Commonwealth v. Ng

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SJC-10476
COMMONWEALTH vs. YAT FUNG NG.
Suffolk. October 13, 2022. - February 8, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Wendlandt, JJ.
Homicide. Constitutional Law, Fair trial, Public trial,
Assistance of counsel, Sentence. Due Process of Law, Fair
trial, Presence of defendant in courtroom, Sentence. Fair
Trial. Evidence, Hearsay, Relevancy and materiality, Self-
defense, State of mind, Spontaneous utterance. Self-
Defense. Practice, Criminal, Capital case, Fair trial,
Presence of defendant, Public trial, Hearsay, Assistance of
counsel, Sentence.
Indictments found and returned in the Superior Court
Department on August 20, 2004.
The cases were tried before Charles T. Spurlock, J.; and a
motion for a new trial, filed on October 29, 2014, was heard by
Maynard M. Kirpalani, J.
James L. Sultan for the defendant.
Ian MacLean, Assistant District Attorney (Lynn S.
Feigenbaum, Assistant District Attorney, also present) for the
Commonwealth.
CYPHER, J. The defendant, Yat Fung Ng, was convicted of
murder in the first degree on a theory of deliberate
2
premeditation after he shot and killed the victim, Karriem
Brown, outside a bar in Boston.1 Following his conviction in
2008, the defendant was sentenced to life in prison without the
possibility of parole pursuant to G. L. c. 265, § 2. The
defendant filed his initial motion for a new trial in 2014,
which subsequently was denied. This court consolidated the
denial of that motion with the defendant's direct appeal from
his convictions. Following oral argument, and review of the
defendant's appeal pursuant to G. L. c. 278, § 33E (§ 33E), the
case was remanded for an evidentiary hearing on an unraised
claim of ineffective assistance of counsel.2
After the order for remand, but before an evidentiary
hearing was held, the defendant filed a second motion for a new
trial. Following an evidentiary hearing, the judge allowed the
defendant's second motion for a new trial. The Commonwealth
appealed, and this court reversed the allowance of the motion
for a new trial, concluding that trial counsel in fact was not
1 The defendant also was convicted of carrying a firearm
without a license in violation of G. L. c. 269, § 10 (a).
2 More specifically, this court sought an evidentiary
hearing for review of trial counsel's "decision to forgo a jury
instruction on voluntary manslaughter, her focus on the question
of self-defense, and her decision not to object to certain of
the jury instructions on the use of deadly force in self-
defense."
3
ineffective. See Commonwealth v. Yat Fung Ng, 489 Mass. 242(2022).
We now review the defendant's direct appeal of his
underlying convictions, pursuant to § 33E, as well as his appeal
from the denial of his initial motion for a new trial. The
defendant raises seven issues: (1) whether the defendant's
exclusion from all substantive sidebars during the course of the
trial constitutes structural error warranting automatic
reversal; (2) whether the trial judge abused his discretion in
excluding the defendant's statement to Omar Sierra shortly after
the shooting, where the judge determined that the statement
constituted inadmissible hearsay; (3) whether the trial judge
abused his discretion in admitting both the defendant's military
records and expert testimony on the defendant's designation as
an Army sharpshooter; (4) whether the closure of the court room
during jury empanelment violated the defendant's constitutional
right to a public trial; (5) whether trial counsel
constitutionally was ineffective for failure to advocate for a
verdict of guilty of murder in the second degree; (6) whether
sentencing the defendant to life imprisonment without the
possibility of parole, absent an individualized sentencing
hearing, constituted cruel or unusual punishment; and (7)
whether this court should reduce the defendant's conviction to
guilty of murder in the second degree, pursuant to the powers
4
afforded under § 33E. For the reasons discussed infra, we
affirm the defendant's convictions, and we conclude that there
is no reason to exercise our authority under § 33E either to
reduce the verdict or to grant the defendant a new trial.
Background. We summarize the facts the jury could have
found, reserving some details for later discussion. On May 23,
2004, at approximately 2 A.M., a bar located on Beacon Street in
the Fenway section of Boston was closing for the night. As the
bar closed, patrons were being ushered out by the bar's security
staff. The victim was among those patrons who were leaving,
along with his two friends, Ray Lee and Standly Miranda.
As the patrons were leaving, an altercation ensued between
a group of individuals and Lee and Miranda. At first, the
altercation was verbal, mere banter about Lee wearing a New York
Yankees baseball cap. However, the banter quickly turned to
insults. A woman in one group began to insult Lee on his
physical appearance, to which Lee responded with insults of his
own, calling her a "bitch" and a "ho." At this point, the
altercation became physical by way of pushing and punching. The
victim was not involved in the initiation of the altercation,
but he joined the fight when he saw Lee and Miranda were
involved.
During the fight, witnesses described the victim as
"throwing bodies" around. Someone involved in the fight tried
5
to hit the victim; the victim then punched a man and pushed the
woman who had been trading insults with Lee to the ground. The
woman exclaimed that she was going to call police; in response,
the victim grabbed the woman's purse and threw it onto the
median in the middle of Beacon Street. As the fight was nearing
an end, Lee retrieved a fraternity "step cane" from the trunk of
his car, which was parked nearby, and began twirling it, telling
members of the other group involved in the fight, "[Y]ou don't
want any of this." Lee, however, did not use the step cane to
assault anyone physically during the fight.3 The victim never
was seen armed with a weapon of any sort before, during, or
after the initial altercation.
As the initial fight had concluded, and security from the
bar had dispersed the group of individuals who were fighting
outside the bar, the defendant, who had witnessed the victim
push the woman to the ground, "instinctively took his jacket off
and ran right over to the scene." The defendant confronted the
victim, Lee, and Miranda, and began to threaten them with a gun.
More specifically, the defendant told the victim and his
friends, "You think you're bullet proof, you think you're bullet
3 Lee's fraternity step cane signified his membership in an
African-American fraternity. The step cane was shorter than a
typical walking cane, only the length from the ground to Lee's
knee, as it was designed to be twirled and used for tricks
during the fraternity's step dances.
6
proof"; "What's up tough guys? You think you're bullet proof?
I got something for you. I got something for you in my trunk.
You think you're bullet proof?"4
At this point, Lee and Miranda grabbed the victim and tried
to bring him back to Lee's nearby parked car, but the victim
still was "excited" from the earlier altercation. As Lee and
Miranda brought the victim to Lee's car, the defendant continued
"baiting" them in a loud, antagonistic manner. As the defendant
baited the victim and his friends, the defendant repeatedly
punched his palm.
Lee and Miranda finally were successful in getting the
victim into Lee's car. Miranda returned to his own car to drive
home. Lee tried to follow behind Miranda's car, but as Miranda
drove away, Lee was forced to stop for a group of people who
were walking in front of Lee's car at the intersection of Beacon
and Miner Streets, near the bar.
While the car was stopped, the victim opened the
passenger's side door and exited; he threw his jacket on the
ground, ripped his shirt open, and began walking toward the
front of the bar. The victim was yelling angrily at the
defendant, asking why the defendant was threatening him. As the
victim was yelling, the defendant walked to his own car, parked
4 At trial, Lee testified that what the defendant was
referring to in the trunk of his car was a firearm.
7
in front of the bar, to which the victim responded, "You better
run." On hearing this, the defendant picked up his pace toward
his car, walking purposefully. When a nearby witness told the
defendant something to the effect of "It's over," the defendant
responded with either "It's not over for me" or "I have
business."
When the defendant arrived at his car, he initially
searched through the driver's side door but then made his way to
the trunk and emerged with a gun.5 The defendant turned to the
defendant, raised the gun, and pointed it at the victim, saying,
"Yeah, you want this? You want this?" The victim responded,
"What are you gonna do, shoot me? Go ahead, shoot me," as well
as "Go ahead, do it. Do it." At this point, the defendant and
the victim were at least from ten to twenty feet away from each
other, and they had stopped advancing toward each other.6
On hearing the victim's statements goading the defendant to
shoot him, the defendant fired at the victim, hitting him in the
5 The gun was similar in nature to a handgun.
6 The description of the movements leading up to the
shooting differed from witness to witness. Specifically, there
were differences regarding the distance between the defendant
and victim at the time the defendant fired the fatal shot;
whether the victim had continued to advance toward the
defendant; and whether the victim had been retreating. We
summarize the facts in the light most favorable to the
Commonwealth, however, thus resolving these factual
inconsistences in the prosecution's favor. See Commonwealth v.
Duke, 489 Mass. 649, 651 (2022).
8
forehead.7 The victim immediately fell backward onto the
pavement.8 The defendant then got into his car and fled the
scene. Seeing that the victim had been shot, Lee got into his
car as well and sped after the defendant. Lee was unable to
keep pace with the defendant but did manage to take note of the
defendant's vehicle information, including his vehicle's
registration number.
The defendant's vehicle information was broadcast to Boston
police; he was stopped by police in nearby Chelsea, was brought
back to the scene of the crime, and was arrested after being
identified by witnesses as the shooter.
