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revision and are superseded by the advance sheets and bound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

SJC-09264

               COMMONWEALTH   vs.   ANTONIO FERNANDEZ.



        Norfolk.       January 9, 2018. - August 24, 2018.

       Present:    Gants, C.J., Lowy, Cypher, & Kafker, JJ.


Homicide. Firearms. Practice, Criminal, Continuance, Fair
     trial, Sentence, Capital case. Constitutional Law, Fair
     trial, Sentence. Due Process of Law, Fair trial, Sentence.
     Fair Trial.



     Indictments found and returned in the Superior Court
Department on August 6, 2002.

     The cases were tried before Isaac Borenstein, J., and a
motion for a new trial, filed on May 29, 2015, was heard by
Beverly J. Cannone, J.


     John H. Cunha, Jr., for the defendant.
     Pamela L. Alford, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.   Almost as quickly as a verbal spat between two

groups of teenagers erupted, it dissipated.     The defendant,

Antonio Fernandez, and his friends turned their backs and began

riding their bicycles away.    Unprovoked, the defendant got off
                                                                    2


his bicycle, turned to one of his friends, and said, "Fuck that

shit."   He then took out a handgun, cocked it, and walked back

toward the victim.   The defendant aimed the handgun at the

victim and shot him in the chest.   The victim collapsed nearby

and died a short time later.

    At trial, it was uncontroverted that the defendant killed

the victim; the defendant presented a theory of self-defense.      A

Superior Court jury convicted the defendant of murder in the

first degree on the theory of deliberate premeditation and

possession of a firearm without a license.    The defendant does

not challenge that he shot and killed the victim.    He does,

however, argue that (1) the judge abused his discretion by

denying the defendant's motions for funds for an expert and for

a continuance on the eve of trial, (2) the circumstances of the

killing and the fact that he was sixteen at the time of the

killing require a reduction of the verdict, and (3) the

defendant's right to a public trial under the Sixth Amendment to

the United States Constitution was violated because the court

room was closed during jury empanelment.     We discern no

reversible error and, after thorough review of the record,

decline to order a new trial or to direct the entry of a verdict

of a lesser degree of guilt under G. L. c. 278, § 33E.       However,

we remand the matter to the Superior Court for resentencing
                                                                     3


consistent with Diatchenko v. District Attorney for the Suffolk

Dist., 466 Mass. 655, 666 (2013), S.C., 471 Mass. 12 (2015).

     1.   Background.   We recite the facts as the jury could have

found them, reserving certain details for later discussion as

they relate to other issues raised on appeal.

     On the evening of June 20, 2002, the victim attended a

cookout in Brookline to celebrate his graduation from high

school.   Following the cookout, the victim and several friends,

all of whom were between the ages of fifteen and nineteen years

old, traveled to a nearby park to "hang out."    Shortly after

arriving, the victim and his friends saw three male teenagers,

one of whom was the defendant, approach the park on bicycles.1

The defendant and his two friends had traveled from Boston to

Brookline, supposedly "to see some girls."    The defendant and

his friends were all between the ages of fourteen and sixteen;

the defendant was sixteen years old at the time.    The defendant

and his friends entered the park, approached the victim and his

friends, and asked if they had any marijuana.    One of the

victim's friends said that they did not, and the three Boston

teenagers left the park.   Neither the victim nor any of his

friends knew or recognized the defendant or either of his

companions.

