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SJC-10503

                     COMMONWEALTH   vs.   LUIS PENN.



            Essex.      May 8, 2015. - September 9, 2015.

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


Homicide. Firearms. Constitutional Law, Public trial.
     Identification. Practice, Criminal, Capital case, Public
     trial, Assistance of counsel, Instructions to jury,
     Argument by prosecutor, Sentence.



     Indictments found and returned in the Superior Court
Department on May 5, 2004.

     The cases were tried before Howard J. Whitehead, J., and a
motion for a new trial, filed on October 29, 2010, was heard by
him.


     Dana Alan Curhan for the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.


    GANTS, C.J.      A Superior Court jury convicted the defendant

of murder in the first degree on a theory of deliberate
                                                                    2


premeditation for the killing of the victim, Aneury Guzman.1    The

critical issue in the case was whether the victim had been shot

by the defendant or by the defendant's friend, Benjamin Serrano,

who minutes before the shooting had confronted the victim with a

firearm, handed the firearm to the defendant, and then engaged

in a fist fight with the victim.

     On appeal, the defendant claims that he is entitled to

reversal of the murder conviction because the evidence was

insufficient as a matter of law.2   Alternatively, he claims that,

even if the evidence were legally sufficient, the court should

exercise its authority under G. L. c. 278, § 33E, to vacate the

conviction, order a new trial, or reduce the conviction to

murder in the second degree because the verdict was contrary to

the weight of the evidence and not consonant with justice.     In

addition, he claims that the murder conviction should be vacated

or a new trial ordered because his right to a public trial was

violated by the unconstitutional closure of the court room

during jury selection; because the jury were not instructed

about the risk of honest, but mistaken, eyewitness

identification; and because the prosecutor vouched for the

accuracy of the key eyewitness and expressed her personal belief

     1
       The defendant was also convicted of carrying a firearm
without a license in violation of G. L. c. 269, § 10 (a).
     2
       The defendant does not challenge his conviction on the
firearm indictment on appeal.
                                                                    3


in the defendant's guilt during closing argument.   Finally, the

defendant claims that, even if his murder conviction were to be

affirmed, he is entitled to a reduction in sentence to life with

the possibility of parole where he was seventeen years old at

the time of the killing.   We affirm the defendant's conviction

of murder in the first degree, but order the case remanded for

resentencing in accordance with Diatchenko v. District Attorney

for the Suffolk Dist., 466 Mass. 655, 671-674 (2013), S.C., 471

Mass. 12 (2015).

     Background.   Because the defendant challenges the

sufficiency of the evidence, we recite the evidence in the

Commonwealth's case-in-chief in detail and in the light most

favorable to the Commonwealth.   See Commonwealth v. Labadie, 467

Mass. 81, 93-94, cert. denied, 135 S. Ct. 257 (2014).3    Because

the defendant additionally claims that the verdict is contrary

to the weight of the evidence, we also summarize the other

relevant evidence, including the defendant's trial testimony.

See Commonwealth v. Franklin, 465 Mass. 895, 896 (2013).

     3
       In evaluating the sufficiency of the evidence, we must
also consider, in the light most favorable to the Commonwealth,
"the evidence at the close of all the evidence to determine
whether the Commonwealth's position as to proof had deteriorated
since it had closed its case." Commonwealth v. Brown, 51 Mass.
App. Ct. 702, 709 (2001), quoting Commonwealth v. Basch, 386
Mass. 620, 622 n.2 (1982). Here, however, the only evidence
following the close of the Commonwealth's case was the
defendant's testimony, which, viewed in the light most favorable
to the Commonwealth, the jury were entitled not to credit.
                                                                     4


    1.   Commonwealth's case-in-chief.    Serrano had dated

Jennifer Suarez "on and off" for approximately four years when

she ended her relationship with Serrano and began dating the

victim in January, 2004.   Serrano told Suarez that "he didn't

want [her] with [the victim]," and that she was "his girl and

[was] always going to be with him."     Serrano also threatened the

victim, telling Suarez that "he's going to kill" the victim, and

"[w]atch when he catches him."

    On the evening of April 1, 2004, Serrano knocked on the

apartment door of Suarez's cousin, Vicky Gonzalez, who resided

in a three-story multifamily building in Lawrence near the

corner of Haverhill Street and Oxford Street.    Gonzalez

"cracked" open the door and saw Serrano, whom she knew, dressed

in a "brown down coat."    Serrano's jacket had a hood, but he did

not "have it on."   Just behind Serrano was a man she did not

know, who was dressed "all in black":    "[b]lack sneakers, black

pants, [and a] black jacket."    The man had his "hood" on, and

his face was "totally covered" with "what must have been a mask

or something."   Serrano asked for Suarez, and pushed the door,

trying to look into the apartment.    Gonzalez told him to leave,

and Serrano said, "I want Jennifer and I know she's here."