Discussion. 1. Exclusion from sidebar conferences. At
trial, the defendant was excluded from all substantive sidebar
conferences, despite his attorney's requests that he be present
and subsequent objections on multiple occasions to the judge's
decision to exclude him. The defendant argues that his absence
from all substantive sidebars at trial violated his
constitutional and procedural right to be present at all
7 The evidence at trial was unclear as to how many shots the
defendant fired, ranging from at least one to no more than
three.
8 The gunshot wound ultimately proved to be fatal; the
victim was taken off life support nearly thirty days after the
shooting occurred.
9
critical stages of the proceedings, thus constituting a
structural error warranting reversal.
"Rule 18 (a) [of the Massachusetts Rules of Criminal
Procedure, 378 Mass. 887 (1979),] provides that criminal
defendants have the right to be present at all critical stages
of a court proceeding." Vazquez Diaz v. Commonwealth, 487 Mass.
336, 343 (2021). "[A] defendant's right 'to be personally
present at every step of the proceedings against him . . . is of
ancient origin.'" Id., quoting Commonwealth v. Bergstrom, 402
Mass. 534, 543 (1988). The rule is derived from the
confrontation and due process clauses of the Sixth and
Fourteenth Amendments to the United States Constitution,
respectively, and art. 12 of the Massachusetts Declaration of
Rights. Vazquez Diaz, supra at 344.
The defendant argues that his right to be present at all
critical stages of the proceedings was violated because he was
excluded by the judge from being present at all substantive
sidebar conferences during the trial. In his brief, however,
the defendant more narrowly focuses only on the sidebar
conferences concerning the state of the evidence of his
subjective state of mind as it relates to self-defense. Those
sidebar conferences include the initial argument on the fourth
day of trial as to whether the testimony of a potential key
witness, Omar Sierra, constituted inadmissible hearsay; the
10
argument for and against admissibility of Sierra's testimony
following the voir dire of Sierra; reconsideration of the issue
later that same day; and the defendant's choice not to call
Sierra as a witness following the judge's exclusion of certain
potentially exculpatory hearsay testimony from Sierra.9 Perhaps
most importantly though, the defendant takes issue with his
exclusion from a sidebar conference on the seventh day of trial,
in which the judge remarked that there was "no evidence of any
subjective fear on [the defendant's] part."
Whether a sidebar is a critical stage requires
particularized consideration. A defendant's right to be present
at sidebar is not absolute, as a judge "may perform minor
administrative formalities" at a sidebar conference outside a
defendant's presence without violating the defendant's right to
be present at all critical stages of the proceedings. See
Commonwealth v. Angiulo, 415 Mass. 502, 530 (1993). There also
is no absolute right even where the defendant complains of
exclusion from "substantive sidebars," rather than those that
involve merely administrative matters. See Commonwealth v.
Francis, 485 Mass. 86, 98-99 (2020), cert. denied, 141 S. Ct.
2762 (2021), quoting Robinson v. Commonwealth, 445 Mass. 280,
285 (2005) ("Although rule 18 does not identify what stages of
9 The voir dire of Sierra was also conducted outside the
defendant's presence.
11
court proceedings are 'critical,' 'fairness demands that the
defendant be present when his [or her] substantial rights are at
stake'" [emphasis added]).
The defendant's right to be present at a sidebar conference
turns not on the substantive versus procedural dichotomy, nor
does it turn on whether a substantive sidebar deals with an
issue of law as opposed to one of fact;10 while those certainly
may be considered, the defendant's right to be present at
sidebar ultimately depends on whether his or her presence "would
contribute to the fairness of the procedure," Kentucky v.
Stincer, 482 U.S. 730, 745 (1987), particularly where the
sidebar involves an issue of significance at trial and the
exercise of the rights reserved only to the defendant, like
here, where the sidebar conferences necessarily implicated the
defendant's decision on whether to testify. However, where a
defendant's "presence would be useless, or the benefit but a
shadow," id., quoting Snyder v. Massachusetts, 291 U.S. 97, 106-
107 (1934), we see no reason for the defendant to be present at
10A number of Federal courts have concluded that a
defendant may be excluded from all purely legal discussions at
sidebar, while recognizing that sidebars presenting a mixture of
facts and law may raise a different set of considerations. See
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000). See also
United States v. Taylor, 489 Fed. Appx. 34, 45 (6th Cir.), cert.
denied, 568 U.S. 1017 (2012); United States v. McCoy, 8 F.3d
495, 497 (7th Cir. 1993); Robinson v. Graham, 671 F. Supp. 2d
338, 358 n.77 (N.D.N.Y. 2009). We decline to adopt such a pure
fact versus law dichotomy.
12
sidebar, even where the sidebar involves a substantive issue in
the case. See Snyder, supra.Where the defendant's presence at sidebar would not be but
a shadow, but instead would serve some consequential purpose as
it relates to the issues of significance at trial, the
defendant's presence at sidebar ought to be permitted. See
Commonwealth v. Colon, 482 Mass. 162, 172 (2019), quoting
Commonwealth v. Dyer, 460 Mass. 728, 738 (2011) ("When a judge
conducts an inquiry about a consequential matter, such as an
allegation of serious misconduct of a juror or a suggestion of
juror bias, the defendant is entitled, based on confrontation
and fair trial rights, to be present"). See also Commonwealth
v. Sleeper, 435 Mass. 581, 588-589 (2002) (defendant entitled to
be present for consequential matter of questioning impartiality
of juror). In such circumstances, "'[c]ounsel's presence at
sidebar and intention to relay information to a defendant does
not substitute for the defendant's presence' during a critical
stage of the proceedings." Francis, 485 Mass. at 99, quoting
Colon, supra at 172-173.
Allowing the defendant to be present in such circumstances
"provides the accused with information necessary to adjust [his
or her] trial strategy, guarantees that a defendant always has
the opportunity to object, and, in the event of conviction,
ensures that the defendant is able fully to assist in an
13
appeal." Colon, 482 Mass. at 174. This court trusts that
judges, the defense bar, and prosecutors throughout the
Commonwealth will encourage defendants to be present as often as
needed and should do so based on their collective experience and
trial judges' inherent discretion over their court rooms.11
Here, the defendant was excluded from the substantive
sidebars that concerned the evidence, or lack thereof, of his
subjective state of mind as it relates to self-defense. He
averred in his affidavit in support of his motion for a new
trial that he would have insisted on testifying had he heard
that the trial judge characterized the evidence of his
subjective state of mind as being scant. Where the defendant
possessed a unique perspective on the evidence of his subjective
state of mind in the moments leading up to the shooting, the
defendant ought to have been present at the sidebar conference.
See Commonwealth v. Campbell, 83 Mass. App. Ct. 368, 373-374
(2013) (defendant "has the ability to consult with his attorney
and, as a participant in the event under examination, offer a
unique perspective").
11In addition to such experience, the necessary balance of
authority between counsel's obligation to determine proper trial
management strategy, and the defendant's exclusive authority to
make certain fundamental decisions regarding his or her own
defense, see Commonwealth v. Miranda, 484 Mass. 799, 818-819,
cert. denied, 141 S. Ct. 683 (2020), also may serve as a guiding
principle to the defendant's right to be present at sidebar.
14
While we acknowledge that it would have been better
practice for the defendant to have been present for these
particular sidebar conferences, we note the importance of the
defendant's specific requests to be present at sidebar. Without
such a specific request to be present, the defendant's right to
be present at sidebar will be deemed waived. See Commonwealth
v. Fritz, 472 Mass. 341, 347 (2015). See also Dyer, 460 Mass.
at 738. A defendant also may forfeit the right to be present
through misconduct.12 See Snyder, 291 U.S. at 106, citing Diaz
v. United States, 223 U.S. 442, 455 (1912) ("No doubt the
privilege [to be present at all critical stages] may be lost by
consent or at times even by misconduct"). See also Commonwealth
v. Senati, 3 Mass. App. Ct. 304, 307 (1975) (defendant forfeited
right to be present at trial by refusing repeatedly to obey
judge's orders, demonstrating unrelenting determination not to
comply with court room decorum).
Because we hold that the defendant ought to have been
present at the sidebar, we must next assess whether the error
12If a judge finds that a defendant is being unruly,
disruptive, or otherwise acting inappropriately during sidebar
conferences, or where there exist security concerns to prevent
the defendant from being present at sidebar, the judge may
properly exercise his or her discretion to exclude the defendant
from sidebar. See Commonwealth v. Perez, 390 Mass. 308, 316
(1983), S.C., 442 Mass. 1019 (2004), citing Commonwealth v.
Haley, 363 Mass. 513, 518-519 (1973) ("A trial judge is
responsible for controlling the trial, maintaining order in the
courtroom, and guarding against improper conduct of counsel").
15
warrants reversal. The defendant argues that his exclusion from
sidebar conferences resulted in structural error, requiring
reversal without a showing of actual harm. We disagree.