     1 There was evidence that the defendant and one of the other
individuals he was with were riding bicycles, while the third
individual approached on foot.
                                                                    4


    The defendant and his friends made their way to a nearby

street, where one of the teenagers sat on the hood of a parked

motor vehicle while the defendant and the third individual sat

on their bicycles.    A short time later, the victim and his

friends also left the park and approached the defendant's crew;

a verbal confrontation ensued.    Although the accounts of the

encounter differed slightly, it appears that the defendant's

group had been laughing at the victim and his friends, and one

of the victim's friends asked the defendant and his friends if

they had a problem.     When this interaction began, the victim was

not involved and instead was riding his bicycle nearby.     The

demeanor of the interaction intensified, with one member of the

defendant's group proclaiming, "Brookline is a bunch of

bitches."   One of the victim's friends told the defendant and

his friends to leave.    When they did not leave, one of the

victim's friends asked the defendant and his friends if they

wanted to "shoot the fair ones," meaning have a fist fight.       The

defendant and his friends group declined, responding, "We don't

fight fair."    At this point, the victim got off his bicycle and

stood by his friend who had been interacting with the

defendant's group.    The victim raised his hands as if ready to

fight and told the defendant and his friends to "[g]et the fuck

out of here."   No punches were thrown, and the spat between the

groups did not escalate beyond name-calling and posturing.
                                                                     5


    One of the defendant's friends suggested that they leave,

warning the defendant that the victim might have a weapon.     The

defendant responded, "He doesn't know what I got."    One of the

defendant's friends responded to him, "Don't do anything

stupid."    At that point, the defendant and his crew turned away

from the victim and his friends and began leaving; it appeared

that the confrontation had ended.

    The defendant rode his bicycle away from the victim and his

friends.    It took the defendant about fifteen seconds to ride in

the vicinity of forty-five feet away from the victim and his

friends.    At that point, having moved away from the scene of the

confrontation, the defendant, unprovoked, stopped and put his

bicycle down.   He turned to one of his friends and said, "Fuck

that shit."   The defendant then pulled out a handgun, cocked it,

and began making his way back toward the victim.    The victim had

not moved, and his hands were in the air; he was not holding

anything.   The defendant stated, "I don't shoot the fair ones,"

pointed the handgun at the victim's chest, and fired.    The

bullet struck the victim in the center of his chest, passing

through his left lung and heart before leaving his body.     The

victim collapsed nearby, bleeding profusely from his chest.        The

defendant ran away laughing.    He and his friends fled the scene.

    Police responded almost immediately and began performing

first aid on the victim, but he died shortly after being shot.
                                                                     6


No gun, and no other weapon, was found on or near the victim's

person.

     Later that night, the defendant bragged about the shooting,

proclaiming that he was "the number one clapper," meaning that

he was the number one shooter.    The following day, the defendant

telephoned one of his friends who was with him during the

shooting and asked if the friend would travel with him to the

Dominican Republic. His friend declined, and the defendant fled

to New York, where he was apprehended three days later.

     At trial, the defendant did not contest that he killed the

victim; instead, he claimed that he was acting in self-defense.

Defense counsel argued that the defendant believed the victim or

one of the victim's friends was armed, and the defendant

believed he was facing serious and imminent bodily harm.     The

jury found the defendant guilty of murder in the first degree on

the theory of deliberate premeditation and possession of a

firearm without a license.

     2.   Discussion.   a.   Motion for funds for an expert and a

continuance.   After several continuances, the defendant's trial

was scheduled to begin on November 13, 2003.2    On November 10,

three days before trial, the defendant filed a motion for funds


     2 The defendant's trial was originally scheduled for October
14, 2003. On September 17, 2003, the trial date was continued
and set for November 10, 2003. On October 24, 2003, the trial
was further continued and set for November 13, 2003.
                                                                     7


to hire an expert on adolescent brain development to evaluate

the defendant and testify in his defense.3    When defense counsel

filed this motion, she had been representing the defendant for

approximately one and one-half years.   Although defense counsel

sought funds to hire an expert on the eve of trial, she did not

claim that she was unprepared for trial.     The trial judge

construed the defendant's "motion for funds" as a motion for a

continuance because granting the motion to hire an expert would

necessitate a continuance of the trial by several months.

