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SJC-11423

                 COMMONWEALTH   vs.   JESUS GARCIA.



        Hampden.      February 27, 2019. - June 7, 2019.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.


Homicide. Constitutional Law, Sentence, Public trial.
     Practice, Criminal, Instructions to jury, Sentence, Public
     trial, Capital case.



     Indictments found and returned in the Superior Court
Department on August 13, 2010.

     The cases were tried before Mary-Lou Rup, J., and a motion
for a new trial was heard by her.


     Alan Jay Black for the defendant.
     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
     Ryan M. Schiff & David Rossman, for Omar Abdur-Rahim &
others, amici curiae, submitted a brief.


    LOWY, J.   A jury convicted the defendant of murder in the

first degree on theories of deliberate premeditation and extreme
                                                                     2


atrocity or cruelty.1    The judge sentenced the defendant to life

imprisonment without the possibility of parole on the murder

conviction.2   On appeal, the defendant argues that (1) the judge

erred in declining to instruct the jury on voluntary

manslaughter; (2) the defendant's age at the time of his crimes

-- nineteen years old -- renders his sentence unconstitutional;

and (3) the judge should have granted a new trial due to a

partial court room closure.    The defendant also requests that we

exercise our power under G. L. c. 278, § 33E, to either reduce

his convictions or grant a new trial.    Because we find neither

reversible error nor a reason to exercise our authority under

§ 33E, we affirm.3

     Background.     We recite certain facts the jury could have

found, reserving other details for later discussion.     In July

2010, the fifteen year old daughter of the murder victim (victim


     1 The defendant also was convicted of armed assault with
intent to murder; two counts of burglary assault on an occupant,
one of which the judge set aside as legally inconsistent with
other verdicts; breaking and entering in the nighttime with
intent to commit a misdemeanor; two counts of assault and
battery by means of a dangerous weapon; assault and battery; and
assault with intent to rape. He was found not guilty of attempt
to commit rape.

     2 The judge also sentenced the defendant to from seven to
eight years' imprisonment from and after the life sentence to
account for crimes committed against individuals other than the
murder victim.

     3 We acknowledge the amicus brief submitted by Omar Abdur-
Rahim, Gary Johnson, and Lonnie Watkins.
                                                                      3


or mother) was dating the defendant, who was nineteen.     The

daughter lived in Hampden with her sister, her stepfather, and

her mother.    The daughter awoke in her bedroom on July 21 to a

gloved hand over her mouth.     There was a knife against her

throat and a masked face staring at her.     The daughter knew from

the assailant's voice and clothing that he was the defendant,

and she later recognized him when he took off his mask.     The

defendant tried to pull the daughter's shorts off multiple times

but never entirely removed them.     He eventually put the knife

down and explained to the daughter, "I was trying to see what

you would do in that situation. . . .    I was trying to show you

the world wasn't safe."

     The daughter then told her mother the defendant was in her

room.   They went into the room and found the defendant hiding in

a closet.     After the victim told the defendant to "[g]et out,"

the defendant left.

     Following the July 21 incident, the victim became scared

that the defendant would return to the house.     She started

locking the doors at night.     The victim also told her daughter

that the victim would not let anything bad happen to her, and

that if the defendant came back he would have to get through the

victim.

     At night on July 29, the daughter sent a text message to

the defendant stating that their relationship was over.     In the
                                                                     4


morning on July 30, the family dog started barking in the

victim's house.   The stepfather investigated and noticed the

cellar door was open.    He closed it, and then went into the

kitchen to find the victim running toward him.    The victim said

the defendant was in the daughter's room.    According to the

stepfather's testimony, "Before she finished saying it, [the

defendant] came storming out towards us" with a knife.    The

defendant sliced the stepfather's throat and cut him above the

eye.   The stepfather went to the door leading outside but could

not open it, so he turned around and saw the defendant "standing

over" the victim with the knife.    Although the victim was hidden

behind a counter, the stepfather heard the victim making sounds

similar to "somebody getting punched."    As the stepfather

escaped outside through the door, the defendant stabbed him in

the back multiple times.

