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SJC-10932


               COMMONWEALTH   vs.   KENTEL MYRONE WEAVER.



         Suffolk.       January 12, 2016. - July 20, 2016.

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


Homicide. Firearms. Constitutional Law, Admissions and
     confessions, Voluntariness of statement, Waiver of
     constitutional rights by juvenile, Assistance of counsel,
     Public trial. Evidence, Admissions and confessions,
     Voluntariness of statement. Practice, Criminal, Capital
     case, Admissions and confessions, Voluntariness of
     statement, Waiver, Assistance of counsel, Public trial,
     Motion to suppress, New trial.



     Indictments found and returned in the Superior Court
Department on December 5, 2003.

     A pretrial motion to suppress evidence was heard by
Geraldine S. Hines, J.; the cases were tried before Stephen E.
Neel, J.; and a motion for a new trial, filed on June 1, 2011,
was heard by Geraldine S. Hines, J., and Jeffrey A. Locke, J.


     Ruth Greenberg for the defendant.
     John P. Zanini, Assistant District Attorney, for the
Commonwealth.


     CORDY, J.    On the evening of August 10, 2003, fifteen year

old Germaine Rucker was shot and killed. The defendant, who was
                                                                     2


sixteen at the time of the shooting, subsequently admitted to

committing the murder after prolonged questioning by the police

and by his mother.

     Prior to trial, the defendant filed a motion to suppress

his statements to the police.    That motion was denied following

an evidentiary hearing.    In 2006, a jury convicted the defendant

of murder in the first degree on the theory of deliberate

premeditation.    He was also convicted of the unlicensed

possession of a firearm.    In 2011, the defendant filed a motion

for a new trial under Mass. R. Crim. P. 30, as appearing in 435

Mass. 1501 (2001), claiming that he was denied the effective

assistance of counsel in two respects:    first, that counsel

failed to adequately investigate the defendant's claim that his

statements to police were coerced because counsel did not

consult with a mental health expert or present expert testimony

about the voluntariness of those statements; second, that

counsel failed to object to the closure of the court room during

jury empanelment in violation of the defendant's right to a

public trial under the Sixth Amendment to the United States

Constitution.    The motion was bifurcated, and different judges

considered, and ultimately rejected, the claims.    The denial of

the motion was consolidated with the defendant's direct appeal.

     In his appeal, the defendant asks us to expand our rule

requiring the corroboration of extrajudicial statements as it
                                                                       3


applies to juvenile confessions pursuant to our extraordinary

power under G. L. c. 278, § 33E.     He also claims error in (1)

the denial of his motion to suppress; (2) the denial of his

motion for a new trial; and (3) the denial of his motion for a

directed verdict on the firearms charge.     We affirm the

defendant's convictions and decline to grant relief under G. L.

c. 278, § 33E.

       1.   Facts.   We recite the facts in the light most favorable

to the Commonwealth, reserving certain details for our analysis

of the legal issues raised on appeal.

       On August 10, 2003, the victim went to Wendover Street to

sell some small jewelry charms to a woman and her children.

After the transaction, the woman reentered her home, and the

daughter remained outside.     The woman heard two gunshots.   She

stepped back out of the doorway and saw the victim lying in the

street on top of his bicycle.     The bag in which he had carried

the jewelry was gone.      The woman went back inside and telephoned

911.

       The daughter testified that, just before the shooting, she

noticed a group of males of varying ages gathered at the top of

Dudley and Wendover Streets.     The group rushed toward the

victim, who threw his bag on the ground.     They began to fight.

An older member of the group, who appeared to be about thirty

years of age and was wearing a straw hat, threw the first punch.
                                                                       4


A younger member of the group, who appeared to be about fifteen

years of age and was wearing jean shorts and a white "doo-rag",

picked up the victim's bag and ran toward Dudley Street.    The

daughter ran up the steps toward her front door and heard two

gunshots fired in quick succession.

     A third witness, who lived on nearby Humphreys Street, was

sitting outside on his second-floor porch when he heard gunshots

from the direction of Wendover Street.    He then saw a young

black man run down Humphreys Street away from Dudley Street.

The young man wore dark jeans and was trying to pull off a dark

shirt, under which he wore a white t-shirt.    The young man

stumbled and hopped and pulled a pistol from his pants leg.      The

pistol had a flat handle and a round silver barrel.    As he did

so, the baseball cap he was wearing fell off of his head.      The

cap was collected by the police later that evening.

     The cap was a Detroit Tigers baseball cap, with a stitched

white "D" on the front and what appeared to be hand-drawn or

painted white "D" letters on the sides.    The police had seen the

defendant wearing a cap matching the same description when they

spoke to him approximately two weeks before the victim was

murdered.   Deoxyribonucleic acid (DNA) matching the defendant's

DNA profile was found on the hatband.    An analyst testified that

the possible contributors to the DNA profile found on the
                                                                    5


hatband were one in 40 billion Caucasians, one in 1.6 billion

African-Americans, and one in 65 billion Southeastern Hispanics.

     A ballistics expert testified that shell fragments

recovered from the victim were consistent with having been fired

from a revolver and not a semiautomatic weapon.    A revolver has

a round barrel, consistent with the description of the handgun

in the possession of the fleeing suspect, and does not eject

shell casings.   No shell casings were recovered from Wendover

Street.

     When emergency medical services arrived at the scene, the

victim showed no signs of life.   He had a bleeding head wound

with brain matter visible and a second wound to his lower right

back.   The medical examiner who performed the autopsy on the

victim determined that the cause of death was the two gunshot

wounds.

     At trial, there was a great deal of testimony regarding the

investigation leading up to the incriminating statements that

the defendant made to police, especially his admission, made

after discussing the particulars with his mother, that he "shot

the [victim]."   The defense strategy was to claim that the

defendant’s statements were involuntary, and the result of

coercion by a combination of lengthy questioning first by police

and then by his mother, Iris Weaver (Weaver).   We leave the

details concerning the questioning of the defendant and the
                                                                    6


resultant incriminating statements to the discussion of the

defendant's motion for a new trial, infra, as the trial

testimony of the involved police officers and the defendant's

mother, viewed in the light most favorable to the Commonwealth,

are substantively identical to the testimony given at the

evidentiary hearing on the motion.

     At the conclusion of the trial, a humane practice

instruction was given to the jury.   The judge instructed the

jury that the Commonwealth bore the burden of proving beyond a

reasonable doubt that the defendant made his statement to the

police "voluntarily, freely, and rationally."   The judge further

stated:

          "In order for a statement of a defendant to be
     voluntary, it must not, in any way, be coerced by physical
     intimidation or psychological pressure. Under the law of
     the Commonwealth of Massachusetts, a statement may be
     coerced not only by law enforcement officials but also by a
     private citizen. That is, coercion -- You may find that the
     defendant was coerced. Let me put it this way, coercion may
     occur not only by law enforcement officials, but in order
     to be coercion, it may also be caused by a private citizen.
     A statement made by a defendant is not voluntary if it is
     psychologically coerced. Therefore, if you find that the
     statement made by the defendant was coerced by his mother
     or any other person, you may not consider that statement in
     reaching a verdict."

     During deliberations, the jury asked for a legal definition

of "psychological coercion."   After receiving the question, the

court adjourned for the day.   Neither the judge nor counsel

located any case law defining the term before court reconvened
                                                                        7


the next morning.     The judge then repeated his original

instructions to the jury, adding that the jurors should "give

the term psychological coercion its plain and ordinary meaning

as you understand it.       But I will tell you that psychological

coercion refers to inappropriate or inordinate psychological

pressure."   The jury subsequently convicted the defendant.