     The defendant's motion generally asserted that an expert

could evaluate the development of his brain by conducting a

brain scan.   In the event the scan indicated that the

defendant's brain was underdeveloped for purposes of decision-

making and impulse control, the defendant could then argue, with

the support of expert testimony, that he did not have the

capacity to form the specific intent necessary to commit murder

in the first degree on the theory of deliberate premeditation.

In support of the motion, the defendant attached an article

published by the National Juvenile Defender Center describing

how the science of adolescent brain development had progressed

considerably over the previous five years, and that the

adolescent brain was generally less developed than previously


     3  The defendant also filed a motion in limine to admit the
expert testimony on adolescent brain development.
                                                                     8


believed.   The article further posited that adolescents with

less developed brains tended to react with "gut instinct" rather

than organized, reasoned thought.    The defendant also included

an article describing the technology used to scan the brain as

having "a brilliant future in medicine, psychology, psychiatry,

and in the neurosciences in general, for studying the relation

between [brain] structure and function."    There was nothing in

the materials submitted in support of the defendant's motion

indicating that all adolescent brains develop at the same rate,

or that there was necessarily a direct correlation between an

individual's age and his or her brain development.    According to

the defendant, brain development directly correlated to an

adolescent's ability to control impulses, perform organized

thought, and form specific intent.

    A hearing on the defendant's motion took place the day

before trial was set to begin.   Defense counsel explained that

she began Internet research the week prior, looking for possible

ways to "break this case down from a murder to a manslaughter."

In the course of this research, defense counsel discovered the

materials describing the advances in the science of adolescent

brain development that gave rise to the request for funds to

hire an expert and a continuance.    The article the defendant

principally relied on had been published in April, 2003,

approximately six months earlier.    Defense counsel argued that
                                                                   9


conducting scans of the defendant's brain could demonstrate the

extent to which the defendant's brain was developed, which, in

turn, could potentially indicate whether the defendant was more

likely to think impulsively and whether he was capable of

forming the specific intent to commit murder in the first

degree.

    The judge, who was aware of the advances in the science of

adolescent brain development, acknowledged that the material

submitted indicated that adolescents are "subject to these

potential risks and dangers," but noted that "no study says that

all juveniles develop in the same way," and that the studies had

margins of error.   Critically, the judge noted that the

defendant failed to provide any information suggesting that the

defendant fell within the group of adolescents identified in the

literature.   In other words, the defendant failed to submit

sufficient evidence, such as psychological or behavioral

studies, suggesting brain scans would provide useful information

for the defendant's case.   The judge also noted that although

defense counsel had been representing the defendant for

approximately one and one-half years, she raised this issue for

the first time on the eve of trial.   The judge's decision to

deny the defendant's motion centered on the fact that the

defendant had belatedly requested the continuance and failed to
                                                                  10


substantiate that the defendant fell within the group of

adolescents generally described by the studies.4

     Because the judge's denial had nothing to do with the

request for funds itself, but instead focused on the defendant's

implicit request for a continuance, we consider whether the

judge erred in denying the defendant's motion for a

continuance.5,6   "Whether a motion for continuance should be

granted lies within the sound discretion of the judge, whose

     4 In denying the defendant's motion for a continuance, the
judge stated:

     "I don't think it would have been unreasonable at that
     time, a year-and-a-half ago, to immediately request funds
     for such an evaluation."

The judge further explained:

     "Here we are on the eve of trial, for the first time
     without specific supporting information, you're asking me,
     without the Commonwealth having the opportunity to rebut,
     get their own evidence, witnesses, whatever, for what
     essentially is a several months long, at least, continuance
     to be able to fully explore this to be fair to both sides.
     I don't think the motion is fairly raised at the right time
     without any supporting information. And I'm going to deny
     it for those reasons."

     5 The defendant filed a posttrial motion to reduce the
verdict and a renewed motion for funds to hire an adolescent
brain development expert. The trial judge denied both motions.