"[T]here is a very limited class of cases presenting structural
errors that require automatic reversal absent waiver. Such
errors include the denial of counsel or the right to public
trial, the omission of an instruction on the standard of beyond
a reasonable doubt, racial discrimination in the selection of a
jury, or trial before a biased judge" (quotation and citations
omitted). Francis, 485 Mass. at 99-100. Each of these
structural errors "contain[s] a 'defect affecting the framework
within which the trial proceeds.'" Francis, supra at 100,
quoting Neder v. United States, 527 U.S. 1, 8 (1999).
Here, the defendant's exclusion from the sidebar
conferences in which the topic of his subjective state of mind
was discussed does not affect the framework within which the
defendant's trial proceeded, and thus does not constitute
structural error; instead, the error is a constitutional trial
error that we can quantitatively assess in the context of other
evidence. See Sleeper, 435 Mass. at 588-589 (defendant's
exclusion from colloquy between judge and juror, in which
impartiality of trial juror was questioned, violated defendant's
constitutional right to be present but did not rise to level of
structural error). Such quantitative assessment involves the
16
application of a harmless error standard to determine whether
the exclusion warrants reversal. See id. at 589; Commonwealth
v. Owens, 414 Mass. 595, 603 (1993). Under this standard, if
"[t]he defendant's presence . . . would not likely have yielded
anything or altered [the] outcome," then exclusion of the
defendant from a critical stage will be deemed harmless beyond a
reasonable doubt.13 See Sleeper, supra.Here, any such evidence and discussion at the sidebar
conferences in which the defendant's subjective state of mind
was discussed only bore on the issue of self-defense, which this
court already has held was unavailable to the defendant in these
circumstances, given the defendant's failure to use the
reasonable means of retreat that were available to him prior to
shooting the victim. See Yat Fung Ng, 489 Mass. at 253.
13We only review preserved constitutional errors under the
harmless error standard, see Commonwealth v. Yasin, 483 Mass.
343, 350 (2019), citing Commonwealth v. Tyree, 455 Mass. 676,
700-701 (2010), "unless the constitutional right infringed is
'so basic to a fair trial that [its] infraction can never be
treated as harmless error'" (citation omitted), Commonwealth v.
Vinnie, 428 Mass. 161, 163-164 (1998). In the later
circumstance, as explained supra, we consider the deprivation of
the defendant's constitutional right to be structural error.
See Francis, 485 Mass. at 99-100. Generally, the harmless error
standard is more favorable to the defendant than the standards
applicable to certain other nonconstitutional errors. See
Vinnie, supra. Under this more favorable standard, we presume
prejudice when faced with a constitutional violation, and such
prejudice can be overcome only where the Commonwealth makes an
affirmative showing that the error is harmless beyond a
reasonable doubt. See Tyree, supra at 701.
17
Therefore, where the erroneous exclusion of the defendant from
these particular sidebar conferences would not have altered the
outcome, this trial error was harmless beyond a reasonable doubt
and does not warrant reversal.14
2. Sierra's testimony. At trial, the defendant's primary
defense was one of self-defense. The defendant anticipated that
his statement to the Commonwealth's witness, Sierra,
approximately twenty minutes after the shooting, would aid that
defense. The defendant planned to have Sierra testify on cross-
examination that the defendant told Sierra, soon after the
shooting, something akin to, "[H]e was coming at me, he was
coming at me, so I had to shoot him." At trial, however, the
Commonwealth chose not to call Sierra as its witness, and
simultaneously sought to exclude the very statement the
defendant sought to introduce. The trial judge ruled in favor
of the Commonwealth and excluded the statement as inadmissible
hearsay. Defense counsel objected and then did not call Sierra
as a defense witness.
14In summary fashion in his brief, the defendant also takes
issue with his exclusion from the substantive sidebars relating
to other evidentiary issues, including, but not limited to,
those that addressed the admissibility of Sierra's testimony,
the admissibility and scope of expert testimony about the
defendant's military record, and the use of a step cane by the
prosecutor as a demonstrative device. Where the defendant's
presence at these other substantive sidebars would not have
yielded anything, or altered the outcome, we discern no
structural error. See Sleeper, 435 Mass. at 589.
18
On appeal, the defendant argues that the judge erred in
ruling that the defendant's statement to Sierra was inadmissible
hearsay. "We review a judge's evidentiary rulings for an abuse
of discretion." Commonwealth v. Andre, 484 Mass. 403, 414
(2020), citing Commonwealth v. Rosa, 468 Mass. 231, 237 (2014).
Under such a standard, we "do not disturb a trial judge's
decision absent a clear error of judgment in weighing the
relevant factors." Commonwealth v. McDonagh, 480 Mass. 131, 140
(2018), quoting Commonwealth v. Brown, 477 Mass. 805, 820
(2017).
"Hearsay is an out-of-court statement offered by a witness
at trial or hearing to prove the truth of the matter asserted."
Commonwealth v. Romero, 464 Mass. 648, 651 (2013). See Mass. G.
Evid. § 801(c) (2022). Hearsay is "generally inadmissible
unless it falls within an exception to the hearsay rule."
Commonwealth v. Rice, 441 Mass. 291, 305 (2004). See Mass. G.
Evid. § 802 (2022).
Here, the trial judge excluded Sierra's testimony that the
defendant told him after the shooting, while still evading
police, that "he was coming at me, he was coming at me, so I had
to shoot him." The trial judge determined that where the
statement was being admitted for the truth of the matter
asserted, it was inadmissible. Defense counsel, however, argued
that the statement was not hearsay, as it was being admitted for
19
the nonhearsay purpose of the defendant's state of mind. We
disagree.
Here, the probative value of the defendant's statement to
Sierra rested in its ability to demonstrate that the defendant
acted in lawful self-defense. For a defendant to have acted in
lawful self-defense, the defendant must have "reasonably and
actually believed that he was in 'imminent danger of death or
serious bodily harm, from which he could save himself only by
using deadly force.'" Commonwealth v. Pike, 428 Mass. 393, 396
(1998), quoting Commonwealth v. Harrington, 379 Mass. 446, 450
(1980). In Commonwealth v. Burbank, 388 Mass. 789, 794-795
(1983), we examined an almost identical factual scenario to the
circumstances here, where the defendant called his friend the
day after shooting the victim and told him, among other things,
"I was chased into the alleyway and I had to fire." While we
determined the statement to be hearsay in character, it was
nonetheless admitted, not because it constituted admissible
nonhearsay or alternatively satisfied one of the hearsay
exceptions, but rather because the prosecution failed to object
to its admission.15 See id. at 795.
An almost identical statement was made by the defendant
here to Sierra. Like the statement in Burbank, the probative
15Here, the prosecution objected to the statement's
admissibility.
20
value of the defendant's statement is limited by its hearsay
character, see Burbank, 388 Mass. at 795, as its value to the
defendant is necessarily intertwined with its truth. If the
statement, "he was coming at me, he was coming at me, so I had
to shoot him," were not admitted for its truth, it would not
shed any light on whether the defendant reasonably and actually
believed he was in imminent danger of death or serious bodily
harm, as required for the defendant to have acted in lawful
self-defense. See Pike, 428 Mass. at 396 (defendant must
reasonably and actually believe he was in imminent danger of
serious bodily harm or death to justify use of deadly force in
self-defense). The statement necessarily was being offered to
prove a fact, i.e., the fact that the victim was coming at the
defendant causing the defendant to shoot. Cf. Commonwealth v.
Jenkins, 458 Mass. 791, 793-794 (2011) (statement made to
defendant, "You don't want to do this here," admissible not to
prove fact that defendant did not want to shoot victim in
victim's barbershop, but instead served as cumulative part of
witness's statement describing verbal altercation that took
place at victim's barbershop). Thus, where the statement's
truth necessarily is intertwined with its probative value, we
agree with the trial judge that it constituted inadmissible
hearsay.
21
We also note the deficiencies in the defendant's argument
that the statement constituted admissible nonhearsay. For the
statement to be admissible as nonhearsay, the statement must be
relevant on the defendant's state of mind in a manner separate
and apart from its truth. See Mass. G. Evid. § 801 note ("when
out-of-court statements are offered for a reason other than to
prove the truth of the matter asserted or when they have
independent legal significance, they are not hearsay"). In
these circumstances, the statement's probative value stems from
the fact that the statement was made, rather than to prove the
facts asserted within. See Commonwealth v. Siny Van Tran, 460
Mass. 535, 550 (2011). Among the nonhearsay purposes for which
a statement may be admissible is to provide evidence of the
declarant's state of mind. See Commonwealth v. Martinez, 487
Mass. 265, 272 (2021). "For statements that convey the
declarant's state of mind circumstantially or that are probative
of another's state of mind," the statement is admissible for a
nonhearsay purpose (emphasis added). Mass. G. Evid. § 803(3)(B)
note (2022). Alternatively, "[w]here the declarant asserts his
or her own state of mind (usually by words describing the state
of mind), the statement is hearsay and is admissible only if it
falls within the [then-existing state of mind] hearsay
exception." Mass. G. Evid. § 801 note, Evidence Admitted for
Nonhearsay Purpose, As Circumstantial Evidence of Declarant's
22
State of Mind (Mass. G. Evid. § 801 note on state of mind).