Gonzalez told him that she would call the police if he did not

leave, and he and the other man left.
                                                                     5


     Unknown to Serrano, the victim was in the apartment when

Serrano tried to enter.    Minutes earlier, the victim had come to

the apartment in an automobile with his friends, Johan Abreu and

Santo Suarez,4 and they were waiting for the victim in the

automobile in a parking lot off of Oxford Street outside the

entrance to Gonzales's apartment.    When Serrano walked outside,

he banged on the hood of the automobile.5    After Abreu asked

Serrano what he was doing there, Serrano pulled out a gun from

his waistband and told them "it's not with you" and "to get

. . . out of here."     As this was happening, the victim came out

of the apartment building and stepped between Serrano and his

friends, facing Serrano.    Serrano pointed the gun at the

victim's face and said, "Look where I found him," "this is the

way I want[ed] to catch you."    He asked, "Who's a bigger man

with a gun?"   Abreu screamed at Serrano to put down the gun and

fight with his hands.    The victim told Serrano, "Do what you got

to do."   Serrano struck the victim with his free hand and called

for "Fifty" to come out, at which point the defendant came out

from an alley alongside the apartment building.6    Serrano said he


     4
       Santo Suarez is Jennifer Suarez's brother. Because they
share a last name, we shall refer to him by his first name.
     5
       Johan Abreu testified that Serrano was wearing "a jacket
with a hoodie," and that the hoodie was "up" rather than "down."
     6
       The defendant, who was known as "Fifty," was wearing a
jacket and had "a hoodie on" when he emerged from the alley.
                                                                     6


wanted to fight the victim, and handed the defendant his gun.

Serrano and the victim started "scuffling," and then "wrestling,

trying to throw each other down to the ground."7   The defendant,

who was pointing the gun at the victim, said, "Fuck these

dudes," and Santo ran.    Abreu saw the victim "trying to cut

loose," and Abreu ran, thinking the victim was going to run

behind him.    Abreu ran "faster than a cat" up Haverhill Street,

and then down an alley back towards the entrance to Gonzalez's

apartment.    As he was running down the alley, he heard a

gunshot.    He then ran back to the corner of Haverhill Street and

Oxford Street, where he found the victim "[l]aying down" on the

sidewalk.    He did not see who had fired the gunshot.

     The medical examiner concluded that the victim died from a

single bullet wound at the top and towards the rear of the

victim's head.    From the nature of the wound, he offered the

opinion that the barrel of the gun was against the victim's

scalp, and that the path of the bullet was "downward."

     The only witness to the shooting was Jose Estrella, who was

at a gasoline station on Haverhill Street on the opposite side

of the street from where the shooting occurred, pumping gasoline


Abreu identified the defendant from a photographic array as the
person Serrano called "Fifty" who was holding the gun during the
fight, and also identified him at trial.
     7
       Abreu testified that Serrano's hoodie "came down" as they
were "scuffling."
                                                                    7


into his car on the street side of the pump.   From that vantage

point, he saw a man, later identified as the victim, run north

on Oxford Street and turn left on Haverhill Street.    The victim

suddenly stopped on Haverhill Street and turned around to face

in the direction of the corner with Oxford Street.    He saw a

second man running right behind the victim, who stopped "right

on the corner" after the victim stopped, and who then began to

walk towards the victim.   The victim raised both hands above his

waist and said something to the second man, who said something

back.   The second man continued to approach, getting so close to

the victim that he was "breathing on [his] face."    The second

man then lifted his right hand upwards over his head, "swinging"

it around and pointing it downward towards the head of the

victim.   Estrella heard a gunshot, and the victim immediately

fell to the ground.   The second man walked back in the direction

from which he had come, and then began to run.

    Estrella noted that it was dark and drizzling when he saw

the shooting.   From his vantage point, Estrella was between 178

and 230 feet from the location of the shooting.     Estrella saw

that the shooter was wearing a black or dark-colored winter

coat, with a hood over his head.   Estrella testified that the

second man was taller than the victim, and that he could see
                                                                   8


when they came close together that the second man's chin nearly

touched the center of the victim's forehead.8

     The victim was five feet, six inches tall; Serrano is five

feet, five inches tall; the defendant is five feet, eleven

inches tall.

     During the examination of the crime scene, next to a

bloodstain on the sidewalk the police found a Virgin Mary

medallion that belonged to Serrano, a single .22 caliber shell

casing, and a closed pocket knife.   Nearby, they found a Jesus

medallion that belonged to the victim, and a jacket that

belonged to the victim.9,10

     The first 911 call reporting the shooting was made at

approximately 9:00 P.M.   Approximately twenty minutes later,

     8
       Jose Estrella testified that the victim was standing
"straight up" during the encounter, and denied that he was
"crouched down."
     9
       The Jesus medallion was found on the street at the corner
of Haverhill Street and Oxford Street. The victim's jacket was
found partially on the sidewalk and in the street. The other
items were found on the sidewalk. Neither of the medallions was
found with a chain.
     10
       Deoxyribonucleic acid (DNA) testing revealed that the
blood on the knife came from two persons, with the DNA of the
victim matching the "major DNA profile." The DNA from the
handle of the knife was a mixture of at least three individuals'
DNA, with the DNA of the victim again matching the "major DNA
profile." The defendant was excluded as the source of both the
blood and the "handler DNA." Serrano was excluded as a source
of the blood on the knife, and it was inconclusive whether he
was a source of the "handler DNA," that is, he could be neither
included nor excluded as a source.
                                                                      9


Officer Jamie Adames conducted an investigative stop of Serrano

in the Essex Street projects, which is approximately "three

intersections" from the location of the shooting.     Serrano was

wearing a black "bubble" jacket.     The jacket had a hood, but

Serrano was not wearing the hood, even though it was "pouring"

rain.     Officer Adames conducted a patfrisk of Serrano, but found

no weapons.