     6 The defendant filed a motion for reconsideration
concerning the denial of the motion for funds and a continuance.
The trial judge reiterated that the denial had nothing to do
with the defendant's indigent status or the fact that the
defendant had requested funds. Rather, the judge denied the
motion based on its lack of support and the belated timing of
the motion given that counsel had been involved in the case for
approximately fifteen months.
                                                                   11


action will not be disturbed unless there is patent abuse of

that discretion, which is to be determined in the circumstances

of each case."   Commonwealth v. Pena, 462 Mass. 183, 189 (2012),

quoting Commonwealth v. Bettencourt, 361 Mass. 515, 517-518

(1972).   See Commonwealth v. Snell, 428 Mass. 766, 771-772

(1999), cert. denied, 528 U.S. 1106 (2000) (motion to continue

filed ten days before trial seeking further deoxyribonucleic

acid testing properly denied).   A judge considering a motion for

a continuance may not exercise his or her discretion "in such a

way that denial of a continuance deprives a defendant of the

right to effective assistance of counsel and to due process of

law."   Pena, supra at 190.   See Commonwealth v. Miles, 420 Mass.

67, 85 (1995) (counsel must have reasonable opportunity to

prepare defense).   Although there is no "mechanical test" for

determining whether the denial of a continuance constituted an

abuse of discretion, Commonwealth v. Cavanaugh, 371 Mass. 46, 51

(1976), "we are guided by the circumstances present in every

case, particularly in the reasons presented to the trial judge

at the time the request is denied" (citation and quotation

omitted).   Commonwealth v. Cruz, 456 Mass. 741, 747 (2010).      See

Commonwealth v. Caldwell, 459 Mass. 271, 285 (2011), quoting

Ungar v. Sarafite, 376 U.S. 575, 589 (1964).    "A judge should

grant a continuance only when justice so requires, balancing the

requesting party's need for additional time against concerns
                                                                   12


about inconvenience, cost, potential prejudice, and the burden

of the delay on both the parties . . . ."    Commonwealth v. Melo,

472 Mass. 278, 305 (2015), quoting Commonwealth v. Ray, 467

Mass. 115, 128 (2014).     See Mass. R. Crim. P. 10 (a) (1), 378

Mass. 861 (1979) ("a continuance shall be granted only when

based upon cause and only when necessary to insure that the

interests of justice are served").    The judge must also consider

the over-all administration of justice, and "give due weight to

the interest of the judicial system in avoiding delays which

would not measurably contribute to the resolution of a

particular controversy."    Commonwealth v. Chavis, 415 Mass. 703,

711 (1993), quoting Cavanaugh, supra.

    Based on the particular circumstances presented in the

defendant's request for a continuance, we conclude that the

judge did not abuse his discretion in denying the motion.     After

representing the defendant for approximately one and one-half

years, and having successfully moved for funds to hire a private

investigator and a ballistics expert on April 30, 2003, defense

counsel moved for what would amount to the functional equivalent

of a continuance at least several months long, three days before

trial.   Beyond the belated nature of this request, the defendant

did not support the motion with information or evidence -- other

than the defendant's age at the time of the offenses --

indicating that the requested brain scans would yield helpful
                                                                  13


information.   Defense counsel did not present evidence

concerning the defendant's medical, psychological, or behavioral

history; school records; or any information suggesting that he

was a particularly psychologically troubled adolescent who might

fall within the group of adolescents described in the

literature.    The defendant's motion relied exclusively on

articles, which do not appear to be peer-reviewed medical or

psychological studies or journals, that discuss generally the

advancement of the science of adolescent brain development in

the previous five years, and that argue that juvenile brains, in

general, are less developed than adult brains.    In short, the

defendant failed to support his motion with any evidence

specific to him suggesting that a continuance to hire an

adolescent brain development expert would furnish exculpatory

evidence in his case.    See Snell, 428 Mass. at 772.

    In support of his argument, the defendant focuses on our

scientific and legal understanding of adolescent brain

development as it exists in 2018, not the understanding of the

science or law as it existed at the time of his trial in 2003.