"This exception applies only to statements that assert the
declarant's own state of mind directly" (emphasis added). Mass.
G. Evid. § 803(3)(B) note, citing Commonwealth v. Woollam, 478
Mass. 493, 499 (2017), cert. denied, 138 S. Ct. 1579 (2018).
Here, the words themselves directly described the
defendant's state of mind, i.e., that the defendant believed he
had to shoot the victim because the victim was coming at him.
Because the words themselves directly described the defendant's
state of mind, the statement is hearsay, and the proper path
toward admissibility to demonstrate the defendant's state of
mind would have been only through the state of mind hearsay
exception. See Mass. G. Evid. § 801 note on state of mind.
In coming to this conclusion, we emphasize our standard of
review and the broad discretion afforded to trial judges in
making evidentiary rulings. See Commonwealth v. Martinez, 476
Mass. 186, 190 (2017). Where the judge's ruling that the
statement was hearsay is not clear error in light of the
relevant considerations, we can discern no abuse of discretion.
See McDonagh, 480 Mass. at 140. Where we discern no abuse of
discretion in the trial judge's determination that the statement
necessarily was being admitted for its truth, our analysis next
turns to whether the statement is nonetheless admissible under
one of the hearsay exceptions. See Rice, 441 Mass. at 305. "We
23
grant a trial judge broad discretion in determining whether a
hearsay exception applies." Commonwealth v. Ray, 467 Mass. 115,
137-138 (2014), citing Commonwealth v. King, 436 Mass. 252, 254-
255 (2002).
Here, the defendant's statement does not qualify under the
state of mind exception to the hearsay rule, as a statement
"purporting to explain past conduct is not admissible" under
this exception. Commonwealth v. Bianchi, 435 Mass. 316, 327
(2001). See Mass. G. Evid. § 803(3)(B)(ii) ("Statements, not
too remote in time, which indicate an intention to engage in
particular conduct, are admissible to prove that the conduct
was, in fact, put in effect. Statements of memory or belief to
prove the fact remembered or believed do not fall within this
exception"). Therefore, where the defendant's statement sought
to explain his past conduct, i.e., why he shot the defendant, it
did not shed light on the defendant's present or future intent
to act, and thus was not admissible under the state of mind
hearsay exception. See Commonwealth v. Pope, 397 Mass. 275, 281
(1986) (suicide note confessing to killing victim not admissible
to demonstrate premeditation and motive, where it purported to
explain past conduct and did not disclose present or future
intent to kill).
At trial, the defendant also argued that the statement was
admissible under the excited utterance exception to the hearsay
24
rule. See Commonwealth v. Baldwin, 476 Mass. 1041, 1042 (2017),
quoting Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015) ("A
statement meets the test for admissibility as an excited
utterance if '[1] there is an occurrence or event sufficiently
startling to render inoperative the normal reflective thought
processes of the observer, and [2] if the declarant's statement
was a spontaneous reaction to the occurrence or event and not
the result of reflective thought'" [quotations omitted]). See
also Mass. G. Evid. § 803(2) (2022). Where the defendant's
statement came nearly twenty minutes after the shooting
occurred, undoubtedly after the defendant had time to reflect on
the incident, we also discern no abuse of discretion in ruling
that the statement does not constitute an excited utterance, as
it was not "spontaneous to a degree which reasonably negate[s]
premeditation or possible fabrication." Commonwealth v. Linton,
456 Mass. 534, 548 (2010), S.C., 483 Mass. 227 (2019), quoting
Commonwealth v. DiMonte, 427 Mass. 233, 236 (1998).
Finally, on appeal, the defendant argues that the statement
was admissible pursuant to the more narrow constitutionally
based hearsay exception. See Commonwealth v. Drayton, 473 Mass.
23, 36 (2015), S.C., 479 Mass. 479 (2018) (affidavit that failed
to fall into any traditional hearsay exception would be
admissible where defendant establishes that such evidence [1] is
25
critical to his or her defense, and [2] bears persuasive
assurances of trustworthiness). We disagree.16
In Drayton, "we carved out a narrow exception for the
'rarest' of cases 'where otherwise inadmissible evidence is both
truly critical to the defense's case and bears persuasive
guarantees of trustworthiness.'" Commonwealth v. Deconinck, 480
Mass. 254, 267 (2018), quoting Drayton, 473 Mass. at 40. We
have applied this exception only where it is necessary "to avoid
injustice 'where constitutional rights directly affecting the
ascertainment of guilt are implicated,'" Commonwealth v.
Steeves, 490 Mass. 270, 282 (2022), quoting Chambers v.
Mississippi, 410 U.S. 284, 302 (1973), or where "exclusion of
evidence 'significantly undermine[s] fundamental elements of [a]
defendant's defense,'" Steeves, supra, quoting United States v.
Scheffer, 523 U.S. 303, 315 (1998). Neither of those two
circumstances is present here. Where we have held that this
16 The Commonwealth argues that trial counsel specifically
did not raise the constitutionally based hearsay exception as
the ground for the admission of Sierra's testimony. The
Commonwealth contends, therefore, that the proper standard under
which we review the denial of the admission of Sierra's
testimony is under § 33E, namely, whether the denial caused a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Upton, 484 Mass. 155, 159-160 (2020). See also
Commonwealth v. Flynn, 362 Mass. 455, 472 (1972) (defendant "is
not permitted to raise an issue before the trial court on a
specific ground, and then to present that issue to this court on
a different ground"). Where neither standard provides the
defendant relief, we discern no reversible error.
26
constitutionally based hearsay exception is extremely narrow, we
also emphasize that the exception is not, and never was intended
to be, a catch-all exception to the hearsay rule. See Drayton,
supra at 32-33. See also Deconinck, supra at 260-261.
Even if we were to assume that the defendant's statement
was the type of statement to come within the purview of this
extremely narrow, constitutionally based hearsay exception, we
are skeptical of whether the defendant's statement to Sierra was
truly critical to the defendant's case, as the defendant at all
times retained the absolute right to testify in his own defense
that the victim was coming at him during the altercation,
causing the defendant to shoot. See Commonwealth v. Smith, 456
Mass. 476, 480 (2010), quoting Commonwealth v. Novo, 442 Mass.
262, 268 (2004) ("[T]he right to testify on one's own behalf in
a criminal case is fundamental"). That the defendant may have
needed to testify to demonstrate his own subjective state of
mind during the shooting, as it relates to self-defense, would
have violated neither his right against self-incrimination nor
his right to present a complete defense. See Commonwealth v.
Toon, 55 Mass. App. Ct. 642, 651 n.12 (2002) ("That a defendant
may need to testify or present evidence in order to raise self-
defense does not violate State or Federal constitutional
privileges against self-incrimination"). See also Commonwealth
v. Dame, 473 Mass. 524, 533 n.16, cert. denied, 580 U.S. 85727
(2016) (same). Cf. Commonwealth v. Chukwuezi, 475 Mass. 597,
602-603 (2016) (right to present complete defense "is not
unfettered; it is subject to the limitations set forth under
standard rules of evidence").
We acknowledge that, because the defendant was excluded
from all substantive sidebars at trial, see part 1, supra, the
defendant claims he did not appreciate fully his need to testify
on his statements to Sierra following the shooting, as well as
his subjective state of mind. With that in mind, even if we
were to further assume that the defendant's statement to Sierra
was in fact truly critical to his defense, the statement does
not bear the requisite persuasive guarantees of trustworthiness
to render it admissible. See Drayton, 473 Mass. at 40.
"[C]ertain elements support the conclusion that a hearsay
statement has 'persuasive guarantees of trustworthiness':
hearsay that fails to satisfy the technical requirements for a
traditional hearsay exception, but nevertheless appears to fall
within the rationale for such an exception; hearsay that is
corroborated by some other evidence in the case; and hearsay
offering a consistent account on multiple occasions over time."
Steeves, 490 Mass. at 282-283, citing Drayton, supra at 37-38.
The defendant's statement to Sierra that he had to shoot the
victim was not corroborated by any other evidence in the case,
28
nor was the statement offered on multiple occasions over time as
a consistent account of the events of the shooting.
Furthermore, as discussed supra, the statement does not
satisfy the requirements for the state of mind hearsay exception
because it purports to explain past conduct. See Pope, 397
Mass. at 281. It also fails to satisfy the rationale of an
excited utterance because it was not "spontaneous to a degree
which reasonably negate[s] premeditation or possible
fabrication." See Linton, 456 Mass. at 548, quoting DiMonte,
427 Mass. at 236. Therefore, where the statement also does not
fall within the rationale of any hearsay exception, this only
further demonstrates that the statement fails to possess the
requisite persuasive guarantees of trustworthiness to have been
admitted under the extremely narrow constitutionally based
hearsay exception found in Drayton. See Steeves, 490 Mass. at
282-283.
