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SJC-10398

                  COMMONWEALTH   vs.   MICHAEL JACKSON.



            Suffolk.    January 9, 2015. - April 16, 2015.

  Present:     Gants, C.J., Spina, Cordy, Botsford, & Duffly, JJ.



Homicide. Firearms. Jury and Jurors. Practice, Criminal,
     Instructions to jury, Empanelment of jury, Public trial,
     Failure to object, Waiver, Capital case. Jury and Jurors.
     Duress. Constitutional Law, Jury, Public trial, Waiver of
     constitutional rights. Waiver.



     Indictments found and returned in the Superior Court
Department on March 27, 2002.

     The cases were tried before Patrick F. Brady, J., and a
motion for a new trial, filed on March 18, 2010, was heard by
him.


     Emanuel Howard for the defendant.
     Helle Sachse, Assistant District Attorney, for the
Commonwealth.
     Afton M. Templin, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.


    CORDY, J.      After a jury trial, the defendant, Michael

Jackson, was convicted of murdering Jose Lane, the unlawful
                                                                     2


possession of a firearm, and the unlawful possession of

ammunition.   At trial, the defendant had requested that the

judge instruct the jury that duress was an available defense to

intentional murder, which the judge declined to do.     Prior to

sentencing, the defendant orally moved for a new trial and for a

mistrial when it was learned that one of the jurors was not a

United States citizen.   Both motions were denied.    On March 16,

2006, the judge imposed a mandatory sentence of life in State

prison on the defendant's conviction of murder in the first

degree, a concurrent sentence of four and one-half years in

State prison for the unlawful possession of a firearm, and a

concurrent sentence of one year in a house of correction for the

unlawful possession of ammunition.

     On March 22, 2010, the defendant filed a motion for a new

trial under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501

(2001), on three grounds, the first two of which were rejected

without a hearing on December 2, 2010,1 and the third denied on

May 3, 2011, after an evidentiary hearing.2   The denial of this

motion was consolidated with the defendant's direct appeal.


     1
       The defendant claimed error in the inclusion of a
noncitizen on the jury and challenged the constitutionality of a
sentence of life imprisonment for a person under the age of
eighteen.
     2
       The defendant claimed violation of his right to a public
trial pursuant to the Sixth Amendment to the United States
Constitution because three family members and supporters were
                                                                      3


     In his appeal, the defendant contends that the judge erred

in denying his request to instruct the jury on duress, that the

inclusion of a noncitizen juror on the jury constituted

structural error requiring a new trial, and that his right to a

public trial pursuant to the Sixth Amendment to the United

States Constitution was violated when his fiancée, sister, and

step-grandmother were asked to leave the court room during a

portion of the empanelment process.     For the reasons stated

below, we find no reversible error, and discern no basis to

exercise our authority under G. L. c. 278, § 33E, to reduce or

set aside the verdict of murder in the first degree.     Therefore,

we affirm the defendant's convictions.

     1.   Background.    We recite the facts in the light most

favorable to the Commonwealth, while reserving certain details

for discussion in conjunction with the issues raised.

     a.   The killing.   At approximately 10:30 P.M. on January

24, 2002, Samuel Dew was standing on the sidewalk near the steps

leading up to the front porch of the home of the victim's sister

in the Dorchester section of Boston.3    The victim was standing on

the first landing leading to the porch, sharing a cigar with



apparently asked by a court officer to leave the court room when
the jury venire (consisting of seventy-nine jurors) were brought
in for empanelment.
     3
       The victim stayed at his sister's home four or five days
each week.
                                                                        4


Dew, who noticed a person walking on the street toward them.

When the person was about an arm's length away, Dew recognized

him as the defendant, Michael Jackson,4 someone he had met a

dozen or so times in the course of Dew's work at the Dorchester

Reporting Center, a Department of Youth Services facility.        The

three exchanged pleasantries, and afterward, the defendant

turned as if to walk away.    The defendant then reached behind

his back, brought out what Dew described as a shiny metal

object, and pointed it at the victim.    When Dew realized the

object was a gun, he turned and ran away from the house.     He

last saw the victim turning and running up the stairs toward the

porch.    He heard gunshots go off behind him.   Boston police and

emergency medical technicians soon arrived and took the victim

to the Boston Medical Center, where he died five minutes after

arrival.