There is no question that our scientific and legal understanding

of adolescent brain development has advanced since the

defendant's trial.    See Miller v. Alabama, 567 U.S. 460, 479-480

(2012) (invalidating sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders
                                                                   14


convicted of homicide offenses); Graham v. Florida, 560 U.S. 48,

75 (2010) (prohibiting life sentence without possibility of

parole for juveniles convicted of nonhomicide offenses); Roper

v. Simmons, 543 U.S. 551, 578 (2005) (invalidating death penalty

for juveniles).   See also Commonwealth v. Okoro, 471 Mass. 51,

59-60 (2015); Diatchenko, 466 Mass. at 658.   It is now well

established, based on "science, social science, and common

sense," that adolescents are significantly different from adults

for purposes of analysis under the Eighth Amendment to the

United States Constitution.   Diatchenko, supra at 660, citing

Miller, supra at 471.   See Okoro, supra ("[s]cientific and

social science research on adolescent brain development and

related issues continues").   Therefore, our acknowledgement that

adolescents are constitutionally different from adults has been

precisely limited to our consideration of juvenile sentencing,

not whether a juvenile defendant is capable of committing

murder.   See Okoro, supra; Diatchenko, supra at 659-660.    See

also Commonwealth v. Perez, 477 Mass. 677, 682-683 (2017);

Commonwealth v. Brown, 474 Mass. 576, 590 n.7 (2016) (holding of

Miller focuses on "prohibition against cruel and unusual

punishment under the Eighth Amendment . . . as it applied to

sentencing and punishment of juveniles," and did not address

"intent, knowledge, or deliberate premeditation as elements of a

crime"); Commonwealth v. Ogden O., 448 Mass. 798, 804 (2007)
                                                                  15


("While a delinquent child may not have the maturity to

appreciate fully the consequences of his wrongful actions

. . . , that does not mean that a delinquent child lacks the

ability to formulate the specific intent to commit particular

wrongful acts").    But see Okoro, supra at 65-66 (trial judge was

correct in both allowing expert testimony concerning that

particular juvenile defendant's "capacity for impulse control

and reasoned decision-making on the night of the victim's

death," and precluding expert from suggesting that "it

was impossible for anyone [fifteen years old] to formulate the

necessary intent to commit [murder in the second degree]").

     Despite these changes in the science and law as they relate

to juvenile sentencing, we do not impute our contemporary legal

or scientific understanding of adolescent brain development in

evaluating whether the trial judge abused his discretion by

denying the defendant's motion for a continuance on the eve of

trial in 2003.7    Instead, "we are guided by the circumstances


     7 On appeal, the defendant does not claim that the
advancements in adolescent brain development since his trial
constitute newly discovered evidence. See Commonwealth v.
Grace, 397 Mass. 303, 306 (1986) (evidence is newly discovered
where it was "unknown to the defendant or his counsel and not
reasonably discoverable" through "reasonable pretrial
diligence"). Similarly, the defendant's appellate counsel, who
was not the same counsel representing him at trial, stated at
oral argument that he considered raising a claim of ineffective
assistance of trial counsel, but ultimately chose not to raise
the claim because, in 2003, lawyers who commonly represented
defendants in murder trials were not aware of the issues
                                                                   16


present in [this] case" (citation and quotation omitted), Cruz,

456 Mass. at 747, reflecting the law and general understanding

of adolescent brain development in 2003, Commonwealth v. Lally,

473 Mass. 693, 704-705 (2016) (concluding that although

scientific guidelines had changed, method used at trial was

"reliable method . . . at the time of trial").    See Commonwealth

v. Bastaldo, 472 Mass. 16, 31 (2015) ("we evaluate the alleged

errors under the existing law at the time of trial");

Commonwealth v. Crayton, 470 Mass. 228, 245 (2014) (judge did

not abuse discretion where decision "was in accord with the case

law existing at the time of her decision").    See also

Commonwealth v. LeFave, 430 Mass. 169, 181 (1999) (discussing

"conflict between the constantly evolving nature of science and

the doctrine of finality").