At bottom, where the judge did not his abuse discretion in
ruling that the statement was inadmissible hearsay, which failed
to satisfy one of the many exceptions to the hearsay rule, we
discern neither error nor prejudice.17
17Even if we were to assume that the judge abused his
discretion in ruling that the statement was inadmissible
hearsay, where the defendant preserved his evidentiary
objection, we review such error for prejudice. See Commonwealth
v. Carney, 472 Mass. 252, 255 (2015). In doing so, we consider
"whether there is a reasonable possibility that the error," if
29
3. Expert testimony on defendant's military record. The
defendant argues that the judge abused his discretion in the
admission of expert testimony on marksmanship tests the
defendant previously had passed in order to achieve his military
designation as a United States Army "sharpshooter" with a nine
millimeter handgun. We disagree.
All evidence must meet a threshold test of relevancy such
that it has a "rational tendency to prove an issue in the case"
(citation omitted). Commonwealth v. Carey, 463 Mass. 378, 387
(2012). Even relevant evidence may be inadmissible, however,
where its probative value substantially is outweighed by the
danger of unfair prejudice. Id. at 387-388. See Mass. G. Evid.
§ 403 (2022). "[T]rial judges must take care to avoid exposing
the jury unnecessarily to inflammatory material that might
any, "might have contributed to the jury's verdict" (citation
omitted. Commonwealth v. Carriere, 470 Mass. 1, 7 (2014).
"Reversal is not necessary if the error 'did not influence the
jury, or had but very slight effect.'" Id. at 8, quoting
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Here, the
defendant's statement to Sierra would have been probative of the
defendant's theory of self-defense, a theory that we previously
concluded ultimately was not viable given the defendant's
failure to retreat prior to shooting the victim. See Yat Fung
Ng, 489 Mass. at 253-254 (concluding that self-defense jury
instruction was not warranted in this case); id. at 253, quoting
Commonwealth v. Benoit, 452 Mass. 212, 226-227 (2008) (to act in
self-defense, one must "avail[] himself [or herself] of all
means, proper and reasonable in the circumstances, of retreating
from the conflict before resorting to the use of deadly force").
Therefore, the defendant suffered no prejudice even if the
statement was improperly excluded as inadmissible hearsay.
30
inflame the jurors' emotions and possibly deprive the defendant
of an impartial jury." Commonwealth v. Berry, 420 Mass. 95, 109
(1995).
"We review a judge's decision whether the probative value
of evidence is substantially outweighed by the danger of unfair
prejudice under the abuse of discretion standard." Commonwealth
v. Bishop, 461 Mass. 586, 596 (2012), citing Commonwealth v.
Pytou Heang, 458 Mass. 827, 851-852 (2011). Under this standard
we "do not disturb a trial judge's decision absent a clear error
of judgment in weighing the relevant factors." McDonagh, 480
Mass. at 140, quoting Brown, 477 Mass. at 820.
The Commonwealth proceeded on a theory of murder in the
first degree by means of deliberate premeditation. "To prove
deliberate premeditation, the Commonwealth has to show that the
defendant reflected upon his resolution to kill." Commonwealth
v. Robertson, 408 Mass. 747, 756-757 (1990), quoting
Commonwealth v. Dalton, 385 Mass. 190, 196 (1982). "Deliberate
premeditation would have been present even if the killing
followed reflection by only a few seconds." Robertson, supra at
757, quoting Commonwealth v. Basch, 386 Mass. 620, 622 (1982).
After threatening the victim and his friends following
their physical altercation with other patrons near the front of
the bar, the defendant returned to his car, searched through the
trunk, retrieved a firearm, turned back toward the victim, aimed
31
the firearm at the victim as the victim goaded the defendant to
shoot him, and shot the victim with a single fatal shot to the
forehead. That single fatal shot struck the victim
approximately one and one-half inches to the left of the middle
of his forehead. At trial, the Commonwealth used the expert
testimony of Edward Conley, a former United States Army staff
sergeant, to testify about the defendant's Army records,
particularly about the fact that the records showed that the
defendant had attained a marksmanship qualification of
"sharpshooter" with a nine millimeter handgun while serving in
the Army.
Conley explained the specifics of the test that a soldier
must complete in order to receive such designation. He stated
that each soldier is faced with thirty targets during the test,
each of which he or she has only three seconds to engage
successfully. A soldier must shoot successfully at least
sixteen of thirty targets to receive a marksmanship badge, at
least twenty-one of thirty targets to receive a sharpshooter
badge, and then at least twenty-six of thirty targets to obtain
the highest level of qualification, an expert qualification.
Thus, where the defendant's Army records demonstrated that he
had received a marksmanship badge of "sharpshooter," the expert
opined that he necessarily must have been able to shoot
32
successfully between twenty-one and twenty-five of the thirty
targets presented during the test.
The defendant argues that the expert testimony of his
skills and proficiency with a firearm implied to the jury that
the defendant was a "trained killer." However, "we have not
unconditionally disapproved of the admission of weapons-related
evidence unconnected to the commission of a crime."
Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). Here,
information about the defendant's qualification as a
sharpshooter with a handgun was highly probative on the
Commonwealth's theory of deliberate premeditation, as the
defendant's qualification demonstrated his familiarity and
specialized proficiency with a firearm. See Commonwealth v.
Tassinari, 466 Mass. 340, 352-353 (2013). See also Commonwealth
v. Hodge (No. 2), 380 Mass. 858, 863 (1980) (defendant's
proficiency with firearms relevant to deliberate shooting of
victim). Where the victim was hit with a single fatal shot that
landed approximately one and one-half inches to the left of the
middle of the victim's forehead, the placement of the fatal
wound also supports a finding of deliberate premeditation. See
Commonwealth v. Coleman, 434 Mass. 165, 169 (2001). See also
Robertson, 408 Mass. at 757. More specifically, the placement
of the victim's wound is highly probative of the defendant's
33
intent and "reflect[ion] upon his resolution to kill." See id.
at 756-757, quoting Dalton, 385 Mass. at 196.
The defendant characterizes his military qualifications as
prejudicial because they paint him in a derogatory light as a
trained killer. However, contrary to the defendant's argument,
his qualification as a sharpshooter was not the only subject
about which Conley testified. Conley also testified that the
records demonstrated that the defendant had been discharged
honorably from the military and had received a number of other
medals, awards, and designations.18 Moreover, and perhaps more
importantly, the judge recognized the potential for unfair
prejudice in the admission of the military records. He
specifically told the prosecutor that Conley would be permitted
to testify only about the requirements to be qualified as a
sharpshooter, as the prosecution was not going to be allowed to
"make [the defendant] out [to be] a sniper or anything like
that." Where the judge recognized the potential for unfair
prejudice from these records and limited the prosecutor as to
the scope of the expert's testimony, we discern no clear error
of judgment in the judge's weighing of the relevant factors and,
thus, no abuse of discretion. See McDonagh, 480 Mass. at 140.
18Those included an Army lapel button; an Army achievement
medal, second award; a national defense service medal; and an
Army service medal.
34
4. Court room closure. The defendant argues that the
closure of the court room during jury selection on the first day
of trial violated his right to a public trial under the Sixth
and Fourteenth Amendments. We disagree.
"The Sixth and Fourteenth Amendments . . . guarantee
defendants 'the right to a . . . public trial.'" Commonwealth
v. Garcia, 482 Mass. 408, 414 (2019). "The Sixth Amendment
right to a public trial extends to the jury selection process,
and a violation of that right constitutes structural error."
Commonwealth v. Robinson, 480 Mass. 146, 149 (2018), citing
Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017). Where a
defendant timely raises and preserves such a claim of structural
error, we presume prejudice, such that reversal is automatic.
Robinson, supra at 150, citing Commonwealth v. Jackson, 471
Mass. 262, 268 (2015), cert. denied, 577 U.S. 1145 (2016).
However, "[n]otwithstanding the importance of the right to a
public trial, it, 'like other structural rights, can be
waived.'" Robinson, supra, quoting Commonwealth v. Cohen (No.
1), 456 Mass. 94, 105-106 (2010). "Where counsel fails to lodge
a timely objection to the closure of the court room, the
defendant's claim of error is deemed to be procedurally waived."
Robinson, supra, quoting Commonwealth v. LaChance, 469 Mass.
854, 857 (2014). This is true regardless of whether the
35
defendant's failure to object was a tactical decision or
inadvertent. Robinson, supra.
After an evidentiary hearing on the defendant's first
motion for a new trial, the motion judge found that the
defendant's mother and cousin were told by court personnel that
they were not allowed in the court room on the first day of
trial while the jury was being empanelled. They remained
outside the court room until the jury selection proceedings on
the first day of trial had concluded. Both, however, were
permitted to enter the court room for the remainder of the
trial. Where the right to a public trial extends to the jury
selection process, the defendant's Sixth Amendment right to a
public trial was violated. See Robinson, 480 Mass. at 149.
