Commonwealth v. Ng

• Court: Massachusetts Supreme Judicial Court
• Decided: February 8, 2023
• Docket: SJC 10476
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

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. 857 27

(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

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.