    From the circumstances presented here, notably the

defendant's failure to substantiate his request with specific

evidence -- other than his age -- the defendant failed to make a

"case-specific argument for granting a continuance at that

juncture."   Ray, 467 Mass. at 129.   See Cruz, 456 Mass. at 748

(no abuse of discretion in denying motion for continuance where

"defendant failed to provide a persuasive reason for a



concerning adolescent brain development, particularly prior to
Roper v. Simmons, 543 U.S. 551, 578 (2005). After a full review
of the record before us on appeal, we cannot say that counsel
was ineffective.
                                                                     17


continuance and instead relied on general assertions that the

defense could 'benefit' from more time").     Viewing the evidence

presented by the defendant in his motion for funds and for a

continuance in light of the science in 2003, and its acceptance

in our legal system, it is unlikely that a delay could have

measurably contributed to the fair resolution of the case.       Ray,

supra, citing Miles, 420 Mass. at 85.   The judge's decision was

not a "myopic insistence upon expeditiousness in the face of a

justifiable request for delay."   Pena, 462 Mass. at 190.

Instead, it reflected careful examination of the circumstances

presented, particularly the lack of support offered to

substantiate the request for a continuance.    See Cruz, supra.8

Accordingly, we affirm the trial judge's denial of the

defendant's motion for a continuance.

     b.   Sufficiency of the evidence of premeditation.    The

defendant contends that the evidence in his case indicates

spontaneity rather than deliberate premeditation, and therefore,

     8 Even under the case law as it exists today, it is far from
clear that a similar motion, three days before trial, would be
allowed on this record -- a record devoid of evidence concerning
this particular defendant's psychological or behavioral status
or evidence suggesting that a scan of his brain would furnish
helpful evidence. See Commonwealth v. Okoro, 471 Mass. 51, 66
(2015) (expert testimony admissible concerning particular
juvenile defendant's "capacity for impulse control and reasoned
decision-making on the night of the victim's death" because it
"did not amount to an opinion that the defendant [or any other
fifteen year old] was incapable of forming the intent required
for murder in the first or second degree simply by virtue of
being fifteen").
                                                                   18


that we should exercise our extraordinary authority under G. L.

c. 278, § 33E, to reduce his verdict from murder in the first

degree to murder in the second degree or manslaughter.   Pursuant

to G. L. c. 278, § 33E, our duty is "to consider broadly the

whole case on the law and the facts to determine whether the

verdict is consonant with justice" (citation and quotation

omitted).   Commonwealth v. Howard, 469 Mass. 721, 747 (2014).

In undertaking this duty, we may, "if satisfied that the verdict

was against the law or the weight of the evidence . . . or for

any other reason that justice may require[,] . . . direct the

entry of a verdict of a lesser degree of guilt."   G. L. c. 278,

§ 33E.

    We begin by noting that "a primary consideration" in

determining whether a conviction of murder in the first degree

based on deliberate premeditation is consonant with justice "is

whether the killing reflects spontaneity rather than

premeditation" (citation and quotation omitted).   Commonwealth

v. Ruci, 409 Mass. 94, 98 (1991).   In order to prove deliberate

premeditation, the Commonwealth must show that "the plan to kill

was formed after deliberation and reflection.   However, no

particular length of time is required in order for deliberate

premeditation to be found."   Commonwealth v. Bolling, 462 Mass.