     On the evening of April 3, after speaking by telephone with

the defendant, Stephanie Bertone traveled by taxicab to a motel

in Middleton, where the defendant was now staying.11,12    The

defendant told her that "there were people after him."      They

stayed for "a couple of days" at the motel, and then traveled to

Shamokin, Pennsylvania, where they stayed with a friend of the

defendant's mother.    While in Pennsylvania, Bertone asked the

defendant why they had left and why they were there.      The

defendant told her that he was driving around with "Benji" in

Benji's motor vehicle when Benji saw "some kid that he had a

problem with and they stopped the car."    Benji got out of the

vehicle and "started arguing with the kid and he ended fighting

     11
       Stephanie Bertone testified that, at this time, the
defendant was an "ex-boyfriend."
     12
       The defendant had resided with his mother at an apartment
in Lawrence. When the police gained entrance to the apartment
on April 6, 2004, there was no furniture or clothing in the
apartment, but only some "old mail." State police Trooper
Brandon Arakelian testified, "The place was cleaned out."
                                                                   10


with him."   When the kid had Benji down on the ground, Benji

told the defendant to get out of the vehicle and bring him the

gun that Benji had in it.    The defendant walked over to "where

Benji and the other kid were fighting," and the defendant "went

to hand" Benji the gun.    The defendant then paused, and Bertone

asked him what happened.    He responded, "You can guess what

happened."

    The defendant was arrested in Shamokin on April 14, and

State police Trooper Brandon Arakelian interviewed him in the

library of the county jail on April 15, in the presence of

Lawrence police Detective Victor Morales and Officer William

Miner of the Shamokin police department.   After the defendant

was advised of his Miranda rights and waived them, the defendant

provided a signed written statement in which he said that on the

evening of April 1, he was home from 6 P.M. to after midnight

with his friend, "David Domingoes," and his girl friend,

"Melanie."   Domingoes left to go home but returned at around

1 A.M.   The defendant left with Domingoes in Domingoes's

mother's automobile and were traveling on Basswood Street, near

the corner of Juniper Street, when someone in another vehicle

with four people inside "shot at" the automobile in which the

defendant was traveling.    Two persons stepped out of that

vehicle, walked over to Domingoes's automobile, and fired "a

couple of shots" at the driver's side of it, putting holes in
                                                                       11


the windows.    The defendant stayed at his home that night but

the next day went to the home of his mother's friend "because

[he] got shot at."   After one night there, he went to stay at

the motel.    He called Bertone and "told her that [they] needed

to bounce."    He did not learn that the victim had been killed

until after he arrived in Pennsylvania.    The defendant also said

in his statement that he knew "Benji from the area" and knew

that Benji "had problems" with the "kid who got shot . . . over

a girl."

    The defendant gave a cellular telephone number for

Domingoes, but Trooper Arakelian was unable to reach Domingoes

at the number and was never able to locate him.     Trooper

Arakelian also asked the defendant for Melanie's last name and

street address, but the defendant provided neither.     The trooper

also determined that there were no reports of shots fired in the

area of Basswood and Juniper Streets on the night of April 1, or

the day that preceded and the day that followed that night.       In

fact, the only report of gunfire in that timeframe in Lawrence

was the report of the shot that killed the victim.

    After this police interview, the defendant asked to speak

with Officer Miner alone.    The officer explained to the

defendant that the best thing the defendant could do was tell

the other officers the truth.    The defendant "took a breath" and

told Officer Miner, "I was there; I had the gun."    The defendant
                                                                       12


then paused and added, "Things just got crazy."     After another

pause, he said, "I just don't know what to do."

     2.    Defendant's trial testimony.   The defendant testified

in his own defense.13    He said that he had known Serrano for

about one and one-half months before the shooting.       On April 1,

at approximately 8 P.M., he was at a barber shop and saw

Serrano, who told him he was going to see his girl friend.       He

stood behind Serrano, on the stairs, when Serrano knocked on an

apartment door and learned that "Jennifer" was not home.       The

defendant told Serrano he was going to go home.    Serrano passed

him on the stairs and approached an automobile that was parked

outside.    Two men got out of the vehicle, and Serrano asked,

"Where is he?"    One of the men said he did not know.    A "kid"

then came down the same set of stairs that Serrano and the

defendant had just descended.    Serrano saw the kid, pulled out a

gun and said, "This is the way I wanted to catch you."      Until

that moment, the defendant had not seen the gun and did not know

that Serrano was carrying a gun.

     Serrano pointed the gun at the top of the kid's head, with

the wrist aimed downward, and asked, "Who's the man now?"       After

the kid told him, "Do what you have to do," Serrano punched the

kid in the face with his left hand, and said he was going to


     13
          The defendant called no other witnesses to testify.
                                                                   13


fight him first.   Serrano then said, "Yo Fifty," and the

defendant stepped out to where they were standing.   Serrano

handed him the gun, which the defendant pointed toward the sky.

The two men who had been in the automobile ran away.   The kid

placed Serrano in a bear hug, lifted him up, slammed him on the

ground, and began punching him in the face and stomach.     Serrano

twice told the defendant to "give me my gun," but the defendant

refused.   The kid then got off the ground, threw his jacket over

his shoulder, and walked quickly out of the parking lot.

    Serrano, still lying on the ground, told the defendant he

was "a fucking punk," and asked him, "Why you let him beat me up

like that?"   The defendant told him he should have defended

himself.   Serrano then got up off the ground, said, "Give me my

fucking gun," and pulled the gun away from the defendant's hand.