       The victim's daughter left her bedroom when she heard her

stepfather's screams.    She saw the defendant stabbing her

mother.    When the daughter tried to escape, the defendant

dragged her into the kitchen by her hair.    The daughter saw the

defendant slice her mother's throat, and then she escaped

outside.

       At trial, defense counsel admitted in the opening statement

that the defendant killed the victim, and then stated that the

evidence would show the defendant was guilty of manslaughter
                                                                    5


rather than murder.     After the judge declined to instruct the

jury on manslaughter, defense counsel argued in closing that the

defendant was not guilty of murder because he did not act with

malice, but rather in response to the victim confronting him

with a knife.   The defendant presented one witness:    an expert

who testified about, among other things, brain development of

teenagers.

     A jury convicted the defendant of various crimes, including

murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty.     The judge

sentenced the defendant to life in prison without the

possibility of parole on the murder conviction.4    The defendant

appealed, and then moved for a new trial due to an asserted

partial court room closure.    The judge denied the motion after

an evidentiary hearing.    We have consolidated the defendant's

direct appeal with his appeal from the denial of his motion for

a new trial.

     Discussion.   1.   Voluntary manslaughter instruction.    We

discern no error in the judge's decision not to instruct on

voluntary manslaughter.    See Commonwealth v. Gulla, 476 Mass.

743, 748 (2017).   "A manslaughter instruction is required if the

evidence, considered in the light most favorable to a defendant,


     4 After the defendant was convicted, he moved for a sentence
of life with the possibility of parole. The motion was denied.
                                                                   6


would permit a verdict of manslaughter and not murder."

Commonwealth v. Pina, 481 Mass. 413, 422 (2019).    "Voluntary

manslaughter is an unlawful killing 'arising not from malice,

but "from . . . sudden passion induced by reasonable

provocation, sudden combat, or excessive force in self-

defense"'" (citation omitted).    Commonwealth v. Acevedo, 446

Mass. 435, 443 (2006).

     The defendant argues on appeal, as he did at trial, that

the jury could have found that the victim armed herself with a

knife on July 30 to protect her daughter, confronted the

defendant, and then lost the knife to the defendant, who killed

her with it.5    There was no direct evidence at trial of such a

confrontation.    The defendant acknowledges as much and points

instead to circumstantial evidence.    Viewed in the light most

favorable to the defendant, that evidence is as follows:    (1)

after the defendant attacked the victim's daughter on July 21,

the victim told her daughter that the defendant would have to


     5 On appeal, the defendant also suggests that he was
provoked by the victim's daughter breaking up with him.
However, the "provocation must come from the victim."
Commonwealth v. Hinds, 457 Mass. 83, 90 (2010), quoting
Commonwealth v. Ruiz, 442 Mass. 826, 838-839 (2004). And
"[m]ere words generally do not constitute sufficient provocation
to warrant an instruction on [manslaughter]." Commonwealth v.
Tu Trinh, 458 Mass. 776, 783 (2011), quoting Commonwealth v.
Vick, 454 Mass. 418, 429 (2009). Cf. Commonwealth v. Zagrodny,
443 Mass. 93, 106 (2004) ("victim's 'leaving' her husband and
'taking' their children is not evidence of provocation
sufficient to warrant a voluntary manslaughter instruction").
                                                                      7


get through her if he ever came back; (2) when the victim and

her family peacefully confronted the defendant on July 21, the

defendant left peacefully; (3) the murder weapon came from the

victim's house; (4) the victim held the murder weapon at some

point, as shown by her deoxyribonucleic acid on its handle; and

(5) the defendant had fresh cuts and scratches on his body when

he was interviewed by police on July 30.

    The defendant's theory of events "is entirely speculative."