440, 446 (2012), quoting Commonwealth v. Caine, 366 Mass. 366,

374 (1974).   "The law recognizes that a plan to murder may be
                                                                   19


formed within a few seconds."   Commonwealth v. Chipman, 418

Mass. 262, 269 (1994).   See Commonwealth v. Rakes, 478 Mass. 22,

34 (2017) ("No particular length of time of reflection is

required to find deliberate premeditation, and the decision may

be made in only a few seconds").   To prove deliberate

premeditation, the Commonwealth must demonstrate that the

defendant had the opportunity to reflect, however brief, and

actually reflected on the decision to kill.   See Commonwealth v.

Bins, 465 Mass. 348, 367 (2013).   "As such, it is the sequence

of the thought process rather than the time which is taken to

think that is the key to determining whether someone acted with

deliberate premeditation."   Chipman, supra, citing Commonwealth

v. Tucker, 189 Mass. 457, 494-495 (1905) (this thought process

is often characterized as "[f]irst the deliberation and

premeditation, then the resolution to kill, and lastly the

killing in pursuance of the resolution").

    In Commonwealth v. Colleran, 452 Mass. 417, 431-432 (2008),

we set forth a number of factors to consider in deciding whether

a defendant's conviction of murder in the first degree based on

deliberate premeditation should be reduced.   "Each case depends

on its peculiar facts.   No one fact is conclusive."     Id. at 432,

quoting Commonwealth v. Gaulden, 383 Mass. 543, 556 (1981).      The

defendant contends that the circumstances of his case embody
                                                                    20


each of the mitigating factors enunciated in Colleran, supra at

431-432.   A careful review of the record belies this contention.

    There was a brief verbal spat between two groups of

teenagers.    No punches were thrown.   The interaction, although

hostile, only consisted of name-calling and posturing.     The

squabble between the two groups ended, and the defendant turned

away from the victim, got on his bicycle, and began to ride

away.   After having traveled approximately forty-five feet, the

defendant stopped his bicycle and exclaim to his friend, "Fuck

that shit."   At that point, he then took out a handgun, cocked

it, walked back toward the victim, and shot him in the chest.

    The circumstances here indicate that the defendant did not

shoot the victim in the midst of a senseless brawl or in the

heat of sudden combat.    It was reasonable for the jury to

conclude that the defendant had time to reflect as he was riding

away from the scene, and that his statement, "Fuck that shit,"

before cocking the gun and walking back toward the victim,

evinced that the defendant had an opportunity to reflect,

actually reflected on the situation, and formed the intent to

kill before shooting the victim.    In addition to a period

sufficient for the defendant to have "cooled off" and formed the

intent to kill, the events here also show that the defendant

left the scene of the altercation and returned with the weapon

with the intent to kill the victim.     See Commonwealth v. Taylor,
                                                                     21


463 Mass. 857, 870 (2012) (where ample time to cool off after

fight but defendant returned to victim's house with firearm and

shot victim, killing not in heat of passion); Commonwealth v.

Jiles, 428 Mass. 66, 75 (1998) (defendant went to scene of crime

with loaded gun for purposes of shooting suspected rival gang

members).    Cf. Commonwealth v. Jones, 366 Mass. 805, 809 (1975)

(defendant was reasonably in fear of sudden attack by victim

with razor blade immediately prior to killing).

    There is no question that this was a minor controversy that

exploded into the killing of a human being.      See Commonwealth v.

Baker, 346 Mass. 107, 109-110 (1963).     See also Commonwealth v.

Vargas, 475 Mass. 338, 364 (2016).     It is also true that the

defendant and the victim were strangers to each other and there

was no indication of prior trouble between them.     See

Commonwealth v. Ransom, 358 Mass. 580, 583 (1971).     The

defendant was also sixteen at the time he shot and killed the

victim.     See Brown, 474 Mass. at 592 (upholding seventeen year

old's conviction of murder in first degree based on deliberate

premeditation).    Indeed, the prosecutor acknowledged the

defendant's age in his closing argument:     "[O]ne of the factors

in this case that you have to think about -- and I think I have

to mention it, is how old [the defendant] was at the time --

sixteen years, sixteen years, ten months old.     That's young.