     The next day, Dew learned that the police wanted to speak

to him.    He called and arranged to meet with them at police

headquarters.    On arrival, investigators asked him to look at a

series of eight photographs, including a photograph of Michael

Jackson.    Dew picked out the defendant's photograph and said he

was "a hundred percent" that the person depicted was the shooter

whom he knew by the name of "Mike D."



     4
         Dew knew the defendant by his nickname, "Mike D."
                                                                    5


     That same day, Boston police Sergeant Greg Long, based on

information the police had received, set up surveillance in

front of another address in Dorchester.    At approximately

6:15 P.M., Sergeant Long and fellow officers began following a

black GMC Yukon sport utility vehicle that left that location.

They stopped the vehicle and removed the defendant from the back

seat, arrested and handcuffed him, and brought him to the

homicide unit at the Boston police headquarters.    The defendant

was seventeen years of age.

     Officer Paul McLaughlin, who conducted the defendant's

interrogation, read the defendant the Miranda warnings and

obtained a signed Miranda waiver before speaking to him for an

unrecorded period of time.    One hour and forty minutes later,

the defendant agreed to give a recorded statement.5   During the

statement, the defendant admitted to shooting the victim and

related events that had occurred the day before the shooting


     5
       This statement was the subject of a pretrial motion to
suppress. After an evidentiary hearing, that motion was denied
by a judge other than the trial judge. The voluntariness of the
statement was an issue subsequently raised and extensively
litigated at the trial. Dr. Paul Zeizel, a clinical
psychologist, was called by the defendant and testified about
his examination of the defendant and his opinion with regard to
the defendant's susceptibility to being influenced by persons in
authority like the police. A humane practice instruction was
given to the jury by the trial judge. Although not raised as an
issue on appeal, we have reviewed the denial of the motion to
suppress and the manner in which the voluntariness issue was
handled at trial, and we find no error.
                                                                      6


when he and a friend, Riccardo Green, were at a cemetery.        Green

informed the defendant that there were people who thought the

defendant was "ratting"6 to the police, and the only way to avoid

"catch[ing] consequences" associated with being a rat was for

the defendant to kill the victim, who Green claimed had killed

another individual, Rasheed Fountain, several years before.7

     b.   Public trial.   On the day of jury empanelment, the

defendant's fiancée, sister, and step-grandmother were in the

court room.   Before the venire were brought in, a court officer

asked the three individuals to leave the court room.    They

followed the officer's orders and were not present in the court

room during the empanelment process.    There was no objection.

     An evidentiary hearing was held on the claim in the

defendant's second motion for a new trial of an alleged

violation of his Sixth Amendment right to a public trial.        At

the conclusion of the hearing, the judge issued a written

memorandum of decision finding that the number of jurors in the

venire exceeded the seating capacity of the court room.     He

concluded that the brief closure of the court room was de

minimis so as to not equate to a closure in the constitutional

     6
       The defendant had testified during a grand jury proceeding
implicating a gang member in an unrelated murder.
     7
       The defendant described Rasheed Fountain as a father
figure to him. Seven years prior to the facts that give rise to
this case, the defendant witnessed Rasheed Fountain's murder,
allegedly at the hands of the victim in the present case.
                                                                     7


sense and that, even if it had not been de minimis, the facts

concerning the empanelment satisfied the criteria of Waller v.

Georgia, 467 U.S. 39 (1984).

     c.   Makeup of the jury.    On March 7, 2006, the day

following the jury's verdicts but before sentencing, the judge

informed counsel that he believed one of the jurors was not a

United States citizen.8    The judge conducted a hearing on March

14, 2006, during which the juror told the court that he was not

a United States citizen.    Defense counsel orally moved for a

mistrial and for a new trial; both motions were denied.

     2.   Discussion.   "When this court reviews a defendant's

appeal from the denial of a motion for a new trial in

conjunction with his direct appeal from an underlying conviction

of murder . . . , we review both under G. L. c. 278, § 33E."

Commonwealth v. Burgos, 462 Mass. 53, 59, cert. denied, 133

S. Ct. 796 (2012).

     a.   The defense of duress.    The defendant argues that the

judge erred by not instructing the jury on the defense of

duress.   The defendant claims that juveniles (age seventeen or

younger) should be allowed to invoke duress as a defense to

intentional murder, notwithstanding the fact that the defense is

barred from use by adults.      Commonwealth v. Vasquez, 462 Mass.