     2. Discussion.    a.    Corroboration rule.   In Commonwealth v.

Forde, 392 Mass. 453, 458 (1984), we announced the corroboration

rule, which "requires corroboration that the underlying crime

was in fact committed, thus preventing convictions against

persons who have confessed to fictitious crimes."       Commonwealth

v. DiGiambattista, 442 Mass. 423, 430 (2004), citing Forde,

supra at 458.   In DiGiambattista, we declined to expand the rule

to require corroboration that a defendant was the actual

perpetrator of the crime, or to require a showing that a

confession is reliable under the circumstances in which it was

given.   DiGiambattista, supra at 431-432.      Acknowledging the

phenomenon of false confessions, we concluded that the problem

is best addressed through the "strict analysis of the

circumstances of [an] interrogation as they affect the

voluntariness of a defendant's statement."       Id. at 432.

     On appeal, the defendant asks us to reconsider expanding

the corroboration rule as it applies to juvenile confessions in

light of research that juveniles are more likely than adults to
                                                                     8


confess to crimes they did not commit -- research to which no

citation is provided.   He argues that his case illustrates the

need for an expanded rule requiring additional evidence that the

accused perpetrated the crime because although there is no

question that a crime occurred -- satisfying Forde -- there is

no evidence, aside from the defendant's confession, linking him

to it.

     We decline to expand the rule on this record.   The

defendant fails to articulate why our practice of rigorously

examining the voluntariness of a defendant's confession is an

inadequate prophylactic measure against the use of false

confessions in securing a conviction.   Indeed, even if we were

to expand the rule, it would not aid the defendant's case.      In

addition to the defendant's admission, the Commonwealth

presented evidence at trial linking the defendant to the murder,

including testimony that (1) a young man was seen fleeing from

the scene of the shooting; (2) the young man had a firearm

fitting the description of a revolver in his possession as he

fled; (3) the young man was wearing a distinctive baseball cap,

which fell to the ground; (4) the cap belonged to the defendant;

and (5) the victim and the defendant were known to each other.

     The defendant also asks for unspecified relief under G. L.

c. 278, § 33E, on the basis that the jury could not properly

assess the voluntariness of his admission in this case.    We
                                                                    9


disagree, as the jury heard extensive evidence about the

circumstances surrounding the defendant's statements, and were

properly instructed on the humane practice rule.    We therefore

decline to grant relief under § 33E.

     b.   Motion to suppress the defendant's statements.   The

defendant next asserts error in the denial of his pretrial

motion to suppress his statements to the police based on his

claim that they were involuntary and coerced.    The Commonwealth

argues that the defendant waived this argument by failing to

brief the issue in accordance with Mass. R. A. P. 16 (a) (4), as

amended, 367 Mass. 921 (1975). 1   In his brief, the defendant does

not dispute the factual findings of the judge who heard the

motion (pretrial motion judge) as to the credibility of

witnesses, but the defendant states that he "does dispute the

conclusions of law."   The defendant then states that he

incorporates by reference the authorities cited in the

defendant's application to a single justice in the county court

for leave to prosecute an interlocutory appeal "in the interests

of judicial economy and brevity."    The defendant additionally

cites to authorities apparently not cited in the prior filings,

     1
       Rule 16 (a) (4) of the Massachusetts Rules of Appellate
Procedure, as amended, 367 Mass. 921 (1975), requires that the
appellant's argument "contain the contentions of the appellant
with respect to the issues presented, and the reasons therefor,
with citations to the authorities, statutes and parts of the
record relied on. . . . The appellate court need not pass upon
questions or issues not argued in the brief."
                                                                  10


but does not provide complete citations or any argument as to

why those authorities undermine the rulings of the pretrial

motion judge.

     We agree with the Commonwealth that the defendant's

treatment of this issue in his brief does not rise to the level

of appellate argument required by rule 16 (a) (4) and is

therefore technically waived. 2   However, review under G. L.

c. 278, § 33E, requires us "to consider all issues apparent from

the record, whether preserved or not."    Commonwealth v.

Randolph, 438 Mass. 290, 294 (2002).    Thus, we review the denial

of the motion to suppress, and if there was error, we determine

whether the error created a substantial likelihood of a

miscarriage of justice in the verdict.    Id.

     "In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of his ultimate findings and

conclusions of law.'"   Commonwealth v. Scott, 440 Mass. 642, 646

(2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002).

     Following an evidentiary hearing, the pretrial motion judge

found the following facts that we conclude are supported by the

     2
       In his reply brief and at oral argument, the defendant
argued it was not his intention to waive this claim, but rather
incorporated the authority contained in the trial pleadings in
the interest of "judicial economy." This contention is
unavailing.
                                                                   11


evidence.   In investigating the victim's murder, the detectives

initially brought the defendant's older brother, Cassim, to the

police station for questioning because they had received

information that he had been seen wearing a blue Detroit Tigers

baseball cap, similar to the one found near the scene of the

shooting.   Apparently satisfied that Cassim was not involved in

the shooting, he was subsequently dropped off at home by a

police officer after the interview.    Weaver was upset that

Cassim had been taken to the police station.

     After speaking with Cassim, the focus of the investigation

shifted to the defendant.    O'Leary went to the Weaver residence,

apologized for bringing Cassim to the police station, and told

Weaver that he wanted to speak to the defendant about the

victim's murder.    Weaver knew the victim and was aware of the

shooting.   Weaver told the police that the defendant was away at

camp and that he would be returning on Sunday, August 24.

Weaver and O'Leary agreed that they would meet, with the

defendant present, on Monday, August 25.

     In the time between speaking with Weaver and the

anticipated interview with the defendant, O'Leary learned that

the Boston police had arrested the defendant on a drug offense

on July 26, 2003.    The booking sheet generated after that arrest

indicated that the defendant was wearing a Detroit Tigers
                                                                    12


baseball cap.    This baseball cap closely resembled the baseball

cap found near the scene of the victim's shooting.

     At approximately 8:30 P.M. on August 25, O'Leary returned

to the Weaver home with another detective to meet with the

defendant.   Although Weaver was cordial and respectful, the

presence of the detectives in her home caused her to feel very

uncomfortable.   Weaver had not had any previous contact with the

police and she was still upset and concerned about the

detectives conducting the interview with Cassim.    She invited

the detectives to sit at the dining room table where she and the

defendant joined them.    At some point during the conversation,

Weaver left the table to continue cooking dinner in the

adjoining kitchen.    The apartment had an open floor plan and the

view from the dining room table to the kitchen was unobstructed.

     Before the detectives began questioning the defendant,

O'Leary produced a waiver form that contained a printed version

of the Miranda warnings especially for juveniles.    Upon seeing

the form, Weaver asked if it was necessary to give her son the

Miranda warnings.    O'Leary told her that it was "routine" and

then explained that because his purpose was to question the

defendant about the victim's shooting, the defendant should be

advised of his Miranda rights before any questioning took place.

O'Leary first asked the defendant to complete the part of the

form containing his personal information.    The defendant did so
                                                                   13


at his mother's direction.   O'Leary read each of the rights from

the form and then asked Weaver and the defendant if they

understood them.   He also asked them to initial the form after

each warning to indicate that the rights had been explained to

them.   The pretrial motion judge concluded that Weaver, though

not highly educated, is an intelligent woman and understood

those rights.

     Weaver noticed that the defendant was becoming "aggravated

and frustrated" as the rights were being explained.   She told

him to relax and breathe while encouraging him to sign the form.

She and the defendant verbally acknowledged that they understood

the rights being explained and initialed the form as requested.

Weaver never explained her understanding of these rights to the

defendant.

     After Weaver and the defendant signed the form, O'Leary

told Weaver that she could speak with her son privately.   They

went to the area near the stairs, away from where they had been

sitting.   After a few minutes, they returned to the dining room.