The defendant walked north up Oxford Street, crossed Haverhill

Street, and went down Railroad Street, heading home.   He looked

back, and he saw "Benji coming around the corner towards" where

the kid was standing on Haverhill Street.   The defendant "kept

walking," thinking to himself that "this ain't my problem" and

that "everything was over."   As he was walking towards the other

end of Railroad Street, he heard "a pop" but ignored it --

because he "didn't know what it was" -- and continued on to his

mother's house.    The next morning, his mother woke him at 5 A.M.
                                                                   14


and told him that someone had called her and that she needed to

get him out because "they were going to kill" him.14

     He admitted that he lied to Trooper Arakelian but said he

did so because he was "scared" and "didn't want to get charged

with something [he] did not do."   The defendant maintained that

false alibi even after Trooper Arakelian told the defendant that

he knew the defendant was there, because the defendant "didn't

want to rat on Benji."

      Discussion.   1.   Sufficiency and weight of the evidence.

The defendant moved for a required finding of not guilty based

on the insufficiency of the evidence at the close of the

prosecution's case and at the close of all the evidence.    The

defendant claims that the judge erred in denying these motions,

and that he is entitled to reversal of the murder conviction.

     The defendant challenges the appellate standard that

reviews a claim of insufficiency of the evidence.    Under that

standard, we determine whether, "after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt" (emphasis in original).     Commonwealth

     14
       During cross-examination, the defendant claimed not to
have known why anyone wanted to kill him, and he denied thinking
that it had anything to do with the events of the night of April
1. Although he went to stay at the motel in Middleton on
Friday, April 2, he testified that he did not know that the
victim had been killed until Saturday, April 3.
                                                                  15


v. St. Hilaire, 470 Mass. 338, 343 (2015), quoting Commonwealth

v. Latimore, 378 Mass. 671, 677 (1979).   See Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).   The defendant argues

that we should instead determine whether the essential elements

of the crime could have been found beyond a reasonable doubt by

"a reasonable jury."   The defendant cites in support of his

position a law review article by then-Chief Judge Jon Newman of

the United States Court of Appeals for the Second Circuit, who

feared that "the word 'any' and the wholly gratuitous and

potentially misleading underscoring of that word . . . can

subtly shift an appellate court's attention from the correct

construct of the reasonable jury to the quite incorrect

construct of just one out of a distribution of reasonable

juries."   Newman, Beyond "Reasonable Doubt," 68 N.Y.U. L. Rev.

979, 992 (1993).   Judge Newman's concern was that appellate

courts under the "any rational trier of fact" formulation might

"examine a record to satisfy themselves only that there is some

evidence of guilt and . . . not conscientiously assess whether

the evidence suffices to permit a finding by the high degree of

persuasion required by the 'reasonable doubt' standard"

(emphasis in original).   Id. at 993.

    The "any rational trier of fact" standard was stated by the

United States Supreme Court in Jackson, 443 U.S. at 319,

immediately after the Court stated that "the critical inquiry on
                                                                    16


review of the sufficiency of the evidence to support a criminal

conviction must be . . . to determine whether the record

evidence could reasonably support a finding of guilt beyond a

reasonable doubt."   Id. at 318.   In Latimore, 378 Mass. at 677,

we quoted both of these standards.   Neither the Supreme Court in

Jackson nor this court in Latimore suggested that these two

standards are substantively different.15   We decline to

characterize them now as different in substance.    We regard them

simply as alternative formulations of the same appellate

standard.   We note that we have used the alternative to the "any

rational trier of fact" formulation in earlier cases without

intending any difference in the standard of review.    See, e.g.,

Commonwealth v. Rivera, 460 Mass. 139, 141 (2011) ("we review

the evidence . . . to determine whether the evidence, viewed in

the light most favorable to the Commonwealth, was sufficient for

a reasonable jury to infer the existence of each essential

element of the crime charged, beyond a reasonable doubt");

Commonwealth v. Ferguson, 384 Mass. 13, 15 (1981) ("we must


     15
       Justice Stevens, joined by Chief Justice Burger and
Justice Rehnquist, concurred in the judgment in Jackson v.
Virginia, 443 U.S. 307, 339 (1979) (Stevens, J., concurring in
judgment), because he saw no need for the Court to establish
what he characterized as a "gratuitous directive to our
colleagues on the federal bench" concerning a standard of review
regarding the sufficiency of the evidence. He did not call for
a reasonable jury standard rather than an "any rational trier of
fact" standard.
                                                                     17


determine whether [the] evidence, considered in the light most

favorable to the Commonwealth, was sufficient to permit a jury

reasonably to infer the existence beyond a reasonable doubt of

each essential element of the crime charged").    Under both

formulations of the appellate standard, "it is not enough . . .

to find that there was some record evidence, however slight, to

support each essential element of the offense."    Latimore,

supra.   Rather, the evidence must be sufficiently strong to

permit a reasonable jury to find that each essential element of

the charged offense was proved beyond a reasonable doubt.      See

cases cited, supra.

    Applying that standard, we conclude that the evidence in

this case was sufficient to permit a reasonable jury to find the

defendant guilty of the premeditated murder of the victim.     It

is true, as the defendant argues, that Serrano had the stronger

motivation to kill the victim, and that the medallion found at

the scene of the killing belonged to Serrano, not the defendant.