That's young.     You will decide what to do."   Closing arguments
                                                                   22


are not evidence, but the prosecutor's statement reflects that

the defendant's age was known to the jury, and that fact was

available for their consideration.   Although the defendant's age

is not dispositive, the jury were free to consider the

defendant's age in determining the extent of the defendant's

guilt.   See Okoro, 471 Mass. at 66 (expert testimony concerning

adolescent brain development admissible to assist jury in

"determining whether the defendant was able to form the intent

required for deliberate premeditation . . . at the time of the

incident").   However, in these circumstances, the defendant's

age does not outweigh the compelling evidence that his actions

were the product of deliberate premeditation, not spontaneity.

Accordingly, we decline to exercise our authority under G. L.

c. 278, § 33E, to reduce the defendant's conviction of murder in

the first degree based on deliberate premeditation.

    c.   Court room closure claim.   The defendant avers that his

right to a public trial under the Sixth Amendment to the United

States Constitution was violated because during jury empanelment

the trial judge conducted individual voir dire of the jurors in

a court room that was not open to the public.   During the final

pretrial conference, defense counsel specifically requested that

the judge conduct individual voir dire of the jurors for

purposes of asking questions related to self-defense.    The judge

allowed the request and set forth the procedure he intended to
                                                                   23


use for conducting the voir dire:   After asking general

questions of the venire in the court room where the case was

being tried, prospective jurors would be individually brought

into an adjacent court room and questioned by the trial judge in

the presence of the defendant, counsel for both sides, and the

court reporter.   After the judge outlined this proposed

procedure, defense counsel agreed to it and thanked the judge

for accommodating her request for individual voir dire.    Jury

empanelment and the individual voir dire occurred exactly as the

judge and defense counsel had agreed on at the final pretrial

conference.   Moreover, counsel and the defendant were present

for the individual voir dire procedure and did not object.

    Where defense counsel not only requested individual voir

dire and agreed to the individual voir dire procedure used in

this case, but also was present for it and did not raise a

contemporaneous objection, we conclude that the defendant did

not preserve his court room closure claim.   Commonwealth v.

Robinson, 480 Mass. 146, 154 (2018).   See Ray, 467 Mass. at 121-

122 (public trial right waived where "[c]ounsel for the

Commonwealth and the defendant affirmatively agreed to the

procedure"); Commonwealth v. Dyer, 460 Mass. 728, 734, 736-737

(2011), cert. denied, 566 U.S. 1026 (2012) (defendant waived

right to public trial by consenting to individual juror voir

dire in judge's chambers).   The defendant has failed to advance
                                                                   24


any grounds supporting his contention that the individual voir

dire procedure used in his case created a substantial likelihood

of a miscarriage of justice or otherwise resulted in a

fundamentally unfair empanelment procedure.   See Weaver v.

Massachusetts, 137 S. Ct. 1899, 1909–1910, 1912 (2017).

    d.    Relief under G. L. c. 278, § 33E.   The defendant was

sixteen years old at the time of the crime.   After conviction,

he received the mandatory sentence for murder in the first

degree under G. L. c. 265, § 2 -- life without the possibility

of parole.   Pursuant to our holding in Diatchenko, 466 Mass. at

658–659, the defendant's life sentence remains in force, but the

exception then present in G. L. c. 265, § 2, rendering him

ineligible for parole, is no longer applicable.   Commonwealth v.

Brown, 466 Mass. 676, 688–689 (2013), S.C., 474 Mass. 576

(2016).   Accordingly, we affirm the defendant's convictions of

murder in the first degree and carrying a firearm without a

license, and affirm the order denying the defendant's motion for

a new trial, but remand for resentencing consistent with

Diatchenko, supra.   We have reviewed the entire record pursuant

to our obligation under G. L. c. 278, § 33E, and conclude that

there are no grounds for reversing the defendant's convictions

or for granting any other relief.

                                    So ordered.