     8
       When the judge went to thank the jury for their service,
one juror asked the judge if he might be able to recommend to
the juror an attorney for assistance on an immigration matter.
                                                                     8


827, 835 (2012).     Because this issue was properly raised below,

we review for prejudicial error.     See Commonwealth v. Graham, 62

Mass. App. Ct. 642, 651 (2004).

     Discussion about the defendant's request for a duress

instruction began during the Commonwealth's case.     When the

judge indicated that he did not believe that duress was a

defense to intentional murder,9 defense counsel made what

amounted to an offer of proof as to the witnesses he might call

if duress were a defense, and declared that they would testify

as to the difficulties of the defendant's upbringing and

circumstances.     These witnesses were not called by the

defendant, and, at the close of evidence, the judge definitively

denied defense counsel's request for a duress instruction.

     In Vasquez, 462 Mass. at 835, we concluded that duress was

not an available defense to intentional murder.10    Nonetheless,

the defendant claims that it was error to foreclose the defense

to a juvenile offender because of the fundamental differences

between adults and juveniles.     In Vasquez, we had no need to

specify our holding as foreclosing duress as a defense to

     9
       The judge was also the trial judge in Commonwealth v.
Vasquez, 462 Mass. 827 (2012).
     10
       In coming to this conclusion, we noted that duress is not
an available defense to intentional murder under the common law
of any State and "[e]very State appellate court, except one,"
that has addressed this application of duress has determined
that it does not justify intentional murder. Vasquez, 462 Mass.
at 834 & n.5.
                                                                   9


intentional murder for both adult and juvenile offenders.     We

take this opportunity to clarify that our holding does foreclose

such a defense for both classes of offender.

    Duress has been defined as "a present, immediate and

impending threat of such a nature as to induce a well-founded

fear of death or of serious bodily injury if the criminal act is

not done," with no reasonable and available chance at escape,

and where no person of reasonable firmness could have acted

otherwise in the circumstances.   See Commonwealth v. Robinson,

382 Mass. 189, 199 (1981).    The defendant argues that it was

error to subject juveniles to the same strictures of

reasonableness as an adult.   In support of this contention, the

defendant cites several recent United States Supreme Court cases

that have acknowledged some inherent differences between adults

and juveniles, and have altered the treatment of juveniles in

certain aspects of the criminal justice system.   See Miller v.

Alabama, 132 S. Ct. 2455 (2012) (life sentences for juveniles

without possibility of parole); J.D.B. v. North Carolina, 131 S.

Ct. 2394 (2011) (custodial interrogation); Graham v. Florida,

560 U.S. 48 (2010) (life imprisonment without possibility of

parole for nonhomicide offense); Roper v. Simmons, 543 U.S. 551

(2005) (death penalty for juveniles).

    Even were we to agree that the standard of reasonableness

we would apply to an adult confronted with the fear of death or
                                                                      10


serious bodily injury might be somewhat different and more

forgiving for a person seventeen years of age or younger, this

would not justify a duress defense for intentional murder.       As

we discussed in Vasquez, the rationale of such a defense is not

that a defendant faced with a threat of harm loses his or her

mental capacity to commit the crime, or that the defendant has

not engaged in a voluntary act.    "Rather, it is that, even

though he has done the act the crime requires and has the mental

state which the crime requires, his conduct which violates the

literal language of the law is justified because he has thereby

avoided a harm of greater magnitude" (citation omitted).

Vasquez, 462 Mass. at 833.   We reject the "choice of evils"

rationale to justify intentional murder even where the murderer

is a juvenile, because in an intentional killing, the threat of

harm to the juvenile claiming duress, even the threat of death,

is no greater than the harm to the victim being killed.

    Aside from our rejection of the defense of duress generally

in cases of intentional murder, the elements of the defense were

not made out in this case.   There was no evidence that the

threat against the defendant was "immediate" or that he could

not escape or avoid the harm that he alleges was threatened.

Nor does this case present such extraordinary and rare

circumstances that might justify a reduction in the defendant's

guilt under G. L. c. 278, § 33E.    Id. at 835.   Although the
                                                                   11


defendant experienced a difficult childhood, was acquainted with

individuals with gang affiliations, and alleged that he had been

told he would face personal consequences if he did not execute

the victim, these are not the type of rare circumstances that

would warrant relief under G. L. c. 278, § 33E.

    The defendant's actions are directly contrary to the

purpose of and policy behind the duress defense.   His choice of

evils justifying the killing of a third party to spare harm to

himself is no different from that of the defendant in Vasquez.