Whether such violation constitutes a structural error warranting
automatic reversal hinges on whether the defendant lodged a
timely objection to the court room closure. See LaChance, 469
Mass. at 857.
Here, the issue of the court room closure did not come to
light until 2014, when the defendant's mother mentioned it in
conversation with the defendant's sister. As such, neither the
defendant nor trial counsel was aware at trial that the
defendant's mother and cousin had been excluded from the court
room during jury selection. The mere fact that trial counsel
was unaware of the exclusion of the defendant's mother and
36
cousin from the court room during jury selection is immaterial.
See Robinson, 480 Mass. at 150 (procedural waiver valid
regardless of whether counsel's failure to object was tactical
decision or inadvertent, including where trial counsel was
unaware of court room closure). A contemporaneous objection
"creates a record that can be directly reviewed by an appellate
court without the need for collateral proceedings to develop the
court room closure issue." Id. at 151. Without a
contemporaneous objection, the trial judge is deprived of the
ability to confront the violation of the defendant's
constitutional rights at a time when it could be remedied. See
Cohen (No. 1), 456 Mass. at 118 n.35. The defendant failed to
lodge a contemporaneous objection to the court room closure;
therefore, his argument procedurally is waived, and the
violation does not constitute structural error warranting
automatic reversal. See Robinson, supra at 154. See also
Commonwealth v. Barry, 481 Mass. 388, 407, cert. denied, 140
S. Ct. 51 (2019); Commonwealth v. Fernandez, 480 Mass. 334, 347
(2018).
Nonetheless, even where the issue of court room closure is
unpreserved, we review the defendant's claim to determine
whether such violation created a substantial likelihood of a
miscarriage of justice. See Robinson, 480 Mass. at 147. In
doing so, we examine a number of factors, which include whether
37
"[t]he closure was limited to the jury voir dire; the courtroom
remained open during the evidentiary phase of the trial; the
closure decision . . . was made by court officers rather than
the judge; there were many members of the venire who did not
become jurors but who did observe the proceedings; and there was
a record made of the proceedings that does not indicate any
basis for concern, other than the closure itself." Weaver, 137
S. Ct. at 1913.
We agree with the Commonwealth that many, if not all, of
the factors listed in Weaver also were present in this case.
The closure was limited only to the jury selection process, as
both the defendant's mother and cousin were permitted to be in
the court room during the evidentiary phase of the trial. The
closure also was done at the direction of the court officers,
rather than the trial judge. Further, there exists a transcript
of the entire trial, from which we discern neither harm nor
prejudice.19 Therefore, where the closure "did not pervade the
whole trial or lead to basic unfairness," we conclude there was
19Potential harms from a court room closure include (1) the
suggestion that a juror may have lied during voir dire, (2)
misbehavior by the prosecutor, judge, or any other party, and
(3) the suggestion that "any of the participants in the voir
dire failed to approach their duties with the neutrality and
serious purpose that our system demands." Weaver, 137 S. Ct. at
1913. None is present here.
38
no substantial likelihood of a miscarriage of justice. See
Weaver, 137 S. Ct. at 1913.
5. Ineffective assistance of counsel. The defendant
argues that trial counsel's failure to advocate for a lesser
verdict of murder in the second degree, based on insufficient
evidence of deliberate premeditation, rendered her
representation of the defendant constitutionally ineffective.
"Because the defendant was convicted of murder in the first
degree, we do not evaluate his ineffective assistance [of
counsel] claim under the traditional standard set forth in
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)."
Commonwealth v. Denson, 489 Mass. 138, 150 (2022), quoting
Commonwealth v. Ayala, 481 Mass. 46, 62 (2018). Instead, we
analyze such a claim under the more favorable standard of § 33E
to determine whether trial counsel's alleged ineffective
assistance created a substantial likelihood of a miscarriage of
justice. Denson, supra at 150-151. See Commonwealth v. Seino,
479 Mass. 463, 472 (2018). More specifically, "we determine
whether defense counsel erred in the course of the trial and, if
so, 'whether that error was likely to have influenced the jury's
conclusion.'" Id. at 472-473, quoting Commonwealth v. Wright,
411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). "[T]he
defendant bears the burden of demonstrating both error and
39
harm." Seino, supra at 473, citing Commonwealth v. Barbosa, 477
Mass. 658, 674 (2017).
The defendant argues that where this court already has
decided that no reasonable juror could have found that the
defendant acted in self-defense, defense counsel's failure to
advocate for a guilty verdict for murder in the second degree
left the defendant without any true defense at all, see
Commonwealth v. Haggerty, 400 Mass. 437, 441-442 (1987), and
thus, constitutionally was ineffective.
"Where, as here, a claim of ineffective assistance of
counsel is based on a strategic decision, we must determine
whether that decision was manifestly unreasonable such that
'lawyers of ordinary training and skill in the criminal law'
would not consider it competent." Commonwealth v. Rhodes, 482
Mass. 823, 826 (2019), quoting Commonwealth v. Kolenovic, 471
Mass. 664, 674 (2015), S.C., 478 Mass. 189 (2017). This inquiry
"involves both temporal and substantive considerations."
Kolenovic, supra. "The temporal consideration limits the effect
of hindsight by requiring a focus on the point in time when
counsel made the challenged strategic decision." Id., citing
Commonwealth v. Glover, 459 Mass. 836, 843 (2011). Such
limitation allows us to "make 'every effort . . . to eliminate
the distorting effects of hindsight.'" Glover, supra, quoting
Commonwealth v. Fenton F., 442 Mass. 31, 38 (2004).
40
At trial, defense counsel's primary defense was self-
defense. Defense counsel had anticipated that Omar Sierra would
testify that the defendant told him shortly after the shooting,
"[the victim] was coming at me, he was coming at me, so I had to
shoot him." This evidence was excluded. Defense counsel
nonetheless proceeded with the theory of self-defense. During
her closing argument, she told the jury, "[T]his case from
beginning to end, from beginning to end, screams of self-
defense, screams of self-defense." She repeated that argument
throughout her closing.20
In our previous decision, however, we held that self-
defense was not legally available in the circumstances of this
case because the defendant failed to retreat where he
undoubtedly had reasonable means to do so. See Yat Fung Ng, 489
Mass. at 254 (self-defense unavailable where defendant had
access to vehicle as reasonable means of retreat but instead
chose to reach inside vehicle to retrieve firearm to shoot
victim). Defense counsel's decision to proceed solely on the
legally untenable theory of self-defense after the exclusion of
20In her closing argument, defense counsel also challenged
the element of malice, one of the essential elements of murder
in both the first and second degrees. More specifically,
defense counsel stated: "What [the prosecution does] to try to
prove that my client committed this crime with some sort of
malice is pathetic." This only further supports the conclusion
that defense counsel wanted the jury to focus their attention
solely on an acquittal.
41
Sierra's testimony, whether strategic or not, was "manifestly
unreasonable" and constituted error. Rhodes, 482 Mass. at 826.
However, although defense counsel committed a manifestly
unreasonable error at trial, the error warrants reversal only if
it created a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Montrond, 477 Mass. 127, 135 (2017). See
also Seino, 479 Mass. at 472. Here, the error likely would not
have influenced the jury's conclusion, and thus would not have
created a substantial likelihood of a miscarriage of justice
because, as discussed in part 7, infra, the evidence of
deliberate premeditation supporting a conviction of murder in
the first degree was strong. See Montrond, supra at 135-136(trial counsel's decision not to introduce evidence of
defendant's intoxication did not create substantial likelihood
of miscarriage of justice on defendant's conviction of murder in
first degree on theory of deliberate premeditation, where
Commonwealth presented strong evidence of motive).
Furthermore, defense counsel's rigorous advocacy focused
the jury on self-defense. In addition, the judge instructed the
jury on self-defense, an instruction to which the defendant was
not entitled given his failure to use reasonable means of
retreat. See Yat Fung Ng, 489 Mass. at 254. Where the error
awarded a benefit to the defendant to which he was not entitled,
and where there was strong evidence of deliberate premeditation,
42
the error likely would not have influenced the jury's conclusion
and thus did not result in a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Kirwan, 448 Mass.
304, 315 (2007) (no substantial likelihood of miscarriage of
justice where trial error benefitted defendant). See also
Seino, 479 Mass. at 472.
6. Life sentence without possibility of parole. The
defendant argues that a sentence of life without the possibility
of parole constitutes cruel or unusual punishment in violation
of art. 26 of the Declaration of Rights, because the defendant
was twenty-four years old at the time he committed the murder
and was not afforded an individualized sentencing hearing as
described in Miller v. Alabama, 567 U.S. 460 (2012), and
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655 (2013), S.C., 471 Mass. 12 (2015). We disagree.