O'Leary stated that if they understood the rights and if they

agreed to speak with them, the defendant should sign the part of

the form that acknowledged that he had taken advantage of the

opportunity to speak with his mother outside the presence of the

police officers.   The defendant and his mother signed the form.
                                                                   14


     The detectives then questioned the defendant about the

victim's shooting for about three hours.   Weaver occasionally

left the table to continue cooking dinner but remained within

earshot of the interview at all times.   The defendant denied

that he was in the area of Wendover Street on the night of the

shooting, that he was associated with any of the individuals

named by the police, or that he knew about a fight involving the

victim and other youths who had accused the victim of stealing a

bicycle.

     The detectives asked more difficult questions that left no

doubt that they suspected the defendant of having been involved

in the shooting.   The defendant was unaware that the detectives

had information that the defendant had fallen from his bicycle

the night of the shooting.   O'Leary asked the defendant how (not

if) the defendant had hurt his leg; the defendant said that he

had injured it playing basketball.   Signaling his disbelief,

O'Leary asked the defendant if it was possible that he had

injured himself by falling off his bicycle the night of the

shooting.    The defendant denied this, and said whoever said that

was lying.   When pressed about when the basketball injury

occurred, the defendant was unable to specify the date.   Weaver

volunteered that they had gone to church on August 10 and that

the defendant was not limping at that time.   After consulting a

calendar and reviewing the events of the weeks passed, the
                                                                    15


defendant said that his injury occurred two days after the

shooting.

     The detectives then questioned the defendant about his

Detroit Tigers baseball cap.    The defendant admitted to wearing

such a cap when he was arrested on July 26.    He also agreed that

the cap was distinctive on account of the airbrushed letter "D"

on either side of the logo.    The defendant said that he had

taken the cap to an establishment in downtown Boston to have the

distinctive markings placed on it.    When asked where the cap

was, the defendant stated that it was lost or stolen the same

day that he hurt his leg playing basketball.    When pressed on

the date, the defendant stood by his statement that it was lost

on August 12.

     O'Leary then told the defendant that a witness had observed

a black male matching the defendant's description running from

the scene of the shooting and losing a baseball cap that had

been recovered by the police.    He said that if the defendant was

not wearing the cap it must have been Cassim.    The defendant

denied that Cassim was at the scene.    O'Leary expressed his

confidence that the defendant was present on Wendover Street on

August 10 and was involved in the shooting.    The interrogation

was terminated shortly thereafter.    O'Leary told the defendant

that he "needed to know the truth" and that the investigation
                                                                    16


would continue.    O'Leary told Weaver that he did not believe the

defendant's story.

       Although he made no promises of leniency, O'Leary urged

Weaver to "sit down and talk with [the defendant]," "have a

heart to heart talk," and "try to figure out" his role in the

events of the shooting.    O'Leary did not suggest questions to

Weaver, but he suspected that the defendant was involved and was

hoping for whatever information Weaver could provide to assist

in the investigation.

       The pretrial motion judge found that neither Weaver nor the

defendant asked the detectives to leave their home, nor did they

ever request an attorney or seek in any way to terminate the

interview.    The defendant's demeanor during the questioning was

sober and coherent, except for when he seemed to be agitated

that the same questions were being asked repeatedly.    The

defendant did not appear to be under the influence of drugs or

alcohol, incapacitated, or incompetent.    Although the detective

suspected that the defendant was involved in the shooting, he

did not have an arrest warrant and Weaver was free to terminate

the questioning at any time.

       After the detectives left, Weaver began questioning her

son.    She was upset that the detectives had come to her home and

was concerned with some of the defendant's answers to their

questions.    She was particularly concerned that the defendant's
                                                                    17


baseball cap may have been found at the scene of the shooting

and she wanted answers from him.     The pretrial motion judge

found that she was as much concerned with her own need to

clarify her son's involvement in a very serious crime as she was

with the detective's request that she speak with the defendant.

In her own words, she "wanted to have some peace with this

thing."    She asked the defendant the same questions that she had

heard the detectives asking and did not believe the defendant's

answers.     After about an hour, she stopped questioning the

defendant, and then sat in a chair for most of the night

thinking about what had just happened.

     O'Leary telephoned Weaver the next morning while she was at

work to ask if she had had the "heart to heart" talk with the

defendant.    Weaver told him that she had not, but would when she

got home from work.    She did not tell O'Leary about her

conversation with the defendant from the night before.

     Because she was distracted by the events of the previous

evening, Weaver decided to leave work early and arrived home

around 10 A.M.    She decided to talk with the defendant again

because she "didn't have peace with this thing in my mind."

After about an hour she stopped questioning him because the

questions and answers gave her a headache.    About one-half hour

later, she called the defendant back to resume her questioning.

She brought God into the conversation, and told the defendant
                                                                    18


that a boy had died and that such a thing could not be a secret

between children, that God knew about it, and that the defendant

would have no life at all if he did not tell what he knew about

the killing.   She continued to question him on and off until the

late afternoon.   In an effort to get the defendant to tell the

truth, she resorted to pounding her fist on the kitchen table

and gritting her teeth.   The pretrial motion judge found that in

seeking the truth about the defendant's involvement in the

shooting, Weaver was motivated by a desire to do the right thing

in accordance with her personal spiritual beliefs and was not

acting as an agent of the police.

     Weaver then prayed again and told the defendant she would

ask him two questions.    She asked if he was in the area when the

shooting occurred; the defendant said, "Yes."   She then asked if

he did it or if he knew who did it.   The defendant put his head

down but said nothing; Weaver took this gesture to mean "Yes."

Weaver, who the pretrial motion judge found to be a woman of

sincere and deeply held religious convictions, began to cry and

to pray out loud.   The defendant's sister came into the house

and joined her mother in prayer.    Having realized the defendant

may have been involved in a murder, Weaver insisted that the

defendant had to confess for the good of his soul.

     The pretrial motion judge found that the concern and love

that Weaver felt for her son expressed itself at this point in
                                                                     19


her singular focus on his spiritual rather than his legal well-

being.   She did not give the defendant any advice or counsel

that would have made him aware of the need to avail himself of

the constitutional protections to which he was entitled.       She

did not tell the defendant to remain silent but rather advised

him to tell the truth to the police.     She did not seek legal

assistance for her son.

     At approximately 4 P.M., Weaver tried to contact O'Leary.

He called her back at around 8 P.M. and she told him that she

was bringing the defendant to speak with him.    O'Leary replied

that he assumed the defendant was involved and Weaver said,

"Yes."

     In the midst of the talk about God and surrender as the way

to salvation, the defendant told his mother that he did not want

to go to the police station.    In the end, however, he succumbed

to his mother's entreaties that he confess for the good of his

soul and turn himself in to the police.    Weaver formulated a

plan that they would go to the police station, that he would

say, "I shot Germaine Rucker," and the detectives would then

take him into custody.    He was to say nothing more until a

lawyer was appointed to represent him.    Sometime after midnight

on August 27, the Weaver family concluded their prayer session

and left their home to go to the police station which was a

short distance away.   On the way, they prayed out loud.   When
                                                                    20


they arrived at the station, at approximately 12:30 A.M., they

stood together in a circle, praying for the defendant.    The

defendant was crying.    They waited for O'Leary and the other

detective to arrive.    No police officer had requested that the

defendant be brought to the police station.

     When the detectives arrived, Weaver told O'Leary that the

defendant had something to say to them, that she expected them

to take him into custody after his statement and that she wanted

him to have an attorney before they questioned him any further.

Realizing that the defendant was about to make an inculpatory

statement, O'Leary indicated that he would not take any

statement until the defendant was represented by counsel.