The Supreme Court cases relied on by the defendant are not to

the contrary.   Because the judge properly applied the law, there

was no error.

    b.   Public trial.   The defendant seeks a new trial on a

second theory, that his Sixth Amendment right to a public trial

was violated because the court room was closed for a period of

sixty to ninety minutes during jury empanelment.   It is well

settled that violation of the Sixth Amendment right to a public

trial is considered structural error.   See United States v.

Marcus, 560 U.S. 258, 263 (2010); Commonwealth v. Cohen (No. 1),

456 Mass. 94, 105 (2010).   However, it is possible that some

closures are so limited in scope or duration that they are

deemed de minimis, and thus do not implicate the Sixth

Amendment.   See, e.g., Peterson v. Williams, 85 F.3d 39, 44 (2d

Cir.), cert. denied, 519 U.S. 878 (1996).   We have held that
                                                                  12


"the closure of a court room for the entire empanelment process

[was] not de minimis," notwithstanding that it lasted only

seventy-nine minutes, Commonwealth v. Morganti, 467 Mass. 96,

97, cert. denied, 135 S. Ct. 356 (2014), and that partial

closures are not per se de minimis.   Cf. Cohen (No. 1), 456

Mass. at 110-111 (concluding partial closure not de minimis

where voir dire was closed on three of five days and six friends

and supporters of defendant were excluded).

    Where a defendant timely raises and preserves a meritorious

claim of structural error, this court "will presume prejudice

and reversal is automatic."   Commonwealth v. LaChance, 469 Mass.

854, 857 (2014).   However, the right to a public trial, like any

structural right, can be waived.   See Cohen (No. 1), 456 Mass.

at 105-106; Mains v. Commonwealth, 433 Mass. 30, 33 & n.3

(2000) (deficient reasonable doubt instruction is structural

error subject to waiver); Commonwealth v. Edward, 75 Mass. App.

Ct. 162, 173 (2009).

    The defendant did not raise an objection when the court

room was closed, arguably because neither he nor his counsel was

aware of the closure.   The issue also was not raised in his

first motion for a new trial that preceded sentencing.   The

defendant contends that his claim cannot be procedurally waived

when neither counsel nor the defendant knew of the occasion for

objection.   This argument is at odds with our recent decision in
                                                                    13


Commonwealth v. Wall, 469 Mass. 652 (2014).     In that case, the

defendant's uncle was prevented from entering the court room

during jury empanelment.   Id. at 672.    Defense counsel did not

know of the court room closure and therefore did not object.

Id. at 672 n.24.   Nonetheless, we concluded that the "right to a

public trial may be procedurally waived whenever a litigant

fails to make a timely objection."   Id. at 672.    Cf. LaChance,

469 Mass. at 858-859 (when Sixth Amendment violation is

unpreserved due to ineffective assistance of counsel and

attacked on collateral grounds, defendant must show prejudice

notwithstanding structural nature of claim).     As such, we

conclude that the defendant procedurally waived his Sixth

Amendment right to a public trial during the empanelment

process.

     Despite the fact that the claim is procedurally waived, we

still analyze the claim pursuant to G. L. c. 278, § 33E, to

determine whether a closure would subject him to a substantial

likelihood of a miscarriage of justice.    The defendant has

failed to advance any argument or articulate any facts that

would support such a finding.11


     11
       See, e.g., Commonwealth v. Dyer, 460 Mass. 728, 737
(2011), cert. denied, 132 S. Ct. 2693 (2012) (declining to order
new trial where "defendant point[ed] to no factors suggesting .
. . that a substantial likelihood of a miscarriage of justice
occurred"); Commonwealth v. Randolph, 438 Mass. 290, 297-298
(2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002)
                                                                    14


    c.   Noncitizen on the jury.    The requirement that jurors

must be United States citizens is established statutorily by

G. L. c. 234A, § 4.    However, the same chapter of the General

Laws contains an explicit savings clause which states:

    "[T]he fact that a juror shall be found to be not qualified
    under [G. L. c. 234A, § 4] . . . shall not be sufficient to
    cause a mistrial or to set aside a verdict unless objection
    to such irregularity or defect has been made as soon as
    possible after its discovery or after it should have been
    discovered and unless the objecting party has been
    specially injured or prejudiced thereby."