Pina, 481 Mass. at 424.     The evidence provides no detail about

the victim's supposed attack against the defendant, and "a judge

should not instruct the jury 'on a hypothesis not supported by

the evidence.'"   Id. at 422, quoting Commonwealth v. Vanderpool,

367 Mass. 743, 746 (1975).    Thus, a voluntary manslaughter

instruction was not warranted.    See Commonwealth v. Rodriquez,

461 Mass. 100, 108 (2011), quoting Commonwealth v. Espada, 450

Mass. 687, 696-697 (2008) ("Generally, for sudden combat to be

the basis of a voluntary manslaughter instruction, the 'victim

. . . must attack the defendant or at least strike a blow

against the defendant'").    See also Commonwealth v. Brum, 441

Mass. 199, 206 n.12 (2004) ("Even if a victim brandishes a

weapon or attacks a defendant, it does not necessarily create

sudden combat or reasonable provocation").     Cf. Gulla, 476 Mass.

at 748 (evidence did not support voluntary manslaughter

instruction where defendant had "injury to the back of his head"
                                                                     8


and "defendant told first responders that the victim bit him,"

but there was "no evidence that [the victim] initiated physical

contact").

    2.      Constitutionality of sentence.   The defendant argues,

as he did at trial, that mandatory sentences of life in prison

without the possibility of parole are unconstitutional as

applied to defendants who committed murder in the first degree

when they were teenagers or in their early twenties.     See G. L.

c. 265, § 2.    Because the defendant was nineteen years old at

the time of his crimes, he contends that his sentence violates

the prohibition on "cruel and unusual punishments" under the

Eighth and Fourteenth Amendments to the United States

Constitution and the prohibition on "cruel or unusual

punishments" under art. 26 of the Massachusetts Declaration of

Rights.     On this record, we decline to hold the defendant's

sentence unconstitutional.

    In Miller v. Alabama, 567 U.S. 460, 465, 470 (2012), the

United States Supreme Court held that mandatory sentences of

life without parole violate the Eighth Amendment when imposed on

those who are under the age of eighteen when they commit

homicide.    In Diatchenko v. District Attorney for the Suffolk

Dist., 466 Mass. 655, 673 (2013), S.C., 471 Mass. 12 (2015), we

decided that sentences of life without parole, whether mandatory

or discretionary, violate art. 26 where imposed on individuals
                                                                     9


who are under the age of eighteen when they commit murder in the

first degree.   See Commonwealth v. Lugo, 482 Mass. 94, 98-101

(2019) (describing Miller and Diatchenko).     The rulings in

Miller and Diatchenko do not apply to the defendant here, who

committed his crimes at the age of nineteen.

     We recognize that "[s]cientific and social science research

on adolescent brain development . . . continues."    Commonwealth

v. Okoro, 471 Mass. 51, 59-60 (2015).    "For example, researchers

continue to study the age range at which most individuals reach

adult neurobiological maturity, with evidence that although some

brain systems have fully matured in most individuals by around

age fifteen, other brain functions are not likely to be fully

matured until around age twenty-two."    Id. at 60 n.14.   Indeed,

the defendant's expert testified that certain parts of the

brain, the frontal lobes, take over twenty years to "finish

developing."    According to the expert, these portions of the

brain regulate important functions such as "controlling

impulses, . . . inhibition of unwanted behaviors, [and]

decision-making."

     Although this testimony and similar research may relate to

the constitutionality of sentences of life without parole for

individuals other than juveniles,6 "we appear to deal here with a


     6 The term "juvenile" refers in this opinion to someone
under the age of eighteen at the time of his or her crimes.
                                                                     10


rapidly changing field of study and knowledge."     Id. at 60.      The

minimal record on brain development in this case, consisting of

one expert's testimony presented during trial rather than at

sentencing, does not allow us to reach an informed conclusion on

whether individuals in their late teens or early twenties should

be given the same constitutional protections as juveniles for

purposes of the Eighth Amendment and art. 26.     We decline on

this record to extend beyond juveniles the decisions in Miller

and Diatchenko.    Cf. Commonwealth v. Chukwuezi, 475 Mass. 597,

610 (2016) (upholding constitutionality of mandatory sentence of

life without parole for defendant who was eighteen years old at

time of crime).