However, he did not tell the defendant to remain silent until

they could arrange for an attorney.    At the same time, O'Leary

produced a juvenile Miranda form from his briefcase and began

reciting the warnings to the defendant.    As he did so and before

he could finish reading the rights, the defendant said, "I shot

Germaine Rucker."   O'Leary then arrested the defendant and read

him his rights.   Until the defendant made the statements, he was

free to leave the station.

     i.   August 25 statements.   The defendant first argues that

the statements made in his home on August 25, 2003, should have

been suppressed because he did not validly waive his Miranda

rights before speaking with the police and because his
                                                                   21


statements were not voluntary.    Rejecting these contentions, the

pretrial motion judge concluded that the Miranda warnings were

not required and that the defendant's statements were

voluntarily made.   We agree.

     A.   Custodial interrogation.   Miranda warnings are required

only when a defendant is subjected to a custodial interrogation,

and "a defendant's failure to receive or understand Miranda

warnings, or police failure to honor Miranda rights, does not

result in suppression of a voluntary statement made in a

noncustodial setting" (citation omitted).   Commonwealth v.

Libby, 472 Mass. 37, 40 (2015).   Whether an interrogation is

custodial depends on the "objective circumstances of the

interrogation, and not on the subjective views of either the

interrogating officers or the person being questioned."

Commonwealth v. Sneed, 440 Mass. 216, 220 (2003).   This inquiry

focuses on whether a reasonable person in the defendant's

position would believe that his freedom of movement was

restricted to the degree associated with formal arrest.

Commonwealth v. Morse, 427 Mass. 117, 123 (1998).   In

determining whether a defendant was in custody, the court

considers "(1) the place of the interrogation; (2) whether the

police conveyed any belief or opinion that the person being

questioned was a suspect; (3) whether the questioning is

aggressive or informal; and (4) whether the suspect was free to
                                                                 22


end the interview by leaving the place of interrogation, or

whether the interview ended with the defendant's arrest."

Commonwealth v. Murphy, 442 Mass. 485, 493 (2004).

     We agree with the pretrial motion judge's findings that the

environment in which the defendant was questioned was not

inherently coercive because it occurred in the defendant's home,

on a date and time of his convenience, and in his mother's

presence.    See Commonwealth v. Conkey, 430 Mass. 139, 144

(1999), S.C., 443 Mass. 60 (2004) (interrogation not custodial

where defendant allowed police into home to question him).

Although the detectives informed the defendant that they

believed he was involved in the crime being investigated, they

did not coerce or threaten the defendant during the interview,

and the defendant and his mother were free to terminate the

interview at any time.

     We appreciate that Weaver, and not the defendant, invited

the detectives into their home and permitted them to conduct the

interview.    Nonetheless, we agree with the pretrial motion judge

that a reasonable person in the defendant's position would not

have viewed his questioning as coercive or believed that his

freedom of movement was curtailed to the degree of arrest.

Accordingly, the Miranda warnings were not required in

connection with the August 25 interrogation.
                                                                    23


     B.   Interested adult.   We also agree with the pretrial

motion judge's conclusion that, even if Miranda warnings were

required, there is no merit to the defendant's argument that his

waiver was invalid because he was not afforded the special

protections due to juveniles.    "Investigating officials

permissibly may interview a juvenile suspected of a crime, and a

statement that is the product of that interview, if knowing and

voluntary, may be admitted at trial against the juvenile."

Commonwealth v. Philip S., 414 Mass. 804, 808 (1993).    However,

the Commonwealth bears a heavy burden of demonstrating that a

defendant knowingly and intelligently waived his privilege

against self-incrimination.    Commonwealth v. Berry, 410 Mass.

31, 34 (1991), S.C., 420 Mass. 95 (1995)    Where a defendant is a

juvenile, the court proceeds with "special caution when

reviewing purported waivers of constitutional rights" (quotation

omitted).   Id.   Where a juvenile is at least fourteen years of

age, the Commonwealth must demonstrate that prior to waiving his

rights, he was given the opportunity to consult with an

interested adult who was informed of, and understood, those

rights.   Id. at 35.

     In his motion to suppress, the defendant argued that his

mother was not an "interested adult" because she did not

understand the Miranda warnings and because she felt compelled

to sign the waiver to have the defendant sign the waiver.    The
                                                                     24


defendant also denied having the opportunity to consult with

her.

       In determining whether an adult is an interested adult,

"the facts must be viewed from the perspective of the officials

conducting the interview."     Philip S., 414 Mass. at 809.    The

court examines whether, at the time of the investigation, "it

should have been reasonably apparent to the officials

questioning a juvenile that the adult who was present on his or

her behalf lacked capacity to appreciate the juvenile's

situation and to give advice, or was actually antagonistic

toward the juvenile."    Id.   If such facts are present, the court

is warranted in finding that the juvenile was not assisted by an

interested adult and was not afforded the opportunity for

consultation.    Id.

       Here, the pretrial motion judge explicitly found that

Weaver understood the Miranda warnings, and we see no grounds to

disturb this finding.    To the extent that the testimony of

Weaver and that of the detectives differed on this point, we

note that credibility determinations "are the province of the

motion judge."    Commonwealth v. Johnson, 461 Mass. 44, 48

(2011).    Moreover, viewing the circumstances from the

perspective of the officers, it appeared that Weaver was an

intelligent, responsible adult who cared for her son and was

concerned for his welfare.     Additionally, the record reflects
                                                                   25


that Weaver understood why the police were questioning her son,

and she remained present or within listening distance throughout

the interview.    Nor was there any apparent animosity between the

defendant and Weaver.

     The judge also found that Weaver and the defendant had had

a private consultation prior to signing the form and waiving

their rights.    Even if Weaver and the defendant did not speak

during this time, we note that "[i]t is not necessary for such a

juvenile actually to consult with the interested adult, for it

is the opportunity to consult that is critical."    Berry, 410

Mass. at 35.

     Additionally, the motion judge correctly found that Weaver

was an interested adult despite encouraging the defendant to

speak with the detectives and to tell the truth.    "We reject the

notion that a parent who fails to tell a child not to speak to

interviewing officials, who advises the child to tell the truth,

or who fails to seek legal assistance immediately is a

disinterested parent."    Philip S., 414 Mass. at 810.   See

Commonwealth v. Quint Q., 84 Mass. App. Ct. 507, 517 (2013)

(mother who advised son to be truthful with police was

interested adult despite giving advice that would not have

comported with that of lawyer).    In other words, an interested

adult is not a proxy for a lawyer.    Accordingly, we conclude
                                                                    26


that the defendant was afforded the protections of the

interested adult rule.

     C.   Valid waiver.   Even assuming the Miranda warnings were

required, we conclude the defendant's waiver of his Miranda

rights was valid.   In determining whether a waiver is knowing

and voluntary, the court examines the totality of the

circumstances surrounding the waiver.    See Commonwealth v.

Mazariego, 474 Mass. 42, 52-53 (2016).    Factors relevant to this

inquiry include "promises or other inducements, conduct of the

defendant, the defendant's age, education, intelligence and

emotional stability, experience with and in the criminal justice

system, physical and mental condition, the initiator of the

discussion of a deal or leniency . . . and the details of the

interrogation, including the recitation of Miranda warnings"

(citation omitted).   Commonwealth v. Walker, 466 Mass. 268, 274

(2013).