But the jury were reasonably entitled to credit Estrella's

eyewitness testimony that the shooter's chin was level with the

center of the victim's forehead, which would make the defendant,

not Serrano, the shooter, where the defendant was five inches

taller than the victim and the victim was one inch taller than

Serrano.   Also, where the defendant was seen wearing a hood when

he pointed the gun at the victim during the fight, the jury
                                                                  18


reasonably could have credited Estrella's observation that the

shooter wore a hood on his head, and inferred that Serrano,

whose hood was off his head before the shooting, would not

likely have put his hood on had he given chase to the victim.16

Although Serrano, not the defendant, had threatened the life of

the victim for dating the woman who had been Serrano's girl

friend, the jury reasonably could have inferred that Serrano

brought the defendant to the encounter to assist Serrano in

doing harm to the victim.   After receiving the gun from Serrano,

the defendant pointed it at the victim, and the jury reasonably

could have inferred that part of the defendant's purpose in

doing so was to prevent the victim from getting away.     Thus, the

jury reasonably could have inferred that, when the victim fled

the scene, the defendant was the person who gave chase,

especially where the defendant was holding the gun during the

fight and the gunshot was heard within moments after Abreu ran

from the scene of the fight.   The jury also reasonably could

have inferred that the victim pulled off Serrano's Virgin Mary

medallion while he was wrestling with Serrano, and dropped it,

along with the knife he was carrying, when he was shot.




     16
       In fact, when Serrano was stopped by Officer Adames
twenty minutes after the shooting, Serrano was not wearing a
hood, even though it was raining hard at that time.
                                                                  19


    The consciousness of guilt evidence also points to the

defendant as the shooter.   The jury reasonably could infer that,

regardless whether it was arrest or retaliation that he feared,

he went to the motel and later left for Pennsylvania because he

had shot and killed a person on the evening of April 1.    Had he

not been the shooter, it is unlikely that he would have felt the

same need to flee.   The jury could also reasonably have inferred

that the closest he came to speaking the truth was when he told

Officer Miner, "I was there," "I had the gun," and "Things just

got crazy."   This explanation is consistent with the defendant

acting instinctively to chase the victim while he "had the gun,"

and shooting the victim because "[t]hings just got crazy."

Although this evidence, viewed in its totality, does not

eliminate the possibility that Serrano, not the defendant, was

the shooter, the evidence is sufficient to permit a reasonable

jury to conclude beyond a reasonable doubt that the defendant,

not Serrano, was the shooter.   See Commonwealth v. Russell, 470

Mass. 464, 477 (2015) ("Proof beyond a reasonable doubt does not

mean proof beyond all possible doubt, for everything in the

lives of human beings is open to some possible or imaginary

doubt").

    Having reviewed the entire record in this case pursuant to

G. L. c. 278, § 33E, we also address the defendant's contention

that the verdict is against the weight of the evidence.    Section
                                                                    20


33E "does not . . . convert this court into a second jury, which

must be convinced beyond a reasonable doubt of the guilt of a

defendant . . . without the advantage of seeing and hearing the

witnesses."   Franklin, 465 Mass. at 916, quoting Commonwealth v.

Jefferson, 416 Mass. 258, 265 (1993).   "[F]or this court under

the statute . . . to grant a new trial on the ground that the

verdict was against the weight of the evidence, it must appear

that the verdict . . . would work a miscarriage of justice

. . . .   It is not enough that the judge or judges, if on the

jury, would have felt a reasonable doubt which the jury did not

share."   Franklin, supra, quoting Jefferson, supra at 266.    In

evaluating the weight of the evidence, we do not view the

evidence in the light most favorable to the prosecution, and are

free to consider the defendant's testimony at trial.    See

Commonwealth v. Ortiz, 470 Mass. 163, 163 (2014); Jefferson,

supra at 267 (under G. L. c. 278, § 33E, we consider "the thrust

of the evidence").

    It is reasonable to conclude that the defendant's version

of what happened after the fight ended between Serrano and the

victim is not credible for various reasons.    It is not credible

that the victim simply walked away from the fight, where the

defendant was pointing a gun at him.    Nor is it credible that,

after the victim left the scene of the fight, the defendant

walked away and got as far as he said he did past the corner of
                                                                  21


Haverhill and Oxford Streets when he heard the gun shot behind

him at that corner; the victim had not run far from the scene of

the fight before he suddenly turned to face the person chasing

after him, and their encounter was brief before the shooting.

Nor is it credible that he ignored the "pop" sound he admits he

heard, or that he did not recognize the meaning of the "pop."

Nor is it credible that he fled his home early on the morning of

April 2 for reasons unrelated to what had happened at

approximately 9 P.M. on April 1.    In short, the weight of the

evidence supports the jury's finding that the defendant, rather

than Serrano, was the shooter.

     2.   Court room closure.    After being convicted, the

defendant moved for a new trial on the grounds that the court

room had been improperly closed during jury empanelment, and

that his trial counsel had been ineffective in failing to object

to the closure.   Following an evidentiary hearing, the trial

judge concluded that "the defendant's mother and a friend of

hers were excluded from the courtroom during the jury

[e]mpanelment," and that "the [c]ourt itself, from the bench in

open court, directed that the courtroom be cleared of spectators

before the prospective jurors entered."17    Defense counsel



     17
       The judge noted that this was "consistent with what then
had been a longstanding practice in the Lawrence Superior
Court," and that nothing in the record "suggest[ed] that, if
                                                                    22


"advised [the two spectators] that they would have to remain

outside until [e]mpanelment was complete," which they did.     He

did not object to the closure and, after the jury were

empaneled, stated that "the accused [was] satisfied with" the

empanelment process.18   Based on these facts, the judge denied

the defendant's motion for a new trial, concluding that the

defendant both waived his right to a public trial during jury

selection and procedurally waived the claim of a violation of

that right.