    3.   Court room closure.     The judge found the following

facts after an evidentiary hearing on the defendant's motion for

a new trial.    We accept the facts as they are not clearly

erroneous.     See Commonwealth v. Rakes, 478 Mass. 22, 36 (2017).

    An investigator with the Committee for Public Counsel

Services (CPCS) was standing inside the court room during

closing arguments because he did not see any seats available.        A

court officer "approached [the investigator] and told him he

could not stand there as the back doors of the courtroom needed

to remain clear. . . .    [H]e told [the investigator] to take a

seat or [the court officer] would find a seat for him."       The
                                                                  11


investigator then left the court room after telling the court

officer "he would wait outside."7

     While outside, the investigator told or suggested to two

people, a relative of the victim and a CPCS attorney, that they

could not enter the court room because standing was not allowed.

After speaking with the investigator, the relative entered the

court room, found a seat, and watched the proceedings for a time

before leaving.   The CPCS attorney looked in the court room, saw

that it was crowded, and left.    No court officer excluded either

individual from the court room.

     The Sixth and Fourteenth Amendments to the United States

Constitution guarantee defendants "the right to a . . . public

trial."   Rather than risk violating this right by telling a

spectator to leave, the court officer here offered to find the

investigator a seat.   It is irrelevant that the investigator

then told or suggested to other spectators that they could not




     7 The investigator with the Committee for Public Counsel
Services testified that the court officer told him he needed to
wait outside the court room because there were no seats
available. The judge discredited this testimony, finding that
the court officer "did not tell [the investigator] that he had
to leave and remain outside the courtroom, but only that he
could not stand blocking the public exit doors." Although the
defendant argues the judge should have believed the
investigator, "[t]he judge was not required to credit the
[investigator's] testimony," Commonwealth v. Rakes, 478 Mass.
22, 36 (2017), and we accord special deference to the judge's
findings "where, as here, the motion judge was also the trial
judge." Id.
                                                                    12


enter the court room.   For there to be closure in the

constitutional sense, "[s]ome affirmative act by the court or

one acting on its behalf is required."   Commonwealth v. Rogers,

459 Mass. 249, 263, cert. denied, 565 U.S. 1080 (2011).    There

was no official act of exclusion here.

    The defendant argues that attorneys should have been asked

to move in front of the attorneys' bar to make room in the

public seating area for nonattorney spectators.   The judge found

that the district attorney for the Hampden district and an

assistant district attorney entered around the time of closing

arguments and sat in chairs in front of the attorneys' bar.       But

the investigator never gave the court officer an opportunity to

rearrange the seating, deciding instead to wait outside.    And

the court was not obliged preemptively to seat in front of the

attorneys' bar lawyers uninvolved in the case.

    The defendant argues also that the court officer should

have brought to the judge's attention the investigator's

inability to find a seat.   However, the judge did not need to

address the issue because the court officer offered to find the

investigator somewhere to sit, meaning there was no risk that a

spectator would be excluded.   Cf. Commonwealth v. Fernandes, 478

Mass. 725, 732-733 (2018), quoting Commonwealth v. Cohen

(No. 1), 456 Mass. 94, 115 (2010) (among other requirements,

"judge must make 'findings adequate to support the closure'"
                                                                    13


where there is partial closure, although "reviewing court may

examine the record itself to see if it contains sufficient

support for the closure . . . in the absence of formal or

express findings by the judge").   There was no error in denying

the defendant's motion for a new trial.8

     4.   Review under G. L. c. 278, § 33E.   After reviewing the

entire record pursuant to our obligation under § 33E, we decline

to reduce the murder verdict to a lesser degree of guilt or to

order a new trial.

                                   Judgments affirmed.




     8 The defendant did not raise at trial the issue of court
room closure, as it appears defense counsel did not learn of the
asserted closure until after sentencing. Therefore, the
defendant's claim is procedurally waived and any error, instead
of resulting in automatic reversal, is reviewed for a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Robinson, 480 Mass. 146, 149-150, 153, 154-155
(2018). Even if there were error, it would not warrant reversal
under that standard.