     The facts support the pretrial motion judge's conclusion

that the defendant's waiver was knowing and voluntary.    The

defendant and his mother were provided with Miranda warnings,

which both understood.    The interrogation took place in the

defendant's home and in the presence of his mother.    The record

did not show that the defendant's will was overborne by his

mother's directions to sign the form.    Although the interview

lasted some time, the questioning was generally nonaggressive
                                                                  27


and the police did not make any threats or promises to the

defendant.    The defendant was young, but was of average

intelligence and had had at least one prior experience with the

police.   His responses to questions were coherent, and there was

no evidence that he was under the influence of alcohol or other

substances.    Nor did the defendant present any evidence that his

mental state was otherwise compromised.    The defendant also made

several statements aimed at exculpating himself, including

stating that he was not at the scene of the shooting and

providing an explanation for the injury to his leg.    See

Commonwealth v. Vazquez, 387 Mass. 96, 100 (1982) (exculpatory

statements tend to show defendant's statements are voluntary).

     D.   Voluntariness.   Due process requires a separate inquiry

into the voluntariness of a defendant's inculpatory statements.

Commonwealth v. Siny Van Tran, 460 Mass. 535, 559 (2011).    "A

voluntary statement is one that is the product of a rational

intellect and a free will, and not induced by physical or

psychological coercion" (citation and quotations omitted).

Commonwealth v. Monroe, 472 Mass. 461, 468 (2015).    The court

examines the totality of the circumstances to determine whether

the defendant's statements were the product of free will and

rational intellect and "not the product of inquisitorial

activity which had overborne his will" (citation omitted).    Siny

Van Tran, supra at 559.    Relevant factors include "the
                                                                    28


defendant's age, education, intelligence, physical and mental

stability, and experience with the criminal justice system."

Id.   Applying these factors to the circumstances, we conclude

that the defendant's waiver was knowing and voluntary for

largely the same reasons set forth above.     Additionally,

although the defendant expressed frustration with the

questioning, the record does not show that he was agitated or

emotionally overwrought.    Cf. Monroe, 472 Mass. at 470-471

(statements coerced where defendant demonstrated disturbed

emotional state, was threatened by police and was crying, and

was subjected to hostile interview).     Given these circumstances,

the pretrial motion judge did not err in concluding that the

defendant's statements on August 25, 2003, were voluntary, and

not the product of physical or psychological coercion.

      ii.   August 27 statement.   The defendant also argues that

the motion judge erred in denying his motion to suppress his

statement at the police station, "I shot Germaine Rucker,"

because it was obtained in violation of his Miranda rights and

was involuntary.    As the pretrial motion judge correctly

concluded, the Miranda warnings were not required because the

defendant's statement was not the product of interrogation or

its functional equivalent by the police.     See Commonwealth v.

Gonzalez, 465 Mass. 672, 675 (2013) ("term 'functional

equivalent' includes 'any words or actions on the part of the
                                                                   29


police [other than those normally attendant to arrest and

custody] that the police should know are reasonably likely to

elicit an incriminating response from the suspect'" [citation

omitted]).   Here, the detective was reciting the Miranda

warnings when the defendant made his statement.    Although the

detectives anticipated that the defendant would make a statement

and were therefore providing the Miranda warnings, the statement

was not made because of words or actions by the detectives meant

to elicit it.

     A.   Agent of the police.   The defendant also argues that

his statement should have been suppressed because his mother

acted as an agent of the police when she brought him to the

police station to make the statement.    A private party is

considered a State agent when government officials prompt the

party to act or participate with the party in an action which

they themselves could not have legally engaged.    Commonwealth v.

Jung, 420 Mass. 675, 686 (1995).    An individual is not a State

agent if no promises are made in exchange for the individual's

help and if nothing was offered or asked of that individual.

Commonwealth v. Reynolds, 429 Mass. 388, 393 (1999), quoting

Commonwealth v. Harmon, 410 Mass. 425, 428 (1991).    Here, the

detectives urged Weaver to have a heart to heart conversation

with her son to determine whether he participated in the

shooting, and although he followed up on this request with a
                                                                    30


telephone call to Weaver, he did not otherwise make any threats

or promises to obtain her assistance.     Additionally, the

detectives do not appear to have been trying to gain information

through Weaver that they could not otherwise legally obtain

themselves, especially where the defendant voluntarily submitted

to questioning about the shooting.     Moreover, the pretrial

motion judge's finding that Weaver aggressively questioned the

defendant out of her desire to do what was right in accordance

with her personal spiritual beliefs undercuts the defendant's

argument.   See Commonwealth v. Foxworth, 473 Mass. 149, 158

(2015); Reynolds, 429 Mass. at 393 (individual who has not

entered into agreement with government or who reports

incriminating evidence to police out of conscience not acting as

government agent [quotation and citation omitted]).     We

therefore reject the defendant's contention that Weaver was

acting as an agent of the police in encouraging the defendant's

confession.

     B.   Voluntariness.   We lastly consider the defendant's

argument that his statement at the police station was

involuntary and the product of coercion by his mother.       "[U]nder

the law of this Commonwealth, a judge must determine the

voluntariness of statements extracted by private coercion,

unalloyed with any official government involvement" (quotation

and citation omitted).     Commonwealth v. Paszko, 391 Mass. 164,
                                                                  31


176-177 (1984).   "[A] statement obtained through coercion and

introduced at trial is every bit as offensive to civilized

standards of adjudication when the coercion flows from private

hands as when official depredations elicit a confession"

(citation omitted).   Commonwealth v. Allen, 395 Mass. 448, 455

(1985).   Accordingly, our inquiry is governed by the same

analysis delineated above regarding the voluntariness of the

defendant's August 25 statements.

     The defendant argues that his mother coerced his August 27

confession by relentlessly questioning him for two days about

his involvement in the shooting, by demanding that he tell the

truth, and by making him feel guilty by praying and invoking God

and the need to "be at peace," and by forcing him to travel to

the police station to confess.   It is well-settled that a

defendant may offer evidence that a relative's involvement in

questioning about a crime is coercive.   See Commonwealth v.

McCra, 427 Mass. 564, 569 (1998); Commonwealth v. Adams, 416

Mass. 55, 60-61 (1993).   The pretrial motion judge concluded

that although Weaver's exhortations played a major role in the

defendant's decision to confess, the circumstances of the

confession did not evidence that the defendant's will was

overborne to the extent that he lost his ability to make an

independent decision.   Cf. Commonwealth v. Burgess, 434 Mass.

307, 314 (2001) (police may "broadly" suggest that it would be
                                                                   32


best for suspect to tell truth); Commonwealth v. Cunningham, 405

Mass. 646, 658 (1989) (defendant's statement, prompted by urging

of police and priest that it would be best to tell truth, not

psychologically coerced where defendant made voluntary decision

to make statement, in part to unburden troubled conscience);

Philip S., 414 Mass. at 813 (court declined to consider requests

that juvenile tell truth as coercive practice).

     We agree with the pretrial motion judge's findings that the

defendant was not physically or psychologically coerced by his

mother and her religious beliefs such that he could not resist

her pleas that he tell the truth.   The defendant and his family

prayed at the police station, and the defendant cried, but he

was not otherwise overwrought such that his statement was not

the product of free will and a rational intellect.   Moreover,

the defendant does not argue that his mother's efforts to get

him to confess were an improper appeal to his religious beliefs.

In fact, the record does not demonstrate whether the defendant

held the same beliefs as his mother.   Cf. United States v.

Miller, 984 F.2d 1028, 1032 (9th Cir.), cert. denied, 510 U.S.

893 1993);   Mersereau v. State, 286 P.3d 97, 115 (Wyo. 2012)

(court considered whether appeal to suspect's religious beliefs

was unduly coercive).   Nor did his mother, in invoking God,

indicate that the defendant would be treated more leniently if

he confessed.   We thus conclude that Weaver's questioning of the
                                                                      33


defendant did not rise to the level of improper psychological

coercion that would render his statement involuntary, and the

defendant's confession on August 27 was a free and voluntary

act.

