Commonwealth v. Chukwuezi , 475 Mass. 597 ( 2016 )

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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.