"The touchstone of art. 26's proscription against cruel or
unusual punishment . . . [is] proportionality." Commonwealth v.
Concepcion, 487 Mass. 77, 86 (2021), quoting Commonwealth v.
Perez, 477 Mass. 677, 683 (2017). For a sentence "[t]o reach
the level of cruel [or] unusual, the punishment must be so
disproportionate to the crime that it shocks the conscience and
offends fundamental notions of human dignity." Concepcion,
supra, quoting Commonwealth v. LaPlante, 482 Mass. 399, 403
43
(2019). The defendant bears the burden of proving
disproportionality. Concepcion, supra.
In Diatchenko, 466 Mass. at 673, this court concluded that
a mandatory sentence of life without parole for juveniles
convicted of murder in the first degree violates art. 26. In
light of the available scientific research on adolescent brain
development, it was clear that "the brain of a juvenile is not
developed fully, either structurally or functionally, by the age
of eighteen." See id. at 670. Juveniles, therefore, may
possess "diminished culpability and greater prospects for
reform," suggesting that they may be "less deserving of the most
severe punishments" (citation omitted). Id. As such, we held
that juveniles ought to be afforded a meaningful opportunity to
obtain release based on demonstrated maturity and
rehabilitation, as life imprisonment without possibility of
parole for this narrow group of criminal defendants violated the
prohibition against cruel or unusual punishment in art. 26. See
id. at 670-671. We specifically limited our holding in
Diatchenko only to those individuals under the age of eighteen
who are faced with mandatory sentences of life without parole
for murder in the first degree. Id. at 673 n.17. The exception
to parole eligibility for those "individuals who are eighteen
years of age or older at the time they commit murder in the
44
first degree" undoubtedly still remained valid throughout the
Commonwealth.21 Id.Here, the defendant was twenty-four years old at the time
he murdered the victim. Aside from the defendant's age,
however, and his claim that he was only a young adult at the
time he committed the murder, the defendant has provided no
evidence of any circumstance which plausibly could suggest that
the known research on adolescent brain development, and its
impact on adolescent behavior, ought to extend to individuals
who are the age of twenty-four. Cf. Garcia, 482 Mass. at 412-
413 (defendant presented at least some expert testimony that
suggested that some brain functions do not develop fully until
around age twenty-two). Thus, we discern no error.
7. Relief pursuant to G. L. c. 278, § 33E. Finally, the
defendant argues that because of the circumstances of this case,
justice requires this court to reduce the defendant's conviction
to murder in the second degree after plenary review of the
record pursuant to § 33E. We decline to disturb the jury's
verdict in the circumstances of this case.
21Since our holding in Diatchenko, 466 Mass. at 670-671, we
have declined to extend this protection to individuals who are
over the age of eighteen. See Garcia, 482 Mass. at 413. See
also Commonwealth v. Gamboa, 490 Mass. 294, 311 n.13 (2022);
Denson, 489 Mass. at 154; Commonwealth v. Colton, 477 Mass. 1,
18-19 (2017); Chukwuezi, 475 Mass. at 610.
45
This court has used its extraordinary authority pursuant to
§ 33E "sparingly and with restraint," reducing convictions "only
in the most compelling circumstances" (citation omitted).
Commonwealth v. Billingslea, 484 Mass. 606, 619-620 (2020). See
Hartung, The Limits of "Extraordinary Power": A Survey of
First-Degree Murder Appeals under Massachusetts General Laws
Chapter 278, Section 33E, 16 Suffolk J. Trial & App. Advoc. 1, 9
(2011) (discussing low reversal rate by this court in § 33E
cases). See also Allen, Section 33E Survives the Death Penalty:
Why Extraordinary Review of First-Degree Murder in Massachusetts
Serves No Compelling Purpose, 45 Suffolk U. L. Rev. 979, 993
(2012) (same). "Our power under [§ 33E] directs us to consider
a defendant's entire case, taking into account a broad range of
factors, when determining whether a conviction of murder in the
first degree was a miscarriage of justice that warrants a
reduction in the degree of guilt." Concepcion, 487 Mass. at 94,
quoting Commonwealth v. Berry, 466 Mass. 763, 770 (2014). We
emphasize that in conducting plenary review pursuant to § 33E,
"[o]ur duty is not to sit as a second jury but, rather, to
consider whether the verdict returned is consonant with
justice." Concepcion, supra, quoting Commonwealth v. Dowds, 483
Mass. 498, 512 (2019).
This court, however, has considered a number of factors to
determine whether a reduction in a jury's verdict is in the
46
interests of justice. See Commonwealth v. Colleran, 452 Mass.
417, 431-432 (2008). These factors include whether (1) "the
intent to kill was formed in the heat of sudden affray or
combat"; (2) "the homicide occurred in the course of a senseless
brawl"; (3) "a minor controversy exploded into the killing of a
human being"; (4) "the entire sequence reflects spontaneity
rather than premeditation"; (5) "the defendant carried a weapon
to the scene or left the scene after an initial confrontation
and returned with a weapon to kill the victim"; (6) "the victim
was the first aggressor"; (7) "the defendant and the victim were
strangers or, if only acquaintances, whether there had been
prior trouble between them"; (8) "the defendant and the victim
had enjoyed a good relationship prior to the killing"; (9)
"alcohol or drugs were involved"; and (10) "the personal
characteristics of the defendant, such as age, family, [work
ethic], disability, and lack of prior criminal record"
(quotations, citations, and alterations omitted). Id. This
list is not exhaustive of all possible considerations that may
arise in the future.
Before we examine whether the circumstances of the
defendant's conviction warrant a reduction in verdict, we note
that many of this court's previous reversals and reductions in
verdict, pursuant to § 33E review, are grounded in particular
reversible error, most often erroneous jury instructions, and do
47
not evidence a practice of this court to conclude, sua sponte,
that the facts of the murder are so unusual and compelling that
a reduced verdict is more consonant with justice. See Hartung,
supra at 9-11. Instead, where there exists no clear reversible
error, and where a defendant merely urges this court that the
unique circumstances of the case warrant a reduction in the
verdict pursuant to § 33E, we have exercised our discretion to
reduce a defendant's verdict far less, and we emphasize that we
will continue to do so only in the most extraordinary and
compelling factual circumstances. See Billingslea, 484 Mass. at
619 (from 2011 to 2019, this court exercised § 33E powers as
sole means of reversal in only four cases, of approximately 296
cases and thirty-seven total reversed convictions). See also
Colleran, 452 Mass. at 431, quoting Commonwealth v. Williams,
364 Mass. 145, 151 (1973) ("Regard for the public interest
impels us to use with restraint our power under § 33E to modify
the jury's verdict").
In Colleran, 452 Mass. at 433, we concluded that, while
there existed sufficient evidence for the jury to return a
verdict of murder in the first degree by means of deliberate
premeditation, "the heft of the evidence [fell] more squarely
with murder in the second degree." There, the defendant
suffered from profound depression and mental illness, which
produced an illogical ideation serving as the motive for the
48
defendant's deliberate killing of her two and one-half year old
daughter. See id. at 419, 432. The incident reflected
spontaneity: it was not planned; no weapon was carried to the
scene; no hostile relationship existed between the defendant and
her child; the defendant "was in a stable family relationship,
and gainfully employed"; and, although the defendant had used
drugs before, there was no drug use in the five years before the
murder, nor did the defendant possess any sort of criminal
record. See id. at 433.
Thus, where "the evidence of premeditation was so
intertwined with the defendant's mental illness, and where the
case present[ed] multiple factors we have previously identified
when exercising our power under § 33E," this court reduced the
verdict to murder in the second degree, a verdict that was "more
consonant with justice." Id. While mental illness alone
generally is insufficient to reduce a verdict under § 33E, in
recent years, this court has reduced convictions of murder in
the first degree to murder in the second degree to account
particularly for a defendant's mental health and severe mental
illness issues. See Concepcion, 487 Mass. at 95-96 (defendant's
mental condition, cognitive impairments, and young age rendered
him ill-suited to resist pressure from other adult gang members
to carry out shooting of victim). See also Dowds, 483 Mass. at
513 (defendant's two serious brain injuries as child produced
49
long-term brain damage and abnormal inability to control
impulses, which weighed heavily in defendant's reckless killing
of victim during unarmed robbery of victim's car). But see
Commonwealth v. Whitaker, 460 Mass. 409, 421 (2011) (declined to
reduce verdict where "defendant's psychological diagnosis, while
significant, does not reach [a sufficient] level of severity,
and there is no evidence that it was intertwined with the
victim's killing").
There is nothing here to suggest that the defendant's
killing of the victim was the result of mental illness such as
in the aforementioned cases. Instead, the defendant's case more
closely aligns with those cases in which a defendant is found
guilty of murder in the first degree as a result of a "senseless
brawl," see Commonwealth v. Ransom, 358 Mass. 580, 583 (1971),
or "the heat of sudden affray or combat," that demonstrates "a
minor controversy . . . explod[ing] into the killing of
[another]," see Commonwealth v. Baker, 346 Mass. 107, 110, 119
(1963).