       Accordingly, we conclude that the judge did not err in

denying the defendant's pretrial motion to suppress on the

various grounds asserted by the defendant.

       3.   Ineffective assistance of counsel.   a.   Mental health

expert.     The defendant argues that the judge who heard one

portion of his motion for a new trial (first new trial motion

judge) 3 erroneously denied that portion of the motion, which was

based on the failure of the defendant's trial counsel to

investigate the defense of psychological coercion adequately by

not consulting with a mental health expert or presenting expert

testimony about the voluntariness of the defendant's confession

at either the suppression hearing or at trial. 4      The defendant

also contends that the first new trial motion judge erred


       3
       In his motion for a new trial, the defendant asserted two
bases for ineffective assistance of counsel. Because the trial
judge had retired, the issues were bifurcated and decided by
judges other than the trial judge.
       4
       The defendant initially argued that trial counsel should
have consulted with an expert and presented expert testimony on
the existence and etiology of false confessions, in addition to
expert testimony on the issue of voluntariness. On appeal, the
defendant abandons this argument and acknowledges we have not
yet ruled such evidence admissible. Commonwealth v. Hoose, 467
Mass. 395, 419 (2014).
                                                                  34


because he failed to distinguish between testimony concerning

the voluntariness of a statement and the phenomenon of false

confessions.   We conclude that the motion was properly denied,

although for reasons different than those stated by the judge.

     In a written memorandum of decision and order issued after

three days of evidentiary hearings, the first new trial motion

judge made the following findings of fact. 5   The defendant's

trial counsel is a very experienced and highly regarded defense

attorney.   He has practiced law for over forty years and handled

over one hundred murder trials at the trial and appellate level.

Because the defendant was sixteen years of age, trial counsel

spent a great deal of time speaking with the defendant's mother

about the circumstances surrounding the defendant's statements

to her, and formulated the defense that the police used Weaver

as their agent to induce the defendant to admit his involvement

in the homicide.   Trial counsel moved to suppress the

defendant's August 27, 2003, statement to the police on that

     5
       Because the judge who heard this portion of the
defendant's motion for a new trial (first new trial motion
judge) drew facts about the murder, investigation, and
defendant's admission from those found by the judge had who
presided over the defendant's pretrial motion to suppress, we do
not repeat them here. Insofar as relevant here, the first new
trial motion judge based his additional findings on the
affidavits and testimony of the defendant's trial counsel and
Dr. Frank DiCataldo, a psychologist whom the defendant had
retained, as well as the affidavits of the defendant and his
mother, Weaver. The affidavits submitted by the defendant and
Weaver reiterated that the defendant's statements were not the
product of his free will, but rather were coerced by Weaver.
                                                                     35


ground, as well as on the ground that Weaver failed to act as an

interested adult for her son by impermissibly pressuring him to

confess to the police.

     Trial counsel testified that he prepared a defense by

learning the facts of a case and then, starting from scratch,

researching the law as it related to the issues presented.     The

judge found that at the time trial counsel litigated the motion

to suppress and tried the case, he had researched but was not

aware of any appellate or trial court decisions permitting

expert testimony on claimed coerced or false confessions. 6

According to trial counsel, there was no strategic reason not to

consult with or present an expert on psychological coercion, and

that given the nature of the defense, it would not have harmed

the defense to do so.

     In connection with the motion for a new trial, Dr. Frank

DiCataldo, a forensic psychologist, examined the defendant and

testified at the evidentiary hearing.   DiCataldo did not find

any evidence that the defendant suffered from any significant

cognitive limitations and did not detect any signs of mental

illness.   After administering two psychological tests,

     6
       The first new trial motion judge noted that trial counsel
had defended one case where a codefendant's request to present
expert testimony on coerced and false confessions was denied
because it failed to satisfy the standards of expert testimony,
and that the ruling was affirmed on appeal. See Commonwealth v.
Robinson, 449 Mass. 1, 5-7 (2007). Trial counsel acknowledged
he would have been aware of the decision.
                                                                  36


interviewing the defendant, and gaining an understanding of the

defendant's family dynamics, DiCataldo opined that by virtue of

a protracted investigation by his mother, the defendant's

admissions were not the product of his own free will or rational

intellect.    DiCataldo acknowledged that the basis for his

opinion was limited because he had never evaluated a

voluntariness claim where the asserted coercive force was a

parent, or where the statement was made ten years prior to the

evaluation.    DiCataldo also acknowledged that neither of the

tests he administered to the defendant was specifically focused

on juveniles and that there are no specific psychological tests

to determine whether a person's will has been overborne.

     Applying the standard set forth in Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974), the first new trial motion

judge denied the defendant's motion.   In doing so, he rejected

the defendant's claim that trial counsel was ineffective for

failing to consult with an expert witness.   The judge found that

it was more likely than not that trial counsel was aware of the

absence of Massachusetts case law permitting expert testimony on

the psychology of coerced and false confessions, and did not

consult an expert because it would not have added value to the

defense.

     The judge further concluded that the defendant failed to

satisfy the prejudice prong of a Saferian analysis because he
                                                                   37


could not demonstrate, as a threshold matter, that DiCataldo's

testimony would have been admissible under the foundational

requirements of Mass. G. Evid. § 702(b) (2016).   Additionally,

the judge found that the parent-child dynamic is so generally

familiar to a fact finder that expert testimony was not required

to further illuminate the issue for a jury.   Moreover, the

psychological influences of a parent on her child are

categorically different from those of other authority figures,

such as the police.   Thus, the judge found, DiCataldo's reliance

on scientific research involving the impact of psychologically

coercive or manipulative techniques by police to obtain a

statement do not provide a basis for his opinion that, in this

case, the defendant was coerced by his mother's conduct.     The

judge concluded that because DiCataldo's proffered testimony was

inadmissible under § 702(b), trial counsel's failure, either to

consult an expert or attempt to present expert testimony, could

not have prejudiced the defendant's case.

     Where a defendant has been convicted of murder in the first

degree, the court evaluates a claim of infective assistance

claim to determine whether "there exists a substantial

likelihood of a miscarriage of justice," Commonwealth v.

Williams, 453 Mass. 203, 204 (2009).   The court asks "[1]

whether there was an error in the course of trial (by defense

counsel, the prosecutor, or the judge), and, [2] if there was,
                                                                    38


whether that error was likely to have influenced the jury's

conclusion" (citation omitted).   Commonwealth v. Lang, 473 Mass.

1, 19 (2015) (Lenk, J., concurring).    This standard is more

favorable than the constitutional standard for determining

ineffectiveness of counsel.    Commonwealth v. Gonzalez, 443 Mass.

799, 808 (2005).   The court considers the defendant's claim

"even if the action by trial counsel does not constitute conduct

'falling measurably below that . . . of an ordinary fallible

lawyer'" (citation omitted).   Id. at 808-809.

     Where a defendant challenges tactical or strategic

decisions by trial counsel, the court will find ineffective

assistance "only if such a decision was manifestly unreasonable

when made."   Commonwealth v. Diaz, 448 Mass. 286, 288 (2007).

However, the "manifestly unreasonable standard" only applies

"where the attorney's purportedly constitutionally ineffective

conduct involved a strategic decision, rather than some other

claimed inadequacy such as a lack of appropriate investigation

or preparation by defense counsel."    Lang, 473 Mass. at 20

(Lenk, J., concurring), citing Commonwealth v. Martin, 427 Mass.

816, 822 (1998).

