Diatchenko retroactive effect, see
    Diatchenko, supra at 666, the defendant is entitled to be
    resentenced on his murder conviction to life in prison with the
    33
    possibility of parole.   See Commonwealth v. Ray, 
    467 Mass. 115
    ,
    140 (2014) (remanding case to Superior Court "for resentencing
    consistent with Diatchenko").26
    6.   Review under G. L. c. 278, § 33E.   We have reviewed the
    entire record in this case pursuant to G. L. c. 278, § 33E, to
    consider whether the interests of justice would be served by
    ordering a new trial or reducing the defendant's sentence.
    Where the verdict is not contrary to the weight of the evidence,
    and where the defendant is entitled to have his sentence for
    murder in the first degree reduced to life in prison with the
    possibility of parole in light of Diatchenko because he was
    26
    The Commonwealth concedes that the defendant must be
    resentenced to life with the possibility of parole on his murder
    conviction. But in addition to murder in the first degree, the
    defendant was convicted of unlawful possession of a firearm in
    violation of G. L. c. 269, § 10 (a), and sentenced to one year
    in a house of correction, to run concurrently with the life
    sentence for murder in the first degree, and with credit for
    time served, which at the time of sentencing was already 1,001
    days. We have not addressed the issue whether a convicted
    offender entitled to resentencing under Diatchenko v. District
    Attorney for the Suffolk Dist., 
    466 Mass. 655
    , 671-674 (2013),
    S.C., 
    471 Mass. 12
     (2015), may also be resentenced on
    convictions in which he did not receive life in prison without
    the possibility of parole. Cf. Commonwealth v. Costa, 
    472 Mass. 139
    , 143-146 (2015) (at resentencing of juvenile defendant who
    had been convicted of two murders and sentenced to two
    consecutive life terms without the possibility of parole, judge
    may revisit whether sentences should be consecutive or
    concurrent). We need not address that issue here, because the
    Commonwealth at oral argument indicated that it would not seek
    resentencing on the firearms conviction, and because the
    defendant has already completed his sentence on the firearms
    conviction.
    34
    under the age of eighteen at the time of the shooting, we
    decline to exercise our authority under G. L. c. 278, § 33E.
    Conclusion.   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.
    So ordered.