In Commonwealth v. Vargas, 475 Mass. 338, 365-366 (2016),
this court determined that there were many Colleran factors
present to justify reducing the verdict. In Vargas, the victim
burst into his estranged wife's apartment and attacked both her
and the defendant. Id. at 341. The victim knocked the
defendant back, from the living room into the bedroom, and
50
jumped on top of him, which led to the defendant stabbing the
victim in the use of excessive deadly force in self-defense.
Id. at 341, 366-367. In finding the defendant guilty of murder
in the first degree, the jury rejected a theory of deliberate
premeditation and, instead, found the defendant guilty of murder
in the first degree on the theory of extreme atrocity or
cruelty, "focus[ing] its inquiry exclusively on the altercation
itself." Id. at 365. The lack of clear deliberate
premeditation demonstrated that the killing "was the result of
uncontrolled violent action." Id. at 367. This was exacerbated
only further by the evidence that the victim was the initial
aggressor; the victim was "much larger, trained in unarmed
combat, and [was] enraged" at the time of the altercation; and,
moreover, prior to using the knife in killing the victim, the
defendant asked a nearby witness to call 911. Id. at 365.
Therefore, where "[t]he sequence that led to the killing
indicate[d] spontaneity, and reflect[ed] that the killing was
more the product of sudden combat and the heat of passion than
of malice," we found the case to be one of the unusual
circumstances in which a reduction in the verdict from murder in
the first degree to voluntary manslaughter was "more consonant
with justice." See id. at 366-367.
Here, the victim was unarmed during the entire altercation
with the defendant. Unlike in Vargas, the instant defendant was
51
the initial aggressor or, at the very least, was the individual
who reignited the already dispersed altercation, by threatening
the victim and his two friends with deadly force. Cf. Vargas,
475 Mass. at 365-366. Prior to the shooting, the victim here
also neither had lunged at the defendant, like the victim in
Vargas, nor used any physical force against the defendant beyond
mere insults and vaguely threatening gestures. See Commonwealth
v. Vatcher, 438 Mass. 584, 588 (2003) (mere insults insufficient
to constitute adequate provocation to negate murder conviction).
Perhaps most important, however, for our analysis on
whether the circumstances of the defendant's killing of the
victim warrant a reduction in the verdict is the fifth factor
found in Colleran, namely, "whether the defendant carried a
weapon to the scene, . . . or left the scene after an initial
confrontation and returned with a weapon to kill the victim."
See Colleran, 452 Mass. at 431. In Coleman, 434 Mass. at 166-
167, 173, this court denied relief under § 33E in almost
identical circumstances to the present case. There, the
defendant was involved in an altercation where punches were
thrown outside a nightclub. Id. at 166. The defendant left the
brawl and went to a nearby car, where another man told the
defendant, "It ain't over. It ain't over. Pop the trunk. Pop
the trunk." Id. at 168. The defendant then retrieved a gun
from the trunk. Id. at 166. While the victim had followed the
52
defendant to the car, the victim was unarmed. Id. Ultimately,
the defendant turned toward the victim and shot him at close
range. Id. at 168.
In Commonwealth v. Whipple, 377 Mass. 709, 712, 714-715
(1979), a similar circumstance unfolded, where a defendant was
convicted of murder in the first degree by means of deliberate
premeditation where a defendant disengaged from a fistfight,
obtained a gun from a nearby car, returned to the scene of the
previous altercation in short time, and shot the victim. Both
Coleman and Whipple demonstrate that where this court has been
faced with circumstances in which a defendant has left the scene
after an initial confrontation, only to return with a deadly
weapon to kill the victim, we have "regularly denied § 33E
relief." Whipple, supra at 715. See Coleman, 434 Mass. at 168-
169, 173. See also Commonwealth v. Stillwell, 366 Mass. 1, 5-6
(1974), cert. denied sub nom. McAlister v. Massachusetts, 419
U.S. 1115 (1975) (no reduction in verdict where defendant had
dispute with victim over ten-dollar dice game, retrieved gun
from his house, and returned to resume argument and shoot
victim); Commonwealth v. Pratt, 360 Mass. 708, 715 (1972) (no
reduction in verdict where defendant argued with victim, went
home to retrieve gun, and shortly thereafter shot victim seven
times).
53
The facts of the defendant's case glaringly are similar to
those of Coleman and Whipple, both of which are instances where
this court declined to exercise its extraordinary § 33E powers.
See Coleman, 434 Mass. at 166-167; Whipple, 377 Mass. at 714-
715. Here, after the altercation outside the instant bar had
concluded, and security had dispersed the two groups of
individuals that had been fighting, the defendant confronted the
victim, Lee, and Miranda, and began to threaten them with a gun.
More specifically, the defendant said to the victim and his
friends, "You think you're bullet proof, you think you're bullet
proof"; "What's up tough guys? You think you're bullet proof?
I got something for you. I got something for you in my trunk.
You think you're bullet proof?"22 As the victim yelled back, the
defendant walked to his own car, which led the victim to say,
"You better run." The defendant picked up his pace toward his
car, walking purposefully. When a nearby witness told the
defendant something to the effect of "It's over," the defendant
responded with either "It's not over for me" or "I have
business." In that moment, as he walked toward the car, the
defendant "formed the plan to kill." See Coleman, 434 Mass. at
168. The defendant retrieved a gun from his trunk, turned to
the defendant, raised the gun, and pointed it at the victim,
At trial, Lee testified that what the defendant was
22
referring to in the trunk of his car was a firearm.
54
saying, "Yeah, you want this? You want this?" The victim
responded, "What are you gonna do, shoot me? Go ahead, shoot
me," as well as "Go ahead, do it. Do it." As the victim
antagonized the defendant to shoot him, the defendant fired at
the victim, hitting him with a single shot that landed one and
one-half inches to the left of the middle of the victim's
forehead.
The defendant argues that this court nonetheless should
look to his personal characteristics as justification for a
reduction in the verdict to murder in the second degree.23 More
specifically, the defendant argues that at the time of the
crime, he was only twenty-four years of age, he was employed
gainfully by a university as a full-time security guard, he was
enrolled as a student at a community college, he was honorably
discharged from the United States Army, and he had no previous
criminal record.24 While we can appreciate the fact that these
23The defendant also argues that where he received
deficient legal representation and where there were multiple
errors throughout his trial, this court ought to reduce the
verdict. Where we already have concluded, supra, that the
defendant neither received constitutionally ineffective
assistance of counsel nor suffered from any other reversible
trial error, we decline to do so.
24The defendant also urges this court to look at the fact
that he had been drinking prior to killing the victim, as
another factor to consider for a reduction in the verdict. The
mere fact that the defendant's alleged "anger and fear [were]
somewhat compounded and heightened by drink" necessarily does
55
factors possibly could weigh in the defendant's favor, see
Colleran, 452 Mass. at 431-432, we do not believe they are
sufficient to warrant a reduction in the verdict to murder in
the second degree. The circumstances surrounding the killing
demonstrate that the defendant "disengaged after the initial
encounter, but then . . . chose to return." See Whipple, 377
Mass. at 715. He did so despite neither being physically
injured in the altercation nor even being involved in the
initial altercation outside the bar. The defendant deliberately
left the scene to retrieve a weapon, to confront an unarmed
victim, to "return[] to do murderous work." See id. See also
Stillwell, 366 Mass. at 5-6 (defendant "left the scene for a
[short] period of time to obtain [a] weapon[], then returned to
the scene and committed the homicide[]").
The overwhelming evidence of deliberate premeditation
boiled down to the defendant's decision to "reach[] for his
firearm rather than his keys." Yat Fung Ng, 489 Mass. at 254.
The defendant unnecessarily caused a mere verbal argument, one
in which he was not even involved and that initially began with
the childish verbal banter of "Yankees suck," to explode into a
killing through the unnecessary and unjustified use of deadly
force. Despite his claim that he was acting as a "good
not warrant a reduction in verdict to murder in the second
degree. See Whipple, 377 Mass. at 715.
56
[S]amaritan," the defendant antagonized and reignited an
altercation that had ended. Most importantly, he retained a
clear, short period of reflection and premeditation after the
original verbal altercation, in which he very well could have
gotten into his car and left the bar; instead, he chose to arm
himself, because the situation was not "over for [him]," and he
took care of the so-called "business" that he had with the
victim, which unfortunately ended in the victim's death.
The factual circumstances surrounding the defendant's case
are not so extraordinary and compelling as to justify a
reduction in verdict pursuant to § 33E. See Billingslea, 484
Mass. at 620. Accordingly, after plenary review of the entire
record, we discern it necessary to exercise restraint over our
extraordinary powers pursuant to G. L. c. 278, § 33E, and we
affirm the defendant's convictions.
Judgments affirmed.
Order denying motion for a
new trial affirmed.