     In Lang, trial counsel was aware of the defendant's

psychiatric history but chose to pursue another defense without

investigating a criminal responsibility defense.    Lang, 473

Mass. at 11-12 (Hines, J., concurring).    A majority of justices
                                                                  39


concurred that the "manifestly unreasonable standard" did not

apply in these circumstances because "strategic choices made

after less than complete investigation are reasonable [only] to

the extent that reasonable professional judgments support the

limitation on investigation."    Id. at 19 (Lenk, J., concurring),

quoting Commonwealth v. Baker, 440 Mass. 519, 529 (2003).

Although Lang and the cases cited therein relate to the adequacy

of an investigation into a lack of criminal responsibility

defense, these cases provide a useful framework for evaluating

the defendant's claim.

     Here, the first new trial motion judge found that there was

no evidence showing that trial counsel's failure to consult with

a mental health expert was a lapse rather than a reasoned

decision.   This finding was confined to trial counsel's

investigation into case law permitting expert testimony on

psychological coercion as it related to false confessions and

did not address trial counsel's strategy with respect to expert

testimony about voluntariness.   We therefore assume without

deciding that trial counsel's failure to consult with a mental

health expert was not a strategic or tactical decision and thus

manifestly unreasonable.   Accordingly, we ask only whether the

failure to consult a mental health expert or to present expert

testimony at trial as to the voluntariness of the defendant's

statements "was likely to have influenced the jury's
                                                                 40


conclusion."    Commonwealth v. Wright, 411 Mass. 678, 682 (1992),

S.C., 469 Mass. 447 (2014).

     In order to carry his burden of demonstrating that the

expert consultation and testimony would have accomplished

something material for the defense, Commonwealth v. Bell, 460

Mass. 294, 303 (2011), the defendant, as a threshold matter,

must demonstrate that DiCataldo's testimony would have been

admissible.    The first new trial motion judge correctly

concluded that DiCataldo's testimony regarding a child's

susceptibility to parental coercion generally, or the

defendant's susceptibility to coercion by his mother would not

have been admissible.

     Section 702 of the Massachusetts Guide to Evidence

governing the admission of expert testimony provides:

          "A witness who is qualified as an expert by
     knowledge, skill, experience, training, or education
     may testify in the form of an opinion or otherwise if

          "(a) the expert's scientific, technical, or other
     specialized knowledge will help the trier of fact to
     understand the evidence or to determine a fact in
     issue;

          "(b) the testimony is based on sufficient facts
     or data;

          "(c) the testimony is the product of reliable
     principles and methods; and

          "(d) the expert has reliably applied the
     principles and methods to the facts of the case."

Mass. G. Evid. § 702 (2016).
                                                                  41



     DiCataldo's evaluation of the defendant was based on his

assessment of the defendant through the administration of

psychological tests and information provided by the defendant

and his mother.   The first new trial motion judge noted that the

facts relied on by DiCataldo were substantially different from

those presented at the hearing on the motion to suppress and

found by the pretrial motion judge.   Additionally, DiCataldo

created his own methodology for forming an opinion about the

voluntariness of the defendant's statement because he was not

aware of any peer-reviewed or generally accepted methodology

within the psychological community that would apply to the

circumstances in this case.

     We have explained that "expert testimony is sufficiently

reliable if the underlying theory or methodology is either (1)

generally accepted in the relevant scientific community; . . .

or (2) satisfies the alternative requirements adopted in

[Commonwealth v. Lanigan, 419 Mass. 15, 24-26 (1994)]" (citation

omitted).   Commonwealth v. Shanley, 455 Mass. 752, 761-762,

(2010).   The defendant claims that he demonstrated the

admissibility of DiCataldo's testimony by establishing general

acceptance in the psychological community.   We disagree.

     First, the defendant relies on the false logic that because

DiCataldo has rendered his expert opinion in other cases in the
                                                                     42


Commonwealth, his opinion was admissible in this case.   We

reject this unsubstantiated statement.   The defendant does not

point to a single case where DiCataldo testified about the

coercion of a child by a parent.

     The defendant further argues that the first new trial

motion judge erred in ruling that DiCataldo's testimony was

inadmissible because the courts of the Commonwealth have long

recognized that a defendant is entitled to present expert

testimony by a mental health expert regarding the voluntariness

of a statement, and that trial counsel should have sought expert

testimony in light of this precedent, and that such testimony is

admissible.   The defendant cites to several cases to illustrate

this point.   Notably, in each of these cases, the proffered

expert testimony related to a mental impairment that called into

question the voluntariness of the defendant's statements.     See,

e.g., Commonwealth v. Boyarsky, 452 Mass. 700, 713 (2008) (panic

disorder); Commonwealth v. Crawford, 429 Mass. 60, 67 (1999),

overruled on another ground by Commonwealth v. Carlino, 449

Mass. 71 (2007) (battered woman's syndrome and posttraumatic

stress disorder); Commonwealth v. Monico, 396 Mass. 793, 798-799

(1986) (head trauma that impacted voluntariness of statements

and raised question of criminal responsibility); Commonwealth v.

Daniels, 366 Mass. 601, 608 (1975) (intellectual disability);

Commonwealth v. Harrison, 342 Mass. 279, 289, 293 (1961) (head
                                                                  43


trauma, mental illness, personality disorder, "defective

intelligence," psychosis); Commonwealth v. Banuchi, 335 Mass.

649, 655-656 (1957) (effect of sudden deprivation of alcohol on

mental capacity of confirmed alcoholic).

     The defendant argues that in rejecting DiCataldo's

testimony as inadmissible, the first new trial motion judge

concluded that "psychology as a science was incapable of

yielding reliable admissible evidence probative of a statement's

voluntariness." Such an assertion is unfounded.    Rather, our

case law demonstrates that when expert testimony as to a novel

or developing area of science is offered, the court carefully

considers whether it is "sufficiently reliable to reach the

trier of fact."   Shanley, 455 Mass. at 761.   See, e.g.,

Commonwealth v. Hoose, 467 Mass. 395, 419 (2014); Crawford, 429

Mass. at 67.

     In addition to determining the reliability of an expert's

proffered testimony, "[t]he judge must also determine whether

the reasoning or methodology can be applied to the facts in

issue -- that is, whether there is a proper 'fit' between the

two."   Shanley, 455 Mass. at 761 n.13.   Here, DiCataldo, in

addition to employing a one of a kind methodology to evaluate

the defendant, relied on research involving the impact of

psychologically coercive or manipulative techniques by police to

obtain a statement to evaluate whether the defendant had been
                                                                     44


coerced by his mother.    Not only is this reasoning a poor "fit,"

but it also depends on expert testimony on false confessions,

which we have not yet ruled admissible.    Hoose, 467 Mass. at

419.

       Similarly misplaced is the defendant's reliance on our

decisions in Commonwealth v. Jackson, 471 Mass. 262, 264 n.5

(2015), cert. denied, 136 S. Ct. 1158 (2016), and Adams, 416

Mass. at 61, where expert testimony was admitted to aid the jury

in assessing the voluntariness of a juvenile's statements.      In

Jackson, supra at 264 n.5, the voluntariness of the defendant's

statements to the police was an important issue at trial.    The

defendant called a clinical psychologist to testify "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."    Id.

       While these facts are superficially similar to the

defendant's case, there are important distinctions to be drawn.

Although the admissibility of the expert testimony was not at

issue in our decision in Jackson, our review of the record

before the court in that case reveals that the defendant was

evaluated by the clinical psychologist because there was a

question of criminal responsibility and competency to stand

trial.    The psychologist conducted a forensic mental health

assessment of the defendant, which included extensive
                                                                  45


investigation into the defendant's past as well as interviews

and a number of psychological assessment tests of the defendant.