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

Amendment to the United States Constitution applies to jury

empanelment proceedings, and the violation of that right is

structural error where the claim of error is properly preserved.

See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105-106 (2010).

See also Presley v. Georgia, 558 U.S. 209, 213 (2010).   But

"[w]here counsel fails to lodge a timely objection to the

closure of the court room" -- as happened in this case -- "the

defendant's claim of error is deemed to be procedurally waived."



pressed, the [c]ourt would have been unable to make an
accommodation for the seating of the two women."
     18
       The judge determined that the defendant had been aware of
the court room closure, but the defendant's affidavit attested
that it "did not occur" to him during trial that the public had
been excluded from the court room; his attorney "never made
[him] aware that . . . [he] had a right to a public and fair
trial"; and he "did not waive [his] rights to a public trial."
                                                                  23


Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), petition

for cert. filed, 83 U.S.L.W. 3768 (Mar. 20, 2015), citing

Commonwealth v. Morganti, 467 Mass. 96, 102, cert. denied, 135

U.S. 356 (2014), and Commonwealth v. Lavoie, 464 Mass. 83, 87-88

& n.8, cert. denied, 133 S. Ct. 2356 (2013).   Having waived his

claim of error regarding the denial of his right to a public

trial during jury selection, the defendant after conviction may

claim that his attorney provided ineffective assistance of

counsel for failing to object to the closure of the court room.

See LaChance, supra at 858; Morganti, supra at 103.   However,

even if a defendant were to show that his or her attorney was

deficient for failing to make a timely objection, the defendant

would be entitled to relief in a murder case only if he or she

can show that a substantial likelihood of a miscarriage of

justice arose from the court room closure.   See Commonwealth v.

Jackson, 471 Mass. 262, 269 (2015).19   "The structural nature of

the underlying error does not automatically excuse the defendant

from showing prejudice when advancing an unpreserved claim."

LaChance, supra at 857.   Here, the defendant has not claimed


     19
        Where the defendant has not been convicted of murder in
the first degree and is not entitled to review under G. L.
c. 278, § 33E, the defendant would need to show a substantial
risk of a miscarriage of justice arising from counsel's failure
to object to the closure of the court room during jury
selection. See Commonwealth v. LaChance, 469 Mass. 854, 857
(2014).
                                                                   24


that the closure of the court room during jury selection was

likely to have had any effect on the judgment.   See id. at 859,

quoting Strickland v. Washington, 466 U.S. 668, 691 (1984)

("jury empanelment closed to spectators [other than jurors] and

the defendant's family . . . will rarely have an 'effect on the

judgment'").   Therefore, the defendant's public trial right

claim fails because it was procedurally waived, and his claim of

ineffective assistance of counsel fails because he has made no

showing of prejudice.20

     3.   Absence of instruction regarding honest mistake in

identification.   The defendant also contends that he is entitled

to a new trial because the trial judge did not instruct the jury

of the possibility that an eyewitness who observed the shooting

may have made an honest but mistaken observation of the shooter.

     The defendant requested a five-part jury instruction on

"mistaken observation," which the judge and defense counsel


     20
       We note that the United States Court of Appeals for the
First Circuit in United States v. Negrón-Sostre, 790 F.3d 295,
300-306 (1st Cir. 2015), ordered a new trial where defendants
failed to object to the closure of the court room during jury
empanelment and did not make any showing that the closure had
any effect on the verdict. The court concluded that the closure
of the court room during the entirety of voir dire was "a plain
and obvious error that, as a structural error, affected the
defendants' substantial rights and seriously impaired the
fairness, integrity, or public reputation of the proceedings."
Id. at 306. However, the court noted that "the government did
not argue that the failure to object constitutes waiver." Id.
at 301 n.7.
                                                                   25


characterized as an "amplification" of the instruction regarding

eyewitness identification that this court approved in

Commonwealth v. Rodriguez, 378 Mass. 296, 310-311 (Appendix)

(1979), S.C., 419 Mass. 1006 (1995).   The judge declared that he

was not inclined "to do the amplification," but was inclined to

give "the straight Rodriguez instruction," fearing that the

additional detail in the amplified instruction would put him

"more in the role of advocate than [he] ought to be."      The judge

agreed to defense counsel's request that his objection be noted

for the record, even though defense counsel added that "there is

no legal basis" for the objection "other than looking for an

expansion."

    At the charge conference that followed the close of

evidence at trial, the judge said that he no longer thought that

the Rodriguez instruction was appropriate because that

instruction provides guidance regarding "an actual

identification" and there was no identification of the shooter

in this case.   The judge said he would draft an instruction that

would make clear to the jury that there was no identification of

the shooter but there was testimony from Estrella regarding the

"physical characteristics and attire" of the shooter, and set

forth the factors the jury might use in assessing that

testimony.    Defense counsel agreed that "that would be

appropriate."
                                                                    26