G. L. c. 234A, § 74.

    While the defendant objected on being informed by the judge

that a noncitizen had been on the jury, thus satisfying the

first prong of the exception to the savings clause, the

defendant has not shown any prejudice.    Rather, he urges this

court to consider a violation of G. L. c. 234A, § 4, to be

structural error and thus as requiring no showing of prejudice.

The defendant relies on Vasquez v. Hillery, 474 U.S. 254 (1986)

(Hillery), to support this contention.    In Hillery, the Supreme

Court affirmed the holding of the United States Court of Appeals

for the Ninth Circuit that the respondent had been denied equal

protection because the grand jury that indicted him were

composed entirely of white jurors, despite the fact that there

were qualified African-Americans available.    Id. at 256-257.    In


(finding no "serious doubt whether the result of the trial
might have been different had the error not been made");
Commonwealth v. Horton, 434 Mass. 823, 832-833 (2001).
                                                                     15


so holding, the Supreme Court reasoned that "discrimination in

the grand jury undermines the structural integrity of

the criminal tribunal itself, and is not amenable to harmless-

error review."   Id. at 263-264.    Hillery is inapposite.   It does

not contemplate the facts that are at issue in this case.      The

structural error analysis involved racial discrimination in

excluding minority members from the grand jury.     The holding

makes no reference to the inclusion of jurors deemed unqualified

for jury service by State law in a petit jury.     Even the cases

cited by Hillery as examples of structural error do not

encompass, let alone mention, the improper qualification of a

juror included on a petit jury.12    The defendant points us to no

Massachusetts authority that would require us to consider this

error structural, and such a position runs directly counter to

the statutory language of § 74 and this court's precedent.13


     12
       See, e.g., Davis v. Georgia, 429 U.S. 122 (1976) (death
sentence cannot be carried out where prospective juror excluded
from jury for cause for merely expressing scruples against death
penalty, rather than being irrevocably committed to vote against
it); Sheppard v. Maxwell, 384 U.S. 333, 363 (1966) (reversing
denial of habeas relief when trial judge failed to protect
defendant from inherently prejudicial publicity); Tumey v. Ohio,
273 U.S. 510, 535 (1927) (reversal required when judge has
financial interest in conviction, despite lack of indication
that bias influenced decisions).
     13
       See, e.g., Commonwealth v. Sires, 370 Mass. 541, 545-546
(1976) (defendant not entitled to new trial where one juror
discovered to be distantly related to victim and defendant,
because defendant failed to show prejudice); Commonwealth v.
Delle Chiaie, 323 Mass. 615, 618-619 (1949), quoting
                                                                    16


       The present case bears striking resemblance to the case of

Kohl v. Lehlback, 160 U.S. 293 (1895), in which the Supreme

Court determined that the inclusion of a juror who was not a

citizen of the United States was a defect, but was not "an

infraction of the Constitution of the United States."      Id. at

300.    The Supreme Court surmised that if the defendant were to

show prejudice then he may be entitled to a new trial, but the

mere inclusion of the noncitizen juror did not "den[y] due

process of law."     Id. at 303.   We glean no language in the

Massachusetts Declaration of Rights that would require a

conclusion different from that reached under the Federal

Constitution.

       The defendant does not address how he was prejudiced by a

noncitizen juror deciding his case, and in the absence of

prejudice, the ordering of a new trial is unwarranted under

G. L. c. 234A, § 74.

       d.   G. L. c. 278, § 33E.   We have reviewed the record in

accordance with G. L. c. 278, § 33E, to determine whether any


Commonwealth v. Wong Chung, 186 Mass. 231, 237-238 (1904) ("If
. . . it is discovered after a verdict that a disqualified
person has joined in the decision, the interests of justice
require that the irregularity or accident shall be treated like
other irregularities. . . . If in the opinion of the presiding
judge, the disqualification of a juror has operated injuriously,
and has tended to the return of an erroneous verdict, or has
otherwise worked injustice, a new trial should be granted");
Wong Chung, supra (defendant not entitled to new trial where
discovered that one juror may have been stripped of citizenship
rights).
                                                                   17


basis exists to set aside or reduce the verdict of murder in the

first degree or to order a new trial.   In that review we

discerned nothing in the defendant's conviction that suggests

such would be appropriate.   Accordingly, we decline to exercise

our authority.

                                    Judgments affirmed.

                                    Order denying motion for a
                                      new trial affirmed.