He testified that the defendant suffered from attention deficit

disorder and dependent personality disorder, and that these

conditions made him more susceptible to being influenced by

people in positions of authority.   The methodology used by the

psychologist and its application to the facts in Jackson were

profoundly different from those used by DiCataldo.   Moreover,

the defendant in Jackson, 471 Mass. at 264 n.5, presented

evidence that it was his mental health impairments that made him

more susceptible to pressure by authority figures.   Here, the

defendant sought to present evidence that his will was simply

overborne by his mother.   These inquiries are fundamentally

distinct.

     Similarly, in Adams, 416 Mass. at 60-61, we held that it

was error to exclude testimony from the defendant's mother and a

forensic psychiatrist tending to show that the defendant had

been coerced into confessing by the presence of his mother.

Although we do not know the methodology employed by the

psychiatrist in evaluating Adams, it is apparent from the

unpublished memorandum and order that the Appeals Court issued

pursuant to its rule 1:28 following Adams's retrial that there

was a contention that his intellectual abilities or disabilities

may have affected the voluntariness of his statement.   As
                                                                   46


discussed earlier, while we regularly admit expert testimony

regarding the voluntariness of a statement where the defendant

suffers from a mental impairment or mental health issue, there

is no evidence that the defendant here had cognitive limitations

or suffers from a mental illness that would affect his capacity

to make a voluntary statement.

     Finally, we agree with the first new trial motion judge's

determination that the parent-child dynamic is generally

familiar to a fact finder, and that the likelihood of a child

being influenced by a parent is not a matter outside the common

understanding of the average juror, nor is the proposition that

a parent may exert pressure on his or her child a novel one.

Thus, the jury's evaluation of whether the defendant's

statements were psychologically coerced by his mother "could be

accomplished through its common understanding without need of

expert testimony."   Commonwealth v. Bly, 448 Mass. 473, 496

(2007).

     Our conclusion that DiCataldo's testimony would not have

been admissible at trial does not foreclose a defendant from

presenting expert testimony regarding coercion and

voluntariness.   "Determining whether . . . scientific testimony

is reliable often will hinge on the presentations made by the

parties in a particular case . . . and these determinations may

vary appropriately on a case-by-case basis."   Canavan's Case,
                                                                    47


432 Mass. 304, 312 (2000).    In this case, the defendant failed

to show that the methodology used by DiCataldo would be

generally accepted by the scientific community or was otherwise

admissible under the factors articulated in Lanigan.    Because

the testimony would not have been admissible at the defendant's

trial, we cannot conclude that it would have accomplished

something material for the defense such that the jury verdict

would have been different.    Accordingly, the defendant's claim

of ineffective assistance must fail.

     b.   Public trial.   The defendant next claims error in the

denial of the portion of his motion for a new trial that rested

on the ground that his trial counsel was ineffective for failing

to object to the closure of the court room during the entirety

of jury empanelment.

     After an evidentiary hearing, the judge who hear this

portion of the motion (second new trial motion judge) issued a

written memorandum of decision in which she found the following

facts, which are supported by the evidence.    Jury selection

spanned two days.    The approximately ninety venire members made

the court room was very crowded.    They took every available

seat, and those who could not find seats stood wherever they

could.    On the first day of empanelment, a court officer

informed the defendant's mother that she and those accompanying

her that the court room was "closed for jury selection."     They
                                                                    48


were also denied entry the second day of empanelment for the

same reason.    Trial counsel lodged no objection.

     The second new trial motion judge concluded that the sole

reason that a court officer closed the court room to the

defendant's family and other members of the public was the

crowded condition.    The judge found that facts surrounding the

empanelment did not satisfy the criteria articulated in Waller

v. Georgia, 467 U.S. 39, 48 (1984), that may justify a court

room closure, but concluded that the closure did not prejudice

the defendant's case, and accordingly denied the motion.

     A violation of the Sixth Amendment right to a public trial

constitutes structural error.    See Commonwealth v. Jackson, 471

Mass. 262, 268 (2015), citing United States v. Marcus, 560 U.S.

258, 263 (2010).   We agree with the second new motion judge's

conclusion that the closure was a full, rather than partial,

closure of the court room.    See Commonwealth v. Cohen (No. 1),

456 Mass. 94, 111 (2010); Commonwealth v. Lavoie, 80 Mass. App.

Ct. 546, 551-552 (2001), S.C., 464 Mass. 83, cert denied, 133

S. Ct. 2356 (2013).

     Where a meritorious claim of structural error is timely

raised, the court presumes "prejudice, and reversal is

automatic."    Jackson, 471 Mass. at 268, quoting Commonwealth v.

LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct.

317 (2015).    However, the right to a public trial can be waived
                                                                    49


in some circumstances.   Jackson, supra.   "[W]here the defendant

has procedurally waived his Sixth Amendment public trial claim

by not raising it at trial, and later raises the claim as one of

ineffective assistance of counsel in a collateral attack on his

conviction, the defendant is required to show prejudice from

counsel's inadequate performance (that is, a substantial risk of

a miscarriage of justice) and the presumption of prejudice that

would otherwise apply to a preserved claim of structural error

does not apply."   LaChance, supra at 856.

     The defendant did not raise an objection to the court room

closure because his attorney did not understand that the public

had a right to be present during the jury empanelment phase of

the trial proceedings.   The second new trial motion judge's

analysis, which anticipated the rule announced in LaChance,

supra, correctly determined that counsel's inaction was the

product of "serious incompetency, inefficiency, or inattention

to the defendant's Sixth Amendment right to a public trial, and

was not objectively reasonable," but that the defendant

otherwise failed to show that trial counsel's conduct caused

prejudice warranting a new trial.

     On appeal, the defendant does not dispute that he failed to

demonstrate prejudice, but rather asks us to revise the LaChance

rule and instead hold that that a defendant who raises an

ineffective assistance of counsel claim and has established
                                                                    50


that, in failing to object to a court room closure, counsel's

performance fell below that of an ordinary fallible attorney, is

entitled to a presumption of prejudice.    See LaChance, supra at

860-868 (Duffly, J., dissenting).    We decline to do so.

     Moreover, the defendant has not advanced any argument or

demonstrated any facts that would support a finding that the

closure subjected him to a substantial likelihood of a

miscarriage of justice.   Relief is therefore not warranted under

G. L. c. 278, § 33E, and the denial of the motion for a new

trial is affirmed.

     4.   Firearms conviction.   The defendant lastly asks the

court to vacate his firearms conviction on the grounds that the

Commonwealth presented no evidence that he lacked the required

firearms licenses, and thus failed to prove beyond a reasonable

doubt that he did not have a license to carry.    Contrary to the

defendant's assertion, lack of license is not an element of

unlicensed possession, but rather an affirmative defense.

Commonwealth v. Allen, 474 Mass. 162, 174 (2016), and cases

cited.    Accordingly, the defendant bore the burden of producing

evidence that he held a license, and he failed to carry that

burden.

     5.   Review under G. L. c. 278, § 33E.   We have reviewed the

record in accordance with G. L. c. 278, § 33E, and we discern no

basis on which to reduce the verdict of murder in the first
                                                                  51


degree or to order a new trial.   The defendant's convictions are

affirmed.   Based on the record before us, it appears that the

defendant is entitled to the benefit of a corrected mittimus to

reflect that his life sentence under G. L. c. 265, § 2 carries

with it the opportunity for parole consideration after fifteen

years because he was a juvenile at the time of his conviction.

See Diatchenko v. District Attorney for the Suffolk Dist., 466

Mass. 655, 673 (2013), S.C., 471 Mass 12 (2015), and

Commonwealth v. Brown, 466 Mass. 676, 688-689 (2013), S.C., 474

Mass. 576 (2016).   The matter is accordingly remanded to the

Superior Court for further proceedings consistent with this

opinion.

                                    So ordered.