     The judge instructed the jury regarding eyewitness

identification as he had promised.21,22   Defense counsel did not

object to this instruction or to any of the judge's jury

instructions.    The judge, however, did not include a jury


     21
          The judge told the jury:

     "The threshold fact that the Commonwealth must prove beyond
     a reasonable doubt . . . is that the defendant was the one
     who actually shot [the victim]. . . . The Commonwealth has
     not presented you with . . . any witness who has both
     testified that he saw the shooting and has identified the
     defendant as the shooter. Rather, . . . [t]he Commonwealth
     has presented you with a witness, Mr. Estrella, . . . who
     has testified that he saw the shooting. He gave an account
     of how it occurred, as well as an account of the physical
     appearance and dress of the shooter. In determining the
     reliability of that account, you consider all . . . that
     I've already mentioned as appropriate to consider in
     assessing the credibility and reliability of witness
     testimony in general and you will remember that, among
     those factors, you consider the opportunity of the witness
     to observe the relevant events. In that regard you
     consider in particular: how far or close Mr. Estrella was
     to the shooting; how long or short the time was that he had
     to observe the shooting; the lighting conditions; consider
     the presence or absence of obstruction to his vision;
     consider the extent to which Mr. Estrella focused his
     attention on the shooting and the shooter in
     particular. . . . Considering the reliability of witness
     testimony . . . you consider all of the evidence in the
     case, in determining whether in fact the defendant was the
     person who shot [the victim]."
     22
       By giving a modified eyewitness identification
instruction, the judge acted in accordance with the guidance we
gave six years later in Commonwealth v. Franklin, 465 Mass. 895,
912 (2013), where we declared that a trial judge, if so
requested, should provide the jury with a modified eyewitness
identification instruction where "eyewitnesses have provided a
physical description of the perpetrator or his clothing," even
if no eyewitness positively identified the defendant.
                                                                  27


instruction regarding the possibility of an honest but mistaken

identification, even though the defendant had sought such an

instruction in the fifth part of his proposed five-part jury

instruction.23

     In Commonwealth v. Pressley, 390 Mass. 617, 620 (1983), we

declared that where "[i]dentification [is] crucial to the

Commonwealth's case . . . [f]airness to a defendant compels the

trial judge to give an instruction on the possibility of an

honest but mistaken identification when the facts permit it and

when the defendant requests it."   Here, where the facts

permitted such an instruction and the defendant requested it,

the judge should have instructed the jury about the risk of an

honest but mistaken observation even in the absence of a

positive eyewitness identification.   See Franklin, 465 Mass. at


     23
       The fifth part of the instruction sought by the defendant
provided as follows:

     "In assessing the testimony of any witness relied upon by
     the Commonwealth to attempt to prove that [the defendant]
     committed a crime, you must consider the possibility of
     'good faith error' by the witness. That is, in addition to
     assessing the credibility of the witness, you must also
     consider whether the witness is honestly mistaken in his or
     her observations. Even if you find that the witness is
     sincere and honest in his or her belief in what they
     observed, you must still return a verdict of not guilty
     unless you are convinced beyond a reasonable doubt that the
     observations testified to are reliable and accurate. The
     burden is on the Commonwealth to prove[] beyond a
     reasonable doubt that the witness'[s] observations, however
     honest, [are] correct."
                                                                    28


912.    The defendant, however, did not object to the judge's jury

instructions at trial, and therefore failed to alert the judge

of the need for such an instruction.24   Where the objection was

not preserved, we consider whether the error produced a

substantial likelihood of a miscarriage of justice.    See, e.g.,

Commonwealth v. Smith, 449 Mass. 12, 17 (2007).     We conclude

that there was no such risk in this case because, even without

the instruction, the jury reasonably would have understood that

they needed to consider whether Estrella made a good faith,

honest error in his observations of the shooting.    The defendant

never suggested that Estrella was lying; nor was there any

evidence that Estrella had any motive to lie.   The possibility

that Estrella's testimony was based on an honest mistake was the

focus of the defendant's cross-examination of Estrella and his


       24
       The defendant argues that the error should be treated as
preserved where the defendant earlier in the trial objected to
the judge's decision not to give the defendant's proposed five-
part instruction and the judge noted the objection. That
objection focused on the judge's unwillingness to give an
"amplification" of the instruction regarding eyewitness
identification in Commonwealth v. Rodriguez, 378 Mass. 296, 310-
311 (Appendix) (1979), S.C., 419 Mass. 1006 (1995), and his
inclination to give a "straight" Rodriguez instruction, an
inclination the judge later revised when he learned there was no
positive identification of the defendant as the shooter. Where
the Rodriguez instruction is silent as to the possibility of an
honest but mistaken identification, defense counsel's objection
to the judge's disinclination to give an amplified Rodriguez
instruction would not reasonably have alerted the judge that the
defendant objected to the absence of an honest, but mistaken,
identification instruction.
                                                                    29


closing argument.25   Given this context, the jury would have

known what the missing instruction would have told them.

Therefore, "we are substantially confident that, if the error

had not been made, the jury verdict would have been the same."

Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998).

     4.   Closing argument.   In her closing argument, the

prosecutor told the jury that the defendant "can't tell you the

truth because the truth doesn't help [the defendant].    The truth

is . . . that [the defendant] was the shooter."    She later said

that Estrella "[has] no reason to come in here and tell you

anything but the truth.    And that's exactly what he did."   She

concluded, "The defendant is the trigger man.    That is the truth

. . . .   It was the defendant who murdered [the victim]."    The

defendant argues that, in making these statements, the

prosecutor improperly vouched for the accuracy of Estrella's

testimony and improperly expressed her personal opinion as to

the defendant's guilt.    Where, as here, the defendant did not

object to these closing argument statements at trial, we

determine whether the statements created a substantial

likelihood of a miscarriage of justice that requires a new

trial.    See, e.g., Commonwealth v. Sanders, 451 Mass. 290, 296

(2008) (where there was no objection to closing argument


     25
       In closing argument, defense counsel referred to Estrella
as a "[g]ood man [who] cares about the neighborhood."
                                                                    30


statements in first-degree murder case, "we review to determine

whether the statements were improper, and, if so, whether they

created a substantial likelihood of a miscarriage of justice").

    We agree with the defendant that the statements were

improper.    A prosecutor is free to provide the jury with the

reasons why they should find a witness's observations to be

accurate, but she cannot tell the jury that the witness speaks

the truth.    See id. at 297 ("[T]he prosecutor [may not] suggest

that he has personal knowledge of, or vouch for, the credibility

of a witness . . . [but may] state logical reasons why a

witness's testimony should be believed").   See also Mass. G.

Evid. § 1113(b)(3)(B) (2015) (impermissible in closing argument

"to state a personal opinion about the credibility of a

witness").   A prosecutor is also free to harness the key

evidence and provide the jury with the reasons why they should

conclude that a defendant was the shooter, but she cannot tell

the jury that she knows it to be true that he was the shooter.

See Sanders, supra at 296-297 ("A prosecutor may not express his

personal belief in the testimony or suggest that he has

knowledge independent of the evidence at trial . . . [but] may

comment on and draw inferences from the evidence at trial").

See also Mass. G. Evid. § 1113(b)(3)(B) (impermissible in

closing argument "to state a personal opinion about . . . the

ultimate issue of guilt").
                                                                  31


    We conclude, however, that the prosecutor's statements in

this case, although improper, did not create a substantial

likelihood of a miscarriage of justice.   A prosecutor's vouching

for the truth of a witness's testimony or of the defendant's

guilt is improper because it might suggest to the jury that the

prosecutor has special knowledge, apart from the evidence

presented at trial, that enables her to know that the witness is

telling the truth or that the defendant committed the crime.

See Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989), and cases

cited.   But there was little danger that the jury would make

that inference here because the prosecutor argued the reasonable

inferences from the evidence at trial and did not suggest that

she came to the "truth" based on anything other than the

evidence at trial.   See Commonwealth v. Montgomery, 52 Mass.

App. Ct. 831, 834 (2001), quoting Commonwealth v. Murchison, 418

Mass. 58, 60-61 (1994) ("prosecutor's assertions that the

defendant was lying[] generally were accompanied by the words

'the evidence establishes,' and thus were 'expressed as a

conclusion to be drawn from the evidence and not as a personal

opinion'").   The prosecutor's statement that Estrella was

telling the truth was made immediately after the statement that

Estrella had "no reason" to do anything but tell the truth, and

immediately before the prosecutor argued based on Estrella's

testimony that the shooting was uniquely memorable for Estrella.
                                                                   32


And immediately after the prosecutor's statement that "[t]he

truth is . . . that [the defendant] was the shooter," the

prosecutor said, "[T]he evidence tells us so."   Because a

reasonable jury would have understood the prosecutor's

assertions of the "truth" to be based on the evidence at trial,

there was no substantial likelihood of a miscarriage of justice.

    5.   Resentencing as a juvenile.   The defendant was

seventeen 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 in prison without the

possibility of parole.   The defendant was sentenced in 2007,

prior to Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012), in

which the United States Supreme Court held that the mandatory

imposition of a sentence of life without the possibility of

parole on an offender under the age of eighteen violates the

Eighth Amendment to the United States Constitution, and prior to

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

at 671 & n.16, in which we held that the imposition of a

sentence of life without the possibility of parole on an

offender under the age of eighteen violates art. 26 of the

Massachusetts Declaration of Rights.   Because we give the "new"

rules announced in Miller and Diatchenko retroactive effect, see

Diatchenko, supra at 666, the defendant is entitled to be

resentenced on his murder conviction to life in prison with the
                                                                   33


possibility of parole.   See Commonwealth v. Ray, 467 Mass. 115,

140 (2014) (remanding case to Superior Court "for resentencing

consistent with Diatchenko").26

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

entire record in this case pursuant to G. L. c. 278, § 33E, to

consider whether the interests of justice would be served by

ordering a new trial or reducing the defendant's sentence.

Where the verdict is not contrary to the weight of the evidence,

and where the defendant is entitled to have his sentence for

murder in the first degree reduced to life in prison with the

possibility of parole in light of Diatchenko because he was



     26
       The Commonwealth concedes that the defendant must be
resentenced to life with the possibility of parole on his murder
conviction. But in addition to murder in the first degree, the
defendant was convicted of unlawful possession of a firearm in
violation of G. L. c. 269, § 10 (a), and sentenced to one year
in a house of correction, to run concurrently with the life
sentence for murder in the first degree, and with credit for
time served, which at the time of sentencing was already 1,001
days. We have not addressed the issue whether a convicted
offender entitled to resentencing under Diatchenko v. District
Attorney for the Suffolk Dist., 466 Mass. 655, 671-674 (2013),
S.C., 471 Mass. 12 (2015), may also be resentenced on
convictions in which he did not receive life in prison without
the possibility of parole. Cf. Commonwealth v. Costa, 472 Mass.
139, 143-146 (2015) (at resentencing of juvenile defendant who
had been convicted of two murders and sentenced to two
consecutive life terms without the possibility of parole, judge
may revisit whether sentences should be consecutive or
concurrent). We need not address that issue here, because the
Commonwealth at oral argument indicated that it would not seek
resentencing on the firearms conviction, and because the
defendant has already completed his sentence on the firearms
conviction.
                                                               34


under the age of eighteen at the time of the shooting, we

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

    Conclusion.   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.

                                   So ordered.
